dissenting:
I dissent. In my view, merely to state the pertinent facts leads to the conclusion that the trial court was correct, and therefore, that the majority is in error.
The defendants applied for and were issued a building permit. Their application was accompanied by a plot plan showing the location of the building on the lot. That plan showed that the front of the building was to be set back 20 feet from the right-of-way. It turned out that the city made a mistake in issuing the building permit in that the building violated the predominant set-back requirement of the zoning ordinance. However, this error was not called to the city’s attention by the owners of adjoining businesses until after defendants had expended some $40,000 in the construction process, $15,000 of which related to foundations, excavation and sewer relocation on the site. As a result, the city refused to stop the work because, on advice of counsel, it concluded that it was es-topped.
The plaintiffs, owners of neighboring businesses, elected not to seek a temporary restraining order because of high bond costs. Only after the building was completed at a cost of $150,000 was this suit initiated.
In proper recognition of the equities involved, the trial court refused to issue an injunction requiring defendants to demolish the building, but the majority now so orders. In my view, the majority opinion indulges in appellate fact finding and bypasses existing Colorado authority to reach an oppressive result.
I. Findings of Fact — Good Faith
Certain findings of the trial court must be stressed. Based on evidence in the record, the court found that the application for the building permit by the defendants, the issuance of the permit, and the city’s refusal to issue a stop work order were all done in good faith. Such a finding of good faith is a finding of fact, Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946), and since it is amply supported by evidence in the record, it is, despite the majority’s desires to the contrary, binding on review. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).
That those applying for the permit could be uncertain of the set-back requirement is not surprising. The provision of the zoning ordinance that was violated is not an unambiguous statement that the building must be a certain number of feet from the center line of the right-of-way; rather, after stating a specific set-back from the center-line of the right-of-way, the ordinance provides that the set-back distance is to be less than that specified where “50% of the block is developed with buildings having less setback.” Another ordinance relating to parking adds to the confusion, and it is also significant that on both sides of the blocks located to the north and to the south of the one in question, the set-back requirement had not been enforced, and buildings had been constructed close to the street. Also, the record discloses that prior to the present construction, a restaurant was located on the site, the front of which lined up with the other buildings in the block, with the important exception that a canopy roof, some 16 feet in height and supported by pipes, extended from the front of the building to within 17 feet of the right-of-way, contrasted with the 20 feet distance from the street of the new structure.
Finally, it was undisputed that the owners had no knowledge whatsoever of the predominant set-back ordinance and there was evidence that, while the builder knew of the ordinance, he believed it to be inapplicable in that it conflicted with other zoning requirements.
In light of these total circumstances, the trial court’s findings represent eminently reasonable inferences from the evidence, and are not subject to rejection by an appellate court.
II. Applicable Legal Authority
The authority relied upon by the majority to sustain the issuance of an injunction is *229inapposite and, in any event, unpersuasive. In Englewood v. Kingsley, 178 Colo. 338, 497 P.2d 1004 (1972), where the defendants had stipulated that injunctive relief would issue if they failed to bring the property into conformity with zoning requirements, the court approved use of an injunction to stop a non-conforming use, i. e., a junkyard. In City & County of Denver v. Ruwart, 32 Colo.App. 191, 508 P.2d 789 (1973), an injunction issued against use of property as a car lot solely on the basis of a showing of a zoning violation because the property owner raised no equitable defenses. Ruwart stands for the proposition that where, as here, a defense is raised, something more than a mere violation of the zoning ordinance must be shown in order to justify injunctive relief.
Furthermore, the facts in both of these cases are markedly different from those here. In neither case did the injunction require removal of or alteration of a permanent improvement to the subject property. And, in each case, the suit was brought by the municipality itself, not a private party.
Nor is Flinn v. Treadwell, 120 Colo. 117, 207 P.2d 967 (1949), a case relied upon at length by the majority, any better authority. It too did not involve private parties— Treadwell was the building inspector, and there was no finding by the trial court of good faith. Indeed, I would read Flinn for the proposition that injunctive enforcement of a zoning ordinance requiring the removal of a permanent improvement may be defeated if the elements of equitable estoppel are present. In Flinn a “willful violation” of the zoning ordinance was shown and, referring to the property owners’ carelessness and negligence, the court stated: “it is difficult to comprehend how [Flinn] would proceed with the construction without reading the permit as issued.” We note that the permit in this case was devoid of any reference to the set-back.
In summary, I know of no Colorado authority for the proposition that where, as here, a building has been erected in good faith reliance on a city-issued building permit it can be ordered wholly or partially demolished simply because it fails to comply with a zoning ordinance.
Indeed, existing Colorado case law mandates a different result. In suits like this, brought by private parties to compel removal of existing structures, relative hardships have been balanced. Pull v. Barnes, 142 Colo. 272, 350 P.2d 828 (1960); Golden Press, Inc. v. Rylands, 124 Colo. 122, 235 P.2d 592 (1951). The majority would distinguish these cases because they are not zoning cases and apparently would rule that where enforcement of municipal zoning ordinances is involved, judicial accomodation of plaintiff’s use to defendant’s is inappropriate because the legislative body has already applied a balancing test in adopting restrictions on use.
If the city itself were suing to enforce its own ordinance, this logic might be compelling. Indeed, in every case cited in the majority opinion where a court has compelled removal of a building erected in violation of a set-back requirement without a determination of relative hardships, the municipality was a party to the suit. Boardman v. Davis, 231 Iowa 1227, 3 N.W.2d 608 (1942); Conrad v. Jackson, 107 So.2d 369 (Fla.1958); Davis v. City of Abilene, 250 S.W.2d 685 (Tex.Civ.App.1952). Although the city was sued in Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1136 (1977), a case relied upon by the majority for the proposition that a balancing of interests is inappropriate when a zoning ordinance is violated, that case is inapposite because the purpose of the suit was to enjoin construction, not to require that an existing building be destroyed.
Here, the city does not seek to enforce its zoning regulations. As found by the trial court, the city made a “mistake” in issuing the building permit in this case; thus, as the city attorney advised, the city was es-topped to interfere with the completion of the structure. Crawford v. McLaughlin, 172 Colo. 366, 473 P.2d 725 (1970); Denver v. Stackhouse, 135 Colo. 289, 310 P.2d 296 (1957); Miller v. Palmer Lake, 36 Colo.App. 85, 534 P.2d 1232 (1975).
*230While Davis v. Abilene, supra, cited by the majority, does represent a situation in which a Texas court permitted a city to compel removal of a building constructed in reliance on a permit issued by mistake, es-toppel is the law in Colorado. And, it is good law. One acting in good faith who is issued a building permit must, at some point, be able to rely on it without risking devastating consequences if a structure built in compliance with the permit is later shown not to comply with city zoning requirements.
Also distinguishable is the Iowa case of Boardman v. Davis, supra, where the city was allowed to join in a suit to compel removal of a structure not meeting set-back requirements after a building permit had issued. There, no site plan was attached to the building permit, and thus, the city was not on notice of the structure’s non-compliance until construction began. Here, a site plan clearly showing a 20 foot set-back accompanied defendant’s application.
In a recent case where property owners brought an action against a developer to compel removal of three buildings constructed in compliance with an approved plan, but in violation of a frontage requirement, the Oregon Supreme Court stated:
“The court may refuse an injunction in certain cases where the hardship caused to the defendant by the injunction would greatly outweigh the benefit resulting to the plaintiff. The injunction does not issue as a matter of absolute or unqualified right but is subject to the sound discretion of the court. Although the authorities have not uniformly adopted the comparative injury doctrine, we are convinced that it represents the better rule.” Hickman v. Six Dimension Custom Homes, 273 Or. 894, 543 P.2d 1043 (1975).
A similar result was reached in Salt Lake County v. Kartchner, 552 P.2d 136 (Utah 1976). See also D. Dobbs, Remedies § 5.7 (1973).
I would follow this rule. Indeed, Pull v. Barnes, supra, and Golden Press, Inc. v. Rylands, supra, mandate its use in this case. While neighboring property owners and the community at large have rights vis-a-vis zoning ordinances, these rights are adequately protected through a balancing of relative hardships.
It must be emphasized that a balancing test is appropriate only where, as here, there is a finding of good faith. In one case relied upon by the majority, Welton v. 40 East Oak Street Building Corp., 70 F.2d 377 (7th Cir. 1934), the property owners deliberately defied the law, and the court specifically found “bad faith” and “affirmative misconduct.” Similarly in Flinn v. Tread-well, supra, there was a “willful violation” of the ordinance. In Conrad v. Jackson, supra, construction of the offending structure commenced without benefit of a city-issued building permit. I would agree that where zoning requirements are openly flaunted or ignored, a balancing test is inappropriate. However, I find neither legal nor equitable support for the view that even though a building is constructed in good faith reliance on a properly issued building permit, the existence of a later discovered zoning violation mandates that its owner must face the “wrecking ball justice” of the majority.
III. Trial Court Ruling
Following the dictates of Golden Press, Inc. v. Rylands, supra, the trial court weighed the circumstances so as not to act oppressively, and determined that the onus of the city’s mistake should not fall so heavily on the defendants. In balancing the detriments to the parties it concluded that the injury sustained by defendants if they were compelled to destroy all or part of a $150,000 building far outweighed the damage plaintiffs incurred through the intrusion of the building into the set-back zone. The trial court noted, in this regard, that the pre-existing structure on the property had a canopy and hedges extending almost to the street so that the additional impairment of visibility of immediately adjacent buildings to passing motorists was “slight” and that businesses located next to the subject building had suffered “no apparent loss” by virtue of the impairment of visibility.
*231In my view, the trial court’s judgment was eminently correct. Indeed, it would be difficult to postulate a more compelling set of facts requiring use of a balancing test than those present here: a mistake by the city; good faith reliance by the defendants; a recognition by the city that it was es-topped; no apparent loss to the plaintiffs. The well-reasoned opinion by the trial court arrived at the only reasonable conclusion to be drawn from these facts. The existing law sanctions that court’s judgment. It should be affirmed.