Fenwick v. City of Burlington

Fenwick v. City of Burlington  (95-554); 167 Vt. 425; 708 A.2d 561

[Opinion Filed 12-Dec-1997]

[Motion for Reargument Denied 26-Jan-1998]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 95-554


Edward Fenwick, et al.                      Supreme Court

                                            On Appeal from
     v.                                     Chittenden Superior Court

City of Burlington, et al. 

George F. Procopio, Intervenor              September Term, 1996

Matthew I. Katz, J. (Intervenor's request for injunction and mandamus)

Linda Levitt, J.    (Attorney's fees and order requiring City to issue
                    all permits) 

       Douglas D. LeBrun of Dinse, Erdmann, Knapp & McAndrew, P.C.,
  Burlington, for  plaintiffs-appellees

       Janet Murnane, Burlington, for defendant-appellee City of Burlington

       Robert S. DiPalma of Paul, Frank & Collins, Inc., Burlington, for
  intervenor-appellant


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Cashman, D.J.,
          Specially Assigned


       DOOLEY, J.   Intervenor-defendant George Procopio and plaintiff Edward
  Fenwick (FN1) appeal from the Chittenden Superior Court's decisions
  resolving a longstanding dispute over plaintiff's construction of a house
  in Burlington, on a lot adjacent to intervenor's home.  Intervenor appeals
  from the superior court's decision to (1) award plaintiff occupancy,
  building, and zoning permits; (2) deny intervenor damages; (3) deny
  intervenor an injunction against plaintiff to remove the house; and (4)
  deny intervenor a writ of mandamus against the City of Burlington to remove
  the house.  Both parties appeal from the court's award of attorney's fees
  to intervenor.  We affirm the court's decisions to deny injunctive relief
  and mandamus.  We reverse the decision to require the City of Burlington to
  issue permits and a certificate of 

 

  occupancy, and the calculation of the attorney's fees.  We remand for
  further proceedings.

       To follow the facts in this case more easily, we have detailed them by
  relevant date:

       1)  October 13, 1988:  Plaintiff's permit to build an additional house
  on a 1.40-acre lot, which contains his home, was denied by the Burlington
  Planning Commission.  The Commission treated the application as a request
  for a planned residential development (PRD) and denied it because (a) a
  zoning amendment pending before the Burlington Board of Aldermen increased
  the lot size requirement for a PRD to two acres; and (b) the access
  right-of-way was only twelve feet wide, and the zoning ordinance required a
  twenty-five-foot right-of-way.  Intervenor opposed the permit at the public
  hearing, thereby qualifying as an "interested person" under Vermont's
  zoning act.

       2)  December 12, 1988: Allegedly on the advice of the planning
  commission, plaintiff appealed to the Burlington Board of Aldermen,
  pursuant to 24 V.S.A. § 4443(c), for relief from the pending ordinance
  amendment increasing the minimum lot size for a PRD.  The board refused to
  grant relief.

       3)  January 10, 1989:  Plaintiff appealed to the superior court within
  thirty days of the denial of the board of alderman, but almost ninety days
  from the planning commission action.  He filed the notice of appeal with
  the planning commission as required by 24 V.S.A. §§ 4471, 4475, but neither
  he, nor the planning commission, sent a copy to intervenor.  Intervenor was
  unaware of the appeal and did not enter an appearance.

       4)  May 21, 1990:  The superior court granted plaintiff summary
  judgment on his planning commission appeal, without opposition from the
  City of Burlington, which had notice of the appeal.  Based on the court
  order, the City gave plaintiff building and zoning permits on May 31.

       5)  August 1990:  Intervenor discovered that plaintiff had been
  granted zoning and building permits when plaintiff moved heavy equipment
  onto his lot in order to begin construction.  Intervenor petitioned the
  superior court for relief on August 14, arguing that he had been improperly
  denied notice of the appeal and that the summary judgment order was
  improper.

       6)  October 31, 1990: The superior court granted intervenor relief
  from the May judgment.  Intervenor immediately requested that the City
  revoke the permits, but the City failed to act.  By this time, plaintiff
  had dug the cellar hole and was building the new house.

       7)  November 1990:  Intervenor first counterclaimed against plaintiff
  for an injunction to remove the house and prohibit use of any new
  construction, damages, and attorneys fees; and cross-claimed against the
  City for an injunction to revoke all permits nunc pro tunc, and an
  injunction to enforce the City's zoning and planning ordinances. 
  Thereafter, intervenor moved to dismiss plaintiff's appeal as untimely.

 


       8)  March 6, 1991: The superior court dismissed plaintiff's appeal
  because it was not filed within thirty days of the planning commission
  decision.  The order did not specify its effect on the permits.  Plaintiff
  appealed to the Supreme Court.

       9)  May 1991:  The City issued plaintiff a notice of zoning violation
  because he had constructed, and was using, the new house without a zoning
  permit.  It also issued a stop work order.  Plaintiff apparently continued
  work on the house despite the city notice and order.  This action led to
  skirmishing through the Fall and Winter, with plaintiff relying on the stay
  caused by the notice of appeal to allow him to continue using the new
  house, and intervenor continuously demanding that the City take action
  against plaintiff.

       10)  April 2, 1992: In response to a motion by intervenor, the
  superior court ordered that plaintiff "cease and desist all further
  construction and improvement, use and occupancy of the premises that are
  the subject of this proceeding . . . unless and until expressly permitted
  to do so by an order of a court."

       11)  November 12, 1992:  This Court decided Fenwick v. City of
  Burlington, No. 91-503 (Vt., Nov. 12, 1992) (mem.) holding that plaintiff's
  appeal from the planning commission to superior court was untimely and
  affirming the dismissal of the appeal.

       12)  April 8, 1993: The planning commission considered plaintiff's new
  application for zoning and building permits and denied it because the
  proposal did not meet the PRD two acre minimum-lot-size requirement, as
  specified in the current zoning ordinance.  The commission rejected
  plaintiff's argument that he had a vested right to use the ordinance
  provision in effect in 1988, which had no minimum lot size.

       13)  May 4, 1993:  Plaintiff appealed the planning commission's second
  denial to the superior court, and intervenor intervened.

       14)  July 27, 1993:  Intervenor filed a motion to dismiss plaintiff's
  second appeal and for summary judgment on his counterclaim and cross-claim.

       15)  September 2, 1993:  City also moved to dismiss the second zoning
  appeal, and for the first time sought an injunction to remove the house. 
  In response, plaintiff amended his complaint to allege that the City had
  violated his civil rights by directing him to the board of aldermen and, as
  a result, denying him the ability to appeal the original denial of a PRD
  permit.

       16)  January 6, 1995:  The superior court granted intervenor's motion
  to dismiss plaintiff's appeal from the second planning commission denial. 
  The court, however, denied intervenor's request for injunction and
  mandamus,  and set a hearing date to decide the amount of damages.  The
  court did not address the City's request for an injunction, nor plaintiff's
  civil rights complaint.

 

       17)  May 11, 1995:  The superior court found that intervenor had
  suffered no damages, but awarded attorney's fees from November 12, 1992
  (the decision date of Fenwick v. City of Burlington in this Court).

       18)  June 1, 1995:  The superior court ordered the City to grant
  plaintiff all building, zoning, and occupancy permits.  Upon denying a
  motion to reconsider, the court stated that "Judge Katz had assumed that
  the house would be occupied.  It was an oversight not to have dealt with
  this issue explicitly."

       The three decisions that are the subject of this appeal are the
  January 1995 decision denying intervenor a mandatory injunction to force
  plaintiff to tear down the new house and a writ of mandamus against the
  City to force it to seek such relief; a May 1995 decision awarding
  attorney's fees;(FN2) and a June 1995 decision requiring the City to issue
  all permits.  Before addressing the specific challenges to these orders, it
  is helpful to look at their rationale.

       The January 1995 order was issued to resolve all outstanding issues
  between intervenor and plaintiff.  This decision dismissed plaintiff's
  attempt to obtain a permit through appeal of the Burlington Planning
  Commission's second decision against him.  The superior court ruled that
  the second permit request was substantially identical to the first one and,
  for that reason, could not be heard by the planning commission.  Plaintiff
  has not appealed this decision.

       The decision also addressed intervenor's request for a mandatory
  injunction against plaintiff and a writ of mandamus against the City.  The
  court held that intervenor's arguments "fail to support a balancing of
  equities and relative injury which would justify removal of the structure,"
  primarily because plaintiff acted pursuant to zoning and building permits
  that were not revoked until after the structure was erected.  It held,
  however, that intervenor was entitled to damages if he could show a
  diminution in the value of his property as a result of plaintiff's
  construction.

       As to the writ of mandamus, the court ruled that such relief was
  inappropriate when intervenor had other remedies at law which he did not
  use.  The court held that  intervenor 

 

  should have appealed the inaction of the zoning administrator to the zoning
  board, and failing that action, could not obtain mandamus.  Alternatively,
  the court ruled that mandamus could not be used when plaintiff acted
  pursuant to a facially valid permit.
  
       In the May decision, the superior court ruled that intervenor failed
  to show that he suffered any damage from plaintiff's construction.  It
  ruled that intervenor was not entitled to attorney's fees for his original
  successful effort to have plaintiff's untimely appeal dismissed, but when
  plaintiff refused to abide by the decision of this Court affirming the
  denial, intervenor was entitled to attorney's fees for his subsequent
  enforcement actions.
  
       In the June decision, the superior court ordered the City to grant
  plaintiff all necessary building, zoning and occupancy permits.  The court
  issued the occupancy permit after recognizing that Judge Katz had not
  explicitly dealt with the occupancy issue in his earlier order, and had
  just assumed that the house would be occupied. 
  
                                     I.

       We begin with intervenor's claim that the court erred in failing to
  award him a mandatory injunction requiring plaintiff to tear down his new
  house.  Intervenor's position is that plaintiff acted in bad faith, failing
  to give him notice and going forward with construction after it became
  clear that he no longer had valid building and zoning permits.  Plaintiff
  responds that the denial of the injunction was within the court's
  discretion.

       The standards for issuance of mandatory injunctions in zoning cases
  were first established in Thompson v. Smith, 119 Vt. 488, 129 A.2d 638
  (1956), in which this Court emphasized that a mandatory injunction is
  "extraordinary and severe relief."  Id. at 509, 129 A.2d  at 651.  We held
  that the court must "consider and weigh the relative convenience or
  inconvenience, the relative injury sought to be cured as compared with the
  hardship of injunctive relief," and also consider "an award of damages in
  lieu of injunction."  Id., 129 A.2d  at 651-52.  Later cases have reiterated
  the use of a balancing approach.  See Richardson v. City of Rutland, 164
  Vt. 422, 426, 671 A.2d 1245, 1248 (1995); Swanson v. Bishop Farm, Inc., 140
  Vt. 606, 610, 443 A.2d 464, 466 (1982) overruled on other grounds in Soucy v. Soucy Motors,
  Inc., 143 Vt. 615, 619, 471 A.2d 224, 226 (1983); Town of Bennington v.
  Hanson-Walbridge Funeral Home, 139 Vt. 288, 295-96, 427 A.2d 365, 370
  (1981).

       In considering whether to grant a mandatory judgment, the court's 
  inquiry necessarily involves a consideration of all relevant equities.  See
  Town of Shapleigh v. Shikles, 427 A.2d 460, 464-65 (Me. 1981) (in
  considering mandatory injunction for removal of building in violation of
  zoning ordinance, court must consider "basic principles of justice and
  equity" and apply the "conscience of the chancellor"); see generally H.
  McClintock, Handbook of the Principles of Equity § 144 (2d ed. 1948) (court
  must balance all the equities, including the relative hardships to the
  parties, their conduct in relation to the transaction, the nature of the
  interests affected, and the relative proportion of interests lost by the
  course of action taken).  Because of the breadth of the inquiry, the trial
  court must be accorded wide discretion, reviewable here only for abuse. 
  See Richardson, 164 Vt. at 427, 671 A.2d  at 1249 (courts have wide range of
  discretion in framing equitable decrees).

       We believe that the decision not to award intervenor a mandatory
  injunction was within the trial court's discretion.  On the one hand,
  plaintiff built the house when his right to do so was being challenged, and
  in that sense, took the risk that he would not ultimately prevail.  See
  Bird v. Delaware Muncie Metropolitan Plan Comm'n, 416 N.E.2d 482, 490 (Ind.
  Ct. App. 1981) (where defendant continued work after revocation of permit
  and defied stop-work order, severe remedy of ordering removal of illegal
  structures is justified).  On the other hand, plaintiff apparently
  constructed the exterior of the building when he had building and zoning
  permits that authorized this construction.(FN3)  See Hargreaves v. Skrbina,
  662 P.2d 1078, 1080 (Colo. 1983) 

 

  (defendant acted in good faith despite continuing construction after he
  became aware of setback violation because he relied upon building permit). 
  Although intervenor sent a stream of letters to city officials, he never
  sought revocation of the permits until he filed such a request in superior
  court in February 1992.  Intervenor failed to receive proper notice of the
  zoning appeal, but it is not clear that plaintiff was responsible for the
  failure to provide notice.  See V.R.C.P. 74(b) (1971) (in version of rule
  in effect when plaintiff appealed to superior court, appellant must file
  notice of appeal with clerk of administrative body who is responsible for
  notifying interested parties).

       Also important to the balancing of the equities were the relative
  hardships caused by either the status quo or an order to remove the
  building.  Neither party quantified these impacts, but the record is
  sufficient to provide some sense of them.  Plaintiff built the house about
  twenty-five feet from the site of intervenor's backyard pool.  The
  building reduced intervenor's privacy in using the pool, but had no adverse
  impact on the value of his property.  Although we do not know the cost of
  tearing down plaintiff's building, we can assume it would be substantial. 
  We can also assume that the value of plaintiff's property with the second
  house would be greater than without it.

       Intervenor argues that because plaintiff provided no evidence of the
  hardship of tearing down the house, the court could not consider it. 
  Intervenor was seeking the extraordinary and severe remedy of a mandatory
  injunction and bore the burden of making the record to support it.  We
  think that the lack of economic evidence of impacts stands against
  intervenor, not in his favor.

       Relying primarily on In re Fairchild, 159 Vt. 125, 616 A.2d 228
  (1992), intervenor  next argues that the court erred in not granting him a
  writ of mandamus against the  City.  In his 

 

  cross-claim, intervenor requested an order(FN4) requiring the City to
  revoke all permits nunc pro tunc and "to enforce the regulatory and
  enforcement provisions of its planning and zoning ordinances."  In the
  summary judgment motion, intervenor's request was for an order requiring
  the City to seek the removal of plaintiff's structure "either through its
  regulatory process or through this proceeding."

       In Fairchild, we summarized the requirements for a writ of mandamus:

     (1) the petitioner must have a clear and certain right to the action
     sought by the request for a writ; (2) the writ must be for the
     enforcement of ministerial duties, but not for review of the
     performance of official acts that involve the exercise of the official's
     judgment or discretion; and (3) there must be no other adequate
     remedy at law.

  Id. at 130, 616 A.2d  at 231.  The plaintiff in Fairchild owned land
  adjoining a building that was being used in violation of the zoning
  ordinance.  We found that the plaintiff was entitled to mandamus against
  the town zoning administrator, who refused to take any action to stop the
  violation.  We reasoned that the neighbor had a clear right to enforcement
  of the zoning ordinance, the zoning administrator's duty to enforce the
  zoning ordinance was ministerial, and the plaintiff had no other adequate
  remedy at law.

       The Fairchild holding was distinguished in Richardson v. City of
  Rutland, 164 Vt. at 425, 671 A.2d  at 1247, a case in which "the zoning
  administrator was dilatory [but] he did act" on a complaint that a
  restaurant had improperly built part of its parking lot in a residential
  zone.  We held that mandamus was appropriate when the zoning administrator
  refused to act, but not where the administrator does act because "the
  nature of the remedy sought is discretionary."   Id. 671 A.2d  at 1248.  In
  the latter case, the zoning administrator had not failed to discharge a
  ministerial duty.

       This case is governed by Richardson.  The City's obligation was
  unclear as long as the

 

  first zoning appeal was pending in this Court because it had been
  ordered to provide permits to plaintiff.  Nevertheless, it issued a
  stop-work order to prevent further construction and never issued a
  certificate of occupancy.  Further, it sought a removal order in this
  proceeding.  The City did not fail to discharge a ministerial duty.

                                     II.

       Next, intervenor and the City argue that the superior court erred in
  directing that the City issue all permits to plaintiff to allow him to
  occupy and use his new structure.  They claim that the issuance of the
  permits was inconsistent with the earlier decisions dismissing plaintiff's
  appeals from the planning commission denials of the permit requests. 
  Plaintiff responds that the issuance of the permits was a necessary
  consequence of the decision to deny intervenor an injunction.  This was the
  rationale on which the superior court made its ruling.

       We have a fundamental difficulty with the decision to require issuance
  of the permits.  At the time of the January 1995 decision, there were two
  requests for injunctive relief pending.  The first had been made by
  intervenor and was explicitly addressed in the court's decision.  We have
  affirmed that decision above.

       The second request had been made by the City of Burlington on
  September 2, 1993.  There is no indication that the court acted on this
  request in its January 1995 order.  In fact, the scope of this order was
  unclear, and plaintiff sought clarification of its effect on the civil
  rights claims against the City asserted in his amended complaint.  The
  court responded that the decision was not a final determination in either
  zoning appeal case: "It attempts to resolve issues raised by motion, but
  not resolve every issue in either case."

       Normally, the fact a decision did not reflect that more than one party
  sought the same relief would be inconsequential.  In this case, however,
  the entitlement of the parties to that relief was different.  Although
  intervenor was required to show that the balance of equities favored the
  issuance of a mandatory injunction to remove the structure, and failed to
  make this showing, the City could obtain relief without this showing.  See
  Town of Sherburne v. 

 

  Carpenter, 155 Vt. 126, 131, 582 A.2d 145, 148 (1990).  If the zoning
  violation is substantial and involves conscious wrongdoing, the City is
  entitled to an injunction, including a mandatory injunction to remove an
  offending structure, as a matter of course.  See id. at 131-32, 582 A.2d  at
  148-49.  The court's decision did not address this standard.

       The City's burden is not the only difference.  Plaintiff responded to
  the City's request for relief by amending his complaint to assert that the
  City had violated his civil rights by misdirecting him to the board of
  aldermen so that he forfeited his appeal right and by refusing to recognize
  his vested right to rely on the PRD rules prior to the amendment to require
  a two-acre minimum lot size.  He had made clear in earlier filings that he
  believed that the City was estopped from seeking any relief.  None of these
  issues was addressed in the January 1995 decision.

       We recognize that the City was responsible, in large part, for the
  failure of the court to address its claim for relief.  The City buried its
  request for relief in a response to intervenor's motion for summary
  judgment without clearly identifying that it was independently seeking
  injunctive relief.  Rather than pointing out that the court had failed to
  address the claim for relief, the City actually opposed plaintiff's motion
  for clarification of the January 1995 decision and further obfuscated the
  situation.  Nevertheless, because of the public interest in enforcement of
  the zoning law, and the interrelationship of the City's action with
  intervenor's request for a writ of mandamus against it, we must hold that
  the City's request for a mandatory injunction remains unresolved.

       Since the City has a pending request for a mandatory injunction, which
  the superior court has not yet resolved, it was premature to order the City
  to issue permits to plaintiff to allow him to occupy and use the disputed
  structure.  We cannot agree with the court's decision that the issuance of
  the permits was a necessary consequence of the denial of relief to
  intervenor.

                                    III.

       Finally, we address the issue of attorney's fees.  The superior court
  awarded  intervenor

 

  attorney's fees incurred after this Court's 1992 decision on plaintiff's
  appeal.  The court reasoned that intervenor's litigation expenses were
  unreasonably increased as a result of plaintiff's refusal to accept that
  decision such that an award of attorney's fees was justified.

       Plaintiff challenges the ruling, arguing that the facts demonstrate
  that he was always entitled to a zoning permit and was denied the permit
  only because of the arbitrary decisions of the City and its action in
  causing him to lose his appeal rights.  Thus, he argues that he should not
  have to pay intervenor's attorney's fees when it was clear that intervenor
  should never have prevailed.  Intervenor argues, on the other hand, that
  fees should have been awarded for legal services from the point that he
  first had to intervene into the superior court appeal to protect his
  interests.

       The parties agree that the determinative precedent is In re Gadhue,
  149 Vt. 322, 544 A.2d 1151 (1988), a case very similar to that before us. 
  In Gadhue, the petitioner, a neighbor,  appealed the grant of a variance to
  a landowner who proposed to build a commercial structure.  This Court found
  that the variance had been granted improperly and reversed the variance. 
  During the time that the appeal was pending in this Court, however, the
  landowner built the structure in issue.  "Consequently, [petitioner],
  having successfully vindicated both a private and public right, was
  compelled to reenter the Chittenden Superior Court to seek a mandatory
  injunction in order to give meaning to this Court's decision."  Id. at 324,
  544 A.2d  at 1152.  While the action was pending, the Town amended its
  zoning ordinance to allow the structure, mooting the injunction action, but
  leaving the petitioner's request for attorney's fees.

       We held that under equity principles petitioner could collect her
  attorney's fees because she "was drawn into litigation beyond the point
  that should have been the natural culmination of her appeal" as a result of
  landowner's action in building the structure.  Id. at 329, 544 A.2d  at
  1155.  We awarded attorney's fees for legal services rendered after the
  initial decision in this Court holding that the landowner did not have a
  right to a variance to build the structure.

       If anything, the case for attorney's fees here is stronger than that
  in Gadhue.   In that 

 

  case, the landowner had prevailed at the zoning board and superior court
  levels and built in reliance on those decisions.  Here, plaintiff lost in
  the planning commission, obtained a building permit only because intervenor
  was not notified of the action, went ahead with construction even though he
  knew his building permit was suspect, and lost at every level thereafter. 
  Intervenor was thrown into unnecessary enforcement action.  The fact that
  plaintiff might have prevailed had he taken a timely appeal to superior
  court is irrelevant to the necessity and reasonableness of intervenor's
  actions.
  
       Gadhue calls for a functional analysis of the legal services involved
  in the request for fee reimbursement.  To the extent that the legal
  services are aimed at enforcement of the decision to deny zoning approval,
  their cost is recoverable.  To the extent the services are aimed at a
  favorable ruling on the right to a permit, their cost is not recoverable. 
  In Gadhue, the line was relatively easy to draw because there was a clear
  point in time when petitioner's actions switched from opposing the
  landowner's zoning permit to enforcing the denial decision made by this
  Court.  
  
       In this case, there is no clear temporal line.  We agree with the
  superior court that intervenor cannot recover the cost of legal services
  incurred to reopen the initial superior court appeal, to have that appeal
  dismissed and to defend the dismissal in this Court.  On the other hand,
  costs incurred in attempting to stop plaintiff from building the house
  while the case was going forward and in preparing the counterclaim for
  relief are recoverable even if they occurred before our appeal decision. 
  Intervenor can also recover for all fees expended after our appeal
  decision, as the superior court held.
  
       The orders denying intervenor George Procopio an injunction and a writ
  of mandamus are affirmed. The order requiring the City of Burlington to
  issue building and zoning permits, and a certificate of occupancy to
  plaintiff is reversed.  The order limiting intervenor to recovery of
  attorney's fees only for legal services rendered after November 12, 1992,
  the date of this Court's decision in Fenwick v. City of Burlington, No.
  91-503, is reversed.  The matter is remanded for proceedings not
  inconsistent with this opinion.
  
    FOR THE COURT:



    _______________________________________
    Associate Justice



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                                  Footnotes


FN1.  Plaintiff Edward Fenwick represents joint owners Clarence
  Greenwood and Janet Greenwood in this appeal.

FN2.  The May 1995 decision also determined that intervenor had
  suffered no economic injury and awarded no damages.  Intervenor has not
  appealed this part of the decision.

FN3.  This case was decided on a motion for summary judgment filed by
  intervenor.  The only "facts" are contained in affidavits submitted by
  plaintiff and intervenor.  Plaintiff's affidavit, dated August 31, 1993 and
  attached to the response to the summary judgment motion, states that he
  relied on the building permit and stopped work when presented with a
  stop-work order by the City.  It also states that he uses the structure for
  storage of his automobile.  Intervenor's affidavit, dated July 23, 1995 and
  submitted with the motion for summary judgment, states that plaintiff uses
  the structure to park his car and that on July 2, 1993 intervenor saw
  plaintiff work on the outside of the structure.

FN4.  In the cross-claim and motion for summary judgment,
  intervenor asked for the relief of an injunction against the City.  The
  court characterized the request as one for mandamus, and intervenor has
  used this characterization here.