Anyone who has run into a difficult government employee understands how frustrating it can be trying to accomplish seemingly simple tasks.  For example, it should be no problem to walk into a city’s building department and obtain a permit to erect a fence around your property if you live in a city that generally allows fences.  But what do you do if the person responsible for stamping your plans “approved” decides to sit idly on your plans for weeks or months without approving them?  Worse, what if your plans get denied when they obviously should be approved?

Most people see this situation as the end of the road.  But it is not.  Simply because someone has an official-sounding title does not mean that his decisions are final.  Almost every decision made by a government office is subject to some form of review or appeal.

An aggrieved applicant can sue the government official who wrongly denied his application.  This type of action is called a petition for writ of mandamus.  Mandamus is a form of relief that is used to compel public officials to carry out their legal duties. To obtain a writ of mandamus, the plaintiff must show that: (1) the plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial in nature, and (4) the plaintiff has no other adequate legal or equitable remedy. If discretion is to be used by the public official making the decision in question, then mandamus is appropriate if the official has abused that discretion.  When there are no legitimate reasons in the record and the record shows that the denial was not supported by competent and material evidence, then it is an abuse of discretion.

Revisiting our application to build a fence around property, it is obvious that in a city that allows fences of a certain type to be installed around homes, an application for such a fence should be automatically granted.  If it is not, then a writ of mandamus can be obtained in court to force the building department to grant the application.  

— Kassem Dakhlallah is a senior partner with At Law Group, PLLC.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 406-7606 and kd@atlawgroup.com.