Although the court ordered injunctive relief, the scope was less than plaintiffs requested. The court ordered McDonald's to remove the concrete and lights from the variance area, to remove or fill the drainage pipes, and to place topsoil or other fill over the pavement. McDonald's complied with the injunction. Plaintiffs first argue they properly sought enforcement of a ministerial duty of the zoning administrator, and therefore, the dismissal of the mandamus action was in error. In contrast, the City maintains that plaintiffs do not have a right to issuance of a writ of mandamus because the administrator's actions were discretionary, not ministerial.
Mandamus is a remedial tool which mandates the performance of a nondiscretionary duty.
Mandamus will not lie for the review of acts that involve the exercise of judgment or discretion. Plaintiffs argue that Fairchild governs this case and demonstrates that dismissal of the mandamus action was error. Like this case, Fairchild involved a petition for mandamus to require a municipality to enforce its zoning ordinance against a property owner who the plaintiffs alleged was in violation of the zoning ordinance. There is, however, a significant difference between this case and Fairchild. Here, although the zoning administrator was dilatory, he did act.