Crist v. Mapleton City

497 P.2d 633, 28 Utah 2d 7, 1972 Utah LEXIS 778

• Court: Utah Supreme Court
• Decided: May 25, 1972
• Docket: 12558
• Status: Published

Opinions

ELLETT, Justice:

The plaintiffs herein filed a petition for and obtained from the trial court a writ of mandamus to compel the defendant Paul Cherrington (the building inspector and zoning administrator for Mapleton City) to issue to the plaintiffs a building permit for the alteration of a “single family” dwelling into a school for boys. .The defendants appeal.

The petition originally requested the court to compel Mapleton City, a body corporate and politic of the State of Utah, to issue the permit, but later was amended to eliminate Mapleton City and to include the defendant, Cherrington. No objection has been raised to this change. While the writ was directed to Paul Cherrington only, nevertheless, Mapleton City has purportedly joined in this appeal, and no objection has been made in that regard.

The purpose of the alteration desired was to provide a building for a detention place for 26 wayward boys, including drug addicts from ages 12 through 17, and to afford them such training and schooling as would be proper in each case.

In the findings of fact upon which the writ was issued the court found:

It has been often said that we very much need special schools to educate, improve, and rehabilitate human beings, but nobody wants them in his own neighborhood.

We need not go into the merits or demerits of institutions such as plaintiffs propose to establish in Mapleton City; nor need we decide this case on the question of whether the proposed institution can be classified under the term “school.” ¹

The plaintiffs set forth in their amended petition for the writ their antecedent procedures as follows:

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3. That on December 23, 1970, plaintiffs herein filed an application for a building permit with Mapleton City.

4. That on December 28, 1970, plaintiffs herein appeared before the Planning Commission of Mapleton City to obtain approval of the building permit. At said meeting, the Planning Commission informed plaintiffs herein that they were going to recommend to the City Council that the building permit not be granted.

5. That plaintiffs herein appeared before the Mapleton City Council on January 4, 1971, and made request at that time for the issuance of the building permit and were informed that they would take the matter under advisement and consult with their legal counsel. Thereafter, plaintiffs herein were informed that the City Council had denied the request for a building permit.

6. That on January 12, 1971, plaintiffs herein appeared before the Maple-ton City Board of Adjustment and appealed the decision of the Planning Commission and the City Council in denying the building permit. That said Board of Adjustment refused the request of plaintiffs herein to issue the building permit.

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Eight days after the Board of Adjustment refused to issue the permit, these plaintiffs filed their petition for a writ of mandamus. They ignored the statutory remedy provided for in Section 10 — 9—IS, U.C.A.1953, which reads:

The city or any person aggrieved by any decision of the board of adjustment may have and maintain a plenary action for relief therefrom in any court of competent jurisdiction; provided, petition for such relief is presented to the court within thirty days after the filing of such decision in the office of the board.

By ignoring a plain, speedy, and adequate remedy at law, the plaintiffs placed themselves out of reach of the extraordinary writ of mandamus.² A writ of mandamus is not a substitute for and cannot be used in civil proceedings to serve the purpose of appeal, certiorari, or writ of error.³

The dissent quotes from Rule 65B(a), U.R.C.P., whereby special forms of writs of mandamus, etc., are supposedly abolished. Since Sections 4 and 7 of Article VIII of the Utah Constitution provide for these writs in both the District Courts and the Supreme Court, the writs themselves cannot be abolished. What the rule means is that those writs need not be designated as such in order to be effective. It well may be that relief by way of writ of mandamus could be had without designating the writ as such pursuant to Rule 65B(b). However, the dissent attempts to make it appear that the writ of mandamus so designated can be converted into an appeal, and this does not follow.

The judgment of the district court is reversed, and the writ of mandamus is dissolved. No costs are awarded.

TUCKETT, J., concurs.

1 . The ordinance permits single family residences and schools to be constructed within the zoned area.

2 . Rule65B(a) provides: “. . . AVhere no other plain, speedy and adequate remedy exists, relief may be obtained by appropriate action under these rules,

3 . 52 Am.Jur.2d Mandamus § 9, p. 338.