Opinion
C.A. No. 03M-08-072 RSG.
Date Submitted: September 24, 2003.
Date Decided: October 10, 2003.
OPINION AND ORDER
Now this 10th day of October, 2003, it appears to the Court as follows:
1) Petitioners have filed a petition for a Writ of Mandamus on August 20, 2003 seeking an order from the Court to respondents commanding the issuance of a building permit
2) Respondents have moved to dismiss this action for the following reasons:
A. Respondents claim that they have performed the ministerial duty of examining petitioners' submissions on four occasions and found them lacking completeness.
B. Respondents claim that Petitioners have failed to exhaust administrative remedies.
C. Respondents claim that Petitioners have an alternative adequate remedy at law.
3) Respondents accompany their motion to dismiss with an affidavit and documentary exhibits and therefore have in effect moved for summary judgment.
4) Petitioners have moved for summary judgment claiming that Respondents refused to accept their application for a building permit, have not performed their ministerial duty to review such application, and further that their application meets all requirements of the Code.
5) On September 25, 2003, the Court heard argument on these motions.
6) It is clear that if Petitioners application meets all the requirements of the County Building Code, a permit must be issued.
7) The sole purpose of the review of the application is to determine if the documentation satisfies the specific requirements of the County Code.
8) The County correctly points out that it has stated objections or deficiencies in the submitted documentation. The County is in error however when it says this review is an exercise of discretion. The review is supposed to be an objective testing of the submission against the clear mandates of the Code.
9) Petitioners contend that their submissions were not tested against the requirements of the Code, but rather were rejected without such review. If this contention is true it would give a basis for the petition for Writ of Mandamus to be heard.
10) There exist factual issues which must be resolved to determine if this case should proceed and be heard on the merits or should be dismissed. Those factual issues preclude the granting of summary judgment for either petitioners or respondents.
11) The Court notes that this case is but one of a growing number of cases involving these same parties. The cases are proceeding in an unusually acrimonious fashion.
12) The best interests of both sets of parties would be served by a resolution of these matters without court intervention. Both parties, should the cases proceed, could win phyrric victories and yet suffer long term losses.
13) The Court believes these matters can best be resolved if both sets of parties act in good faith.
Therefore, the Court Orders:
A. Petitioners' Motion for Summary Judgment is DENIED.
B. Respondents' Motion to Dismiss is DENIED.
C. The parties are to attempt to reach a resolution of this case as well as 03A-04-006 and 03C-06-204 through mediation. The parties are to agree to a mediator on or before October 21, 2003. If agreement is not reached, a Mediator will be selected by the Court.
D. The parties shall share the costs of mediation equally.
E. These cases are stayed for 60 days to allow mediation to proceed.
F. A report on the status of the mediation will be made by the parties on or before December 8. 2003.
IT IS SO ORDERED,