"An action for a writ of mandamus . . . is available only in limited circumstances and to achieve limited purposes." Beccia v. City of Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981); Lahiff v. St. Joseph's Total Abstinence Society, 76 Conn. 648, 651, 57 A.692 (1904); McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). It has been repeatedly stated that the writ of mandamus is an "`extraordinary remedy to be applied only under exceptional conditions . . .'" Milford Education Assn v. Board of Education, 167 Conn 513, 518, 356 A.2d 109 (1975), quoting Lahiff v. St. Joseph's, supra, 76 Conn. 651; Light v. Board of Education of the Town of Lebanon, 170 Conn. 35, 37, 364 A.2d 229 (1975); McAllister v. Nichols, supra, 193 Conn. 171. "`Mandamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right . . .'" William Hennessey v. City of Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990), quoting State ex rel. Comstock v. Hempstead, 83 Conn. 554, 561, 78 A. 442 (1910); Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253 (1960).
" (Internal quotation marks omitted.) McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). "The[se] . . . requirements are concededly met, once the statutory language is determined to be mandatory."
It bears emphasis, however, that "[t]he writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits." Lahiff v. St. Joseph's Total Abstinence Society, 76 Conn. 648, 651, 57A. 692 (1904); McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). Furthermore, "[m]andamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right . . . ."
"Since mandamus neither gives nor defines rights which one does not already have, it cannot, and does not, act upon a doubtful and contested right. Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253." Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979); McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792 (1984). The plaintiffs' right to certification of petitions under 208 was, even before this decision, far less than clear.
" (Internal quotation marks omitted.) Gelinas v. West Hartford, 225 Conn. 575, 586, 626 A.2d 259 (1993), quoting McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 197 (1985). It, therefore, cannot be invoked to enforce a discretionary act. Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990).
Hackett v. New Britain, 2 Conn. App. 225, 227, 477 A.2d 148 (1984). "Since mandamus neither gives nor defines a right which one does not already have, it cannot, and does not, act upon a doubtful or contested right. McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792 (1984); Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979)." Hackett v. New Britain, supra, 228.
Since mandamus neither gives nor defines rights which one does not already have, it cannot, and does not, act upon a doubtful and contested right. Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253." Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979); McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792 (1984). It is abundantly clear that the plaintiff does not have a clear legal right to the issuance of the certificate of occupancy.
Real Estate Listing Service, Inc. v. Real Estate Commission, supra; NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff'd sub nom. Florida Power Light Co. v. International-Brotherhood of Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974); 73 C.J.S., Public Administrative Law and Procedure 69. The question which would have been before the court on appeal from the agency decision is a question of law. It is well settled that a writ of mandamus is an extra-ordinary remedy; McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); and is "`to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits.'" Light v. Board of Education, 170 Conn. 35, 37, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975).
ESPOSITO v. PHILLIPS We find no error in the trial court's principal conclusions (1) that the plaintiff failed to prove a clear legal right to the relief sought; McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777 (1981); (2) that mandamus will be denied where, by reason of events occurring subsequent to the commencement of the proceedings, or because of lapse of time, the relief sought would be nugatory or unavailing; Pape v. McKinney, 170 Conn. 588, 595-96, 368 A.2d 28 (1976); (3) that if the special exception permit was approved de facto in 1971, it was barred by the lapse statute; (4) that if the special exception was not approved in 1971, there was no permit to be enforced in a mandamus action; (5) that the 1971 action created no rights in the owners exempting them from compliance with changed planning statutes and regulations; (6) that Nauss did not pursue his rights in a timely and reasonable manner; and (7) that changed conditions must be considered before such a permit may be granted twelve years later. We find error in the court's recital to hear evidence of the circumstances surrounding the 1971 judgment.
A writ of mandamus is an extraordinary remedy. McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). It may issue only when: (1) the law imposes upon the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.