[¶ 1.] Dоnna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. The court issued the writ of mandamus, but did not order the removal of the addition. Hentz appeals. We affirm.
FACTS
[If 2.] The dispute between City and Hentz arises out of an unlawfully issued budding permit. 1 Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. Viles applied to City for a building permit that would allow her to construct a multi-story addition onto her home. City initially denied the permit because it violated City Ordinance 356, Sectiоn 3(D)(2), which requires a 12-foot side setback for homes over one and one-half stories high. 2 Viles subsequently resubmitted her application and a proposal that left a 7-foоt setback on the first level of the home and a 12-foot setback for the second story. On June 18, 2001, City issued the permit after officials determined the application met all lеgal requirements.
[¶ 3.] Viles began budding her addition, which was estimated to cost $130,000. After construction was underway, Hentz determined the addition obstructed her view of Lookout Mountain. Hentz and hеr attorney contacted City officials to complain about the sight obstruction and about a violation of the set back ordinance. City disagreed regarding Hentz’s interpretation of the set-back requirements, so Hentz petitioned the trial court for a writ of mandamus.
[¶4.] The trial court found City had incorrectly determined that the addition was in compliаnce with City ordinances; thus, Hentz’s writ of mandamus was issued. The court, however, gave City an option of either amending the ordinance section or requiring applicants to apply for variances if a proposed two-story structure fails to meet the required setback. The trial court stated that it refused to order demolition of Viles’ addition beсause much of the construction was complete and Viles had never been party to the suit by Hentz against City.
[¶5.] Hentz appeals the following issue:
Whether the trial court abused its discretion by prospectively denying injunc-tive relief in a decision issuing a writ of mandamus.
STANDARD OF REVIEW
[¶ 6.] The applicable standard of review for this issue is the abuse of discretion standard.
Baker v. Atkinson,
DECISION
[¶ 7.] Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. She contеnds that she is “entitled to have the City do that which they are duty bound to do ... require the homeowners to make the house smaller or the lot bigger.” In its memorandum decision regarding the issuanсe of the writ of mandamus, the trial court found City had no authority under its own ordinances to issue the building permit, but granted the relief prospectively, allowing the addition to remain in plаce.
[¶ 8.] Utilizing a writ of mandamus to obtain relief is a unique remedy, which has been described as follows:
The nature of a writ of mandamus is an extraordinary remedy that will' issue only when the duty to act is clear:
Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.
Baker,
[¶ 9.] In
Hamerly v. City of Lennox Bd. of Adjustment,
[¶ 10.] Additionally, in
Harksen v. Peska,
*341 The last factor to guide a court in issuing an injunction is thе balancing of the equities, or what is known as the “relative hardship test.” (citing Foley v. City of Yankton,89 S.D. 160 , 165-66,230 N.W.2d 476 , 479 (1975)).
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A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant, (citing Foley,89 S.D. at 166 ,230 N.W.2d at 479 (stating “[a]n additional factor that the court should consider is the state of mind of the party against whom the mandatory injunction is sought”)).
Id. at ¶ 31, 32. We then noted that knowledge is а crucial factor in the relative hardship test and that some courts will not apply this test if one deliberately builds a structure in violation of restrictions. This, in turn, allows injunctions that require destruction of the property. Id. ¶ 32 n10. In Harksen, despite the builder’s knowledge that he was in violation of the covenant, we said “[i]t would be inequitable to require the destruction of a $100,000 summer residence when there really is no burden on Harksen.” Id. at ¶ 33.
[¶ 11.] Similarly, in this case the hardship of requiring Viles to tear down the addition outweighs the detriment to Hentz. Viles proceeded under the gоod faith assumption that they were building in compliance with the zoning laws, and received a building permit. They did not have knowledge that they were in violation of the zoning laws. Cf. id. (finding knowledgе existed). We agree with the trial court’s following statement in its Memorandum Opinion:
City has two choices. It may initiate an amendment to the section.... Alternatively, City can require building pеrmit applicants to apply for a variance, where the entirety of the proposed two-story structure does not meet the necessary 12 foot setback rеquirement....
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Viles have proceeded in reliance on a building permit issued by the appropriate authority.... [T]he structure was in place as of the time of hearing.... To now obtain a 12-foot setback on the first story would require demolition of the foundation and footings and the pouring of new footings and foundation. The [c]ourt will not require this of proрerty owners who have proceeded in good faith and who have not been joined in this action.
[¶ 12.] “[M]andamus will not lie to undo an act done in violation of a public or official duty[.]”
State v. Lehman,
[¶ 13.] Finally, Hentz requested that her attorney fees be awarded. This Court has previously stated that “Appellate attorney fees may be granted ‘in actions where such fees
may
be allowable!.]’ ”
City of Sioux Falls v. Johnson,
[¶ 14.] Affirmed.
Notes
. Our review of this case is limited to "pleadings and papers transmitted from the circuit court” because no transcript was included as part of the record before us.
Baltodano v. North Cent. Health Serv., Inc.,
. City Ordinance 356, Sectiоn 3(D)(2), regarding side setbacks states, in pertinent part, that "[f]or dwellings more than one and one-half (1½) stories, there shall be a side setback of not less than twelve (12) feet.”
. Hentz argued that this case is inapplicable because "mandamus compels an unperformed ministerial duty[,]” whereas "certiora-ri reviews a performed judicial or official duty." 14 AmJur2d, Certiorari, § 7 (2000).