delivered the opinion of the court:
In this proceeding the Circuit Court of Peoria County issued a writ of mandamus to compel the city of Peoria and certain city officials to issue a site approval and a building permit for a proposed apartment building project, and the city appeals.
According to the record, in 1972 plaintiff Byron L. Kermeen purchased 8/2 acres of real estate in an area of Peoria zoned for medium density residential use (R-2). Before making the purchase plaintiff checked to see that no plats, dedications, or encumbrances were a matter of public record. After ascertaining that the site could be used for apartment building purposes, plaintiff purchased the property, had engineering proposals prepared, negotiated with various city officials, and finally' in 1975 submitted building and site plans to the city for an apartment building consisting of 108 living units. The plans were rejected, and the only reason stated in the rejection letter was that plaintiff “failed to provide the 65 feet of right-of-way needed for the extension of Imperial Drive,” a street intended as a collector street for neighborhood traffic.
In order to construct a connecting street between the two existing segments of Imperial Drive, the city wanted plaintiff to leave vacant a 65-foot-wide strip of land the full length of the tract. At trial witnesses on behalf of the city attempted to testify that the city is planning to extend Imperial Drive through this property, but the trial court sustained plaintiff’s objections to all such testimony because the city has not included an extension of Imperial Drive on the master traffic plan adopted by the city council. Evidence pertaining to other defects in plaintiff’s plans was also excluded as irrelevant. Judgment was entered for plaintiff, and the city perfected this appeal.
The city’s primary contention is that a writ of mandamus was improperly issued because the question of site plan approval is a matter of judgment and discretion which cannot be reviewed by mandamus. The city also argues that future traffic needs are appropriate considerations in the site review process regardless of incorporation in a traffic plan ordinance. After carefully reviewing the record, we conclude that the trial court acted properly in ordering the city to issue the required permits to plaintiff.
Mandamus is an extraordinary remedy which will lie only where the party seeking the writ can show a clear legal right to the relief requested. Since mandamus commands the official to whom it is directed to perform some specific duty which plaintiff is legally entitled to have performed and which the official has failed to perform, it follows that where performance of a duty or act involves the exercise of judgment or discretion, the officer’s action is not ordinarily subject to review or control by mandamus. (People ex rel. Rappaport v. Drazek (1st Dist. 1975), 30 Ill. App. 3d 310, 332 N.E.2d 532.) The general rule that mandamus will not issue to direct the performance of a discretionary act has been applied to bar the writ where a police officer had been refused reinstatement (People ex rel. Elmore v. Allman (1943), 382 Ill. 156, 46 N.E.2d 974); where a doctor licensed in Ohio was denied an Illinois license on the basis of reciprocity (People ex rel. Goldfarb v. White (1st Dist. 1964), 54 Ill. App. 2d 483, 203 N.E.2d 599); and where an accountant under civil service did not receive a promotion (People ex rel. Rappaport v. Drazek (1st Dist. 1975), 30 Ill. App. 3d 310, 332 N.E.2d 532). In each of these cases the reviewing court found an express grant of discretionary power to the public official or administrative agency, and in each case the court refused to direct how the discretion should be exercised.
That, however, is not the end of the matter. If a discretionary power is exercised with manifest injustice or if a palpable abuse of discretion is clearly shown, mandamus will issue. As was stated in Illinois State Board of Dental Examiners v. People ex rel. Cooper (1887), 123 Ill. 227, 241, 13 N.E. 201:
“A public officer * * 9 may be guilty of so gross an abuse of discretion or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law; in such a case mandamus will afford a remedy.”
In People ex rel. Collins v. Young (3d Dist. 1967), 83 Ill. App. 2d 312, 227 N.E.2d 524, when a parcel of farm land was claimed by two different school districts, a petition for writ of mandamus was filed to compel the respective county superintendents of school to define the boundaries of the two districts. The order entered by the trial court found that the disputed territory was located in Woodlawn District. The appellate court affirmed, and speaking through Justice Alloy, stated:
“It is apparent also that mandamus will lie to prevent a clear abuse of discretion or to control the exercise of discretion in a manner consistent with the applicable rule of law, as an exception to the general rule that mandamus may not be employed to compel public officers having discretionary power to act in a particular way.” (83 Ill. App. 2d 312, 318.)
The court then discussed the case of John M. Bransfield Co. v. Kingery (1936), 283 Ill. App. 405, where mandamus was issued to compel officials of the Department of Public Works to approve highway construction contracts awarded by the Cook County Board of County Commissioners. In both Bransfield and Collins the court concluded that mandamus could be used to direct performance of a discretionary act when necessary to prevent a manifest injustice.
The same rule was applied to compel issuance of driveway permits in People ex rel. Shell Oil Co. v. City of Chicago (1st Dist. 1972), 9 Ill. App. 3d 242, 292 N.E.2d 84, where Shell was refused the permits because an alderman strenuously objected. Since there was no evidence that Shell had failed to comply with any of the requirements of the ordinance regulating such permits, the court found that the failure to issue the ; permits was an arbitrary abuse of discretion which could be corrected by mandamus.
The case at bar closely resembles the Shell case. Here plaintiff invested substantial sums of money to purchase the land and prepare plans for construction of a large apartment complex at a location zoned for such a project, only to be refused a permit because the plans did not allow for a possible street improvement which was contemplated but which had not been formally adopted and which was not included on traffic planning maps. From the record we think the prospective extension of Imperial Drive was a purely speculative matter, and until some official action was taken, a building permit could not be denied because of the mere possibility of future street needs. Plaintiff made a substantial change in position in reliance upon the probable issuance of a building permit and thus had a vested right to use his property in a lawful manner, as proposed. Cf. People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 157 N.E.2d 33.
While anticipated traffic needs are obviously an appropriate consideration in planning for the future development of the vacant areas of a city, proposed streets must have some official sanction and be a matter of public record before they can be the basis for refusing building permits. The result in this case would obviously be different if plaintiff were proposing to develop a subdivison. Peoria’s subdivision ordinance allows the city to require construction of specific streets as a condition of subdivision approval, but the city has not such authority in dealing with applications for building permits. As the trial court stated, if the city wants plaintiff’s property for streets, condemnation is the correct remedy. Consequently we believe mandamus was properly issued in this cause.
The city additionally contends that the trial court erred in excluding evidence that plaintiff’s plans were also defective for failing to meet certain drainage and fire protection standards. Plaintiff was not given notice of any such deficiencies in the letter rejecting his application, and these matters were not pleaded as affirmative defenses in this cause. Hence, the ruling of the trial court was correct. The rights of the parties are determined according to the facts and circumstances existing at the time the action was begun, and any facts constituting a defense must be plainly set forth in the answer. People ex rel. Shell Oil Co. v. City of Chicago (1st Dist. 1972), 9 Ill. App. 3d 242, 292 N.E.2d 84.
The dissenting opinion claims that plaintiff failed to plead or prove that a site approval was required .by ordinance but we believe that issue was waived because it was not raised either here or in the trial court. The dissent also suggests that the map of the city’s master traffic plan indicates that Imperial Drive is to be completed by a segment across plaintiff’s property, but we view the map as indicating that several different routes are available for the connection of two portions of Imperial Drive and in fact, plaintiff’s property is not directly between the two existing segments. Finally we reiterate that the City’s fire hazard defense came too late when it failed to plead or otherwise give notice to plaintiff of fire protection problems until the morning of trial.
For the reasons stated, we affirm the judgment of the Circuit Court of Peoria County.
Affirmed.
SCOTT, J., concurs.