dissenting:
I respectfully dissent. Gramiger, in my view, failed to exhaust his administrative remedies prior to seeking a writ of mandamus under C.R.C.P. 106(a) in the Pitkin County District Court.
What Gramiger applied for was a building permit and nothing more. His application was submitted to the Building Inspection Department of Pitkin County on a form entitled “General Construction Permit.” The form stated in large capital letters:
“WHEN SIGNED AND VALIDATED BY BUILDING INSPECTION DEPARTMENT THIS PERMIT
AUTHORIZES THE WORK DESCRIBED BELOW
USE OF BUILDING: Restaurant.
Class of Work: New É”
The work described in the application included a foundation, joists, and exterior walls. The foundation for the restaurant was to be of “[sjteel ... anchored with prestressed, groutable rock bolts in natural undisturbed and ‘as-graded’ bedrock-site.” The application described the joists as “steel and reinforced concrete” and the roofing material as “lead and/or copper sheet.” The exterior walls of the proposed structure were to be of “steel framing with reinforced concrete ... with native rock exteriors.” Additional remarks on the application for the permit included the following: “Entire superstructure is of steel-frame reinforced concrete fireproof construction.” The form notified the applicant in large capital letters that he “ACCEPTS FULL RESPONSIBILITY FOR COMPLIANCE WITH THE UNIFORM BUILDING CODE, THE COUNTY ZONING RESOLUTION OR CITY ZONING ORDINANCE, AND ALL OTHER COUNTY RESOLUTIONS OR CITY ORDINANCES” and that “THIS BUILDING SHALL NOT BE OCCUPIED UNTIL A CERTIFICATE OF OCCUPANCY HAS BEEN ISSUED.”
I can conceive of no basis whatever to characterize this document as an application for an excavation permit. What Gramiger sought was permission to build a restaurant on top of a mountain. The only excavation involved was the excavation necessary for the restaurant foundation. Because it was a building permit which he sought, I agree with the court of appeals that Gramiger was premature in seeking judicial relief.
Section 30-28-118(1), C.R.S.1973, authorized the Pitkin County Board of Adjustment to hear appeals “by any person aggrieved by his inability to obtain a building permit.” Rather than seek administrative relief from the Pitkin County Board of Adjustment, Gramiger filed suit in the district court before receiving a definite response to his application from the building inspector. If the building inspector either denied or *1284refused to issue the permit, Gramiger had a remedy under section 30-28-118(1), C.R.S. 1973, by way of an administrative appeal. This remedy he failed to pursue, as the court of appeals properly ruled.
I would affirm the judgment.
I am authorized to say that Justice DU-BOFSKY joins me in this dissent.