dissenting:
I respectfully dissent. While I agree with the majority’s conclusion that the city’s ordinances do not provide a basis for mandamus relief, I also believe that plaintiff has not sufficiently pled facts to invoke the city’s common-law duty to remove obstructions from roadways.
Mandamus is an extraordinary remedy to compel the performance of a ministerial, nondiscretionary duty by a public official. McClaughry v. Village of Antioch, 296 Ill. App. 3d 636, 643 (1998). A court will grant a writ of mandamus only if the petitioner can demonstrate a clear right to the relief sought, a clear duty of the official to act, and clear authority in the official to comply with the writ. Mason v. Snyder, 332 Ill. App. 3d 834, 838 (2002).
Focusing first on the issue of whether a duty exists, city ordinances put the duty to trim vegetation that overhangs public places on the owner of the abutting property. Section 98 — 7(a) of the Zion Municipal Code states:
“Any tree or shrub which overhangs a sidewalk, street or other public place in the city at a height of less than ten feet or in such a way as to impede or interfere with traffic or travel on such public places shall be trimmed by the owner of the abutting premises ***.” (Emphasis added.) Zion Municipal Code § 98 — 7(a) (eff. September 19, 1995).
Section 98 — 7(c) states that the “superintendent of streets may trim or remove any tree or shrub so that the obstruction or danger to traffic or passage shall be done away with.” (Emphasis added.) Zion Municipal Code § 98 — 7(c) (eff. September 19, 1995). Thus, under section 98 — 7(c), the city’s decision to remove trees and shrubs is discretionary, precluding plaintiff from using the ordinance to establish a basis for his mandamus action.
In his complaint, plaintiff also referred to the city’s common-law duty to remove purprestures and obstructions from public ways. This duty is based on a municipality’s obligation “to keep public ways unobstructed and in reasonably safe condition.” Mamolella v. First Bank of Oak Park, 97 Ill. App. 3d 579, 583 (1981). However, I believe that plaintiff failed to sufficiently allege a clear right to have the city remove the lilac bushes and fencing at issue in this case. I recognize that plaintiffs complaint, with its attached survey, sufficiently alleges that the bushes and fences are unlawful encroachments in that they are within the public right-of-way. See Bond v. Dunmire, 129 Ill. App. 3d 796, 804 (1984) (motion to dismiss admits facts contained in exhibits to complaint). However, the complaint fails to sufficiently allege that the encroachments obstruct the road or make passage on the road unreasonably unsafe; it is undisputed that the bushes and fencing are within the road’s unpaved right-of-way, and although plaintiff alleges that the encroachments “substantially reduc[e] *** the space of the roadway that may be used for travel by motor vehicles,” the survey actually shows that the fence does not intrude into the paved road at all and that just a few bushes even marginally extend over the paved roadway.
Furthermore, plaintiffs allegation that the encroachments “totally reduc[e] the ability to view south down the said [szc] road from [plaintiffs] property, which thereby creates a dangerous condition in need of abatement so as to prevent any vehicle accidents from occurring,” must be disregarded, as it contains conclusions of fact unsupported by specific factual allegations. See Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1144 (2001); cf. Murphy, 254 Ill. App. 109 (driveway that was 18 inches higher than the sidewalk on one side and 13 inches higher than the sidewalk on the other side was an obstruction to pedestrians). Plaintiff has not set forth the size of the encroachments or any other facts showing that the encroachments are unreasonable and compromise public safety; merely labeling them “a dangerous condition” is a factual conclusion. See also Cummings v. City of Waterloo, 289 Ill. App. 3d 474, 479 (1997) (factual deficiencies cannot be cured by a liberal construction). The majority’s decision, in contrast, could potentially result in a flood of mandamus suits against local governments every time that neighbors have a dispute about vegetation that allegedly interferes with the visibility of a road from a driveway.
For the reasons discussed, I would affirm the trial court’s decision granting the city’s motion to dismiss count I. This holding would not eliminate all avenues of relief available to plaintiff, as he would still retain his cause of action against Roberts, his neighbor.