dissenting.
I respectfully dissent.
I agree with the trial court that the Board of Adjustment of Piney Point Vil*408lage abused its discretion. Karl Amelang established his right to a special exception permitting his fence under every provision of 9.4.1. His property is located at the intersection of Piney Point and Memorial Drive. The vehicular traffic is heavy. Protection from criminal activity ranging from trespass to burglary is desirable. Although notified, none of Amelang’s neighbors objected to his fence. Indeed, those that filed the affidavits approved of the fence and endorsed the necessity for it. The fence itself is shown by photographs introduced on the summary judgment proceedings to be a handsome fence of metal pickets with ample space between the pickets so as to afford a virtually unobstructed view to motorists and others.
Virtually all of the homes in the vicinity of Amelang’s residence have fences or other barriers exceeding three feet in height abutting Memorial Drive. Amelang’s home is 11505 Memorial Drive. The Board of Adjustment at other times granted exceptions for 11406 Memorial Drive, 11408 Memorial Drive, 11440 Memorial Drive, and 11439 Memorial Drive.
Twenty six thousand cars use Memorial Drive in this vicinity every twenty four hours. Nearly one-third of all of the traffic collisions in the city of Piney Point take place in this vicinity. Amelang has sustained property damage by automotive traffic running into his yard. Photographs attached as summary judgment evidence demonstrates that no safety hazards are involved. On the contrary, not only was the nonexistence of any traffic hazard brought forth but Amelang presented evidence of his safety concerns for his grandchildren. It is unfortunate that Amelang’s fence was constructed without a permit thus incurring the wrath of the city bureaucrats. Having conclusively established all of the elements establishing his entitlement to his special exception, however, such should have been granted.
Sufficient evidence exists to justify the trial courts finding that the Board abused its discretion. Since the Board abused its discretion the trial court properly entered summary judgment in favor of Amelang. See City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945).
In any event, I disagree with the court’s holding that appellant’s summary judgment proof compels, as a matter of law, the issuance of a permanent injunction ordering appellee to relocate his fence or remove the fence entirely. I recognize that mandatory injunctive relief may be appropriate in some zoning cases. However, such relief, if any, should follow trial on the merits so that equities can be weighed.
Surely the trial court retains discretion to “do equity” and consider other equitable principles. This great writ from ancient times has allowed consideration of clean hands, laches, estoppel and most important here, balancing of equities. Even aggravated city bureaucrats should not be allowed to impose punitive measures on Amelang. The trial court should be entitled to at least consider the damage done, benefits to be gained and alternatives that may be available. See City of Spring Valley v. Hurst, 530 S.W.2d 599 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n.r.e.).
I believe that the judgment of the trial court should be affirmed.