Sarris v. Arlington County Board

3 Va. Cir. 46, 1982 Va. Cir. LEXIS 63

Opinion

By JUDGE CHARLES H. DUFF

I have carefully reviewed the authorities cited at able argument of the motions last week.

It is my opinion that certiorari will not lie to review a legislative act of the governing body of a county. In approving or denying a special exception to the zoning ordinance by way of a use permit, the defendant County Board clearly was discharging a legislative function. See in this connection Byrum v. Orange County, 217 Va. 37 (1976), Bollinger v. Roanoke County, 217 Va. 185 (1976), and Civic Association v. Chesterfield County, 215 Va. 399 (1974).

Also, the West Virginia decision of Garrison v. City of Fairmont, 145 S.E.2d 397, is apropos. The Court therein held that certiorari would not lie to review a purely legislative and not a judicial or quasi-judicial act. Thus, it is my opinion that certiorari is not the appropriate vehicle to test the propriety of the Board’s action as alleged in the Petition.

The petitioners will, however, be granted leave of fifteen days from this date to file an Amended Petition for a declaratory judgment if they be so advised.