Board of County Sup'rs of Prince William County v. Hylton Enterprises, Inc.

• Decision Date: 16 January 1976
• Docket Number: No. 741127,741127
• Parties: BOARD OF COUNTY SUPERVISORS OF PRINCE WILLIAM COUNTY, Virginia v. HYLTON ENTERPRISES, INC. Record
• Court: Virginia Supreme Court

Page 534

221 S.E.2d 534

216 Va. 582

BOARD OF COUNTY SUPERVISORS OF PRINCE WILLIAM COUNTY, Virginia v. HYLTON ENTERPRISES, INC.

Record No. 741127.

Supreme Court of Virginia.

Jan. 16, 1976.

F. Caldwell Bagley, Dumfries, for plaintiff-in-error.

Donald C. Stevens, Fairfax (Hazel, Beckhorn & Hanes, Fairfax, on brief), for defendant-in-error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

GEORGE M. COCHRAN, Justice.

The question for our determination in this appeal is whether a writ of mandamus may properly issue to require county officials to take action within specified time limits on applications for approval of subdivision plats and site plans.

On July 3, 1973, Hylton Enterprises, Inc., filed in the trial court its petition for a writ of mandamus to compel the Board of Supervisors and the Director of Public Works of Prince William County, and all persons under their control, to discharge their ministerial duties pursuant to the provisions of the County Subdivision Control and Zoning ordinances and the state statutes. Hylton alleged that, although it had submitted numerous subdivision plats and site plans to the proper county officials for review, responsive comment and approval, it had been unable to get any action on these applications, or any indication as to when action would be taken. Hylton listed the projects for which plats and plans had been submitted from time to time during the period beginning early in 1972 and ending in June, 1973. In its petition Hylton not only sought to compel the review of its applications, but also sought to compel the approval of such plats and plans as were found to comply with all legal requirements, within a schedule to be set by the court.

Respondents filed a demurrer to the petition on the grounds that an adequate remedy was available by proceedings either for declaratory judgment or for relief under Code § 15.1--475 (Repl.Vol.1973), ¹ and that there was no allegation of any clearly established right in Hylton and legal duty on respondents to act within any particular time period.

At a hearing on December 28, 1973, after the Director of Public Works had represented that action on numerous Hylton applications could be processed by his office within specified time limits, the trial court suggested that respondents adhere to a tentative schedule, based upon the Director's testimony, to resolve the controversy. The court deferred ruling on the demurrer and continued the hearing until February 28, 1974, at which time progress was reported and, without objection, the matter was again continued.

On July 2, 1974, the trial court conducted an Ore tenus hearing on the merits. At that time respondents had not yet processed various Hylton applications, several of which had been submitted early in 1972. By the provisions of the order as entered July 19, 1974 (but copied incorrectly in the joint appendix), the trial court directed that, within 30 days, the Director of Public Works report his recommendations to the Board and the Board approve or disapprove Hylton projects designated as Sections 9--G--1, G--1, 9--I, 9--J and T--15. With respect to Sections T--7 and T--14, the court ordered the Director to report his recommendations to the Board within 60 days. The court ordered that, within 90 days, the Director accept the final plat and site plan for Section T--6 and report his recommendations to the Board and the Board approve or disapprove. The court directed the Board to approve or disapprove the final site plan for Section G--1 within 30 days, and the final site plan for Section G--2 within 90 days. The court denied all other relief sought by Hylton, retained jurisdiction to ensure compliance with the order, and suspended the effect of the order for 30 days to permit respondents to initiate this appeal.

There is no dispute as to the legal principles involved. Before a writ of mandamus may issue there must be a clear right in the petitioner to the relief sought, there must be a legal duty on the part of the respondent to perform the act which the petitioner seeks to compel, and there must be no adequate remedy at law. Richmond-Greyhound Lines v. Davis, 200 Va. 147, 152, 104 S.E.2d 813, 817 (1958). Mandamus is the proper remedy to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty. Griffin v. Board of Supervisors, 203 Va. 321, 124 S.E.2d 227 (1962). A duty is no less ministerial, however, because an officer has to determine the existence of the facts which make it necessary for him to act. Lewis v. Christian, 101 Va. 135, 43 S.E. 331 (1903).

Hylton contends that respondents' functions in processing the subdivision plats and site plans are purely ministerial, although though the substance of the reports and recommendations lies within the discretion of the responsible officials. We agree.

In C.C. & Ohio Ry. v. Scott County, 109 Va. 34, 63 S.E. 412 (1909), the railroad, as required by law, petitioned the board of supervisors for its consent to a proposed alteration of a county road. The board refused to entertain the petition until the railroad had constructed the new road. We held that mandamus would lie to compel the board to give or refuse its consent to the proposed alteration before construction commenced. Likewise, in Funeral Directors' Ass'n v. Groth, 202 Va. 792, 120 S.E.2d 467 (1961), where the Director of Public Safety for the City of Richmond declined to promulgate rules and regulations restricting parking at funerals, as required by local ordinance, we awarded mandamus to compel him to act, without, however, controlling the contents of the rules and regulations...