Board of Sup'rs of Fairfax County v. Board of Zoning Appeals of Fairfax County, 801820

• Decision Date: 29 April 1983
• Docket Number: No. 801820,801820
• Citation: 302 S.E.2d 19,225 Va. 235
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al. Record
• Court: Virginia Supreme Court

Page 19

302 S.E.2d 19

225 Va. 235

BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al.

Record No. 801820.

Supreme Court of Virginia.

April 29, 1983.

J. Patrick Taves, Asst. County Atty. (David T. Stitt, County Atty., on briefs), for appellant.

Brian M. McCormack, Fairfax (Dunn, McCormack & Fourqurean, Fairfax, on brief), for appellee.

No brief for Valentine Health Club, appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice.

PER CURIAM.

Code § 15.1-497 ¹ permits any person aggrieved by a decision of a board of zoning appeals to seek review in the appropriate circuit court by a petition for a writ of certiorari. The petition must be presented to the court within thirty days after the filing of the decision in the office of the board. The instant case poses the question whether the successful applicant before the board of zoning appeals must be made a party to the certiorari proceeding within the thirty-day period prescribed by the Code section.

On June 12, 1979, the Board of Zoning Appeals of Fairfax County (the BZA) decided that the Valentine Health Club (Valentine) could expand its facilities without obtaining a non-residential use permit. On July 12, the Board of Supervisors of Fairfax County (the County Board) filed in the trial court a petition for certiorari seeking reversal of the BZA's decision. Only the BZA was named a party defendant.

On September 21, 1979, the trial court granted the County Board's petition for certiorari and ordered the BZA to return to the court by October 24 the full record of the proceedings involving Valentine. The BZA returned the record as directed.

On October 29, following argument on a demurrer filed by the BZA, the trial court ruled that Valentine was an indispensable party to the certiorari proceeding and that it should be joined as a defendant. Valentine was served with process on November 27.

On February 7, 1980, Valentine filed a motion to quash in which it asserted that the "entire Petition for Writ of Certiorari" was barred because the County Board had failed to make Valentine a party to the proceeding within the thirty-day period prescribed by Code § 15.1-497. Ruling that this failure was fatal to the County Board's petition, the trial court granted Valentine's motion to quash and ordered the certiorari action stricken from the docket. The County Board was granted this appeal.

The BZA contends the trial court correctly held that the County Board's certiorari action was barred. The BZA maintains that Code § 15.1-497 both confers a right and provides the time within which the right may be exercised; hence, the thirty-day period prescribed by the statute is a limitation upon the right as well as the remedy, and the circuit court is without jurisdiction if the limitation is not met.

Citing Webb v. United States Fidelity, Etc. Co., 165 Va. 388, 393, 182 S.E. 557, 559 (1935), the BZA submits that where a party is brought into a proceeding by an amended pleading, the proceeding is deemed to have commenced against that party at the time he is brought in. Accordingly, the BZA argues, the present proceeding was not commenced against Valentine until well after the thirty-day period had expired and, because Valentine was an indispensable party, the proceeding was barred. A denial of due process will result, the BZA concludes, unless Code § 15.1-497 is construed to require the joinder of all indispensable parties at the outset of a proceeding under the statute.

We disagree with the BZA. The proceeding in question is purely statutory in nature; hence, we must determine what the provisions of Code § 15.1-497 mandate for the proper institution of a proceeding thereunder. The Code section unambiguously requires only that an aggrieved person file a petition for certiorari within the prescribed thirty-day period and that the petition specify the grounds upon which the petitioner is aggrieved. No party other than the aggrieved person and the board of zoning appeals is mentioned in connection with the petition, and no action other than the filing of a proper petition within the prescribed period is declared necessary to complete the institution of the proceeding.

The statute goes on to provide that, upon the presentation of a petition, the court "shall allow a writ of certiorari." This language indicates that, if the petition is filed by a person aggrieved and is in...