
    CIRCUIT COURT OF CULPEPER COUNTY
    Homestretch Corp. et al. v. Board of Supervisors of Culpeper County et al.
    December 27, 1988
    Case No. 185-C-88
   By JUDGE LLOYD C. SULLENBERGER

Homestretch Corporation and individual persons (collectively Homestretch) seek declaratory and other relief against the Board of Supervisors of Culpeper County; the State Water Control Board (SWCB); South Wales Limited Partnership, and South Wales, Inc. (collectively South Wales) in connection with Board of Supervisors’ approval of a subdivision sought to be developed by South Wales. SWCB has demurred to the allegations against it. The court heard oral argument on December 13, 1988, and took the matter under advisement.

Count 3 of the bill of complaint seeks a writ of mandamus directing SWCB to cease consideration of an application for a centralized sewer system for the subdivision until a proper application is filed, or a declaratory judgment that SWCB has no authority to continue to process the application until SWCB has proper documentation as required by § 62.1-44.15:3. SWCB demurs on several grounds. The court need not address all of them.

In the case at bar, Homestretch, in effect, seeks to have the court interfere with the function of the SWCB because Homestretch says there are deficiencies in the certificate required under Code § 62.1-44.15:3 pertaining to application for certificate for sewage discharge permit.

The purpose of mandamus is summarized in the recent case of Richlands Medical Assoc. v. Commonwealth, 230 Va. 384, 386-87 (1985). Homestretch seeks to have the court order SWCB to cease consideration of the application, a matter within SWCB’s discretion. Clearly mandamus will not lie on the facts alleged by Homestretch.

Neither is a declaratory judgment as to this aspect of the matter appropriate. A declaratory judgment cannot be substituted for an appeal under the Administrative Process Act.

The demurrer of the SWCB will be sustained.

Homestretch may file an amended bill of complaint against the SWCB within twenty-one days after entry of the decree sustaining the demurrer if it be so advised. The decree will provide that in the event such amended bill of complaint is not filed, SWCB will thereupon be treated as dismissed as a defendant to this proceeding.  