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The ski area then petitioned the court to review the BZA’s decision, as prescribed by law, with Judge Carlton Penn empowered to reverse or affirm part or all of the BZA's action. The Rappahannock Supervisors, in agreement with Davis that no special use permit was required, petitioned the court as an “aggrieved party" for the right to intervene in the writ of certiorari proceedings and their request was granted.
Although Moore volunteered in the interum to abide by the wishes of a majority of county voters if a referendum could be held on the ski area issue, nothing further came of his offer.
On Monday, July 24, in Leesburg. Judge Carleton Penn ruled at a pre-trial conference that the BZA had authority to issue or deny the ski area's special use permit application. Penn also found that the ski area could attack the constitutionality of the county's zoning ordinance—specifically on the issue of whether the criteria under which the BZA considers use permits are too general and vague for a nonlegislative body.
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