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Challenge to waterfront plan dismissed as moot

VA Supreme courtProcedural maneuvering between a city planning director and three citizens who challenged a proposed waterfront plan has ended with the challengers’ appeal dismissed as moot by the Supreme Court of Virginia.

First, the three appellants filed a protest of the proposed Text Amendment with the    Alexandria city planning director. But the challengers filed an appeal to the Board of  Zoning Appeals before the planning director had determined their protest of the plan was  valid. The BZA rejected the appeal as premature.

At a city council meeting on the following Saturday, the planning director announced a determination that the protest was invalid. The appellants tried to appeal this determination by hand-delivering their appeal to the planning director during the meeting. She refused to accept the appeal. At the meeting, the city council approved the waterfront plan and Text Amendment by a 5-2 vote. Under a city ordinance, a supermajority is required to pass a Text Amendment after a valid protest.

On the next business day, the planning director instructed the appellants that any appeal had to be filed during regular business hours, and she confirmed her decision that the protest was invalid.

The appellants went to circuit court for a writ of mandamus to force the planning director to accept the second appeal. They followed up with a third, and “indisputably proper appeal,” according to the Supreme Court’s unpublished order. The BZA determined the protest of the Text Amendment was valid, which prompted the planning director and city council to argue in their own circuit court appeal that the BZA’s decision “triggered the supermajority voting requirement” and effectively invalidated the vote on the Text Amendment.

By supermajority vote, the city council adopted a substitute Text Amendment that contained all relevant portions of the earlier Text Amendment.

The Supreme Court said the protest of the earlier version of the Text Amendment was moot, as the city council had passed the substance of the Text Amendment the appellants wanted to invalidate, in compliance with the procedure the appellants sought to effectuate.

There was simply “no effectual relief available to” the appellants, the court said in Burke v. Hamer, Director of Planning.

Concurring separately, Justice Elizabeth A. McClanahan said she would hold that the appellants’ third appeal rendered it impossible for the Supreme Court to grant any effectual relief.

The court “should not sanction actions taken by defendants to bring about an event that would render a case moot so as to avoid an unfavorable result. Since the passage of the Substitute Text Amendment was brought about through the defendants’ actions and does not justify departure from the capable of repetition evading review exception,” the justice said she would not rely on the passage of the Substitute Text Amendment as justification for mootness.

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