Appeals: Appeal over special use merit is dismissed as moot

Where neighbors challenged a special use permit issued by the Board of Supervisors of Greene County, but the county subsequently granted a second special use permit that permitted the project to proceed, and the neighbors failed to challenge the second permit, their appeal challenging the first permit was dismissed as moot.

Background

Various neighbors challenged the Board of Supervisors of Greene County’s decision to issue a special use permit, or SUP, for Crimson Rock Capital LLC and Kenneth Tatum to develop a tourist resort on parcel 37-A-67 in Greene County, Virginia.

Analysis

“[W]e are called upon with some frequency to determine whether a case has become moot while the appeal is pending.” If fact-finding is required, it may be appropriate to remand to the circuit court. But when there is no factual dispute, an appellate court “can proceed to determine whether it should adjudicate the appeal in light of a development that occurred during the pendency of the appeal.”

Here, the Board argues that the challenge to the first SUP is moot because it granted a second SUP (SUP #23-001) that independently permits the project on the property. The Board reports that in May 2023, Crimson Rock applied for a second SUP, covering the property (Tax Map 37-A-67) and an additional parcel (Tax Map 37-A-66), so the project would be developed on 154.94 acres. The Board asserts that Taylor never appealed the second SUP, which permits the project on the property, so the appeal of the first SUP is moot.

Taylor does not contest the existence of the second SUP but argues only that the court “should not take up the Board’s invitation to expand the record by taking judicial notice of the Second SUP.” Taylor contends that if the SUP at issue here were overturned, then the second SUP “might arguably apply at most to the additional acreage, but not to the original portion.” Taylor asserts that the second SUP does not supersede the first.

There is no factual dispute over the existence and permanence of the second SUP because Taylor does not contest its existence or that they did not appeal the second SUP. Thus, the court exercises its discretion to take judicial notice of the second SUP to determine mootness. Although Taylor contends judicial notice is inappropriate, the cases Taylor cites are inapposite because they do not involve determining whether an appeal has become moot. Here, judicial notice is warranted to determine whether the case has become moot while the appeal was pending.

The court next considers whether the second SUP for the property renders the dispute over the first SUP moot. It does. The second SUP authorizes the project on the property and another parcel, totaling 154.94 acres, effectively reducing the density of the proposed tourist lodging by 45 percent.

The second SUP independently formed the basis for the Greene County Planning Department’s approval of the site development plan for the project. Thus, Crimson Rock could develop the project on the property irrespective of the existence or validity of the first SUP. Therefore, the first SUP no longer controls the use and development of the property, so the controversy over the first SUP has become moot.

Dismissed.

Taylor v. Board of Supervisors of Greene County, Virginia, Record No. 1905-23-2, Oct. 7, 2025. CAV (unpublished opinion) (Clements). From the Circuit Court of Greene County (Barredo). John S. Koehler (The Law Office of James Steele, PLLC, on briefs), for appellants. Kelley Kemp (Deal & Lacheney P.C., on brief), for appellee Board of Supervisors of Greene County. Maynard L. Sipe (Boyd & Sipe PLC, on briefs), for appellees Sojourner Shenandoah, LLC, and Crimson Rock Capital, LLC. VLW 025-7-282. 8 pp.