VIRGINIA:.~ tk.f~ -fi'owd o/%~ hdddtk.f~ -fi'owdf?lj~ in tk -fi'dyo/~mt Friday tk 6th dayo/ September, 2013. April Burke, et al., Appellants, against Record No. 121110 rcuit Court No. CL2012-001432 Faroll Hamer, Director of Planning and Zoning for the City of Alexandria, et al., Appellees. Upon an appeal from a judgment rendered by the Circuit Court of the City of Alexandria. Upon consideration of the record, briefs, and argument of couns, the Court is of opinion that this appeal is moot, as we are unable to render consequential relief in the matter. The City of Alexandria Planning Commission recommended approval of Master Plan Amendment 2011-0001 (the Waterfront Plan) and Text Amendment 2011-0005 on May 3, 2011. April Burke, izabeth Gibney and Marie Kux (collectively Burke) led a protest of the Text Amendment with Faroll Hamer, Director of Planning and Zoning for the City of Alexandria, on January 19, 2012. Before Hamer made a determination as to whether the protest was valid, Burke attempted to file an appeal of Hamer's determination to the Board of Zoning Appeals (BZA) (First Appeal). The appeal was rejected as premature. At a city council meeting on Saturday, January 21, 2012, Hamer announced a determination that Burke's protest was invalid. Burke attempted to appeal this determination by hand-delivering an appeal
(the Second Appeal) to Hamer during the meeting. Hamer refused to accept the appeal. At that meeting, the City Council for the City of Alexandria (city council) approved the Waterfront Plan and Text Amendment 2011 0005 by a 5-2 vote. Pursuant to city ordinance, a supermajority vote is required to pass a text amendment after a valid protest to it. The 5 2 vote was not a supermajority. On the next business day, January 23, 2012, Hamer instructed Burke that any appeal needed to be filed during regular business hours. The following day, Hamer confirmed her determination concerning the invalidity of the protest in writing. Burke filed a complaint in the Circuit Court of the City of Alexandria for a writ of mandamus and declaratory judgment on February 7, 2012. Burke's complaint sought a writ of mandamus compelling Hamer to accept the Second Appeal and transmit the record to the BZA, in addition to a judgment "(1) declaring that the Second Appeal was filed as of January 21, 2012, (2) declaring that all proceedings had been stayed automatically by the filing of the appeal on Saturday, January 21, 2012, (3) declaring the vote approving the Waterfront Plan and the [] Text Amendment void ab initio, and (4) declaring that the proceedings related to the (] Text Amendment shall be stayed until the Second Appeal is heard and ruled on by the BZA " Hamer and the city council filed a demurrer, which the circuit court sustained without leave to amend on March 28, 2012. Burke's motion for reconsideration was subsequently denied. Burke filed this appeal. In addition to filing the action in circuit court, on February 10, 2012, Burke filed an indisputably proper appeal (Third Appeal) to the BZA of Hamer's invalidity determination. Upon consideration 2
of the appeal, the BZA determined that Burke's protest regarding Text Amendment 2011-0005 was valid. Hamer and the city council appealed the BZA's determination to the circuit court. Hamer and the city council asserted on brief and at oral argument in the appeal now before the Court that the BZA's decision "triggered the supermajority voting requirement and effectively invalidated the City Council's simple majority vote on the Text Amendment." On March 5, 2013, the city council adopted, by supermajority vote, a substitute text amendment, Text Amendment 2013-0005, which contains all relevant portions of Text Amendment 2011-0005. thereafter voluntarily dismissed the appeal of the BZA's determination, leaving the BZA's decision in favor of Burke, concerning the protest of Text Amendment 2011-0005, intact. This appeal, concerning Burke's protest of Text Amendment 2011-005, is moot. Under Virginia law, "[M]ootness has two aspects: when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." United States Parole Comm'n v 445 U.S. 388, 396 (1980) (internal quotation marks omitted). "Whenever it appears or is made to appear that there is no actual controversy between the litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case." Hankins v. Town of Vi a Beach 182 Va. 642, 643, 29 S.E.2d 831, 832 (1944) (internal quotation marks omitted). McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275, 716 S.E.2d 461, 465 (2011). It 3
For a justiciable controversy to exist, the matter must be susceptible to entry of a decree for specific relief that will actually affect the plaintiff's rights. E.g' J Daniels v. Mobley, 285 Va. 402, 408, 737 S.E.2d 895, 898 (2013). A decree that merely resolves a disputed issue without affecting the rights of the parties would be an impermissible advisory opinion. Id.; see Hankins, 182 Va. at 643-44, 29 S.E.2d at 832 (citation omitted) (addressing mootness and advisory opinions). Where the relief requested would have no impact on the rights of the parties and would amount to a mere declaration that the plaintiff was wronged, the underlying matter is moot. See --~-----~ Hankins, 182 Va. at 644, 29 S.E.2d at 832 (If' [W]hen, pending an appeal from the judgment of a lower court, and without any fault of [Clourt, if it should decide the case in favor of the plaintiff, to will not (quoting Mills v. Green, 159 U.S. 651, 653 (1895)) (emphasis added). In the instant case, no actual right of Burke could be impacted by the granting of mandamus or the entry of declaratory judgment as requested in the complaint. The substance of the text amendment Burke seeks to invalidate has been passed by city council in a substitute text amendment (2013 0005). That new text amendment was passed in compliance with the procedure Burke sought to effectuate. Although Burke claims that this Court could invalidate the Waterfront Plan, such a declaration would not be proper, as Burke's protest and Second Appeal were only with respect 4
to Text Amendment 2011-0005. There is no effectual rei f available to Burke, and this matter is therefore moot. Accordingly, for the above reasons, we dismiss the appeal. The motion to supplement the record filed by the appellants on July 3, 2013 is denied. This order shall be certified to the said circuit court. ------ ----- JUSTICE McCLANAHAN, concurring. While I concur in the Court's judgment dismissing the appeal because this matter is moot, I would hold that Burke's Third Appeal renders it impossible for this Court to grant her any effectual relief. Through the Third Appeal, Burke obtained the relief sought by the Second Appeal -- BZA review of the propriety of Hamer's decision that the protest was not applicable to Text Amendment 2011-0005 and a stay of proceedings related to Text Amendment 2011 0005. Even if this Court were to rule in Burke's favor and find the Second Appeal to have been properly filed, our judgment would have no effect on Burke's right to BZA review of Hamer's decision. Although, as Burke argues, we have recognized that a controversy may not be moot where it is "'one capable of repetition, yet evading review, '" v. Commonwealth, 285 Va. 447, 452, 739 S.E.2d 636, 639 (2013) (quoting Ric9mond Ne~spapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980)), Burke cannot rely on this exception where appellate review was thwarted by her own actions in pursuing the Third Appeal. See 5
Vi t of State Poli --~~-------~---------------~------~------~~~ v. Elliott 48 Va. App. 551, 555, 633 S.E.2d 203, 205 (2006). As the majority states, the Court will dismiss an appeal as moot when, It of defendant,n an event occurs rendering it impossible to grant the plaintiff effectual relief. Hankins v. Town of ia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944) (quoting Mills ~~_~.J:"_~~11.' 159 U.S. 651, 653 (1895)) (emphasis added). Consistent with this principle, 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 but evading review exception, I depart from the majority's opinion relying on the passage of the Substitute Text Amendment as its justification for mootness. A Copy, Teste: Clerk 6