Agenda - Planning Commission - 08/07/2008

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July 25, 20081 Volume 2 I No. 14 delegated to the city's Mayor's Agent, who referred applications to the city's Historic Preservation Review Board (HPRB) for advice. Follies submitted to the city's Board of Zoning Appeals (BZA) an ap- plication for the necessary special exceptions and variances. Follies also submitted its design Plans to the HPRB and requested that the HPRB conduct a "conceptu~l design review." Such a review allowed an appli- cant to obtain informal guidance as to consistency with the Act in ad- vance of a permit application. A conceptual design review was not a per- mit application and was not subject to review by the Mayor's Agent. TheHPRB rejected Follies' conceptual design proposal. The BZA later dismissed Follies' application for special exceptions and variances as moot. In dismissing the application as moot, the BZA explained that Follies' project could not be built in accordance with the plans without HPRB'sapproval. The BZA acknowledged that HPRB did not formally consider Follies' design plans, but stated that "the record and common sense suggests that [HPRB approval was] unlikely to hap- pen." Thus, the BZA concluded that even if it approved Follies' plans, the hotel could not be built according to the plans submitted since the HPRB had already rejected them. It therefore concluded that its review of Follies' application was moot and dismissed it. Follies appealed. It argued that the BZA acted arbitrarily and capri- ciously in concluding that its application was moot. DECISION: Reversed and remanded. " On appeal, the court said that a case was moot when the legal issues presented were "no longer 'live' or when the parties lacked a legally cog- nizable interest in the outcome." The court said that a case was also moot when a tribunal was asked to decide only abstract or academic issues be- cause there was no "justiciable controversy." Thus, the court said, the cen- tral question when deciding whether an issue was moot was whether the decision on the issue would still have an impact on the parties. The court determined that the HPRB's rejection of Follies' conceptual design proposal did not render Follies' BZA application moot. The court said this was because the. HPRB's conceptual design reviews were not binding. The court noted that the HPRB's denial of Follies' plans did not foreclose the HPRB or the Mayor's Agent from approving the same or modified plans once a formal application was filed. Moreover, the court said, the city's regulations made clear that the final authority for approv- ing applications for construction in historic areas under the Act rested with the Mayor's Agent, not the HPRB. Thus, the BZA erred when it concluded that the HPRB's approval was required, said the court. The court acknowledged that some courts dismissed cases that were not technically moot because they were too attenuated-or thin--..:...tobe @ 2008 Thomson Reuters/West 9 57