Fairfax Board of Supervisors v. Ratcliff (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 28th day of May, 2020.
Present: All the Justices
Board of Supervisors of Fairfax County, 	Appellant,
against 	Record No. 191128
Circuit Court No. CL-2018-1836
Blake D. Ratcliff, et al., 	Appellees.
Upon an appeal from the judgment
rendered by the Circuit Court of Fairfax
County.
Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion
that this appeal should be dismissed as moot and the judgment below vacated.
This case involves a dispute over the interpretation of a Fairfax County zoning ordinance.
The Ratcliffs owned a home in Fairfax County, which they made available as a short-term rental
through Airbnb and similar sites. The Board of Zoning Appeals (“BZA”) held that short-term
rentals were not authorized by county zoning ordinances. On appeal, the Circuit Court of Fairfax
County reversed the BZA’s decision. The Board of Supervisors of Fairfax County (“Board”),
subsequently filed a petition for appeal with this Court.
In January 2020, while the petition for appeal was pending, the Ratcliffs filed a motion to
dismiss the appeal as moot because they had sold the home. The Board responded by arguing
that if the appeal was moot, this Court should vacate the circuit court’s judgment, since the
mootness was caused by the unilateral action of the appellee, not the appellant.
This case is clearly moot because there is no live controversy. A question is moot when
“the issues presented are no longer live or the parties lack a legally cognizable interest in the
outcome.” McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 (2011) (quoting United States
Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980)); Garrett v. Smead, 121 Va. 390, 391
(1917). This Court does not issue advisory opinions on moot questions. Commonwealth v.
Harley, 256 Va. 216, 219-20 (1998). The Board did not issue any fines or penalties beyond the
notice of violation, so the sole controversy in this action was the Ratcliffs’ ability to continue to

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rent their Falls Church property. Since the Ratcliffs no longer own or use that property as of
January 6, 2020, Mot. to Dismiss at 2, they and the County lack a legally cognizable interest in
the outcome of this appeal. Furthermore, the ownership of a house is not inherently of a duration
too short to allow for full litigation, and there is no evidence that the Ratcliffs or the home’s new
owners will run afoul of the same zoning rule in Fairfax again, so this case does not fit the
capable-of-repetition-yet-evading-review exception. See Spencer v. Kemna, 523 U.S. 1, 17
(1998). Therefore, this appeal is moot.
The remaining question is whether this Court should vacate the lower court’s judgment.
We agree that it should. When a prevailing party voluntarily and unilaterally moots a case,
preventing an appellant from obtaining appellate review, vacatur of lower court judgments is
generally appropriate. In adopting this rule, we join the majority of federal and state courts to
consider this question.* The United States Supreme Court has explained, “[a] party who seeks
review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance . . .
ought not in fairness be forced to acquiesce in that ruling.” Camreta v. Greene, 563 U.S. 692,
712 (2011) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25
(1994)). Instead, “[t]he equitable remedy of vacatur ensures that ‘those who have been
prevented from obtaining the review to which they are entitled [are] not . . . treated as if there
had been a review.’” Camreta, 563 U.S. at 712 (quoting United States v. Munsingwear, Inc., 340
U.S. 36, 39 (1950)). While vacatur might not be warranted where a case is mooted by the losing
party below or by a joint settlement of the parties, mootness created by the prevailing party
below triggers different equitable concerns. As the United States Supreme Court has observed,
“It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable
judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the]
* See, e.g., New York City Employees’ Retirement System v. Dole Food Co., Inc., 969
F.2d 1430, 1433, 1435 (2d Cir. 1992); Mellen v. Bunting, 327 F.3d 355, 364-65 (4th Cir. 2003);
Stewart v. Blackwell, 473 F.3d 692, 693 (6th Cir. 2007); Chihuahuan Grasslands Alliance v.
Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008); Peter A. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 146 P.3d 991, 995 (Alaska 2006); State v. Charlotte
Hungerford Hosp., 60 A.3d 946, 948 (Conn. 2013); Tyson Foods, Inc. v. Aetos Corp., 818 A.2d
145, 147-48 (Del. 2003). See also Thanks But No Tank v. Dep’t of Envtl. Prot., 86 A.3d 1, 4-5
(Me. 2013); City of Eugene v. State, PERB, 137 P.3d 1288, 1291 (Or. 2006); Mason Shoe Mfg.
Co. v. Firstar Bank Eau Claire, NA, 596 N.W.2d 373, 374 (Wis. 1999).

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judgment.” Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997). Accordingly, we
dismiss this appeal and order that the judgment of the Circuit Court of Fairfax County be
vacated.
This order shall be published in the Virginia Reports and certified to the Circuit Court of
Fairfax County.
A Copy,
Teste:
Douglas B. Robelen, Clerk