The Supreme Court appeal stemmed from a June ruling by vice-chancellor John Noble declaring that a moratorium enacted by the county in January was invalid because it had not been submitted for prior review by the county planning commission.

Noble's decision focused only on the procedural shortcomings of the ordinance and did not address other arguments brought against it by developers, including that the Levy Court had implemented the moratorium for "improper purposes."

After Noble entered a final order of his decision in June, the county appealed to the Supreme Court.

Meanwhile, the county established a temporary emergency moratorium in lieu of the first one, then replaced it with a revised version of the original nine-month moratorium. The second moratorium was enacted Aug. 21 with the approval of the planning commission in a process that adhered to Noble's ruling.

On Wednesday, a three-judge panel of the Supreme Court initially suggested that the county's appeal was made moot with passage of the Aug. 21 moratorium, which the justices indicated they were unaware of until just minutes before Wednesday's hearing.

"Why was this not brought to our attention?" asked Justice Jack Jacobs.

Justice Carolyn Berger asked attorney Scott Shannon, representing the county, why the appeal was still relevant, given the new moratorium.

"A moratorium is a moratorium," she said. "Do you need layers of them?"

Shannon suggested that the issues Noble did not address in invalidating the first moratorium could leave the door open for challenges to the second moratorium.

That left Justice Henry duPont Ridgely wondering if the county was seeking an advisory opinion on matters not addressed by Noble, and Berger describing the appeal as interlocutory, a term given to an appeal made to a higher court before the lower court has entered a final judgment.

"We have a real question as to what is currently before this court that has not been mooted by the actions of your client," Berger said.

In fact, the appeal was not intended as interlocutory. At the request of the county, Noble entered an order on June 22 declaring his decision on the procedural shortcomings of the first moratorium to be a "final judgment," thus clearing the way for an appeal to the Supreme Court.

"I am satisfied that this case merits entry of final judgment on less than all of the claims asserted by the (developers)," Noble wrote in a letter to attorneys that same day.

Attorney John Paradee, representing the developers, told the Supreme Court that he agreed with Shannon the appeal was still germane, although for different reasons.

Berger then declared a short recess for the court to ponder how to proceed. Two minutes later, the justices reappeared and washed their hands of the matter.

Berger declared that the "interlocutory appeal" had been "improvidently granted." She then took the attorneys to task for not alerting the court to the second moratorium.

"This is the type of matter that both counsel should have immediately notified the court about," Berger said. "... In any event, the appeal is dismissed."

Bewildered, Shannon and Paradee conferred for several minutes after the hearing, discussing how to proceed.

Paradee, who was left "totally puzzled," said he was unsure what his next step would be.

Shannon declined to comment.