Aquacultural Research Corp. v. Austin

• Decision Date: 09 November 2015
• Docket Number: No. 14–P–1650.,14–P–1650.
• Citation: 41 N.E.3d 318,88 Mass.App.Ct. 631
• Parties: AQUACULTURAL RESEARCH CORPORATION & another v. Rosemarie AUSTIN & another.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 631

41 N.E.3d 318

AQUACULTURAL RESEARCH CORPORATION & another¹

v.Rosemarie AUSTIN & another.²

No. 14–P–1650.

Appeals Court of Massachusetts, Barnstable.

Submitted Oct. 1, 2015.

Decided Nov. 9, 2015.

Matthew L. McGinnis, Boston, for Old Kings Highway regional historic district commission.

Michele E. Randazzo, Boston, for town of Dennis.

Bruce P. Gilmore, Yarmouthport, for town of Yarmouth, amicus curiae, submitted a brief.

Present: KAFKER, C.J., KATZMANN, & RUBIN, JJ.

Opinion

KAFKER

, C.J.

The primary issue presented in this appeal is the proper application of mootness principles. In particular, we first must decide whether a legal challenge to a permitting process for a wind turbine is mooted by a conservation restriction precluding the construction of the wind turbine. If so, we then must decide the status of the unreviewed town committee, regional commission, and court decisions. We conclude that the case is moot and vacate all of the unreviewed decisions.³

The procedural posture of the case is as follows. In 2010, Aquacultural Research Corporation (ARC) sought approval to construct

a 242–foot–tall wind turbine on its property in the town of Dennis (town). Pursuant to the Old King's Highway Regional Historic District Act (Act),^{4 , 5} ARC applied to the town's Old King's Highway regional historic district committee (town committee) for a certificate of appropriateness.⁶ After the town committee issued the certificate, Rosemarie Austin, a town resident, appealed as an abutter⁷ to the Old King's Highway regional historic district commission (regional commission), pursuant to § 11 of the Act.⁸ Austin claimed that the proposed wind turbine, which would be located approximately three-quarters of one mile from her property, would violate the Act and devalue her property.

Following a hearing, the regional commission found that the town committee “exercised poor judgment in approving the 600–kilowatt wind turbine at the proposed location.”⁹ Based on this finding, the regional commission aned the town committee

decision and denied ARC's application for the certificate of appropriateness. ARC, and the town as intervener, then appealed to the Orleans Division of the District Court Department. Following a bench trial, a District Court judge revoked and reversed the decision of the regional commission and affirmed the decision of the town committee, finding that although Austin had standing to appeal as a “visual abutter,”¹⁰ the regional commission had “exceeded its authority by annulling the decision of the” town committee. The regional commission and Austin next appealed to the Appellate Division of the District Court Department. After concluding that the trial judge erred in finding Austin had standing as a visual abutter, the Appellate Division vacated the judgment of the District Court and restored the town committee's approval of ARC's certificate.¹¹ The regional commission and Austin timely filed notice of appeal from the Appellate Division decision and order in this court in October, 2014.¹²

On June 26, 2015, ARC granted a conservation restriction on its property to the town and others.¹³ The conservation restriction specifically prohibits the “[c]onstruction or placing ... [of any] windmill, wind turbine, [or] wind generator” on ARC's property.¹⁴ Therefore, regardless of any certificate of appropriateness, no wind turbine may presently be built on the property at issue.

“Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome.”

Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 274, 885 N.E.2d 98 (2008)

, quoting from Attorney Gen. v. Commissioner of Ins., 442 Mass. 793, 810, 817 N.E.2d 742 (2004). Because the certificate of appropriateness is now inoperative and of no present or future effect as a result of ARC's subsequent grant of the conservation restriction precluding the construction of the wind turbine, any action by this court purporting to affirm the certificate's issuance by the town committee or the certificate's later annulment by the regional commission would involve the “adjudication of [a] hypothetical dispute [ ].” Lockhart v. Attorney Gen., 390 Mass. 780, 782, 459 N.E.2d 813 (1984). ARC no longer has any personal stake in the certificate of appropriateness for the wind turbine. The same is true for Austin and the regional commission. Therefore, the underlying litigation is moot.

Relying on Ott v. Boston Edison Co., the town argues that, even if the instant case is moot, this court should exercise its discretion and address the issues of visual abutter standing and the scope of review of local committee decisions under the Act. 413 Mass. 680, 683, 602 N.E.2d 566 (1992)

. “We have on occasion exercised our discretion to answer questions in moot cases where certain conditions existed: (1) the issue was fully argued on both sides; (2) the question was certain, or at least very likely, to arise again in similar factual circumstances; (3) where appellate review could not be obtained before the recurring question would again be moot; and (4) most importantly, the issue was of public importance.” Ibid. This is not, however, such an exceptional case. The particular standing question before us is fact-specific and should not be decided in a theoretical case. See Lockhart v. Attorney Gen., supra at 784, 459 N.E.2d 813

. Moreover, the more general issues of visual abutter standing and the scope of review of local committee decisions under the Act are not the type of evanescent, time-defined actions that will likely evade review in subsequent decisions. See, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (pregnancy litigation will seldom survive time necessary for appellate review); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274, 372 N.E.2d 242 (1978) (commitment orders to mental health facilities are for limited duration and usually expire before appellate review); Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 123, 653 N.E.2d 1088 (1995) (suspended student is often readmitted before appeal of school discipline action can be heard). Accordingly, we decline to exercise our discretion to decide this moot case.

The next question we address is the status of the decisions left unreviewed because of the mootness determination. “[W]here a

case becomes moot on appeal, we ‘vacate the [judgment] appealed from with a notation that the decision is not on the merits, and remand the case to the [lower court] with directions to dismiss the [complaint].’ ” Building Commr. of Cambridge v. Building Code Appeals Bd., 34 Mass.App.Ct. 696, 700, 615 N.E.2d 594 (1993)

, quoting from Reilly v. School Comm. of Boston, 362 Mass. 689, 696, 290 N.E.2d 516 (1972). See United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (“The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here ... is to reverse or vacate the judgment below and remand with a direction to dismiss”).¹⁵ We shall vacate the judgment below in part because parties that “may not obtain an appellate review of the decree on the merits [due to mootness] ... should be free of collateral estoppel consequences of that decree if any issues of fact or law determined by the judge below should perchance reappear in future litigation between the parties.” Reilly v. School Comm. of Boston, supra. See United States v. Munsingwear, supra at 40, 71 S.Ct. 104 (when underlying judgment is vacated, “the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary”).¹⁶

In the instant case there appears to be residual concern among the litigants about the status of the standing analyses in the unreviewed decisions. Indeed, this concern, as well as argument regarding the scope of review under the Act more generally, seems to be the primary reason why the appeal has not been

voluntarily dismissed. Regardless, as we are vacating the judgment of the District Court and the decision and order of the Appellate Division both as moot, any and all potential collateral estoppel consequences of their standing analyses are thereby eliminated. Their standing analyses cannot, therefore, be used as either a sword or a shield in any subsequent litigation between the parties.

Furthermore, in accordance with A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961)

, we also shall order that the decisions of the town committee and the regional commission be vacated for the same reasons. In A.L. Mechling Barge Lines, Inc., the United States Supreme Court held that the principles justifying vacatur of judgments of the United States District Courts due to mootness are “at least equally applicable to unreviewed administrative orders.” Ibid. See Atlanta Gas Light Co. v. Federal Energy Regulatory Commn., 140 F.3d 1392, 1403 (11th Cir.1998) (“In accord with Mechling and Munsingwear, we vacate the 1991 and 1992 [Federal Energy Regulatory Commission] Orders”); Tennessee Gas Pipeline Co. v. Federal Power Commn., 606 F.2d 1373, 1382 (D.C.Cir.1979) (“We follow the course set out in Munsingwear and Mechling and, accordingly, vacate the order which we decline to review”); Hollister Ranch Owners' Assn. v. Federal Energy Regulatory Commn., 759 F.2d 898, 902 (D.C.Cir.1985) (applying Munsingwear and Mechling in vacating unreviewed order of Federal Energy Regulatory Commission as moot); Radiofone, Inc. v. Federal Communications Commn., 759 F.2d 936, 938 (D.C.Cir.1985) (“All members of the court are in agreement that this case is moot and that we must vacate the agency's order pursuant to [Munsingwear ] and [Mechling ]”); Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 951 (D.C.Cir.2005) (vacating order of Librarian of Congress as moot).

The decision and...