Funfar v. Town of Falmouth & Another

• Decision Date: 27 April 2018
• Docket Number: 17–P–1048
• Parties: Diane FUNFAR & others v. TOWN OF FALMOUTH & another.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 1108

103 N.E.3d 772 (Table)

Diane FUNFAR & others¹

v.TOWN OF FALMOUTH & another.²

17–P–1048

Appeals Court of Massachusetts.

Entered: April 27, 2018.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs brought this case pursuant to G. L. c. 40A, § 17, challenging a decision of the Falmouth zoning board of appeals (ZBA), and seeking an order temporarily ceasing the operation of a wind turbine known as "Wind 2." Summary judgment entered in the defendants' favor, in part under the doctrine of laches. In a separate case, Falmouth v. Falmouth Zoning Bd. of Appeals, No. 1472CV00003 (Barnstable County), a different judge of the Superior Court affirmed the ZBA's decision that Wind 2 (and its sister turbine, Wind 1) constitute a nuisance, and permanently ordered that the turbines cease operation. That decision was not appealed and has become final. As a result, the relief sought by the plaintiffs in this case has already been obtained. We accordingly vacate the judgment in this case, and order the entry of a new judgment dismissing this case as moot. See Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 636 (2015).

So ordered.

Vacated.

1 Barry Funfar and Linda Ohkagawa.

2 Falmouth zoning board of appeals.