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14-P-1650 Appeals Court

AQUACULTURAL RESEARCH CORPORATION & another1 vs. ROSEMARIE 

AUSTIN & another.

2

Barnstable. October 1, 2015. - November 9, 2015.

Present: Kafker, C.J., Katzmann, & Rubin, JJ.

Moot Question. Practice, Civil, Moot case, Vacation of 

judgment.

Civil action commenced in the Orleans Division of the 

District Court Department on November 12, 2010. 

The case was heard by Brian R. Merrick, J. 

Matthew L. McGinnis for Old Kings Highway regional historic 

district commission.

Michele E. Randazzo for town of Dennis.

Bruce P. Gilmore, for town of Yarmouth, amicus curiae, 

submitted a brief.

KAFKER, C.J. The primary issue presented in this appeal is 

the proper application of mootness principles. In particular,

 

1 Town of Dennis, intervener.

2 Old King's Highway regional historic district commission

(regional commission).
2

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 

 

3 We acknowledge the amicus brief submitted by the town of 

Yarmouth.

4 St. 1973, c. 470, as amended through St. 2007, c. 220.

5 The purpose of the Act is to "preserve and maintain [the 

Old King's Highway regional historic district (district)] as a 

contemporary landmark compatible with the historic, cultural[,]

literary and aesthetic tradition of Barnstable county, as it 

existed in the early days of Cape Cod." St. 1973, c. 470, § 1, 

as amended by St. 1982, c. 338, § 1.

6 The Act requires each member town of the district to 

appoint a town historic district committee responsible for 

issuing certificates of appropriateness for certain building and 

demolition projects. St. 1973, c. 470, §§ 5, 6, as amended by 

St. 1975, c. 845, §§ 5, 6. Specifically, the Act states, in 

part, "No building, structure, or part thereof, except as 
3

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 threequarters 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 

 

hereinafter provided, shall be erected within the District 

unless and until an application for a certificate of 

appropriateness as to the exterior architectural features shall 

have been filed with the Committee. Either a certificate of 

appropriateness or a certificate of exemption shall be issued by 

the Committee before erection." St. 1973, c. 470, § 6, as 

amended by St. 1975, c. 845, § 5.

7 The regional commission's petition for appeal requires an

appellant to indicate the "relationship of the appellant to the 

subject of appeal." In her petition, Austin claimed to be an

abutter.

8 "Any person aggrieved by the determination of the [town] 

committee . . . whether or not previously a party to the 

proceeding, may, within ten (10) days after filing of a notice 

of such determination with the town clerk, . . . appeal to the 

[regional] commission." St. 1973, c. 470, § 11, as amended by 

St. 1975, c. 845, § 13.

9 Upon timely notice of appeal, the regional commission must 

"hear all pertinent evidence and determine the facts, and if, 

upon the facts so determined, the [regional] commission finds 

that the [town] committee exceeded its authority or exercised 

poor judgment, was arbitrary, capricious, or erroneous in its 

actions, the [regional] commission shall annul the [town] 
4

finding, the regional commission annulled 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 

 

committee determination" and either remand to the town committee 

or revise the determination. St. 1973, c. 470, § 11, as amended 

by St. 1975, c. 845, § 13.

10 The judge noted that although Austin's property did not 

abut ARC's property, "the [Act] at its threshold is concerned 

with the visual appearance of things," and because the site of 

the proposed wind turbine "would be very visible from Austin's 

property" and would negatively impact her property, she was a 

"visual abutter."

11 The Appellate Division decision states, "We have found no 

authority, anywhere, sanctioning the concept of one's status as 

a 'visual abutter' (or even using that term) so as to qualify 

him or her as a 'person aggrieved' under this Act or any similar 

statute, or to otherwise confer standing on a person."
5

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 (2008), quoting from Attorney Gen. v. Commissioner of 

Ins., 442 Mass 793, 810 (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 

 

12 Austin filed notices of joinder in the regional 

commission's opening and reply briefs.

13 The Commissioners of the County of Barnstable, the town 

of Yarmouth, and the Dennis Conservation Trust.

14 The conservation restriction was approved by the 

Secretary of the Executive Office of Energy and Environmental 

Affairs, pursuant to G. L. c. 184, § 32, and was recorded in the 

Barnstable County registry of deeds at book 28969, pages 78-112, 

on June 26, 2015.
6

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 (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 (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. 
7

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 (1973) (pregnancy litigation will seldom 

survive time necessary for appellate review); Superintendent of 

Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (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 (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 (1993), 

quoting from Reilly v. School Comm. of Boston, 362 Mass. 689, 

696 (1972). See United States v. Munsingwear, 340 U.S. 36, 39 

(1950) ("The established practice of the Court in dealing with a 

civil case from a court in the federal system which has become 
8

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 

(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

 

15 A different analysis applies when the case is moot 

because it has been settled after the appeal was filed. See 

U.S. Bancorp Mort. Corp. v. Bonner Mall Partnership, 513 U.S. 18 

(1994). "Where mootness results from settlement, however, the 

losing party has voluntarily forfeited his legal remedy by the 

ordinary processes of appeal or certiorari, thereby surrendering 

his claim to the equitable remedy of vacatur." Id. at 25.

16 We also recognize that there is an "equitable tradition 

of vacatur." U.S. Bancorp Mort. Corp. v. Bonner Mall 

Partnership, supra ("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 

the judgment"). This involves a consideration of the "nature 

and character of the conditions which have caused the case to 

become moot," including who is responsible for rendering the 

case moot and who has prevailed below. Id. at 24. For example 

different equitable considerations would apply to a vacatur 

action brought by a party that has lost below who unilaterally 

has taken action to render the case moot. Id. at 25. In the 

instant case, the prevailing parties below, the town and ARC,

negotiated the conservation restriction responsible for
9

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 (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, 

 

rendering the case moot. See ibid. (vacatur appropriate "when 

mootness results from unilateral action of the party who 

prevailed below").
10

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 order of the Appellate Division is 

vacated, not on the merits but because it is moot. We remand to 

the Appellate Division with direction that the District Court 

judgment must be vacated and a new judgment shall enter vacating

the decisions of the town committee and regional commission as 

now moot.

So ordered.