41 N.E.3d 318
Mass. App. Ct.2015Background
- ARC sought a certificate of appropriateness in 2010 to build a 242-foot, 600-kilowatt wind turbine on property in Dennis within the Old King’s Highway regional historic district.
- The town committee granted the certificate; resident Rosemarie Austin appealed to the regional commission claiming visual abutter standing and that the turbine would violate the Act and devalue her property.
- The regional commission annulled the town committee’s approval; ARC and the town appealed to District Court, which reversed the commission and upheld the committee, finding Austin had standing as a “visual abutter.”
- The Appellate Division vacated the District Court judgment, concluding there is no authority for “visual abutter” standing; the regional commission and Austin appealed to the Appeals Court.
- Before decision, ARC granted a recorded conservation restriction (approved by the Secretary) forbidding any wind turbine on the property, rendering construction impossible and the certificate effectively inoperative.
- The Appeals Court held the case moot, declined to resolve the standing/scope-of-review issues, and vacated the unreviewed lower-court and administrative decisions to avoid collateral estoppel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot after ARC’s conservation restriction prohibits any turbine | Austin/commission: Case remains live because prior approvals/annulments affect rights and standing | ARC/town: Restriction eliminates any personal stake; certificate has no present or future effect | Moot: restriction removed all parties’ personal stakes; appeal moot |
| Whether court should decide standing and scope-of-review despite mootness (exercise discretion) | Austin/commission: Issues are important and likely to recur; ask court to resolve under Ott | ARC/town: Court should dismiss as moot; no exceptional circumstances warrant advisory ruling | Declined to exercise discretion: issues are fact-specific and not evanescent; do not meet Ott factors |
| Effect of mootness on unreviewed lower-court and administrative decisions | Austin/commission: Seek preservation of decisions or precedential effect | ARC/town: Vacatur appropriate to avoid unfair collateral estoppel because mootness resulted from parties’ subsequent action | Vacatur: appellate judgment and unreviewed town committee and regional commission decisions vacated and remanded with directions to dismiss |
| Whether prior standing analyses may bind parties in future litigation | Austin/commission: Prior decisions might be used as precedent or estoppel | ARC/town: Vacatur prevents use of unreviewed analyses as sword or shield later | Vacated: standing analyses in unreviewed decisions eliminated for collateral estoppel purposes |
Key Cases Cited
- Taylor v. Board of Appeals of Lexington, 451 Mass. 270 (Mass. 2008) (mootness turns on whether a party retains a personal stake)
- Attorney Gen. v. Commissioner of Ins., 442 Mass. 793 (Mass. 2004) (principles on personal stake and mootness)
- Lockhart v. Attorney Gen., 390 Mass. 780 (Mass. 1984) (adjudication of hypothetical disputes is barred by mootness)
- Ott v. Boston Edison Co., 413 Mass. 680 (Mass. 1992) (factors for exercising discretion to decide moot cases)
- Building Commr. of Cambridge v. Building Code Appeals Bd., 34 Mass. App. Ct. 696 (Mass. App. Ct. 1993) (vacatur of judgments when appeal becomes moot)
- Reilly v. School Comm. of Boston, 362 Mass. 689 (Mass. 1972) (vacatur to prevent collateral estoppel when appeal becomes moot)
- United States v. Munsingwear, 340 U.S. 36 (U.S. 1950) (federal practice of vacating judgments when cases become moot on appeal)
- A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (U.S. 1961) (vacatur principles apply to unreviewed administrative orders)