NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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 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



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.
