Aquacultural Research Corporation, et al. v. Austin, et al. (Lawyers Weekly No. 11-176-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 & another[1]  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, 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 abutter[7] 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 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 […]

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