Opinion
17-P-1048
04-27-2018
DIANE FUNFAR & others v. TOWN OF FALMOUTH & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
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.
By the Court (Wolohojian, Milkey & Wendlandt, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 27, 2018.