CYNTHIA BEARD & Others v. EARTH REMOVAL COMMITTEE OF CARVER & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1484

CYNTHIA BEARD & others1

vs.

EARTH REMOVAL COMMITTEE OF CARVER & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, residents of the town of Carver seeking

judicial review of an earth removal permit granted by the town's

earth removal committee (ERC) for a neighboring parcel of land

(property), appeal from a Superior Court judgment dismissing

their second amended complaint for lack of subject matter

jurisdiction. On appeal, the plaintiffs claim that the judge

improperly dismissed their complaint on the bases of a lack of

standing and, alternatively, mootness. We affirm.

1Joshua Beard, Madeline Joyce, Helen Littig, Jacqueline
Littig, Kevin Littig, Angela Moore, Chad Moore, Dorothy Pollitt,
Thomas Pollitt, Deborah Rooney, James Rooney, and Lisa Simmons.

2SLT Construction Corporation and the Marob Trust. The
last defendant is identified in the second amended complaint as
"Marob Trust c/o Mary McGrath."
1. Standing. "We treat standing as an issue of subject

matter jurisdiction." Ginther v. Commissioner of Ins., 427

Mass. 319, 322 (1998). "Courts . . . have both the power and

the obligation to resolve problems of subject matter

jurisdiction whenever they become apparent, regardless whether

the issue is raised by the parties" (citation omitted). HSBC

Bank USA, N.A. v. Matt, 464 Mass. 193, 199 (2013).

For an abutting3 landowner to establish standing in an

action in the nature of certiorari, G. L. c. 249, § 4, the

plaintiff must "make[] a requisite showing of a reasonable

likelihood that it has suffered injury to a protected legal

right." Higby/Fulton Vineyard, LLC v. Board of Health of

Tisbury, 70 Mass. App. Ct. 848, 850 (2007). With respect to the

magnitude of injury suffered, "[i]t is the general rule that

resort cannot be had to certiorari unless the action of the

tribunal of which a review is sought has resulted in substantial

injury or manifest injustice to the petitioner" (citation

omitted). Friedman v. Conservation Comm'n of Edgartown, 62

Mass. App. Ct. 539, 545 (2004).

To demonstrate a reasonable likelihood of substantial

injury or manifest injustice, "the plaintiff must put forth

credible evidence to substantiate his allegations." Perisho v.

3 Here, the plaintiffs' homes do not directly abut the
property; the properties are separated by several hundred feet.

2
Board of Health of Stow, 103 Mass. App. Ct. 593, 597-598 (2023),

quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421

Mass. 719, 721 (1996). Claims of harm that "are of a

'speculative nature' [are] insufficient to support standing."

Hickey v. Conservation Comm'n of Dennis, 93 Mass. App. Ct. 655,

658 (2018), quoting Higby/Fulton Vineyard, LLC, 70 Mass. App.

Ct. at 852. The use of terms such as "'potential,'

'likelihood . . . over time,' and 'possibility'" weighs in favor

of finding the alleged harm to be speculative. Higby/Fulton

Vineyard, LLC, supra at 851. Additionally, "claims of injury

[that] are raised 'in a conclusory fashion, and [are unsupported

by] expert evidence, technical analysis, or particular facts in

the record that establish [the purported risks]" are

insufficient to confer standing. Perisho, supra at 598, quoting

Hickey, supra.

Here, the plaintiffs filed their second amended complaint

under the certiorari statute, G. L. c. 249, § 4, and the

declaratory judgment statute, G. L. c. 231A, § 1. As "G. L.

c. 231A does not provide an independent statutory basis for

standing," Enos v. Secretary of Envtl. Affairs, 432 Mass. 132,

135 (2000), the plaintiffs are subject to the standing

requirements under G. L. c. 249, § 4.

The plaintiffs first argue that the judge erred in finding

a lack of standing because "[s]tanding, for jurisdictional

3
purposes, is tested at the time an action commences," Styller v.

Zoning Bd. of Appeals of Lynnfield, 487 Mass. 588, 592 (2021),

and the plaintiffs detailed sufficient earth removal-related

injuries at the time the lawsuit was filed. However, the

plaintiffs incorrectly derive from this principle the conclusion

that the alleged injuries stemming from earth removal

activities, see note 5, infra, which had not yet been mooted4 at

the commencement of the lawsuit, are sufficient to confer

standing to seek their requested remand. This position neglects

the requirement that "a plaintiff must demonstrate standing

separately for each form of relief sought" (citation omitted).

Brantley v. Hampden Div. of the Probate & Family Court Dep't,

457 Mass. 172, 181 (2010). In order to confer standing, "the

complained of injury must be a direct consequence of the

complained of action." Ginther, 427 Mass. at 323. Therefore,

the plaintiffs' alleged injuries stemming directly from earth

removal activities do not, standing alone, confer standing to

seek a remand to the ERC to review the allegedly defective

restoration plan.

4 As we discuss, infra, the completion of earth removal
activities on the property mooted the plaintiffs' demand for
relief in connection with such activities. However, the
plaintiffs also claim to be aggrieved by the absence of an
adequate restoration plan. Accordingly, the plaintiffs now seek
relief in the form of a remand to the ERC to review a "complete
or adequate" restoration plan and "rigorously evaluate it."

4
The plaintiffs claim that they are harmed in two ways by

the ERC's issuance of the earth removal permit without an

adequate site plan and restoration plan: (1) the resulting

failure to restore the property in a manner that ameliorates

existing harms from earth removal activities; and (2) the

resulting failure to account for new harms related to changes in

the property's land characteristics. With respect to the first

bucket, the plaintiffs claim that "dust, dirt, and the

like . . . may persist given the changes to the worksite's

topography if restoration is not correctly performed";

"transient wildlife may continue [in the absence of an adequate

restoration plan]"; and "noise may also remain an ongoing

problem . . . unless appropriate restoration work is completed."

(Emphases added.) With respect to the second bucket, the

plaintiffs claim that they may be subject to "potential post-

removal injuries" from changes in the property's elevations,

surface water flows, and groundwater elevations, flows, and

recharge (emphasis added).

Both sets of allegations are facially speculative, as they

are qualified with terms such as "may" and "potential," and the

record is lacking in supportive "expert evidence, technical

analysis, or particular facts." Perisho, 103 Mass. App. Ct. at

598, quoting Hickey, 93 Mass. App. Ct. at 658. See Higby/Fulton

Vineyard, LLC, 70 Mass. App. Ct. at 851. Therefore, the

5
plaintiffs failed to demonstrate a reasonable likelihood of

substantial injury or manifest injustice directly resulting from

the inadequacy of the site plan and restoration plan, as is

required to establish standing under G. L. c. 249, § 4, to seek

the requested remand. See Higby/Fulton Vineyard, LLC, supra at

850-851; Friedman, 62 Mass. App. Ct. at 545. See also Ginther,

427 Mass. at 323.

2. Mootness. "It is the general rule that courts decide

only actual controversies and that normally we do not decide

moot cases" (quotations and citation omitted). Harmon v.

Commissioner of Correction, 487 Mass. 470, 475 (2021).

"[L]itigation is considered moot when the party who claimed to

be aggrieved ceases to have a personal stake in its outcome"

(citation omitted). Lynn v. Murrell, 489 Mass. 579, 582 (2022).

"A party no longer has a personal stake in a case 'where a court

can order no further effective relief'" (quotation omitted).

Id., quoting Branch v. Commonwealth Employment Relations Bd.,

481 Mass. 810, 817 (2019), cert. denied, 140 S. Ct. 858 (2020).

Here, even if the plaintiffs had standing to seek relief

under G. L. c. 249, § 4, for their earth removal-related claims

at the time the lawsuit was filed, which we do not decide, the

judge properly dismissed such claims for mootness. Earth

removal activities on the property are complete; only

restoration work remains. Accordingly, there is "no further

6
effective relief" that we can order to redress the subset of

alleged injuries5 resulting from earth removal activities, the

plaintiffs no longer have a "personal stake" in such claims, and

such claims are moot (citations omitted).6 Lynn, 489 Mass. at

582. Indeed, the plaintiffs do not argue against the mootness

of such claims; rather, the plaintiffs' argument against the

mootness of the action is that they will suffer harms from an

inadequate restoration of the property.7 The judge properly

A representative sampling includes: noise from trucks
5

servicing the earth removal operations and from earth removal
equipment; ground vibration from earth removal operations; and
the deposit of dirt and trash from the worksite on the
plaintiffs' properties.

The request of SLT Construction Corporation and Marob
6

Trust for an award of appellate attorney's fees is denied, as
the plaintiffs' appeal is not frivolous. See Mass. R. A. P. 25,
as appearing in 481 Mass. 1654 (2019).

As we discussed, supra, the plaintiffs lack standing to
7

seek relief in the form of a remand to the ERC to review the
restoration plan; therefore, we need not evaluate the mootness
of the plaintiffs' claims vis-à-vis restoration activities on
the property.

7
dismissed the second amended complaint for lack of subject

matter jurisdiction.

Judgment affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.8),

Clerk

Entered: October 10, 2024.

8 The panelists are listed in order of seniority.

8