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SJC-13410
BRIAN CARROLL & another1 vs. SELECT BOARD OF NORWELL & others.2
Suffolk. September 11, 2023. - January 5, 2024.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Public Land. Municipal Corporations, Acquisition of real estate, Use of municipal property. Housing. Practice, Civil, Summary judgment, Continuance, Discovery.
Civil action commenced in the Land Court Department on December 22, 2021.
The case was heard by Kevin T. Smith, J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Brian Carroll, pro se. Robert W. Galvin (Anthony J. Riley also present) for the defendants. Tim Wall, pro se, was present but did not argue. Joseph N. Schneiderman, for Massachusetts Association of Realtors, amicus curiae, submitted a brief.
1 Tim Wall.
2 Three members of the select board of Norwell. 2
GEORGES, J. Under G. L. c. 40, § 15A, if town-owned land
is "held . . . for a specific purpose," that land cannot be
diverted to another, inconsistent use until it has been
determined by the "board or officer having charge of [the] land"
that the land is no longer needed for that purpose. In this
case, several residents of the town of Norwell (town) brought a
complaint in the Land Court to compel the town's select board
(board) to transfer municipal land to the town's conservation
commission. A Land Court judge granted the board's motion for
summary judgment, concluding that the municipal land had been
designated for a specific purpose -- the development of
affordable housing -- and therefore, pursuant to G. L. c. 40,
§ 15A, the parcels could not be transferred without a
determination by the board that the land was no longer needed
for this purpose.
The issue on appeal is whether the totality of the
circumstances test articulated in Smith v. Westfield, 478 Mass.
49, 63-64 (2017), applies to the determination whether land is
"held by a city or town . . . for a specific purpose" under
G. L. c. 40, § 15A. We answer that question affirmatively and
conclude that town-owned land is held for a specific municipal
purpose under G. L. c. 40, § 15A, where the totality of the
circumstances indicates a clear and unequivocal intent by the
town to hold the land for such purpose. 3
Applying the totality of the circumstances test to the
summary judgment record presented here, we conclude that there
is no material dispute of fact regarding the town's intent to
dedicate the municipal land at issue for the purpose of
affordable housing. Accordingly, we further conclude that the
allowance of summary judgment for the board was correct.3
1. Background. a. Facts. We recite the material,
undisputed facts from the record. See Arias-Villano v. Chang &
Sons Enters., Inc., 481 Mass. 625, 626 (2019). We reserve
further recitation of the facts for our discussion infra.
The subject of this appeal is a two-parcel property on
Wildcat Lane in, and owned by, the town (Wildcat land). The
town acquired the land in 1989 through tax foreclosures and
thereafter foreclosed all rights of redemption for each parcel.
The subject parcels total approximately 6.3 acres.
On May 11, 2004, town meeting unanimously voted to
authorize the board to make the Wildcat land "available . . .
for affordable housing." Subsequently, around 2005, the town's
master plan committee discussed the idea of granting a private
developer permission to construct a roadway over a portion of
the Wildcat land in exchange for the developer constructing
3 We acknowledge the amicus brief submitted by the Massachusetts Association of Realtors in support of affirming the Land Court's decision. 4
affordable housing units on that land. However, the board was
not interested in such an arrangement.
In 2007, to support the development of affordable housing
in the town, residents voted at town meeting to adopt an
affordable housing trust bylaw, which authorized the creation of
a community housing trust (trust).4 The trust then hired
consultants in 2013 and 2019 to delineate the wetlands located
on the Wildcat land and to perform a "site assessment" on it for
the purpose of advising the town on what type of affordable
housing would be appropriate for the land.
In 2009, a private developer who owned vacant land abutting
the Wildcat land obtained a permit to construct a residential
subdivision known as Wildcat Hill Open Space Residential
Development (Wildcat Hill). The plaintiffs, Brian Carroll and
Tim Wall, are residents of Wildcat Hill. That same year, the
board granted a revocable license to the private developer to
construct and maintain an unpaved, rustic path for pedestrians
and bicycles across a portion of the Wildcat land close to the
boundary line with Wildcat Hill.
4 The 2007 town meeting vote that created the trust did not authorize it to hold or control undeveloped land. Although the trust was granted expanded authority to hold property in 2012, the board has not transferred the wildcat land to the trust or any other body. 5
In September 2019, the trust published an update to the
town's "Housing Production Plan" that identified the Wildcat
land as being "in the planning or predevelopment phases." The
same document noted that the Wildcat land was "designated for
developing affordable housing" by town meeting. In early 2021,
the trust met with the board to discuss the development of
affordable housing on the Wildcat land.
Shortly thereafter, Carroll drafted a citizens' petition
seeking to authorize and direct the board to transfer the
Wildcat land to the conservation commission to be reserved for,
among other things, conservation purposes. After amassing the
requisite number of signatures, the petition was added to the
2021 town meeting warrant as article 26. Specifically, article
26 called for a vote "to authorize and direct the Board of
Selectmen to transfer care, custody, maintenance and control of
[the Wildcat land] to the Conservation Commission, to be held
for conservation, passive recreation and historic preservation
purposes in perpetuity." At the 2021 town meeting, article 26
received the required two-thirds majority vote.
In October 2021, at one of its regular meetings, the board
discussed transferring the Wildcat land to the conservation
commission as authorized and directed by article 26. Several
board members expressed their belief that, before the board
could vote on a measure directing town counsel to draft 6
documents for the transfer of the Wildcat land, the board first
was required to determine that the land was no longer needed for
affordable housing purposes. The board then held a vote on a
motion to declare that the Wildcat land was no longer needed for
affordable housing purposes. The vote did not pass; thus, the
board did not direct town counsel to draft documents to transfer
the land to the conservation commission. Two months later, this
suit followed.
b. Procedural history. Carroll, Wall, and eight other
residents of the town5 filed a complaint in the Land Court
against the board and three individual members in their
representative capacity, seeking equitable relief in the nature
of mandamus under G. L. c. 249, § 5. Specifically, the
plaintiffs requested an order from the Land Court compelling the
board to transfer the Wildcat land to the conservation
commission as directed by article 26. Shortly thereafter, the
parties filed cross motions for summary judgment.
A Land Court judge granted the board's motion for summary
judgment, explaining that the Wildcat land had been designated
for a specific purpose within the meaning of G. L. c. 40, § 15A,
because it was the intent of the board to designate the land for
5 Of the ten plaintiffs, only Carroll and Wall appealed from the Land Court judgment. In reference to the appeal, "plaintiffs" refers to Carroll and Wall. 7
affordable housing, as reflected by the 2004 town meeting vote
and the town's subsequent steps to explore the development of
affordable housing on the land. Accordingly, the Land Court
judge held that the Wildcat land could not be transferred to
another public use without the board first determining that the
land was no longer needed for affordable housing -- a
determination the board had not made.
The plaintiffs appealed, arguing that the land was not set
aside for a specific municipal purpose within the meaning of
G. L. c. 40, § 15A, because any such restriction must be
recorded through an official instrument under this court's
decision in Selectmen of Hanson v. Lindsay, 444 Mass. 502
(2005). The board cross-appealed, challenging the plaintiffs'
standing to bring a mandamus action under G. L. c. 249, § 5, and
arguing that the outcome in this case should be controlled by
our decision in Harris v. Wayland, 392 Mass. 237 (1984), which
held that undeveloped land, purchased for school purposes, could
not be sold to the town housing authority for construction of
elderly and low-income housing absent the school committee's
determination that the land was no longer needed for school
purposes.6 We transferred this case sua sponte from the Appeals
6 Because we conclude that summary judgment for the board was proper on the merits, we decline to resolve the question of standing. See Trigones v. Attorney Gen., 420 Mass. 859, 860 8
Court to clarify the standard for assessing specific-use
designations within the meaning of G. L. c. 40, § 15A.
2. Discussion. a. Standard of review. "We review a
grant of summary judgment de novo." Regis College v. Weston,
462 Mass. 280, 284 (2012). "Summary judgment is appropriate
where there is no material issue of fact in dispute and the
moving party is entitled to judgment as a matter of law"
(citation omitted). Adams v. Schneider Electric USA, 492 Mass.
271, 280 (2023). "Where both parties have moved for summary
judgment, 'the evidence is viewed in the light most favorable to
the party against whom judgment' has been entered," in this
case, the plaintiffs (citation omitted). Smiley First, LLC v.
Department of Transp., 492 Mass. 103, 108 (2023).
b. Statutory framework. Under Massachusetts law, there
are several ways a municipality can hold real estate. See
Harris, 392 Mass. at 240. General Laws c. 40, § 3, allows
municipalities to hold real estate "for the public use of the
inhabitants." The property is placed under the charge of a
town's select board as part of the town's general corporate
inventory. See G. L. c. 40, § 3 ("All real estate . . . of the
town, not by law or by vote of the town placed in the charge of
(1995) ("Assuming, without deciding, that the plaintiff has standing to challenge the statute's constitutionality, we address his claim"). 9
any particular board, officer or department, shall be under the
control of the selectmen . . ."). Alternatively, a municipality
may hold real estate for a specific municipal purpose. Unlike a
municipality's general corporate inventory, such property can be
placed in the charge of either a particular board or the select
board for a specific municipal purpose. See G. L. c. 40, § 15A.
If land is held for a specific municipal purpose within the
meaning of § 15A, that land cannot be diverted to another use
until the "board or officer having charge of [the] land"
determines that the land is no longer needed for that purpose.
Id. See Harris, 392 Mass. at 240.
Accordingly, if the town "held" the Wildcat land for the
"specific purpose" of affordable housing, transferring the
Wildcat land to the conversation commission would entail a two-
step process: first, the board, which has control of the land,
must make a determination that the land is no longer needed for
affordable housing, and second, the town by a two-thirds vote
must authorize transferring the custody of the land to the
conservation commission. See G. L. c. 40, § 15A; Harris, 392
Mass. at 243. Alternatively, if the Wildcat land is not held
for a specific purpose, the land could be transferred to the
conservation commission without a separate vote by the board to
determine that it is no longer needed for affordable housing.
See G. L. c. 40, § 3. 10
c. Specific purpose designations under G. L. c. 40, § 15A.
Before turning to the question whether the Wildcat land was held
for affordable housing on these facts, we must first discuss the
appropriate legal standard to determine whether land is held for
a specific purpose under § 15A.
The parties disagree as to the proper standard. The board
asks this court to consider all attendant circumstances in
analyzing whether the town intended to dedicate the Wildcat land
to affordable housing. The plaintiffs, by contrast, assert that
to designate land for a specific municipal purpose under § 15A,
a town must either transfer public land from the control of the
select board to another board or impose a deed restriction on
the land. We conclude that the totality of the circumstances
test articulated in Smith, 478 Mass. at 63-64, should be applied
to determine whether a town has designated land for a specific
use under § 15A.
In support of our conclusion, we draw upon the common-law
doctrine of prior public use. Under that doctrine, land devoted
to one public use cannot be diverted to another, inconsistent
public use without plain and explicit legislation authorizing
the diversion. See Sudbury v. Massachusetts Bay Transp. Auth.,
485 Mass. 774, 783 (2020) ("The doctrine of prior public use is
a firmly established creation of the common law, dating back to
the Nineteenth Century. Under this doctrine, public lands 11
devoted to one public use cannot be diverted to another
inconsistent public use . . ." [quotation and citation
omitted]).7
Article 97 of the Amendments to the Massachusetts
Constitution, adopted in 1972, is a constitutional codification
of the common-law prior public use doctrine that affords
protections to public lands held for conservation. Under art.
97, "[l]ands and easements taken or acquired for [conservation]
purposes shall not be used for other purposes or otherwise
disposed of except by laws enacted by a two-thirds vote, taken
by yeas and nays, of each branch of the general court."
First enacted in 1951,8 G. L. c. 40, § 15A, embodies the
same legal principle -- land designated for one use may not be
diverted for an inconsistent use absent explicit determination
7 The prior public use doctrine protects all public land, resolving potential disputes over intergovernmental transfers. See, e.g., Selectmen of Braintree v. County Comm'rs of Norfolk, 399 Mass. 507, 511 (1987) (use of hospital grounds for prison improper where land was obtained for purpose of constructing hospital); Bauer v. Mitchell, 247 Mass. 522, 528 (1924) ("The appropriation by the county commissioners as trustees of the hospital of land bought for and dedicated to the uses of the school . . . [for use as a leaching field for the hospital] was without legal right"); Higginson v. Treasurer & Sch. House Comm'rs of Boston, 212 Mass. 583, 591 (1912) (land devoted to parkland could not be used to construct schoolhouse); Old Colony R.R. v. Framingham Water Co., 153 Mass 561, 563 (1891) (where land was previously appropriated for specific public use, municipal corporation could not take land for another use without explicit legislative authorization). 8 See St. 1951, c. 798, § 4. 12
that the land is no longer needed for such use by the relevant
municipal board in charge of the land and a two-thirds vote by
the town authorizing the diversion. Indeed, much like art. 97,
§ 15A, in pertinent part, provides that "[w]henever a board
. . . having charge of land . . . constituting the whole or any
part of an estate held by a city or town for a specific purpose
. . . [determines] that such land is no longer needed for such
purpose . . . the town by a two thirds vote . . . may transfer
. . . such land . . . for another specific municipal purpose."
As such, the plain language of § 15A makes clear that if the
Wildcat land is held for the specific municipal purpose of
affordable housing, it cannot be diverted to an inconsistent use
of conservation until a diversion has been approved pursuant to
§ 15A.
While the case law establishing the standard for assessing
specific-use designations under § 15A is scarce, this court has
addressed the corresponding standard under art. 97 on several
occasions. Because art. 97 imposes similar restrictions to
those in § 15A on land that has been designated for conservation
purposes, our decisions in cases involving art. 97 provide a
useful framework for determining specific municipal use
designations under § 15A.
Accordingly, this case requires us to reconcile our
reasoning in three cases -- Harris, Selectmen of Hanson, and 13
Smith -- that touch upon these standards. In Harris, 392 Mass.
at 243, we clarified the relationship between G. L. c. 40,
§ 15A, and G. L. c. 40, § 3. However, because the issue in
Harris was whether land taken by eminent domain for school
purposes was in the charge of the school committee absent a
separate vote placing the land in the committee's control, the
Harris decision is silent on what test should be applied to
determine whether a town has designated the land for a specific
use under § 15A, where, as here, the land was originally
acquired for general municipal purposes. The Selectmen of
Hanson and Smith decisions, on the other hand, articulate a
totality of the circumstances test for specific-use designations
but do so in the context of municipal land held for conservation
under art. 97. However, this distinction is without
consequence. Both G. L. c. 40, § 15A, and art. 97 are
codifications of the prior public use doctrine, developed in our
common law as a means to resolve potential conflicts over the
use of public lands between various governmental entities. See
Sudbury, 485 Mass. at 787.
Indeed, in Selectmen of Hanson, we did not differentiate
between G. L. c. 40, § 15A, and art. 97 in our analysis of
whether the land at issue had been designated for a specific
use. See Selectmen of Hanson, 444 Mass. at 509 ("Because the
[land] was not held for a specific purpose, namely conservation, 14
compliance with the provisions of art. 97 and G. L. c. 40,
§ 15A, was not required" [emphasis added]). Thus, our
interpretation of what it means to "designate" land for
conservation purposes in a manner sufficient to invoke art. 97
protection is helpful in clarifying what it means to "hold" land
for a specific municipal purpose within the meaning of § 15A.
In Selectmen of Hanson, 444 Mass. at 504, the town of
Hanson acquired title to a parcel by tax taking. Fourteen years
later, the Hanson town meeting voted unanimously "'to accept for
conservation purposes, a deed, or deeds, to' the locus, [but] no
further action was taken by the town in connection with this
vote." Id. Although the town vote authorized the select board
to transfer the land to the conservation commission or execute a
deed imposing a conservation restriction, the select board
retained control of the property, which was never used for
conservation. Id. Some twenty-seven years after the town
meeting vote, the tax custodian circulated a list of properties
to be auctioned, and subsequently sold the land to a third-party
purchaser. See id. The town sued the third-party purchaser,
arguing that the sale of the land was invalid because the town
had not complied with the two-step process set forth in G. L.
c. 40, § 15A, to determine that the land was no longer needed
for conservation purposes. See id. at 503-504. However, we
held that the town meeting vote only "evidenced an intent by the 15
town to impose a conservation restriction on the locus, and that
an instrument creating such a property restriction had to be
filed with the registry of deeds in order for the town's
interest to prevail over that of any subsequent bona fide
purchaser for value." Id. at 505.
To be clear, the court in Selectmen of Hanson did not
adopt, as the plaintiffs argue, a bright-line rule requiring
towns to file deed restrictions or transfer control of property
to specific entities in order to hold it for a specific purpose
under G. L. c. 40, § 15A. See Selectmen of Hanson, 444 Mass. at
505 ("We agree with the town that the 1971 vote did not have to
be filed with the registry of deeds"). See also Mahajan v.
Department of Envtl. Protection, 464 Mass. 604, 615 (2013),
citing Selectmen of Hanson, supra at 508-509 ("The critical
question . . . [is] whether the land was taken for those
purposes [identified in art. 97], or subsequent to the taking
was designated for those purposes in a manner sufficient to
invoke the protection of art. 97").
Indeed, since the Selectmen of Hanson case was decided, we
have clarified the standard for specific-use designations under
art. 97. In Smith, 478 Mass. at 50, the issue on appeal was
whether a parcel of land owned by the city of Westfield had been
dedicated as parkland within the meaning of art. 97, and thus
required a two-thirds vote of the Legislature to divert the land 16
to an inconsistent use. There was no restriction recorded in
the registry of deeds that limited the parcel's use to
conservation or recreation purposes. Id. We, nonetheless,
explicitly declined to interpret Selectmen of Hanson to require
recorded deed restrictions to invoke art. 97 protections in all
cases. See id. at 58. We ultimately concluded that in
assessing whether the land was sufficiently designated as
parkland to invoke art. 97 protections, courts should apply the
following standard:
"Under our common law, land is dedicated to the public as a public park when the landowner's intent to do so is clear and unequivocal, and when the public accepts such use by actually using the land as a public park. There are various ways to manifest a clear and unequivocal intent. The recording of a deed or a conservation restriction is one way of manifesting such intent but it is not the only way. . . .
"The clear and unequivocal intent to dedicate public land as a public park must be more than simply an intent to use public land as a park temporarily or until a better use has emerged or ripened. Rather, the intent must be to use the land permanently as a public park, because the consequence of a dedication is that the general public for whose benefit a use in the land was established . . . obtains an interest in the land in the nature of easement, and upon completion of the dedication it becomes irrevocable." (Quotations and citations omitted.)9
9 The question in Smith, 478 Mass. at 63, whether the public had accepted the dedicated land "by actually using the land as a public park," is inapplicable in this context. Unlike G. L. c. 40, § 15A, under art. 97, once a city or town offers land it owns for use as a public park, and the public accepts it, the "general public," rather than residents of the particular town, obtains an interest in the land in the nature of an easement. See Smith, supra at 59-60. Under G. L. c. 40, § 15A, even 17
Id. at 63.
Given the similarities in the statutory language and the
identical common-law roots of art. 97 and G. L. c. 40, § 15A, we
hold that the totality of the circumstances test articulated in
Smith should likewise be applied in assessing specific-use
designations within the meaning of G. L. c. 40, § 15A. That is,
in assessing whether land has been designated for a specific
municipal use within the meaning of § 15A, courts should
consider whether the totality of the circumstances indicate a
clear and unequivocal intent to dedicate the land to that
purpose.
d. Application. "An order granting . . . summary judgment
will be upheld if the trial judge ruled on undisputed material
facts and [the] ruling was correct as a matter of law."
Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534,
536 (1992). To succeed on a motion for summary judgment, a
moving party "may satisfy [its] burden of demonstrating the
absence of triable issue either by submitting evidence that
negates an essential element of the opposing party's case or by
demonstrating that the opposing party has no reasonable
where a town dedicates land for a particular municipal purpose, it retains full proprietary interest in the land. Thus, the sole inquiry for the purpose of § 15A designations should be the town's intent to "hold" land for a specific municipal purpose. 18
expectation of proving an essential element of [his] case at
trial" (citation omitted). Hill-Junious v. UTP Realty, LLC, 492
Mass. 667, 672 (2023). "The burden on the moving party may be
discharged by showing that there is an absence of evidence to
support the non-moving party's case." Kourouvacilis v. General
Motors Corp., 410 Mass. 706, 711 (1991).
To prevail at the summary judgment stage, the board had the
burden to show that there was no genuine dispute of material
fact regarding whether the Wildcat land was dedicated for
affordable housing under G. L. c. 40, § 15A, and that it was
entitled to summary judgment as a matter of law. As discussed
supra, this entails showing the town's clear and unequivocal
intent to set aside the property for that specific use. We
conclude that the board met its burden, as there are no genuine
disputes of material fact concerning the town's intent, even
when viewing the evidence in the light most favorable to the
plaintiffs, as we must on summary judgment.
The board put forth undisputed evidence showing that the
town dedicated the Wildcat land for affordable housing. To
begin with, town meeting unanimously voted in 2004 to "make
available [the Wildcat land] for affordable housing." While it
is true that the 2004 town meeting vote is not, on its own,
sufficient to establish a clear and unequivocal intent to set
aside the land for affordable housing, it is nonetheless 19
indicative of such an intent. See Harris, 392 Mass. at 241
("The warrant for the special town meeting . . . shows
that . . . it was commonly understood that the property remained
in the charge of the school committee in the twenty-five years
that it had been held by the town").
In addition, the town took several other steps that shed
further light on its intent to set aside the Wildcat land for
affordable housing. In 2007, town meeting voted to adopt an
affordable housing trust bylaw establishing the trust, a
municipal entity whose sole purpose is the development of
affordable housing in the town. In furtherance of its purpose,
the trust hired several outside engineering consultants in 2013
and 2019 to delineate the wetlands on the Wildcat land and
perform a site assessment of the property for a multiunit
affordable housing development. These consultants prepared a
concept plan in 2013 for an affordable housing project on the
Wildcat land, which included ten "cottage-style" single-family
units. That same year, the trust ordered a feasibility study on
the Wildcat land to assess the site's ability to handle
stormwater and wastewater.
In 2019, an outside architectural firm prepared yet another
conceptual housing development plan, in which it proposed a
potential twenty-six unit affordable housing development. Later
that year, the trust published an update to the town's housing 20
production plan, which identified the Wildcat land as being
"designated for developing affordable housing" and referenced
the twenty-six unit 2019 conceptual project design prepared by
the architectural firm. Finally, in 2021, the trust met with
the board to discuss the development of the Wildcat land. Thus,
it is undisputed that, consistent with the 2004 town meeting
authorization, the board, primarily through the trust, explored
the development of the Wildcat land for affordable housing in
several different ways.
Other information presented by town officials corroborates
these efforts. For example, the town administrator stated in an
affidavit that the town expended considerable public funds to
assess the feasibility of affordable housing on the Wildcat land
by identifying wetland resource areas, conducting site
assessments, and engaging experts to advise the town on what
type of affordable housing would be appropriate for the
property. The town administrator also stated that, in 2021,
before Carroll drafted and submitted the 2021 town meeting
article, the trust recommended that the town request proposals
from developers to develop affordable housing on the Wildcat
land.
Notably, an affidavit from the trust chair provides context
concerning the length of time that the board controlled the
Wildcat land for affordable housing. Specifically, the trust 21
chair stated that, although the initial feasibility studies on
the Wildcat land were prepared in 2013, the trust decided to
place the development of the Wildcat land on hold while it
developed an affordable housing project at a different location.
The 2019 update to the housing production plan further
elucidates why the development of the Wildcat land was
temporarily put on hold -- "[t]he property's slope and
infrastructure demands in the project design drove up projected
costs considerably," thereby informing the trust's decision to
develop another property first. However, that is not to say
that the town was abandoning the development of affordable
housing on the Wildcat land; instead, consistent with the town
administrator, the trust chair asserted that when the other
affordable housing project was near completion in 2018, the
trust moved forward with preparing a conceptual development
design plan for the Wildcat land in 2019.
Moreover, the chair stated that, after the 2021 town
meeting vote, the board asked the trust to consider whether the
Wildcat land was still needed for affordable housing. The trust
then voted unanimously that the Wildcat land was still needed
for that purpose, since the town's affordable housing inventory
was far below ten percent, a threshold requirement under G. L.
c. 40B, § 20, and the Wildcat land was the only town-owned
property not designated for other purposes. 22
Taken together, this evidence shows that following the 2004
town meeting vote, the board, acting primarily through the
trust, took several steps to explore the use of the Wildcat land
for affordable housing. This evidence also indicates that,
since the 2004 town meeting vote, the board considered the
Wildcat land to be set aside for a specific municipal use,
affordable housing, to the exclusion of all other uses.
Because the board produced undisputed evidence showing that
the town intended to designate the Wildcat land for affordable
housing, the crucial question is whether the plaintiffs have
produced any evidence to create a material dispute of fact
regarding the town's intent. See Barbetti v. Stempniewicz, 490
Mass. 98, 116 (2022) ("If the moving party establishes the
absence of a triable issue, the party opposing the motion must
respond and allege specific facts which would establish the
existence of a genuine issue of material fact in order to defeat
a motion for summary judgment" [citation omitted]). While it is
certainly true that courts do not usually reach the factual
question of intent at the summary judgment stage, the plaintiffs
did not produce any evidence to create a material dispute of
fact as to whether the board intended to hold the Wildcat land
for affordable housing. See e.g., National Assn'n of Gov't
Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220,
231 (1979) (party against whom summary judgment is sought not 23
entitled to trial simply because cause of action has state of
mind as material element; there must be some indication that
opposing party can produce requisite quantum of evidence to
support its claim).
Indeed, instead of pointing to specific evidence in the
record, the plaintiffs relied on mere allegations and conclusory
denials, which cannot defeat summary judgment. For example, in
its statement of material facts, the board asserted that the
trust placed the development of the Wildcat land on hold while
it developed an affordable housing project on another property.
In responding to this statement, the plaintiffs merely asserted
that this material fact was disputed, as "information regarding
this assertion [was] solely within the possession, custody, and
control of [the defendants], and discovery [was] ongoing."
A fact is not disputed merely because it has been denied by
a nonmoving party. See Adams, 492 Mass. at 287. See also
Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham
Group, 469 Mass. 800, 804 (2014) ("Bare assertions made in the
nonmoving party's opposition will not defeat a motion for
summary judgment"). Rather, an affirmative response by an
opposing party is crucial to its ability to survive a motion for
summary judgment. Indeed, the requirement of an affirmative
response, supported by specific facts, by the party opposing 24
summary judgment is spelled out in the rule itself. Under Mass.
R. Civ. P. 56 (e), 365 Mass. 824 (1974):
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial" (emphasis added).
Mere denials coupled with a nonmoving party's hope that
something will materialize in discovery will not prevent a court
from ordering summary judgment. As such, the plaintiffs' vague
and general statements are wholly inadequate. See LaLonde v.
Eissner, 405 Mass. 207, 209 (1989) (party cannot rest on mere
assertions of disputed facts to defeat motion for summary
judgment).
Despite their inadequate responses to the board's statement
of material facts, the plaintiffs now point to evidence in the
summary judgment record to support their position that the
Wildcat land was held as part of the town's general corporate
property under G. L. c. 40, § 3. Specifically, they point to
the following evidence: (1) an affidavit by one board member
stating that, in 2005, the board rejected a private developer's
proposal to construct affordable housing on the Wildcat land;
(2) meeting minutes of the board showing that, in 2009, the
board granted a revocable license to a private developer to
construct a walking path across a portion of the Wildcat land 25
close to the boundary of Wildcat Hill; and (3) the length of
time that has passed since the board initially made the Wildcat
land available for affordable housing in 2004, without the board
actually developing the land for that purpose or transferring
the Wildcat land to the trust's custody. None of this
evidence, even when viewed in the light most favorable to the
plaintiffs, creates a genuine issue of material fact for
purposes of the board's motion for summary judgment.
According to the board member's affidavit, a member of the
town's master plan committee met with a private developer in
2005 and discussed the idea of granting the developer permission
to construct a roadway over the town-owned property in exchange
for the developer constructing affordable housing units on the
Wildcat land. However, after this proposal was brought to the
board, the board was "not interested in such an arrangement."
Because the board rejected this single proposal, the plaintiffs
ask us to infer that the board was not interested in
constructing affordable housing on the Wildcat land. Such an
inference is a bridge too far.
In evaluating a motion for summary judgment, a court makes
"all logically permissible inferences" in favor of a nonmoving
party. See Willitts v. Roman Catholic Archbishop of Boston, 411
Mass. 202, 203 (1991). Thus, a court should not indulge a
nonmoving party's inferences if they do not "flow rationally 26
from the underlying facts" (citation omitted). Rubinovitz v.
Rogato, 60 F.3d 906, 911 (1st Cir. 1995). The inference that
the plaintiffs ask us to make -- that the board was not
interested in any proposal to build affordable housing -- is not
logically permissible where the board was merely declining a
single proposal that was contingent on a condition unrelated to
any intent to develop affordable housing (i.e., the construction
of a roadway). This inference is even more tenuous considering
that the board's rejection of this proposal predates subsequent
actions by the town that show a continued interest in using the
Wildcat land for affordable housing -- such as conducting
studies to determine whether it was feasible to use the property
for affordable housing.
The plaintiffs also contend that granting a revocable
license to construct a walking path over a small portion of the
Wildcat land shows that the board intended to hold the entire
parcel for another purpose -- public recreation -- rather than
intending to hold the land exclusively for affordable housing.
However, "[a] license merely excuses acts done by one on land in
possession of another that without the license would be
trespasses, conveys no interest in land, and may be contracted
for or given orally." Baseball Publ. Co. v. Bruton, 302 Mass.
54, 55 (1938). Further, a license is freely revocable at the
will of the promisor. See Spencer v. Rabidou, 340 Mass. 91, 93 27
(1959). Therefore, an inference that granting a revocable
license to build a trail on a small portion of the Wildcat land
indicates that the board intended to hold the entire six-acre
parcel for the purpose of recreation is unreasonable because the
board was free to revoke the license at any time. Further, this
inference is even less rational considering the town
administrator's affidavit, which states that the trail was
approved next to the boundary line so that it would not
interfere with the development of the rest of the Wildcat land.
Lastly, the mere fact that the Wildcat land remained
undeveloped and under the control of the board, as opposed to
the trust, for approximately thirty years does not create a
material dispute of fact as to the town's intent. First, as
discussed in Harris, 392 Mass. at 243, the two-step procedure
required by G. L. c. 40, § 15A, applies even if "the land [held
for a specific municipal purpose] was in the charge of the
selectmen rather that another board or officer." Thus, the
plain language of § 15A does not require the board to transfer
the custody of the land held for a specific municipal purpose to
another board or officer. See id. Stated differently, the
dispositive question is not which municipal entity retained
custody of the Wildcat land, but whether, under the totality of
the circumstances, the town intended to hold the land for the
specific municipal purpose of affordable housing. 28
Further, the delay in the development of the Wildcat land
does not indicate the town's intent to hold it as a part of the
town's general corporate inventory. Indeed, the record evidence
suggests that the delay was caused by factors other than the
town's lack of interest in using the Wildcat land for affordable
housing. In particular, the trust's 2019 update to the town's
housing production plan indicates that the Wildcat land's "slope
and infrastructure demands" drove up the projected costs of the
development, prompting the town to set the development of the
Wildcat land on hold. The update further states that the town
was only then, in 2019, revisiting the wildcat property project
after finishing a similar development elsewhere. This evidence
suggests that the practical, topographic difficulties associated
with developing the Wildcat land informed the trust's decision
to develop another town-owned property first and revisit the
Wildcat land development plans later. Thus, the mere fact that
the property remained undeveloped does not support the
plaintiffs' suggested inference. See Harris, 392 Mass. at 242
("To require town boards in control of land to [develop the
land] would encourage unnecessary and premature development and
preclude careful planning for future needs").
Even taken together, (i) the town's rejection of a
developer proposal for affordable housing, (ii) the grant of a
revocable license for a walking path, and (iii) the length of 29
time it has taken to develop affordable housing on the Wildcat
land do not support a rational inference that the board did not
intend to hold the Wildcat land exclusively for affordable
housing purposes. As we explained supra, the inferences that
the plaintiffs have asked us to make in response to these facts,
individually, are improbable. Given that each separate
inference is on its own improbable, combining them together
cannot defeat summary judgment. See e.g., Grant's Dairy-Me.,
LLC v. Commissioner of Me. Dep't of Agric., Food & Rural
Resources, 232 F.3d 8, 23 (1st Cir. 2000) ("Despite the
generosity of [the summary judgment] standard, conclusory
allegations, improbable inferences, and unsupported speculation
are entitled to no weight" [quotation and citation omitted]);
Barwick v. Celotex Corp., 736 F.2d 946, 962 (4th Cir. 1984)
(rejecting plaintiff's "attempt[] to build one vague inference
upon another vague inference to produce a factual issue").10
10We note that because the Massachusetts rules of civil procedure were patterned on the Federal rules of civil procedure, it is well established that we may take guidance from the relevant Federal jurisprudence in construing rule 56 (e). See Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975) ("This court having adopted comprehensive rules of civil procedure in substantially the same form as the earlier Federal Rules of Civil Procedure, the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content"). 30
e. Continuance to obtain further discovery. In the
alternative, the plaintiffs contend that the motion judge abused
his discretion in granting the board's cross motion for summary
judgment without permitting them an opportunity to first engage
in discovery. We are not persuaded.
"A continuance is appropriate if the party opposing a
summary judgment motion shows that it cannot, without further
discovery, 'present by affidavits facts essential to justify
[its] opposition.'" Commonwealth v. Fall River Motor Sales,
Inc., 409 Mass. 302, 307 (1991), quoting Mass. R. Civ. P.
56 (f). Rule 56 (f) requires a nonmoving party to file an
affidavit explaining the reasons why he or she cannot present
facts to justify his or her opposition and requesting a
continuance to obtain further discovery. See Herbert A.
Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 400-401
(2003) ("Had [the party opposing summary judgment] filed such an
affidavit and obtained a continuance of the summary judgment
proceedings, it could have gone forward with discovery and
secured necessary evidence to support its . . . claim"); First
Nat'l Bank v. Slade, 379 Mass. 243, 244-245 (1979) (failure to
file rule 56 [f] affidavit or to explain failure was "fatal" to
argument for opportunity to obtain discovery). See also Coastal
Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. 55, 61 31
n.8 (2004) (informal request asking for additional discovery is
nullity absent affidavit requesting continuance).
The plaintiffs did not file an affidavit requesting a
continuance as required by rule 56 (f). They, nevertheless,
assert that their "repeated and consistent objections in this
case are more than sufficient to invoke [r]ule 56(f)." The
plaintiffs overstate these objections. While they did respond
to some of the board's statements of material facts suggesting
that the town was in the possession of the relevant information
and that discovery was "ongoing," a request for continuance to
obtain additional discovery in accordance with rule 56 (f) must
be presented explicitly; it is not on the motion judge to infer
whether the plaintiffs' vague objections to the board's
statement of undisputed facts functioned as a request for more
discovery. Moreover, in February 2022, at a case management
conference before the Land Court, "[t]he parties agreed that
fact discovery [was] not required in this case because there
[were] no disputes of material fact."
A request made pursuant to rule 56 (f), together with the
supporting affidavit, must point to the issues of material fact,
and set forth both (i) the additional discovery an opposing
party needs and (ii) how much time the party needs to develop
the facts essential to its opposition. See Slater v. Traynor
Mgt., Inc., 101 Mass. App. Ct. 705, 709-710 (2022). Here, the 32
plaintiffs' responses did not specify what additional discovery
they needed, nor how much time they needed to complete it.
For these reasons, the plaintiffs' right to further
discovery was waived. See Herbert A. Sullivan, Inc., 439 Mass.
at 401 ("By failing to invoke rule 56 [f], [the party opposing
summary judgment] waived its right to further discovery before
the judge issued his decision on [the] motion for summary
judgment"). Accordingly, the motion judge did not abuse his
discretion in granting the board's motion for summary judgment
without ordering further discovery. See Alake v. Boston, 40
Mass. App. Ct. 610, 612 (1996) (plaintiff failed to present
materials to motion judge demonstrating that there was genuine
issue for trial or, alternatively, invoke rule 56 [f] to seek
additional discovery).
3. Conclusion. Based on the undisputed facts, the Wildcat
land was held exclusively for a specific municipal purpose --
the development of affordable housing -- within the meaning of
G. L. c. 40, § 15A. Accordingly, we affirm the Land Court's
decision on the parties' cross motions for summary judgment.
Judgment affirmed.