NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
22-P-314 Appeals Court 22-P-433
ELIZABETH REILLY & others1 vs. TOWN OF HOPEDALE & others2 (and a companion case3).
Nos. 22-P-314 & 22-P-433.
Worcester. November 15, 2022. – March 7, 2023.
Present: Wolohojian, Ditkoff, & Walsh, JJ.
Practice, Civil, Standing, Declaratory proceeding, Judgment on the pleadings, Intervention, Moot case, Taxable inhabitants' action. Jurisdiction, Taxable inhabitants' action.
Civil action commenced in the Superior Court Department on March 3, 2021.
The case was heard by Karen L. Goodwin, J., on motions for judgment on the pleadings, and a motion for clarification was considered by her.
1 Carol J. Hall, Donald Hall, Hilary Smith, David Smith, Megan Fleming, Stephanie A. McCallum, Jason A. Beard, Amy Beard, Shannon W. Fleming, and Janice Doyle.
2 Bernie Stock, Brian R. Keyes, Grafton & Upton Railroad Company, Jon Delli Priscoli, Michael Milanoski, and One Hundred Forty Realty Trust.
3 Town of Hopedale vs. Jon Delli Priscoli, trustee, & others. 2
David E. Lurie (Harley C. Racer also present) for Elizabeth Reilly & others. Sean M. Grammel for town of Hopedale & others. Donald C. Keavany, Jr., for Jon Delli Priscoli & others. Robert A. Indresano, for Friends of the Centerville Cranberry Bog Preservation, Inc., amicus curiae, submitted a brief.
Civil action commenced in the Land Court Department on October 28, 2020.
Following a joint stipulation of dismissal, a motion to vacate the stipulation was heard by Diane R. Rubin, J., and motions to intervene and for an expedited hearing were considered by her.
Harley C. Racer for Elizabeth Reilly & others. Donald C. Keavany, Jr., for Jon Delli Priscoli & others.
WOLOHOJIAN, J. These two cases stem from a dispute
concerning chapter 61 forest land located in the town of
Hopedale (town) that the Grafton & Upton Railroad (railroad)
wishes, and already has begun, to develop over opposition by the
town and certain of its residents. The first case (No. 22-P-
314) was filed in the Superior Court by a group of town
residents (citizens) challenging a settlement agreement reached
between the town, and the railroad, the owner of the land (the
One Hundred Forty Realty Trust [trust]), and the trustees of the
trust (Jon Delli Priscoli and Michael Milanoski). The essential
question raised in the appeal from the Superior Court case is
whether the citizens have standing to pursue the declaratory 3
relief they sought in count II of their complaint. As pertinent
to this appeal, that count sought a declaration that the town's
agreement, as part of the settlement, to waive its statutory
option to purchase the forest land pursuant to G. L. c. 61, § 8,
was invalid and unenforceable. We affirm the dismissal of Count
II because, like the Superior Court judge, we conclude that the
citizens do not have standing under either G. L. c. 40, § 53
(pertaining to citizen suits), or G. L. c. 231A (pertaining to
declaratory actions) for the particular relief sought in count
II.4
The second case (No. 22-P-433) comes to us on appeal from
the Land Court, where the citizens' motion to intervene in a
suit brought by the town against the railroad and the trust was
denied as moot. We conclude that the Land Court judge should
not have denied the motion to intervene as moot, and accordingly
we vacate that order and remand the matter to the Land Court to
permit the Land Court judge to consider the motion to intervene
on the merits, as well as the citizens' motion to join in the
town's motion to vacate the stipulation of dismissal.
Background. We begin by setting out the pertinent aspects
of G. L. c. 61, which governs the classification and taxation of
forest land and forest products, and the purpose of which is to
We acknowledge the amicus brief submitted by Centerville 4
Cranberry Bog Preservation, Inc. 4
promote the preservation and maintenance of forest land, i.e.,
"land devoted to the growth of forest products." G. L. c. 61,
§ 1. The statute achieves this purpose by giving owners of land
classified as forest land a significantly reduced tax rate for
as long as the land remains certified as forest land by the
State forester and is maintained according to an approved forest
management plan. See G. L. c. 61, §§ 2, 2A, 5. Land certified
under c. 61 is subject to a lien by the municipality in which
the land is located. See G. L. c. 61, § 2.
If an owner of forest land certified under c. 61 wishes to
sell the land or convert it to another use, certain consequences
follow. To begin with, the land may be subject to roll-back
taxes or a conveyance tax. See G. L. c. 61, §§ 6, 7. In
addition, the owner must notify the municipality in which the
land is located so that the municipality may decide whether to
exercise its statutory "first refusal option" (option). G. L.
c. 61, § 8, twelfth par. The municipality may exercise the
option itself or may assign the option to a "nonprofit
conservation organization or to the Commonwealth or any of its
political subdivisions." G. L. c. 61, § 8, seventeenth par.
In this case, the trust owned 155.24 acres of land in the
town located at 364 West Street, 130.18 acres of which were
classified as forest land subject to G. L. c. 61. On June 27,
2020, the railroad entered into a purchase and sale agreement 5
with the trust to buy the land.5 Not long thereafter, on July 9,
2020, the railroad's president notified the town of the planned
land purchase,6 and stated that the railroad intended to use the
land "to provide additional yard and track space in order to
support the current and anticipated increase in rail traffic of
[the railroad's] transloading operations."7 In other words, the
notice clearly conveyed the railroad's intent to convert the
forest land to a use outside the scope of c. 61.
Although the notice clearly conveyed an intent to convert
the forest land to another use, thus implicating the town's
option, the town believed that the notice did not adequately
convey the terms of the offer to which the option applied. See
G. L. c. 61, § 8, eleventh par.8 The town therefore requested
5 Jon Delli Priscoli, the railroad's principal owner, signed the purchase and sale agreement in his capacity as trustee of the New Hopping Brook Realty Trust, which was the anticipated purchaser.
6 The railroad's president, Michael Milanoski, served the notice on behalf of Charles Morneau, the trustee of the trust.
7 See G. L. c. 61, § 8, seventh par., which provides:
"Any notice of intent to convert to other use shall be accompanied by a statement of intent to convert, a statement of proposed use of the land, the location and acreage of land as shown on a map drawn at the scale of the assessors map in the city or town in which the land is situated, the name, address and telephone number of the landowner and the landowner's attorney, if any."
8 General Laws c. 61, § 8, eleventh par., provides: 6
that a revised notice complying with the requirements of the
statute be submitted. The town identified two defects in
particular: first, that the transaction included land not
classified under c. 61 and second, that the purchase price was
for more than the c. 61 land. At the same time, the town
reserved its rights with respect to the option.9
Instead of sending a corrected notice, and apparently
wishing to prevent the town from exercising the option to which
it was entitled, the railroad restructured the transaction. In
this iteration of the transaction, rather than taking ownership
of the forest land by purchasing it directly from the trust for
$1.175 million, the railroad instead purchased the beneficial
interest in the trust for the exact same amount.10 Also as part
of the restructured transaction, the railroad's president and
"If the notice of intent to sell or convert does not contain all of the material as described above, then the town or city, within 30 days after receipt, shall notify the landowner in writing that the notice is insufficient and does not comply."
9 On October 7, 2020, the trust claimed to withdraw the notice of intent. The town responded on October 8, stating its view that the option ripened with receipt of the July 9 notice of intent, so the purported withdrawal lacked legal effect.
10The 130.18 acres of forest land subject to c. 61 was owned by the trust; the non-c. 61 land was purchased by the railroad for one dollar, and thus no longer remained in the trust. The railroad also purchased about twenty acres of nonforest land situated nearby at 363 West Street. 7
the railroad's principal owner were installed as cotrustees of
the trust.11 The practical result of the restructured
transaction was to give the railroad control of the trust and of
the c. 61 forest land the trust owned, while not constituting a
sale of the forest land. It should be noted that, irrespective
of any sale, G. L. c. 61, § 8, thirteenth par., prohibits the
conversion of forest land to residential, industrial, or
commercial use without first offering the municipality the right
to purchase it.
On October 21, 2020, the town informed the trust and the
railroad that, because the trust was a nominee trust, the
transfer of a controlling beneficial interest constituted the
transfer of an interest in real estate, again triggering the
town's option of first refusal under G. L. c. 61, § 8. At a
special town meeting on October 24, 2020, it was unanimously
voted to appropriate $1.175 million to acquire (either by
purchase or eminent domain) the 130.18 acres of forest land, and
to appropriate $25,000 to acquire the 25.06 acres of nonforest
land.12
11Charles E. Morneau, the former trustee, resigned as part of the transaction.
12The board of selectmen voted to exercise the town's option, and the town recorded the exercise of its option regarding the forest land and an order of taking as to the nonforest portion of the property in the Worcester County registry of deeds on November 2, 2020. 8
Meanwhile, the railroad began site work on the forest land,
including large-scale tree cutting. The town accordingly filed
a complaint in the Land Court seeking injunctive relief, a
declaratory judgment, approval of the town's memorandum of lis
pendens, an order for specific performance directing that forest
land be conveyed to the town, and an order permitting the town
to enter the forest land to conduct inspections.13 The railroad
and the trust responded to the Land Court complaint in various
ways, including by filing a petition with the Surface
Transportation Board (STB), seeking a declaration that Federal
railroad law preempted the town from exercising its c. 61
rights.
After a hearing, the Land Court judge denied the town's
motion for a preliminary injunction. The judge reasoned that,
13Through its request for declaratory judgment, the town sought to establish that the July 9 notice of intent complied with G. L. c. 61, § 8; the offer in the purchase and sale agreement was a bona fide offer; the town's option vested on July 10, 2020; the town held an irrevocable option to purchase the forest land for the length of the statutory period; the town's time period in which it needed to exercise its option was tolled until the end of Governor Baker's March 10, 2020 declaration of a state of emergency related to the COVID-19 pandemic; the trust and the railroad were prohibited from alienating the forest land or converting its use from forest land until the town's option expired; the town was entitled to conveyance of the forest land from the trust; and the trust's assignment of its beneficial interest to the railroad constituted a sale of forest land that separately triggered the town's option. 9
although the town was entitled to an option under G. L. c. 61,
§ 8, it was not clear whether or when the option period had been
triggered, because the July 9 notice of intent was defective for
the reasons identified by the town. The judge did not decide
whether the subsequent restructured transaction triggered the
town's option under G. L. c. 61, § 8. Nor did she reach the
question of preemption. The judge also concluded that there was
no irreparable harm, because the parties had agreed to work
cooperatively to prepare a stipulation to maintain the status
quo while the STB proceeding and the Land Court case were
pending. Finally, the judge referred the parties to mediation.
Through mediation, the parties then reached a settlement,
which the town's board of selectman (board) approved on January
25, 2021. In broad strokes, the settlement agreement provided
that (1) the parties would stipulate to the dismissal with
prejudice of the Land Court suit, (2) the railroad would
withdraw its petition to the STB, (3) the town would purchase
about forty acres of forest land and twenty-four acres of
nonforest land for $587,500, plus the cost of any roll-back
taxes that might be due, (4) subject to a vote at town meeting,
the railroad would donate twenty acres of nonforest land at 363
West Street to the town or its designee, (5) all the remaining
land would remain in the trust's ownership, free from G. L. 10
c. 61, and (6) the town would waive its option under c. 61, as
well as its eminent domain rights under G. L. c. 79.14
As agreed, the parties filed a joint stipulation of
dismissal with prejudice in the Land Court case on February 10,
2021. The settlement agreement was not filed with the Land
Court, nor were its terms otherwise submitted to the judge. The
board took the position that the previous town meeting vote
authorizing the purchase of all of the forest land implicitly
authorized the purchase of only a subset of that land.
The citizens then filed the Superior Court case. The
citizens' complaint asserted three counts, the nature and
ultimate disposition of which were as follows:
Count I was brought against the board and sought to enjoin
the board from expending funds under the settlement agreement.
The citizens brought this claim under G. L. c. 40, § 53
(allowing ten taxpayers to enjoin a town from raising or
spending money without legal or constitutional authorization);
14 The settlement agreement also contained a severability provision, which stated as follows:
"The provisions of this [a]greement are severable and should any provision be deemed for any reason to be unenforceable the remaining provisions shall nonetheless be of full force and effect; provided however, that should any provision be deemed unenforceable by a court of competent jurisdiction, the parties shall negotiate in good faith to cure any such defect(s) in the subject provision(s)." 11
G. L. c. 44, § 59 (allowing a taxpayer to compel a municipality
"to conform to [chapter 44]," which relates to municipal finance
generally); and G. L. c. 214, § 3 (10) (allowing ten taxpayers
to bring an action to "enforce the purpose or purposes of any
gift or conveyance which has been or shall have been made to and
accepted by any . . . town"). After cross motions for judgment
on the pleadings, the citizens prevailed on count I on the
ground that the authority granted to the board in the special
town meeting required acquisition of the entire parcel of forest
land and did not allow the town to acquire only the subset to
which it had agreed under the settlement agreement. The
Superior Court judge explained the meaning and consequences of
her ruling as follows:
"[A]lthough the terms of the [s]ettlement [a]greement are legal (including the [b]oard's agreement to waive the [o]ption), the [b]oard exceeded its authority when it unilaterally entered into that agreement without [t]own [m]eeting approval of the reduced acquisition. Therefore, the [s]ettlement [a]greement is not effective. The [b]oard might not hold the required [t]own [m]eeting or might fail to obtain enough votes to approve the acquisition. In either case, the [s]ettlement [a]greement would fail to take effect, meaning that the [r]ailroad would retain the land and the [t]own would retain its money and the right to continue attempting to enforce the [o]ption. Until the reduced acquisition is approved by [t]own [m]eeting, the agreement is not effective, and the [t]own may (but is not required to) attempt to enforce the [o]ption." (Footnote omitted.)
No one has appealed from this aspect of the judgment. As a
matter of practical interest, we note that the board's 12
subsequent request for approval to fund the purchase of land as
provided in the settlement agreement was rejected at a town
meeting in March 2022.
Count II was asserted against the board and the railroad,
and sought a declaration that the board's release of its G. L.
c. 61 option as part of the settlement agreement was void, that
the town's c. 61 rights remain enforceable, that the
restructured transaction by which the railroad obtained control
of the trust and its beneficial interest triggered the town's
option, that all forest land held by the trust be transferred to
the town with no easements, and that the railroad be prevented
from alienating the forest land or converting any of it from its
current use. Count II was brought under G. L. c. 40, § 53, and
G. L. c. 214, § 3 (10), as well as G. L. c. 40, § 3 (authorizing
towns to hold and convey property through their selectmen), and
G. L. c. 231A, § 1 (the declaratory judgment statute). The
judge dismissed count II on the ground that the citizens lacked
standing to pursue the relief sought. The citizens' appeal of
this ruling is before us.
Count III was asserted against the board and sought a
declaration that use of G. L. c. 61 forest lands for nonparkland
purposes constitutes illegal harm to the environment. This
count was brought under G. L. c. 40, § 53; G. L. c. 214, §§ 3
(10) and 7A (allowing ten citizens to bring claims to prevent 13
damage to the environment); G. L. c. 45, § 7 (allowing ten
taxpayers to restrain the erection of a building in a park); and
mandamus. The judge dismissed count III on the ground that the
town never acquired the forest land. The citizens do not
challenge this portion of the judgment on appeal. Additional
details of the procedural history in the Superior Court case
that are not pertinent to this appeal are set forth in the
margin.15
15 The citizens filed a motion for preliminary injunction, which was denied by a Superior Court judge on March 11, 2021. A single justice of this court reversed, concluding that the citizens had demonstrated a reasonable likelihood of success on their claim that the board had acted without authority to purchase the forest land described in the settlement agreement, and enjoining the town from "issuing any bonds, making any expenditures, paying any costs, or transferring any property interests pursuant to the [s]ettlement [a]greement."
On June 3, 2021, all parties separately moved for judgment on the pleadings. Before these cross motions could be resolved, the citizens filed an emergency motion to preserve status quo on September 9, 2021, in response to learning that the railroad had resumed clearing trees from the forest land. A second Superior Court judge, who presided over all subsequent events in this case, issued a temporary restraining order the next day, pending further action by the court; the temporary restraining order became a preliminary injunction on September 24, 2021. The railroad and the trust appealed, and a second single justice of this court declined to intervene because the Superior Court judge was then considering dispositive motions.
The Superior Court judge ruled on the cross motions for judgment on the pleadings on November 10, 2021. As we describe in the text, the judge issued judgment in favor of the citizens on count I, but against the citizens on counts II and III. Nevertheless, the judge extended the temporary injunction against the railroad defendants for sixty days to give the town time to "decide whether to seek the [t]own [m]eeting 14
In light of the Superior Court judge's ruling that the
settlement agreement was not effective because the board had
acted outside the authority given by the town meeting, the town
then filed in the Land Court a motion pursuant to Mass. R. Civ.
P. 60 (b), 365 Mass. 828 (1974), to vacate the stipulation of
dismissal that had been filed pursuant to the settlement
agreement. In essence, the town argued that the Superior Court
judge's ruling that the settlement agreement was ineffective
constituted an extraordinary circumstance warranting
reinstatement of the Land Court case.
The citizens advanced in the Land Court case on different,
but related, fronts. To begin with, the citizens sought an
interdepartmental assignment and transfer of the Land Court case
to the Superior Court for consolidation with the Superior Court
case. The citizens also moved to intervene in the Land Court
case, both as a matter of right and permissively. See Mass. R.
Civ. P. 24, 365 Mass. 769 (1974). They also moved to join the
town's motion to vacate the stipulation of dismissal. The Land
Court judge deferred consideration of these motions until after
she decided the town's motion to vacate, a decision that
authorization necessary to validate the [s]ettlement [a]greement or to take the necessary steps to proceed with its initial decision to exercise the [o]ption for the entire [p]roperty." 15
prompted the citizens to file a motion for expedited treatment
of their motion to intervene. That motion was denied.
motion to vacate. The core of the judge's reasoning was that,
unlike Bowers v. Board of Appeals of Marshfield, 16 Mass. App.
Ct. 29 (1983), which involved similar circumstances, the parties
in this case did not file an agreement for judgment with the
court, but rather filed only a stipulation of dismissal with
prejudice without submitting the terms of the settlement
agreement to the court. The judge reasoned that, even accepting
that the town acted outside its authority in entering into the
settlement agreement, it was beyond dispute that the town had
the authority to stipulate to the dismissal of the Land Court
case that the town itself had filed. Accordingly, the judge
concluded that there were no extraordinary circumstances that
warranted vacating the stipulation of dismissal. It bears
noting that the Land Court judge understood the motion to vacate
to present only the narrow issue whether exceptional
circumstances existed to vacate the stipulation of dismissal;
she did not consider the validity or enforceability of the
settlement agreement to be before her. The town no longer 16
challenges the order denying its motion to vacate the
stipulation of dismissal.16
Having denied the motion to vacate, the Land Court judge
then denied the citizens' motion to intervene and to join the
town's motion to vacate on the ground that it was moot. The
citizens' appeal of this order is before us, as is the order
denying the citizens' motion to expedite hearing on their motion
to intervene.17
16Initially, the town vigorously pursued relief from the Land Court judge's order denying the motion to vacate. The town filed a timely notice of appeal and also sought an injunction pending appeal to prevent any further destruction or alteration of the forest land, a request that was joined by the citizens. The Land Court judge denied the request for injunctive relief on the ground that the filing of the stipulation of dismissal with prejudice had closed the case, and so the town could not demonstrate a likelihood of success on the merits. The town and the citizens appealed to a single justice of this court, who upheld the denial of the motions on the grounds that neither party had demonstrated that the Land Court judge "likely erred." The town then moved to voluntarily dismiss its appeal from the order denying its motion to vacate, and that motion was allowed on May 2, 2022. On May 5, 2022, the citizens filed a motion asking the Land Court judge to reconsider both her order allowing the town's motion for voluntary dismissal and her order denying the citizens' motion to intervene. The judge denied that motion the next day, and the citizens filed an amended notice of appeal to include the order denying their motion for reconsideration.
17The parties are also engaged in litigation in the United States District Court for the District of Massachusetts, where the railroad and the trust have sued the town over its attempt to take the forest land by eminent domain, which they claim is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq. That litigation is ongoing. 17
Discussion. Despite the complicated path that has led to
these appeals, the issues at this point are only two: first,
whether the citizens have standing to pursue a declaration that
the settlement agreement is void and unenforceable (count II of
the complaint in the Superior Court case); and second, were the
citizens' motions (a) to intervene and to join the town's motion
to vacate, and (b) to expedite hearing of those motions in the
Land Court case properly denied.
1. Standing. The citizens assert three theories of
standing to pursue a declaration that the settlement agreement
is void and unenforceable. Because the issue of standing was
decided on cross motions for judgment on the pleadings under
Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), our review is de
novo. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721,
726 (2013). We discuss each of the citizens' theories in turn.
a. Taxpayer standing under G. L. c. 40, § 53. Since 1847,
see St. 1847, c. 37, the Legislature has given groups of ten or
more taxable inhabitants of a town the right to sue to restrain
the unlawful or unconstitutional exercise of the town's power to
raise or expend funds:
"If a town, . . . or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town . . . for any purpose or object or in any manner other than that for and in which such town . . . has the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon petition of 18
not less than ten taxable inhabitants of the town . . . restrain the unlawful exercise or abuse of such corporate power."
G. L. c. 40, § 53.
The basic provision of the statute is that the "town or its
officers must be about to raise or expend money or incur
obligations" in an unlawful manner. North v. City Council of
Brockton, 341 Mass. 483, 484 (1960). Equitable principles do
not confer on taxpayers the right to sue "to restrain cities and
towns from carrying out invalid contracts, and performing other
similar wrongful acts." Pratt v. Boston, 396 Mass. 37, 42
(1985), quoting Fuller v. Trustees of Deerfield Academy, 252
Mass. 258, 259 (1925). Instead, taxpayer plaintiffs must show a
statutory foundation for standing apart from G. L. c. 40, § 53,
in order to challenge a town's entering into a contract or
settlement. See Pratt, supra at 42-44.
It is important at this point to focus on the difference
between count I and count II of the Superior Court complaint.
In count I, the citizens sought to enjoin the town from
expending funds under the settlement agreement because the
expenditure had not been authorized at a town meeting. This
type of allegation falls easily within the ambit of G. L. c. 40,
53, as the Superior Court judge determined when she ruled in
favor of the citizens on count I. 19
By contrast, in count II, the citizens sought declarations
that the board's waiver of its G. L. c. 61 option as part of the
settlement agreement was void, that the town's c. 61 rights
remain enforceable, that the restructured transaction by which
the railroad obtained control of the trust and its beneficial
interest triggered the town's option, that all forest land held
by the trust be transferred to the town with no easements, and
that the railroad be prevented from alienating the forest land
or converting any of it from its current use. None of these
forms of relief can be characterized as the raising or
expenditure of funds or as the incurring of obligations by the
town and, accordingly, G. L. c. 40, § 53, did not give the
citizens standing to pursue them.
b. Standing under G. L. c. 231A, § 1. The citizens also
claim that the declaratory judgment statute, G. L. c. 231A, § 1,
independently gives them standing to pursue the relief they seek
in count II. But c. 231A, § 1, "does not in and of itself
provide the plaintiffs with the 'standing' required to maintain"
a taxpayer suit such as this one. Pratt, 396 Mass. at 43.
Instead, the citizens have standing under the declaratory
judgment statute only if they "can allege an injury within the
area of concern of the statute or regulatory scheme under which
the injurious action has occurred." Revere v. Massachusetts
Gaming Comm'n, 476 Mass. 591, 607 (2017). Thus, fundamentally, 20
the standing inquiry under the declaratory judgment statute
depends on whether the citizens are seeking in count II to
protect a cognizable interest under either G. L. c. 40, § 53, or
G. L. c. 61. As we have already said, they do not have such a
cognizable interest under G. L. c. 40, § 53. And so we turn to
c. 61.
General Laws c. 61 reflects a legislative interest in
promoting and maintaining forest land, which it seeks to achieve
through an incentive structure of reduced taxation on landowners
who submit their forest land to regulation under the statute.
Although a town's citizens clearly have an interest -- as that
term is colloquially understood -- in the preservation of green
space, including forest land, that generalized interest in
protecting the environment, as laudable as it is, is not enough
to confer standing in the absence of cognizable injury. See
Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 138, 141
(2000) (interest in protecting environment, in absence of
cognizable injury, is too generalized to confer standing). The
statute creates a voluntary tax program by which landowners can
agree to preserve and maintain forest land in order to receive
advantageous tax treatment, in exchange for which the town
receives certain rights should the land be transferred or
otherwise fail to continue to qualify. Individual taxpayers
whose land is not subject to c. 61 have been given no rights 21
under the statutory scheme. Contrast G. L. c. 61, §§ 2, 3
(creating procedures for landowner to challenge land
classification and tax assessment).
c. Standing to pursue mandamus. The citizens argue that
the town's waiver of its option constituted an illegal
assignment of the option, and as such they have standing to
pursue a mandamus action against the assignment. Setting aside
the fact that the citizens did not raise this argument below
with respect to count II of the Superior Court complaint and it
is accordingly waived, we note that the argument is based on a
faulty premise.
Although it is true, as the citizens argue, that G. L.
c. 61, § 8, does not allow a town to assign its option to a
private for-profit organization, but only to nonprofit
conservation organizations, the Commonwealth, or any of its
political subdivisions, it does not follow that the town's
waiver of its option in this case, simply because it occurred
within the context of the settlement agreement with the railroad
and trust -- neither of which is a nonprofit conservation
organization -- constituted an illegal assignment. A waiver is
the "intentional relinquishment of a known right,"
BourgeoisWhite, LLP v. Sterling Lion, LLC, 91 Mass. App. Ct.
114, 119 (2017); it is not a transfer of that right to another. 22
By contrast, the hallmark of an assignment is the
assignor's transfer of a right to an assignee. See H.J.
Alperin, Summary of Basic Law § 5:99, at 1190 (5th ed. 2014).
Here, the town did not transfer its option to anyone under the
settlement agreement, which by its plain language provided only
for a waiver of the option:
"Waiver of Right of First Refusal. The [t]own acknowledges that it waives any and all claims and/or rights to acquire any property subject to this [a]greement by right of first refusal under [c]hapter 61 or by eminent domain under [c]hapter 79 of the Massachusetts General Laws."
2. Motion to intervene. a. Mootness. In order to
understand why the citizens' motion to intervene in the Land
Court case should not have been denied on the ground that it was
moot, we begin by setting out the relevant chronology of events.
On November 4, 2021, the Superior Court judge issued her
decision on the parties' cross motions for judgment on the
pleadings, ruling in the citizens' favor that "the [b]oard
exceeded its authority when it entered into the [s]ettlement
[a]greement without [t]own [m]eeting authorization." No one
challenges this ruling.18 Also never appealed are the Superior
Court judge's clarification rulings that the settlement
agreement could not take effect until approved by a town meeting
18The town moved for clarification on December 1, 2021, and that motion was allowed in part on December 14, 2021. 23
and that, without such town meeting approval, the town retained
its right to attempt to enforce its option.
On December 30, 2021, approximately two weeks after the
Superior Court judgment was clarified, the town filed in the
Land Court, pursuant to Mass. R. Civ. P. 60, a motion to vacate
the stipulation of voluntary dismissal on the ground that the
Superior Court judgment invalidating the settlement agreement
was an extraordinary circumstance warranting such relief.
On January 18, 2022, the railroad and the trust filed their
opposition to the motion to vacate. Two days later, on January
20, the citizens filed a motion to intervene in the Land Court
case and to join the town's motion to vacate the stipulation of
dismissal. The citizens' motion sought to effectuate the
favorable judgment they had obtained on count I of their
complaint in the Superior Court, including -- but not limited to
-- the injunction the citizens had obtained to preserve the
forest land. In addition, the citizens sought to vacate the
stipulation of dismissal, to obtain a preliminary injunction
against land clearing pending disposition of the claim to vacate
the dismissal, to obtain a declaratory judgment that any
settlement between the town and the railroad and trust could not
include the waiver of the town's G. L. c. 61 rights without town
meeting authorization, and to obtain a declaration that the
town's ultimate purchase price of the forest land be reduced due 24
to the railroad's unlawful clearing of the land during the
pendency of the Superior Court case and the single justice's
injunction.
On January 21, 2022, the town filed its reply brief in
support of the motion to vacate. On January 24, 2022, the
railroad and the trust filed a sur-reply brief. In other words,
the citizens' motion was fully briefed by January 24, 2022, when
the Land Court judge held a hearing on the town's motion to
vacate the stipulation of dismissal.
At the January 24 hearing, the Land Court judge heard
argument from the town, the railroad, and the trust on the
motion to vacate, but did not permit argument by counsel for the
citizens. The judge then took the town's motion to vacate under
advisement, deferring the submission of oppositions and a
hearing on the citizens' motion to intervene until after she
decided the motion to vacate. The next day, the citizens filed
a motion seeking an expedited hearing on their motion to
intervene and to join, which the Land Court judge denied two
days later on the ground that it was untimely.19
19The judge reasoned that the citizens should have filed their motion to intervene several days earlier instead of first seeking interdepartmental transfer. Although the judge failed to identify any prejudice from the timing, we cannot say that she abused her wide discretion in denying the motion to expedite on timeliness grounds. 25
The following day, the Land Court judge denied the town's
motion to vacate the stipulation of dismissal. The judge's core
reasoning was that even if the board did not have authority to
enter into the settlement agreement on the terms that it did
without town meeting approval, the board had authority to
stipulate to the dismissal of its Land Court case. Central to
the judge's reasoning was the fact that neither the settlement
agreement, nor its terms, had ever been put before the court.
The Land Court judge then denied the citizens' motion to
intervene on the ground that it was moot because the judge had
denied the town's motion to vacate the stipulation of
dismissal.20
As should be clear from the above recitation, the
fundamental problem here is that the Land Court judge conflated
the citizens' right to enforce the Superior Court judgment they
had obtained with the town's motion to vacate the stipulation of
dismissal in the Land Court case. Although the motions were
20The Land Court judge's order denying the motion to vacate did not mention the citizens' pending motion to intervene. Instead, the order on that motion appears in a docket entry dated February 1, 2022:
"The court today received an inquiry as to whether the court would be issuing a decision on the merits of the citizens' motion to intervene. However, that motion is moot since in a decision issued on January 28, 2022, the court declined to vacate the stipulation with prejudice filed by the parties to this case." 26
conceptually related, they were not mutually dependent for at
least two reasons. First, the relief they sought was not
coterminous and, second, the citizens' right to protect the
Superior Court judgment was independent of the town. The
Superior Court judgment was obtained through the citizens'
exercise of their statutory right as ten or more taxpayers under
G. L. c. 40, § 53. The citizens' entitlement to enforce that
favorable judgment did not depend on whether the town had the
authority to stipulate to the dismissal of its own claims in the
Land Court. The stipulation of dismissal did not -- and could
not -- extinguish the citizens' claims or judgment under G. L.
c. 40, § 53. See Jarosz v. Palmer, 436 Mass. 526, 529 (2002)
("a stipulation of dismissal with prejudice is not the
equivalent of a final judgment on the merits for the purposes of
issue preclusion"). Not only were the citizens not parties to
the stipulation of dismissal, they were not before the Land
Court when the stipulation of dismissal was filed (nor is there
any claim that the citizens should have been), nor had the
validity of the settlement agreement been placed before the Land
Court. Thus, to the extent that the citizens sought to
intervene in the Land Court suit to effectuate the Superior
Court judgment by having the Land Court stipulation of dismissal 27
vacated on the ground that the settlement agreement was not
effective, the citizens' motion to intervene was not moot.21
b. Merits of motion to intervene. The citizens argue that
we should decide the merits of their motion to intervene even
though the Land Court judge did not reach them. Although there
may be limited situations in a civil case where an appellate
court may decide the merits of an issue in the first instance,
this is not one of them. Both permissive intervention and
intervention as of right entail factual assessments that are
best left to determination by the trial judge in the first
instance.
Intervention is governed by Mass. R. Civ. P. 24, which
allows nonparties to intervene in an action, either as of right
under subsection (a), or permissively under subsection (b). As
to intervention as of right, the proposed intervener
"must satisfy four criteria: (1) the application must be timely;[22] (2) the applicant must claim an interest relating
21We note that after the citizens' motion to intervene was denied, the citizens' request for interdepartmental transfer was denied on the ground that the Land Court case was closed. In the event the Land Court judge permits the citizens to intervene in the Land Court suit, it seems to us that it would make sense to reconsider the citizens' request for interdepartmental transfer so as to avoid any inconsistency between the Superior Court judgment and its effect on the claims asserted in the Land Court case.
22The railroad and the trust make much of the fact that the citizens' motion to intervene was filed after the stipulation of dismissal in the Land Court case. "[P]ostjudgment motions to intervene, whether as of right or permissive, are seldom 28
to the property or transaction which is the subject of the litigation in which the applicant wishes to intervene; (3) the applicant must show that, unless able to intervene, the disposition of the action may, as a practical matter, impair or impede his ability to protect the interest he has; and (4) the applicant must demonstrate that his interest in the litigation is not adequately represented by existing parties."
Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct.
56, 61 (2000). Contrary to the citizens' argument, intervention
as of right is not purely a question of law. "A judge has
discretion in determining whether an intervening party has
demonstrated facts that entitle him or her to intervention as of
right." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217
(2011). It is only after the subsidiary facts have been
determined that an appellate court then determines as a matter
of law whether the circumstances are sufficient to meet the
requirements of intervention as of right. See id.
timely . . . . The proposed postjudgment intervener must accordingly not only justify its failure to intervene at an earlier stage of the action, but must also establish that it has not just an interest, but a compelling one, in the litigation." Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct. 56, 61 (2000). Here, there was no reason nor basis for the citizens to intervene until the parties to the Land Court case entered into the settlement agreement and filed their stipulation of dismissal, and after the citizens obtained the favorable Superior Court judgment. See McDonnell v. Quirk, 22 Mass. App. Ct. 126, 133 (1986) ("If the underlying action takes an unexpected turn, we perceive no reason why the third party cannot intervene to protect its position"). 29
Permissive intervention is also a fact-dependent decision
conferred to a judge's sound discretion, and is governed by
Mass. R. Civ. P. 24 (b), which provides:
"Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the Commonwealth confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
See Matter of the Liquidation of Am. Mut. Liab. Ins. Co., 417
Mass. 724, 734-736 (1994) (creditors had no standing to
intervene in settlement agreement between bankruptcy receiver
and other creditors). "[A] judge might consider such factors as
a party's delay in seeking intervention (and the circumstances
of such a delay), the number of intervention requests or likely
intervention requests, the adequacy of representation of the
intervening party's interests, and other similar factors."
Fremont Inv. & Loan, 459 Mass. at 219.
Although we are not in a position to decide the merits of
the citizens' motion to intervene in the first instance, the
following observations may be helpful on remand. First, we
acknowledge the general rule that "postjudgment motions to
intervene, whether as of right or permissive, are seldom
timely," but stress that the rule has little application on the
facts of this case because the basis for intervention did not 30
arise until the town settled and stipulated to the dismissal of
the Land Court case. See Bolden, 50 Mass. App. Ct. at 61. This
is a situation where "the underlying action takes an unexpected
turn" at its very end, and accordingly, there is "no reason why
the third party cannot intervene to protect its position."
McDonnell v. Quirk, 22 Mass. App. Ct. 126, 133 (1986).
Second, we recognize that the citizens' road to relief in
the Land Court case has been made difficult by the fact that the
town has not pursued an appeal of the order denying its motion
to vacate the stipulation of dismissal. But it is nonetheless
important to ensure that events and decisions in the Land Court
case not make toothless the judgment and rulings in the Superior
Court case, particularly in a matter of public significance such
as this one and where the citizens have not been given an
opportunity to be heard. On remand, the Land Court judge should
keep in mind that the Superior Court has determined some of the
substantive issues on the merits, that the citizens are entitled
to the benefit of those favorable rulings, that the rulings are
binding on the town, the railroad, and the trust (all of whom
were parties in the Superior Court case and have not appealed),
and that those rulings are entitled to full respect and force.
The Land Court judge should ensure that her rulings are not
inconsistent or unfair in light of rulings that have been made
in a sister department of the trial court. These considerations 31
will come into special play when deciding the citizens' motion
to vacate the stipulation of dismissal.
Conclusion. In the Superior Court case, the judgment, as
clarified by the order dated December 14, 2021, is affirmed. In
the Land Court case, the order denying the citizens' motion to
expedite hearing on their motion to intervene is affirmed. The
order denying the citizens' motion to intervene as moot is
vacated, and the matter is remanded to the Land Court for
further proceedings consistent with this opinion, including
consideration of the citizens' motion to join the town's motion
to vacate the stipulation of dismissal.23
So ordered.
23The defendants in the Land Court case have requested double costs and attorney's fees in connection with the appeal. That request is denied.