HOPEDALE — A Superior Court judge has ruled invalid a deal the Select Board had signed with the Grafton & Upton Railroad to split protected forestland on West Street because the proposal didn’t go to Town Meeting first.

At the same time, Judge Karen Goodwin on Nov. 10 ruled that the Select Board alone has the authority to exercise the right of first refusal to buy land that has been deemed forest and therefore taxed at a lower rate. 

Goodwin also entered a preliminary injunction preventing the railroad from carrying out further work on that forestland for 60 days of the ruling, or until Jan. 9.

More:Residents file lawsuit against Hopedale, Grafton & Upton Railroad for ‘illegal’ deal

Attorney David Lurie, who represents 11 Hopedale residents who filed suit back in March, said his clients are happy with the judge’s final decision and are now urging the Select Board to take back that land. 

“The board would be violating its duties to the public if it did not proceed to acquire the entire property,” said Lurie, of Boston-based Lurie Friedman LLP.

In October 2020, residents at Town Meeting voted unanimously to acquire all 130 acres of the property off West Street. The Select Board also agreed to set aside the land for conservation.  

More: Hopedale STM draws hundreds

“The will of the people to acquire and protect all 130 acres as parklands, for posterity, must be respected,” said Lurie. “If the board has the utter audacity to continue to ignore the people’s will after this decision and cast its lot with the railroad, the board should step down from their official positions, as they cannot be trusted to act in the best interests of the people they supposedly represent.” 

Residents say the land is important to protecting Hopedale’s current and future drinking water sources.

Earlier this year, selectmen signed an agreement with the railroad — after the two had their own court battles and subsequent mediation — that would split the land between the railroad and the town. The town agreed to pay the railroad $587,000 for about 84 acres, because a railroad-owned trust owns the land.

The 11 residents then filed a lawsuit, arguing the town should have acquired all of the land, per the earlier Town Meeting vote. In April, the residents secured an injunction to stop the town from paying for, and therefore acquiring, the 84 acres, while the case played out in court. The April injunction did not stop the railroad from proceeding with construction.

“The court did not look kindly on both the railroad’s ‘attempt to circumvent’ the town’s rights to protect the forestland, and its clearing of the land while the town was deciding whether to exercise its rights and while the Appeals Court’s injunction against transfer of the town’s rights under the settlement agreement remained in effect,” said Lurie.   

More: Hopedale West Street land dispute case back in court

Acquiring that land would preserve it as conservation land for open space and passive recreation, and there’s no risk of losing 25 acres of wetlands as a potential water supply, wrote Lurie in a letter to attorney Brian Riley, who represents the town in the lawsuit, following the court’s decision. 

There is no downside for the board to pursue enforcement, Lurie said, and any attempt to obtain approval of the settlement agreement at a Special Town Meeting would be defeated. 

For anyone who hasn’t watched this week’s Select Board meeting & wants to hear the summary of their executive session & their reasons for filing their motion, here is the link (if you FF to about 1:30, you will see Atty Durning begin to speak):
 
We have filed our response to the Board’s motion.  It is attached.  Please, please take a minute to read it through.  It explains the reasons why we feel the judge’s order is clear and why the concerns that Atty Durning and the Select Board were discussing in their meeting are unfounded.  It also requests that the 60 day clock restart upon her decision on their motion.
 
We remain confident that all will continue to move in our favor & we thank everyone for their continued involvement.  Hoping the judge rules on the matter soon.

Above and below sent by a member of the plaintiffs listed below.

COMMONWEALTH OF MASSACHUSETTS


WORCESTER, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

Civil Action No. 2185CV0238

ELIZABETH REILLY, 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,  Plaintiffs,  v.  TOWN OF HOPEDALE, LOUIS J. ARCUDI, III, BRIAN R. KEYES, GRAFTON & UPTON RAILROAD ) COMPANY, JON DELLI PRISCOLI, MICHAEL MILANOSKI, and  ONE HUNDRED FORTY REALTY TRUST,  Defendants.  

PLAINTIFFS’ OPPOSITION TO BOARD’S MOTION FOR
CLARIFICATION OF JUDGMENT

 The Court’s Order is clear. Because the Board was and remains unauthorized to agree to the key material term in the Settlement Agreement, the Agreement is void ab initio. All of the Agreement’s terms are void, including the Board’s purported waiver of the Town’s c. 61 Option rights. Those rights remain in full despite the Railroad Defendants’ attempts to skirt c. 61, steal away the Town’s Forestland and destroy it. This Court astutely saw through the Railroad Defendants’ malfeasances and appropriately gave the Board the opportunity and time to fulfill its duties to the Town. Unfortunately, this Motion is yet another example of the impotence of this Board (or further evidence that it remains beholden to the Railroad) and further justifies the Citizen Plaintiffs’ action.

It is not the Court’s job to hold the Board’s hand and walk them through how to complete what it and the citizens of the Town started. The citizens of Hopedale have resoundingly insisted and recently reaffirmed what the Board must do – enforce the Option and acquire all of the Forestland from the Trust.

The Town unanimously provided the Board the authority at the Special Town Meeting, c.61 provides the Board with the process and this Court provided the Board the time to act. The Motion should be denied for the reasons set forth below, but ultimately because this Court’s Order is clear.

Plaintiffs respectfully request that the Court deny the Town’s Motion and extend the Injunction against the Railroad Defendants from any work in the Forestland for an additional 60 days following entry of the Court’s order on the Town’s Motion. 1.

1 – No Clarification of the Court’s Order is Needed

The Court’s Order is clear, written advisedly and there is no ambiguity. The Court notes early in the Order that “it is undisputed that the Town attempted to carry out the steps necessary to exercise its Option with respect to the 130.18 acres of forest land pursuant to Chapter 61.” Order at 5. The Court took a closer look than the Land Court did when it denied the Town’s Motion for preliminary injunction, setting the stage for the void Settlement Agreement. In this Court’s Order at n. 6, the Court found that there was no uncertainty with respect to the c. 61 Forestland at issue, neither as to area nor as to cost. The Court also explains that the “option referenced in Article 3 can only be exercised according to the terms of the triggering purchase and sale agreement between the Trust and G&U” and “the Town may not materially alter those terms by exercising the Option only as to part of the land.” Order at 8. To make the point abundantly clear, the Court held “[o]nce the Board elected exercise the Option and obtained a precisely worded authorization to acquire specific land pursuant to specific rights, it was bound by the terms of that authorization.” The Board is so bound, and the Board has a duty to act. 1 The Court then, twice, recognized that the Board has the authority to move forward with the exercise of the Option. The Court advised that the Board could “determine whether to seek Town Meeting approval for the Settlement Agreement, renew its attempts to enforce the Option, or to do neither.” Order at 10 (emphasis added). Later, the Court went further and enjoined the Railroad from any land clearing activity or work in the Forestland for 60 days to give the Board the time to decide and to act. The injunction would not be necessary or make any sense if enforcement of the Option in full was not available. In entering the injunction, the Court hit the Board over the head with the reason for the injunction: “to allow the Town to decide whether to seek the Town Meeting authorization necessary to validate the Settlement Agreement or to take the necessary steps to proceed with its initial decision to exercise the Option for the entire Property.” Id. at 12 (emphasis added). The Court could not be clearer, and the Court should not be asked by the Board to teach it how to bake bread. The Board has two experienced attorneys from two reputable law firms who should know how to read, interpret and act on the clear Order of the Court.

The Court’s Order is appropriate. The unauthorized agreement is void and unenforceable, in its entirety. Town of Brimfield v. Caron, 2010 WL 94280, *10-11 (Mass. Land Ct. Jan. 12, 2010) (Town’s right of first refusal pursuant to G.L. c. 61, §8 not yet ripe due to failure to strictly

1. The Board’s lack of backbone is exactly what caused the Citizen Plaintiffs to bring this action and include the request for mandamus to force the Board to finalize its obligations to the citizens of Hopedale and preserve the Forestland from wholesale industrial destruction by a notorious bad actor

comply with notice requirements, all subsequent acts were “a nullity”); after trial, 2015 WL 5008125 (2015) (ruling that Town had right to purchase forest lot for $186,500); Daly v. McCarthy, 2003 WL 25332929 (Mass. Land Ct. Aug. 04, 2003) (in ten taxpayer suit, court invalidates purported release of agricultural preservation restriction (“APR”) in a settlement agreement entered into by board of selectmen without town meeting approval), affirmed, Daly v. McCarthy, 63 Mass. App. Ct. 1103 (2005); Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 32 (1983), (reversing an agreement for judgment entered by the selectmen that included agreeing to encumber six lots owned by the Town because “[t]he power to alienate and dispose of real estate lies with the inhabitants of the town acting at town meeting”, citing c. 40, § 3). The unauthorized payment was the only provision of the Settlement Agreement requiring the Town to pay any funds or take actions. Without it, nothing remains. As the Court noted in the Order, the sum and substance of the Settlement Agreement is that the Railroad Defendants agreed to sell 40 acres of the Forestland and all of the wetlands for $587,500; the Railroad Defendants would donate a separate parcel, subject to Town Meeting approval and “[i]n return the Town agreed to waive its Option with respect to the remaining 90 acres of forest land.” Order at 4 (emphasis added). Because the key consideration was unauthorized under c. 61, § 8 or c. 40, § 14, the Agreement is void.

Accordingly, the Town certainly can enforce the rights purportedly waived under the Settlement Agreement. The necessary consequence of the lack of authority to execute the unauthorized Settlement Agreement is that it is void, a nullity, does not exist. That is why Judgment on the Pleadings on Count I was entered and that is exactly the relief requested by Plaintiffs. The necessary consequence of being back at square one is that the Board now has the choice, again, to seek approval to give away two-thirds of the Forestland to the Railroad or to seek to enforce the Town’s Option. The Railroad Defendants as “party who enters into a contract with a public entity without ensuring that proper authority exists for that contract does so at its own risk.” Colantonio, Inc. v. Fitchburg Hous. Auth., 2008 WL 3311892, at *2 (Mass. Super. July 23, 2008) (denying summary judgment to contractor seeking recovery from housing authority that was not authorized to expend the funds under the contract) quoting, Potter & McArthur, Inc. v. Boston, 15 Mass.App.Ct. 454, 459 (1983).

The Railroad Defendants cannot now enforce the unauthorized Settlement Agreement. Any “reading” of the Decision as saying there is nothing illegal or invalid about the Settlement Agreement is wishful thinking.2 It is certainly illegal in the sense that c. 40, §14 has not been complied with for acquisition of municipal property. Plaintiffs assert it is similarly illegal for transfer of municipal property rights – an exercised and recorded option in real property – without Town Meeting approval under G.L. c. 40, §3 and in violation of the anti-assignment provisions of G.L. c. 61 § 8. See Memorandum in Support of Plaintiffs’ Motion for Judgment on the Pleadings at 14-16; Plaintiffs’ Memorandum in Opposition to the Board’s Motion for Judgment on the Pleadings at 7-9. In any event, without Town Meeting approval, the Court’s decision made clear the Settlement Agreement is indeed unenforceable.

2. The Railroad Defendants have indicated that they intend to submit a response or opposition to the Town’s Motion to Clarify. The Court should reject, disregard and strike any submission from the Railroad Defendants. The Railroad Defendants were not a named party to Count I, the only claim for which the Town seeks clarification, and the Railroad Defendants lack standing to be heard on the Town’s Motion. Daigle v. Daigle, 85 Mass. App. Ct. 1105 (2014)

2 -The Board Seeks “Clarification” Because it is Paralyzed.

The real reason the Board seeks clarification, at the last possible day of Rule 59’s ten-day deadline, is that it is frozen. As referenced by the Board in its Memorandum in Support of itsMotion (at 6), the people of Hopedale made clear immediately following the Order by campaign, including a petition signed by over 500 residents, that they want Board to proceed to enforce the Option. See Petition, Signatures and Public Comments, attached hereto as Exhibit 1; November 19, 2021 Milford Daily News Article, Judge Rules Hopedale Select Board Has Final Say in Protecting Forestland, attached as Exhibit 2. The Board must finish what it started.

Despite the Court’s clear 60-day Order, the Board has not scheduled a Town Meeting because it knows that approval of the ill-conceived Settlement Agreement, which would require a 2/3 vote, would surely be defeated. Undersigned counsel and counsel for Railroad have submitted their respective views on the choice now before the Board, with undersigned counsel strongly urging that the Board pursue enforcement of the Option, as an option clearly stated by this Court. See November 12, 2021 Lurie Letter , attached as Exhibit 3; November 15, 2021

The Board is using this Motion as way to avoid responding to the citizen petition and comments and to refuse to allow public discussion in an open Board meeting. See November 22, 2021 Board of Selectmen video, beginning at timestamps 1:27:18 and 1:37:08
https://townhallstreams.com/stream.php?location_id=56&id=41404
, where Board Chair Brian Keyes claimed that he was not trying to shut down the issue by blocking public discussion, but

3 The Railroad Defendants’ repeated assertions that that the Settlement Agreement remains fully enforceable and that the Town’s c. 61 rights remain unenforceable due to the waiver in the Settlement Agreement and dismissal of the Land Court action based on that Settlement Agreement are simply wrong in light of the Court’s decision. Ex. 4 at 2. Those claims are at odds with the Court’s decision. If the Town intends to comply with the decision rather than appeal it, then plainly the c. 61 rights have not been validly waived and enforcement of the Option remains available to the Town.

plainly he is. Contrast this with Chair Keyes’ penchant for using his position for bombastic soliloquy regarding this litigation. See October 25, 2021 Board of Selectmen meeting beginning at timestamp 46:05, https://townhallstreams.co/stream.php?location_id=56&id=40754.

Though the Board’s spine needs stiffening, that is not the Court’s job. However, if the Court is inclined allow the Motion, “clarification” that enforcement of the Option is indeed available to the Town – that the Court meant what it said – may help the Board understand that such option is not only available but is indeed viable on the facts of this case. Moreover, it may help the Board realize, again, that it need not be coerced by the Railroad Defendants’ bluster that it would be violating the non-existent Settlement Agreement if it continues its initial efforts to enforce the Option.

3 – The Motion should be denied in any event as served without consultation required under
Rule 9C.


The Motion should be denied because the Board failed to consult as required under Sup. Ct. R. 9C. As the Board is aware, time is of the essence as the Court’s 60-day injunction ticks by. On the tenth day following the Court’s Decision, the Board served its Motion, without having previously consulted with Plaintiffs’ counsel or even mentioning the possibility of such a motion. Following the entry of the Court’s Order, counsel for Plaintiffs reached out to counsel for the Board to discuss the clear implications of the Order immediately on November 10, by leaving voicemails on his office and cell phones and two days later by the aforementioned letter attached as Ex. 3. Despite this, counsel for the Board never responded or reached out to confer about this Motion, which may have narrowed the issue considerably given that the Court’s Order is not ambiguous or inconsistent to undersigned counsel.

                                                                                CONCLUSION 
For the reasons stated above, Plaintiffs respectfully request that this Court deny the Town’s Motion for Clarification and, in any event, continue the injunction for 60 days from the entry of an order on the Motion.

ELIZABETH REILLY, CAROL J. HALL, HILARY SMITH, DAVID SMITH, DONALD HALL, MEGAN FLEMING, STEPHANIE A. MCCALLUM, JASON A. BEARD, AMY BEARD, SHANNON W. FLEMING, and JANICE DOYLE

By their attorneys,

__/s/ David E. LurieDavid E. Lurie, BBO# 542030 Harley C. Racer, BBO# 688425 Lurie Friedman LLP

One McKinley Square
Boston, MA 02109

Tel: 617-367-1970
Fax: 617-367-1971
[email protected]
[email protected]iedman.com

HOPEDALE — The Select Board is requesting a judge to provide it with more time to decide its next step in regards to a disputed land deal it made with Grafton and Upton Railroad — a deal the judge ruled is invalid. 

In addition, the board is seeking further clarification from the judge in terms of what its options are going forward. 

“Quite frankly, attorney (Brian) Riley and myself saw too many difficulties for the town and Board of Selectmen to go forward on one of those three options without further clarification from the court, particularly given the litigious nature of this matter and the competing interests of the parties that have already brought actions against the Board of Selectman on this issue,” said attorney Peter Durning during Monday’s Select Board meeting.

On Nov. 10, Judge Karen Goodwin ruled that a deal made between the Select Board and Grafton and Upton Railroad to split 155 acres of protected forestland on West Street was invalid because the proposal didn’t first go to Town Meeting. 

At the same time, she ruled that only the board has the authority to exercise the right of first refusal to buy land that has been deemed forest, and therefore taxed at a lower rate. 

Goodwin then gave the board three choices:

  • Decide whether to seek the Town Meeting authorization necessary to validate the settlement agreement it signed with the railroad
  • Take the necessary steps to proceed with its initial decision to purchase the entire the property
  • Neither of the above. This would allow the railroad to acquire all of the land.

     

    The judge gave the Select Board 60 days to make a decision, and also initiated a preliminary injunction preventing the railroad from carrying out further work on the forestland until Jan. 9. 

    Riley, who serves as the town’s ligation counsel, filed a motion Monday in Worcester Superior Court seeking additional clarification on the ruling before making a decision on the matter, according to Durning.

    After that motion is filed, Durning said the matter will return before Goodwin to give her an opportunity to clarify her ruling, to which the board can then proceed “in greater confidence” about which steps to take moving forward.  

    “We’re in a little bit of a holding pattern,” said Durning about holding further discussion on the matter until the town gets additional guidance from Goodwin. 

    ‘We wanna get it right’

    The lawsuit centers on a dispute over 155 acres of forest and wetlands off West Street, through which Grafton and Upton Railroad tracks run. The railroad has been trying to expand its operations over the past year or so, and leadership says developing the tracks and the area around them is key to the strategy.

    In the motion filed Monday in Superior Court, Riley wrote that it was always the town’s — and the railroad’s — position that the settlement agreement was valid, and it’s not clear why the town retains the legal right to enforce the right of first refusal because the agreement waives the town’s ability to exercise that right.  

    The town and railroad’s view is that the agreement is the only viable option to obtain any of the property at 364 Main St., Riley said. 

    “We wanna get it right,” said Select Board Chair Brian Keyes during Monday’s board meeting about seeking clarification from the court. Based on the nature of the litigation, he said they’re hoping for a quick turnaround on the matter.  

    An executive session held last Friday about a lawsuit brought against the town by 11 residents who oppose the land split resulted in “a robust discussion,” Keyes added, but he said there’s still too much “inconsistency” that needs to be defined.  

    “It’s quite sad that the board feels that it needs further guidance from the court,” he said. “In fact, there is nothing in the court’s decision that needs clarification. It’s there in black and white: Because the settlement agreement was not authorized by Town Meeting, the board now has the option to continue the steps it initially took to acquire all of the forestland.

LURIE FRIEDMAN LLP

M E M O R A N D U M

TO: Brian Riley, Peter Durning, Town of Hopedale

FROM: David E. Lurie, Harley C. Racer

RE: Strategy to Enforce Town of Hopedale’s Right of First Refusal Option to c. 61 Forestland and Likelihood of Success

DATE: December 20, 2021

Following the Superior Court’s decision on the Town of Hopedale’s Motion for Clarification, the Board of Selectmen should move forward, quickly, to enforce the Town’s Option to acquire all of the 130 acres of c. 61 Forestland at 364 West St. To enforce the properly exercised Option, the Board should return to Land Court, move to vacate the judgment entered in the form of a stipulation of dismissal and seek a preliminary injunction against any work or disturbance by the Railroad of the c. 61 Forestland during the pendency of the Land Court action. The Superior Court has made it abundantly clear through four decisions now that the Town is highly likely to succeed in its renewed effort to enforce the Town’s Option.

  1. The Town Can Vacate the Stipulation of Dismissal Entered in the Land Court.

It is black letter law under Mass. R. Civ. P. 60(b)(6) that the Court, at the trial judge’s discretion, may relieve a party from a final judgment upon motion or by independent action made within a “reasonable time.” The Court has power “to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949); see also Parrell v. Keenan, 389 Mass. 809, 813-16 (1983) (judgment for damages properly vacated pursuant to Rule 60(b)(6) because settlement agreement was signed by counsel without proper authority); Abrams v. Bd. of Selectman of Sudbury, 76 Mass. App. Ct. 1128 (2010) (finding unenforceable settlement agreement entered into without authorization of planning board would warrant relief from judgment in an independent action under Rule 60(b)(6)). In Bowers v. Bd. of Appeals of Marshfield, 16 Mass. App. Ct. 29, 35 (1983), where the Board of Selectmen exceeded its authority by entering an agreement without approval of the Town Meeting, the appropriate relief was to vacate the judgment under Mass. R. Civ. P. 60(b)(6).

Where, as here, a settlement agreement is entered into without proper authority, it is unenforceable. In City of Lawrence v. Stratton, 312 Mass. 517, 519-20 (1942), after the city acquired a property by tax foreclosure, the city council agreed by unanimous vote to sell the property to a private party on the condition that he spend $50,000 to improve the property and authorized the mayor to execute and deliver the deed. Instead, the mayor entered the city into an agreement to sell the property for $1. The Court determined the mayor had no authority to bind the city by such an agreement, found the deed null and void, and ordered the reconveyance of the land to the city. Id. at 520. See also Rossi v. School Committee of Everett, 354 Mass. 461, 464 (1968) (Civil Service Commission decision based on unauthorized compromise agreement by city solicitor changing order voted upon by school committee “cannot stand”); Parrell v. Keenan, 389 Mass. 809, 813-16 (1983) (judgment for damages properly vacated pursuant to Rule 60(b)(6) because settlement agreement was signed by counsel without proper authority).

Judge Goodwin’s decisions make it clear that the Settlement Agreement is ineffective and void due to lack of municipal authority and that the Town may file a timely Rule 60(b) motion in the Land Court to vacate the stipulation and enforce the Town’s c. 61 rights. See Reilly v. Town of Hopedale, No. 2185-cv-00238, Mem. of Decision and Order at 8 (Mass. Super. Ct. Nov. 10, 2021) (“[T]he Board exceeded its authority when it entered into the Settlement Agreement without Town Meeting authorization.”); Reilly v. Town of Hopedale, Mem. of Decision on Mot. for Clarif., No. 2185-cv-00238 at 2, n. 3 (Mass. Super. Ct. Dec. 16, 2021) (“[T]he Town could seek recission of the Settlement Agreement” and “[has] the right to continue attempting to enforce the Option”). As demonstrated through Parrell, Bowers, and Abrams among other cases, a vehicle by which the Town may seek relief from the unenforceable agreement is a motion to vacate the voluntary dismissal under Rule 60(b)(6) in the Land Court.

  1. The Town is Highly Likely to Succeed in Enforcing its Exercised Option and Obtaining the Entire 130 Acres of Forestland.

The Superior Court, the first to give the Railroad’s illegal acts proper scrutiny, indicated at least four times that the Town would win if it pursued enforcement of the Option against the Railroad. The Court first, on September 9, 2021, “temporarily restrained [the Railroad] from any further alteration or destruction of the Chapter 61 land”. See Dkt. No. 34. Next, on September 24, 2021, after full briefing on the issues, the Court entered a preliminary injunction against the Railroad because “[b]y clearing the Forestland, the Railway, in essence, is treating the Forestland as though it were released from Chapter 61 constraints, a result the appeals court injunction sought to prevent.” Dkt. 38 at 4. The Court further noted, “[i]f the plaintiffs are successful in this lawsuit, the Forestland would remain in its natural state.” Id. The plaintiffs were ultimately successful. On November 10, 2021, the Court entered judgment for the citizen plaintiffs on Count I. In that Decision, the Court held that the Town did what was necessary to exercise its Option to the c. 61 Forestland, including obtaining authorization from Town Meeting for the purchase of the Forestland pursuant to the Option. Dkt. No. 45 at 5, 8. Because the Board is not authorized for any other purchase or acquisition, the Court informed the Board that it could “seek Town Meeting approval for the Settlement Agreement, [] renew its attempts to enforce the Option, or [] do neither.” Id. at 10. The Court also extended the injunction against the Railroad, sua sponte, because the Railroad’s bad acts were not lost on the Court – “the court is mindful of the Railroad Defendants’ attempt to circumvent the Chapter 61, § 8 process by purporting to acquire only the ‘beneficial interest’ in the forest land while undertaking the same commercial operations that Chapter 61 allows municipalities to preclude” and “the court cannot ignore (1) the Railroad Defendants’ initiation of clearing operations after the Town issued a notice of intent but before it could hold a Town Meeting . . . and (2) its resumption of clearing operations while the Appeals Court injunction remained in place.” Id. at 11.

Lest any doubt remained, the Court put it to bed in its December 14, 2021 Decision on the Town’s Motion for Clarification. The Court ruled that “the Settlement Agreement is not effective.” Dkt. No. 50. Moreover, the Court held that if the Board does not obtain Town Meeting authorization of the Settlement Agreement (either because it chooses not to hold the Town Meeting or because the vote fails) “the Settlement Agreement would fail to take effect, meaning the Railroad would retain the land and the Town would retain its money and the right to continue attempting to enforce the Option.” Id. at 2 (emphasis added). The Court again neutralized the Railroad’s threats, noting that the Railroad’s position – if a vote failed, the Town gets nothing and the Railroad gets everything – “would be unjust, to say the least.” Id. at n. 3 (emphasis added). In note 3, the Court further explained why the Railroad’s arguments of severability and claim preclusion are meritless. Id. (“the Railroad’s claim preclusion argument misses the mark”); see also Salem Highland Dev. Corp., v. City of Salem, 27 Mass. App. Ct. 1423 (1989) (where City Solicitor entered into agreement to convey property to a developer without authorization by the City Council or Mayor, Court vacated the agreement under Rule 60(b)(6) resulting in reconveyance of the locus to the city), discussed in Eastern Sav. Bank v. City of Salem, 33 Mass. App. Ct. 140, 142 (1992).

  1. Federal Railroad Preemption is Not Available to the Railroad and Any Surface Transportation Board Petition Would Fail.

Finally, the Railroad’s preemption threat is toothless. Any petition that the Railroad may file with the Surface Transportation Board (“STB”) or any other attempt to claim preemption will fail. The Railroad’s acquisition of the Forestland and its title to the same is in violation of a state statute that establishes property rights held by a municipality. When ownership of the property implicated state property rights, those issues must be resolved in state court before the STB can or will consider preemption. See STB Decision in Docket No. FD 265518 dated November 3, 2021 (holding that “a court is typically the more appropriate forum for interpreting contracts and resolving state property law disputes”); First American Realty, Inc., et al. v. Grafton & Upton Railroad Company, et al. No. 2185-cv-00784, docket entry dated November 5, 2021 (concurring with the STB that the state court is the proper forum). Here, none of the Forestland (or Wetland) is properly held by the Railroad and no rail transportation issue is presented. Massachusetts State Court is the only forum that can adjudicate the issue of the Town’s c. 61 Option and the Railroad’s violations of that statute.

The Town can and should move to vacate the Stipulation of Dismissal of the Land Court action because the settlement agreement upon which the Stipulation was based is null, void, and without effect. At the same time, the Town should seek a new preliminary injunction to enjoin the Railroad from further clearing the Forestland, because the current preliminary injunction expires on January 31, 2022. The Railroad is not looking out for the Town’s best interests and consequently, has led the Town down the path of illegalities as recognized by Judge Goodwin in her most recent decisions. The Board now has the opportunity to get it right by enforcing the Option to which it was bound following a “precisely worded authorization to acquire specific land pursuant to specific rights” following Town Meeting approval. Dkt. No. 45 at 8. Because a vote to obtain a retroactive authorization of the Board’s bad deal will surely fail – especially in light of the recent citizen petitions signed by well over 500 voters – vacating the judgment and enforcing the Option is the path the Board should take to preserve the Forestland. As stated, this path, in our view, is highly likely to be successful.

Judge clarifies why Hopedale land deal is invalid

Says Town Meeting must approve any revision from original vote

Lauren Young The Milford Daily News USA TODAY NETWORK

HOPEDALE — A Superior Court judge has said the town’s deal with the Grafton and Upton Railroad over land on West Street is invalid until it receives Town Meeting approval.

If the town doesn’t act, the railroad could take over 155 acres of disputed land that’s been under debate in court for over a year.

The town has until Jan. 31 to make its decision.

Residents at Town Meeting in October 2020 voted to acquire about 130 acres of the 155-acre property off West Street, and the Select Board agreed to set aside the land for conservation.

Earlier this year, selectmen signed an agreement with the railroad — after the two had their own court battles and subsequent mediation — that would split the land between the railroad and the town. The town agreed to pay the railroad $587,000 for about 84 acres, because a railroad-owned trust owns the land.

Eleven residents then filed a lawsuit, arguing the town should have acquired all of the land, per the earlier Town Meeting vote. In April, the residents secured an injunction to stop the town from paying for, and therefore acquiring, the 84 acres, while the case played out in court.

But the April injunction did not stop the railroad from proceeding with construction on the West Street land.

‘Procedurally defective’ On Dec. 16, Judge Karen Goodwin ruled the execution of the land deal as “procedurally defective” because the Select Board failed to obtain Town Meeting approval for acquiring the smaller amount of land. Thus, the town cannot use the money appropriated at the October 2020 Town Meeting to acquire only part of the disputed land until it gets such approval for a revised deal.

The Select Board had filed a motion for clarification of Goodwin’s Nov. 10 decision in which she ruled that the deal between the board and railroad to split the land on West Street needed to go to Town Meeting first for it to carry any weight. She also ruled that only the board has the authority to exercise the right of first refusal to buy that land.

She gave the Select Board three choices:

 Seek Town Meeting authorization to move forward with the revised agreement

 Take the steps to proceed with its initial decision to buy the entire property

 Neither of the above. This would allow the railroad to take all of the land The town asked the judge to amend or clarify her Nov. 10 decision to state that the town had lost its statutory option to buy the entire parcel, but that wasn’t what the court decided, stated Goodwin in her ruling.

Although terms of the agreement are legal (including the board’s agreement to waive its right of first refusal), the board exceeded its authority when it entered into that agreement without Town Meeting approval, Goodwin found in her Dec. 16 ruling.

If the board doesn’t hold a Town Meeting or fails to gather the votes it needs, then the agreement would fail to take effect, said Goodwin, meaning the railroad would keep the land and the town would retain its money and the right to continue attempting to enforce its right to buy the land first under state law Chapter 61.

“The judge’s decision, once again, could not be clearer: The town can proceed to enforce its (Chapter 61) option to acquire all 130 acres of the forestland, right now,” said David Lurie, of Lurie Friedman LLP, who is representing 10 taxpayers in their lawsuit filed in Worcester County Superior Court. “The Select Board should proceed post haste to do just that.”

The Select Board discussed the update in Executive Session during a meeting on Monday. Its next meeting will be held tonight.

Town rejects representation from citizens’ lawyer

During a Dec. 13 Select Board meeting, the board voted to stick with its current attorneys in the West Street lawsuit, rejecting an offer from the attorney representing the opposing side to do it for free.

Lurie offered his services to the town “free of charge,” to replace Brian Reilly of KP Law and Peter Durning of Mackie, Shea and Durning, in the case against the railroad.

Lurie told the Daily News that his firm is willing to help the town enforce its Chapter 61 right of first refusal option in any capacity — free of charge — to help Hopedale get that forestland.

But on Dec. 13, Select Board Chair Brian Keyes and member Louis Arcudi III voted against replacing the town’s current legal team. The third board member, Glenda Hazard, abstained because she felt it wasn’t the right time to vote on the matter.

The topic was added to the Dec. 13 agenda after Keyes commented during a previous board meeting, on Nov. 22, about his comfort in using the town’s current lawyers. Hazard then said the board hadn’t discussed the issue, and that Keyes was only speaking for himself. And with Lurie’s firm offering its services for no fee, Hazard said it was something the board should consider.

The most recent citizen petition sent to the board included 402 people with more than 300 comments asking for Lurie to replace the town’s current lawyers, said Arcudi.

Two counts appealed by citizens

On Dec. 6, the residents filed a motion to appeal Counts II and III citizens’ lawyers. Both those counts were previously dismissed in the judgment entered on Nov. 10, which confirmed that only the Select Board has the authority to exercise a Chapter 61 right of first refusal option and that the forestland in the settlement agreement isn’t protected parkland.

Lurie told the Daily News that the appeal was made in case the board does not enforce its right of first refusal on its own.

During the Dec. 13 Select Board meeting, Elizabeth Reilly, lead plaintiff in the citizens lawsuit, said the notice of appeal was filed because the injunction against the railroad continuing work at the West Street site ends Jan. 31 and the town still hasn’t made a decision after the judge’s Nov. 10 ruling.

Railroad: Agreement remains ‘fully enforceable’

“Contrary to a lot of what I heard (during the Select Board’s Dec. 13 meeting), the (land deal) remains intact and fully enforceable,” said attorney Don Keavany, representing the Grafton and Upton Railroad and One Hundred Forty Realty Trust in the lawsuit. Within that agreement between the Select Board and the railroad is a clause, which says that if any provision of the agreement is not enforceable, the rest of it remains fully enforceable.

That means the agreement survives with or without a transfer of the land, he said.

The railroad has been complying with the agreement since February, he said, and hopes that a new Special Town Meeting is scheduled within the next month to appropriate a new sum of money for the town to acquire 130 acres of the West Street property.

While taxes gained from the railroad building on that West Street land will benefit Hopedale, Keyes said during the Dec. 13 meeting that it’s not his top priority — protecting natural resources like water supply and adding forestland to town parklands is.

“The silver lining behind the railroad getting all 155 acres is they’re still going to develop the property, and we’re still going to get all that tax revenue if they do that,” said Keyes during the meeting. But if the town chooses to not move forward with the settlement agreement or fight to obtain all that land, it would come at an immense cost, he said.

“There’s no way of forecasting the amount,” he said, “but we’re talking about hundreds of thousands of dollars.”

Lauren Young writes about business and pop culture. Reach her at 774-8041499 or [email protected]. Follow her on Twitter @laurenwhy__.

Here’s an email sent by Liz Reilly on January 4.
Good Evening,
 
Happy New Year!
Just wanted to send a quick update.  Most of you know already that the Select Board has decided to pursue the Town’s Ch 61 RoFR for the West St Watershed property.  Peter Durning (Town’s attorney for this land court case) has filed the motion in land court to get the ball rolling.  I attached it above.
 
While the motion was filed on 12/30, it only appeared on the docket this morning.  Our attorneys have read it & agree that it is well done.  It seeks to vacate the dismissal and reinstate the original land court case, and also continue the injunction against the RR.  Attorney Durning has incorporated Attorney Lurie’s legal work, our legwork on the citizen’s petition, and Judge Goodwin’s and the Appeals Court Single Justice’s decisions.  We can feel certain that the RR is working on a response & will likely seek to move to the STB as well, but as a Town united with the law on our side, we can feel good about moving forward together to an eventual win.
 
No hearing has yet been docketed, but I’m sure the Select Board will keep us posted (and I will as well). 
 
Best Regards,
liz
The attachment is quite long, so I’ve decided not to include it here. If you’d like to see it, email me ([email protected]) and I’ll pass it on to you.

HOPEDALE — The Select Board has reversed field and now wants to reopen the Land Court case it filed to acquire 130 acres of forestland the Grafton & Upton Railroad was on track to take. 

On Dec. 30, the town filed a motion to reopen the case against the railroad to proceed with its original decision to buy the 364 West St. property under state law Chapter 61, for which Special Town Meeting gave its approval in October 2020. 

That property on West Street consists of 155 acres, with 130 of them classified as forestland. 

In January 2021, after at least a year and a half of lawsuits, legal mediation, local and state hearings, and resident petitions and advocacy, the town and the railroad reached accord on splitting up the West Street property. Under that settlement, Hopedale was to acquire about 85 acres in the area, as well as a commitment from the railroad that it wouldn’t develop another, small section for five years. The town would pay $587,500 for 64 of those acres.

Now the town has changed its mind on the deal, citing “compelling and extraordinary circumstances,” according to its Dec. 30 motion.

More:Hopedale board’s deal with railroad is ‘procedurally defective.’ Judge explains why

On Tuesday, the town also filed an emergency motion to extend the injunction against the railroad from clearing that property further until the court acts on the motion.

From Elizabeth Reilly – January 30
Coming to you with an update and, yes, another petition request. Petition Link:
On Friday, the Land Court (Judge Rubin) denied the Town’s motion to vacate the dismissal of the Land Court case. With the Land Court and Superior Court rulings at odds with each other, direction from our Select Board will be required to move the West St property issue forward.
 
The Select Board is meeting in executive session on Monday. We are looking to collect as many signatures as possible to once again demonstrate that the residents support continuing the fight to purchase the West St property (Hopedale’s Watershed), and that the Select Board will have support from the residents to appeal the Land Court decision.
 
For further information, a recent summary of the situation is below.
 
Worcester Superior Court declared the Settlement agreement between the Select Board & the RR invalid. This is the Settlement agreement that was the outcome of the mediation in the Land Court case to stop GURR from developing the land, converting this property to railroad use, while the Town of Hopedale pursued its Right of First Refusal to acquire the property. Because of the settlement agreement, the RR & Select Board decided to dismiss the case, rather than having a judge rule on the case.
 
The Superior Court ruling confirmed that the Town could continue with the Ch 61 RoFR purchase and the Select Board has taken steps to do so. One of the legal options was to return to the Land Court, requesting to vacate the dismissal of the original Land Court case.
 
Unfortunately, the Land Court Judge has denied that request.
 
Appealing this decision is the logical next step, but is not something the Citizen’s 10 group can do. It must be appealed by the Select Board.
 
As part of the request to the Land Court, the Select Board highlighted the following points:
 
– The Town has a significant public interest in protecting its municipal water supply. The Chapter 61 Land is hydraulically-upgradient of all of Hopedale’s public water supply sources and provides an important buffer for protection of the Town’s public water supply wells. It is also the only optimal location for siting a new public water supply source in the Town, and ownership of the Chapter 61 Land would ensure that future land uses on the parcel are consistent with water supply protection and would not adversely impact groundwater quality.
 
– Development of any part of the Chapter 61 Land requires site work and tree clearing activities that would irreparably alter the Chapter 61 Land and impair the benefits it provides for protection of the municipal water supply.
 
If you agree that Hopedale should continue to fight for this property, please talk to every adult in your household & share with your neighbors, & encourage everyone to sign the petition in the above link.
 
As always, thank you for your continued involvement. We’re getting closer every day. ❤
 
Good Evening,
 
A lot has happened over the past week related to the West St property, starting with last Friday’s Land Court ruling that denied the Town’s Motion to vacate that case.  On Monday the Select Board met to discuss that ruling and next steps in executive session.  They then held an open session regarding a potential appeal.  As a result of that meeting, our lawyers have sent a letter (attached) to the Town detailing the reasons that an appeal should absolutely be filed by the Town.
 
Included in our lawyer’s attached letter, is a notice from the RR to the Town, threatening to sue the Town for breach of contract.  This threat is baseless and is yet another attempt at the RR to strong arm and bully a Town into submission.  The Superior Court, Judge Goodwin, has scheduled a meeting with all of the lawyers for next Wednesday.
 
At this point, the most important thing we can do is to let the Select Board know that the Town should not give up the appeal option.  That we support the appeal step to protect the property from railroad development as previously approved at Town Meeting.  If you agree, please sign the petition in support of the appeal (& forward this to your neighbors for consideration):
 
Below, and attached, are the associated details.  If there are any questions, please ask.  As always, thank you for your continued attention.
Best Regards,
liz
 
Monday night’s Select Board Meeting: 
Here is the link, with the discussion starting at about the 1 hr 52 minute mark:  https://townhallstreams.com/stream.php?location_id=56&id=43449
 
Our recap:
————–
The Town has 30 days (maybe even 60 days) to file the appeal.  A rushed NO vote would only help the Railroad.  Once the Town declines to appeal, it may not be able to recover that option.
 
The Town’s attorney’s Peter Durning (environmental lawyer) and Brian Riley (Town counsel, K&P), explained that they do not think an appeal has much chance of success. In their fiduciary role, they don’t think it is worth the Town’s money.   They did not present any other options for the Town to take.
 
Attorney Harley Racer (one of our, 10 Citizens lawyers), stated his disagreement, and briefly explained why the Town should appeal (his reasoning is explained in detail in the attached letter). 
 
Although Chairman Keyes stated that they will likely not be appealing this decision based on recommendations by their attorneys and had originally expected a vote whether to appeal or not to be taken at this meeting, he later requested that the vote be taken next Monday, providing the lawyers some time to provide more feedback.
 
Why the Town should appeal:
—————————————
 Attached is the letter from our attorneys outlining why they believe an appeal is an absolute must do and why it has a high likelihood of success.  I will point out again that Attorneys Lurie and Racer have a history of making winning arguments in this matter, including the earlier Appeals Court ruling. They are enthusiastic and passionate about this cause and again have offered their services to the Town free of charge to help the Town pursue the rightful acquisition of this property.  While Brian Keyes continues to adamantly refuse to accept their representation, hopefully the other Select Board members will keep an open mind regarding this offer to help the Town as this case moves forward.
 
It is a long letter, so here’s a few bullet points: 
  • We are of the strong opinion that the Land courts denial of the Town’s Motion to Vacate contains clear errors of law and is HIGHLY LIKELY TO BE REVERSED ON APPEAL
  • There is no harm to filing and pursuing a Notice of Appeal but there would be a great loss of the Town’s rights if an appeal is not filed
  • The Land Court does not address the injustice that occurs by ceding the Ch 61 Forestland to the RR, who holds title to the Forestland ONLY through its BLATANT VIOLATIONS of Ch 61
  • The Town should not be presented with a devil’s choice between a bad deal that is the product of a series of illegal actions by the RR, or getting nothing.
  • The Land Court order creates inconsistent court rulings which MUST BE RESOLVED BY THE APPEALS COURT 
    • The Land Court’s decision is starkly inconsistent with Judge Goodwin’s unambiguous finding that the Board exceeded its authority when it entered into the Settlement Agreement without Town Meeting approval of the reduced acquisition, and therefore, the Settlement agreement is not effective.  If the Settlement Agreement is not effective, neither is the Stipulation of Dismissal.
    • The Land Court’s commentary regarding the consideration issue is also inconsistent with Judge Goodwin’s finding that enforcing only part of the Settlement Agreement – the part that benefited the RR, i.e. the Town’s release of the Ch 61 Option – “would be unjust, to say the least”.
    • These inconsistencies between the decisions of the Land court and the Superior Court must be reconciled by an appellate court.  For this reason alone, the Town must file a Notice of Appeal of the Land Court decision.
  • The RR’s latest letter threatening a lawsuit for breach of contract (included in the attachment) makes it crystal clear that there is a real dispute as to the effectiveness of the Settlement Agreement.  The Superior Court has ruled that it is not effective, but the RR nevertheless maintains that it is.  This is an issue that can only resolved by the Courts.
  • The next step to resolution is an appeal of the Land Court’s Order to reopen the litigation to enforce the Town’s Ch 61 rights.
    • The Appeals Court is where this dispute will ultimately be resolved and the appellate process is the course to correct errors and injustices that have occurred in the lower courts. 
  • The Select Board should not simply give up now, especially with an option that supports the will of the residents. The Select Board should appeal this unjust decision and join the Hopedale Citizens to protect the public’s rights with this forestland.
  • The Select Board will not be faulted for unsuccessfully trying to preserve the forestland, but will be faulted for giving only a half-hearted effort.
(Quick link to the Petition: Click HERE) (Click the enable editing button before printing)
 
Good Morning,
 
Tomorrow evening the Select Board will be discussing the Special Town Meeting to look for the authorization of funds for Parcel A (smaller acreage) to ratify the Settlement Agreement with the RR. We still believe in the Town’s rights to the entire property. As such, we encourage a NO vote to defeat this article. 
 
Because the Town is looking to quickly schedule this Special Town Meeting, the Select Board may open & close the call for warrants within tomorrow’s meeting.
 
Our attorneys have recommended that we include 3 additional articles to help ensure our rights to protect this forest land. Failure to pass these questions, along with the Town’s request for authorization for spending on Parcel A will ultimately prove that the Residents do not want to ratify the Settlement Agreement. This will help ensure that the Town retains the ability to enforce the c. 61 Option as found by Judge Goodwin and which is presently on appeal in the Land Court. 
 
This petition is only for the placement of these questions at the Special Town Meeting. Signing this petition does not imply or count as your vote. We will send detailed information regarding all the final Special Town Meeting Warrant Articles. For now, our task at hand is to get the required number of signatures to simply get the questions on the warrant. We apologize for the hurried nature of this request, but this should be completed by early Monday afternoon.
 
If you wish to sign, please print out a copy of the petition. Click HERE for the petition. Click the enable editing button on the document to get a cleaner version to print out (you will see the 10 signature lines).
 
Please note – This is not an online petition. Please sign & have every REGISTERED Hopedale VOTER in your household sign. No more than 10 signatures to a page. If you can walk over to your neighbor’s house and have a discussion & get signatures, that would be very helpful.
 
I can drive around and pickup signed petitions. Just reply with your address & tape them to your front door (or let me know where I can find it). If it’s easier, I have blank petition sheets and a place to drop them off on my front door (68 Dutcher St). We would like to collect all of the signatures today, but there is a small window of time tomorrow morning as well.
 
As always, thank you for your continued involvement, and I sincerely hope this is the last time we need to gather signatures.
 
Happy SuperBowl Sunday!
 

HOPEDALE — What town officials called “extraordinary circumstances” with respect to their desire to reopen a lawsuit against the Grafton and Upton Railroad over 155 acres of disputed land weren’t extraordinary enough, at least in the eyes of a Land Court judge. 

Now a Superior Court injunction forbidding the railroad from clearing more of the 155 acres of disputed land ends Monday — a decision the town plans to appeal, according to Peter Durning, who has represented the town in its Land Court proceedings.

What the town does after that will be voted on by residents, said Select Board Chair Brian Keyes during a meeting on Thursday night. 

“A robust element of the (board’s) discussion was a sincere interest in bringing this matter to the residents in a Special Town Meeting,” Durning said. While that meeting hasn’t been scheduled, Keyes said officials plan to hold it safely in-person.

The issue stretches back to October 2020, when Special Town Meeting approved the town to purchase the 155 acres of land at 364 West St., which was also sought by the railroad for development. One hundred and thirty acres are classified as forest land, with the remaining 25 acres being wetlands.

The town filed a lawsuit and preliminary injunction against the railroad shortly after the October 2020 Special Town Meeting but later agreed to mediation, resulting in an agreement to split the disputed land. The town agreed to getting about 85 acres, plus a 20-acre expansion of its Parklands, and the railroad vowed to provide environmental protections and possible cost-sharing opportunities when it came to land-surveying and pinpointing new water sources.

Feb 22, 2022

Good Morning,
 
Wanted to share the link for tomorrow’s hearing:
Topic: Land Court – Judge Rubin – Town of Hopedale v. Priscoli
Time: Feb 23, 2022 10:00 AM Eastern Time (US and Canada)
 
Join ZoomGov Meeting:
 
Meeting ID: 161 591 5787
Passcode: 309739
 
Quick update on the legal filings.
The Town filed their appeal & request for a work stop injunction in Land Court. The Citizens have filed our appeal for standing as well as joining in on the Town’s request for an injunction pending appeal in Land Court. The RR filed their oppositions yesterday. The injunctions are the topic of tomorrow’s hearing.
 
The Citizens have filed for an appeal of the ruling on counts II & III with a request for an injunction in Superior Court as well. No date has been set for that hearing yet. There are a lot of legal documents associated with the above cases. I’m happy to provide them to anyone who wants to delve into the legalese.
 
Associated Town Meetings:
The Select Board will be meeting tonight to discuss the Special Town Meeting and open the warrant. The Town Clerk will receive the articles we petitioned for this afternoon. Thank you again for your continued participation. Here is the link to the agenda for tonight’s meeting (6pm – executive session followed by an open public meeting) for anyone looking to attend:
 
The Water & Sewer Commission met last Thursday and discussed some of the recent West St Watershed issues. They sent a letter to the Select Board & all of the attorneys with their concerns regarding the RR’s latest attempt to justify their proposed clearing activities. Click HERE for the letter. Please take a minute (it’s not long) to read.
 
Select Board Candidate:
Lastly, we are so pleased to announce that Bernie Stock has taken out papers for the open position on the Select Board. He is a lifelong Hopedale resident who has served his country in the Vietnam War and his town as Town Administrator and Town Moderator. He shepherded the town through one of its most difficult periods, the exit of Rockwell Industries.His extensive business career includes positions at Home National Bank and Karl Bright Insurance.Bernie is currently Maintenance Director for the Hopedale Community House.  Bernie is a collaborator, innovator and problem solver who is eager to impact Hopedale’s current and futures challenges and looks forward to meeting residents.
 
As always, thank you for staying involved. Looking forward to better days ahead. Happy Tuesday!
Liz
Feb 28, 2022
Good Afternoon,
 
Just wanted to give you a quick update on where things stand. Interesting Land Court hearing last week. Judge Rubin did not hear arguments regarding the injunction pending appeal, but rather discussed sending the parties to mediation screening. Her mediation order can be found HERE. She ordered that the Citizens be included in mediation screening along with the Town and the RR. She requested that the RR not move forward with any work until this process is sorted and we meet back with her later in March.
 
All parties were surprised by her suggestion and the Select Board has not had a chance to confer with Attorney Durning yet (they will tonight in executive session before the open meeting). So, while we do have a mediation screening date scheduled (this Friday), we don’t have further details yet or a feel for whether mediation screening will lead to actual mediation.
 
I do want to share a letter sent from Attorney Lurie to the Town Attorneys (Durning and Riley) as well as to the Select Board today. Attorney Lurie is suggesting that we use a different mediator than was previously used to create the Settlement Agreement. For several reasons. He is suggesting that we choose one of the Mediating Judges with Appeal’s Court experience in order to allow for a neutral evaluation of the Town’s chances of enforcing our Ch 61 Rights as we go through the process. The Town Attorneys and the RR Attorneys were discussing going back to Judge Lombardi last week, so I wanted to share the reasons why the Citizen’s Attorneys feel we should go with a different mediator as this may be discussed later at tonight’s Select Board Meeting. You can read that letter HERE.
 
The Special Town Meeting is on the agenda for tonight’s meeting. Considering the purpose of this STM is to vote to appropriate funds for the lesser acres in the Settlement Agreement, this new suggestion of mediation brings in to question the timing of the meeting. I’m sure the Select Board will be providing an update on the recommendations from Attorneys During & Riley.
Liz
March 14, 2022
Good Morning,
 
Please mark your calendars for the Special Town Meeting – Saturday, March 26. This is an in-person meeting at the HS. Start time is 11am, but please arrive earlier to check in. The articles related to the West St Watershed property are vital to our ability to continue to pursue our Ch 61 Rights. Here is a link to the meeting warrant:
 
 
The Town Commissions and Boards will be discussing their recommendations for the various articles, and as always, everyone should consider all that is said.
 
Articles 8-12 pertain to the settlement agreement made between the Town and the RR for the West St Watershed property.
 
Article 8 asks residents for the appropriation of funds to purchase the smaller parcel of land and in doing so ratify the Settlement Agreement. WE DO NOT WANT TO RATIFY THE SETTLEMENT AGREEMENT, so a NO VOTE is recommended. If Article 8 passes, we will lose our ability to pursue our Ch 61 Right of First Refusal to the property, so it is important that this article NOT PASS. A NO Vote on Article 8 renders the Settlement Agreement ineffective and the Town can continue to pursue the necessary legal action to complete the purchase of the property that was started in November 2020. Our legal ability to own this property and protect our current and future water supply still remains in tact, and the Town’s legal position is a good one.
 
Article 9 is a vote to accept the gift property from the RR. Parcel D is the property across RT 140 (old Mill Pond). The Conservation Commission has expressed concerns that this parcel of property is a potential liability to the Town, and a NO VOTE is recommended.
 
Article 10 asks if the residents wish to give up the Town’s Ch 61 Rights to the property. WE DO NOT, so a NO VOTE is recommended.
 
Article 11 asks if the residents wish to give up the 20 acres of wetlands (contained within Parcel A) that we voted to take by eminent domain in 2020. WE DO NOT, so a NO VOTE is recommended here.
 
Article 12 is a repeat of 9, so it will likely be passed over.
 
Last Wednesday’s Select Board meeting is an important one to watch. It provides the Select Board’s update from Wednesday’s mediation & their thoughts on how they’re leaning moving forward. Mediation was a long day – I believe all parties came to the table with earnest effort, but in the end, the parties could not agree on a mediated end to the litigation. Here is a link to the meeting:
 
Moving forward, there is one message that I hope remains clear to us all. If we vote to appropriate funds for the smaller parcel and ratify the Settlement Agreement ($878,000 of non-gifted funds), we lose all of our rights to the property. In order to own and control our watershed, we must vote NOT to appropriate any funds, & show Judge Rubin that we are rendering the Settlement Agreement ineffective. Doing so allows the Town the ability to continue forward in court & enforce our rightful ownership of these vital acres. Both donors remain committed to this property and will fund 100 percent of the purchase price ($1.2 million).
 
As always, thank you for your time and commitment to this effort. Please reach out personally to your local friends & neighbors, and don’t hesitate to reach out to us with any questions or concerns.
 
Best Regards,
liz
March 21, 2022
Good Afternoon,
 
Wanted to send the Zoom link for tomorrow’s Land Court hearing (3/22, 9:30am). The lawyers will be reporting the failed mediation result to Judge Rubin and she will potentially begin hearing the arguments for the original request for an injunction pending appeal. The public is welcome to attend.
 
Topic: Land Court – Judge Rubin – Town of Hopedale v. Priscoli
Time: Mar 22, 2022 09:30 AM
https://www.zoomgov.com/j/1613026429?pwd=ZkpBVjVyUzc1QmtuZ1RPOHNRRjNmUT09

Meeting ID: 161 302 6429
Passcode: 297266
 
Also, of interest, the Select Board has asked the Water & Sewer Commission, Conservation Commission, and Finance Committee to a joint meeting to discuss the Settlement Agreement prior to this Saturday’s Special Town Meeting. This is a Q&A only – there is no ability to change the Settlement Agreement. There is no agenda posted yet. It’s expected that all commissions will maintain the same position they have had all along (take action to pursue our Ch 61 RoFR for the entire property), but if you’re interested in attending, it is tentatively scheduled for Thursday (3/24) at 6pm.
 
Lastly, please mark your calendars for this Saturday’s Special Town Meeting 3/26 at the HS, start time 11am, please arrive early to check in. Articles 8-12 pertain to the West St Watershed property, and as described in the prior email, voting NO to all articles is the necessary vote to render the Settlement Agreement ineffective.
 
If anyone has any questions or concerns, please don’t hesitate to contact us.
 
Thank you!
Liz
March 25, 2022
Good Morning,
 
Wanted to share the link to last night’s combined Water & Sewer, Conservation, Finance, and Select Board meeting. Each board had an opportunity to ask Peter Durning, Brian Riley, and the representative from Environmental Partners questions about the Settlement Agreement. This meeting is absolutely worth watching in its entirety. It highlights exactly why we elected officials to each board, and why the Select Board is not a substitution for the expertise of the other boards. The reason the Settlement Agreement does not meet the needs of our Town is a direct result of the lack of involvement of these other boards & commissions. It also highlights why we must continue to fight for this land in court (please note that Peter’s legal opinions that were presented are not shared by the citizen’s attorneys who continue to maintain that our town has every reason to believe that we will prevail in any court.)
 
Water & Sewer, Conservation, and the Finance committee have all voted and unanimously recommend a NO VOTE ON ARTICLES 8-12. Their reasoning is well thought out & explained in their previous meetings and during last night’s info session.
 
There will be detailed discussion at the special town meeting, but the summary is this – if we wish to retain our legal rights to the West St Watershed property, we must VOTE NO ON ARTICLES 8-12. In doing so, it WILL render the Settlement Agreement as ineffective (as described in Judge Goodwin’s ruling in Superior Court). Once the residents do this, it is up to the Select Board to continue on in Appeals Court and finalize the termination of that Settlement Agreement and the purchase of the property that rightfully belongs to our Town and is so vital to our future. Although the purchase price of the land will be fully funded by donors, there will be further litigation and costs associated with this fight (although we will continue to offer the legal services of our citizen’s attorneys to the Town in this matter, at no cost to residents, and hope that the Select Board takes us up on it), but the costs to give up now are much higher (in real dollars, not just in theory).
 
NOTHING has changed about the critical importance of this property, and NOTHING has changed about our legal rights to own and control this property.Our legal standing has only improved with time and we must continue to stick together and see this through.
 
Please be sure to attend tomorrow’s in person Special Town Meeting at the HS and make your voice heard. 3/26 – start time is at 11am, arrive early to check-in.
 
Please do not hesitate to reach out with any questions or concerns.
 
Best Regards,
liz
West Street property road at the Route 140 end.
March 29 2022
Good Morning,
 
At Town Meeting, we all saw the direction the residents approved. Pursue, preserve and protect the entire property. What we didn’t see was the land clearing activities the RR re-initiated.  Fortunately, a stop work order has been re-established, but to ensure that it is not temporary, the Select Board must act, now.  
 
That’s right – In connection with the Citizens’ appeal of the Land Court decision, a Single Justice of the Appeals Court has granted a temporary injunction against the Railroad’s clearing of the Forestland. (See below). This is GREAT news as the RR has been moving in clearing equipment all week. The court has given the Town 10 days for their submission. This is a tight timeline.
 
The Select Board met last night & have proposed an executive session for 4/4 to discuss their position. This would leave only 3 days for Attorney Durning to prepare his response. Judge Rubin’s latest ruling faulted the Town for failing to provide a vigorous response.
 
We are hoping the Town would move to act quickly and provide Attorney Durning enough time to adequately prepare the Town’s strong case. Especially after the clear mandate that has been sent from the residents through Town Meetings: Preserve and Protect the Land.
 
Please sign this online petition requesting the Select Board to act sooner rather than later to help provide Attorney Durning the time needed.  
 
Petition Link:
 
 
Single Justice docket notice of Injunction:
TOWN OF HOPEDALE
vs.
JON DELLI PRISCOLI & others
 
NOTICE OF DOCKET ENTRY
 
Please take note that, with respect to the Motion for stay under M.R.A.P. 6(a) filed for Hopedal Citizens by Attorney Harley Clarke Racer. (Paper #1), on March 28, 2022, the following order was entered on the docket of the above-referenced case:
 
RE#1: The defendants and their agents are enjoined from further altering or destroying the forestland that was the subject of the underlying Land Court case pending further order of this court or a single justice thereof. On or before 04/07/2022, the defendants and the plaintiff town shall file a response to the citizen’s motion for a stay. (Desmond, J.). *Notice/Attest/Rubin, J.
Click on the picture to go go a drone video of the area.
April 26, 2022
Good Afternoon,
 
Last night, the Select Board voted 2 to 1 to drop the Town’s Appeal of the West St case in Land Court. This vote was done during executive session PRIOR to any public discussion. Their reasoning for the decision to drop was based on the denial of an injunction pending this appeal. It is important to note that we did not lose the actual appeal itself, and the ruling does not equate to the need to drop the case (*especially before another legal strategy is in motion*). Giving up is not a reasonable decision.
 
While there are other legal options the Town may take to negate the Settlement Agreement, dropping the appeal before the future Select Board has any legal ball in motion will just make it more difficult for the Town. The Citizen’s attorneys are working on an injunction pending our appeal in Superior Court, but we cannot continue to do this alone.
 
If you have a minute, please make your voices heard one last time and let this current Board know that they should NOT drop the appeal. No permanent, irreversible decision needs to be finalized in the next two weeks & they should give the new Board that will be in place on May 11th the best opportunity to protect our West St Watershed property.
 
We were going to create another petition, but we think it may be more beneficial for residents to directly ask questions & voice concerns. Here are the email addresses:
Brian Keyes – [email protected]
Lou Arcudi – [email protected]
Glenda Hazard – [email protected]
 
Here is the link to last night’s Select Board Meeting:
 
As always, the Citizen’s group will continue to fight as hard as we can to protect our Watershed, and we thank you for your continued attention and support.
 
Please be sure to get out & vote on May 10th. Bernie Stock is going to be a great addition to our Select Board. 🙂

May 2, 2022

Good Afternoon,
 
Wanted to share the link to tomorrow’s Superior Court hearing with Judge Goodwin. The Citizen’s have filed an emergency motion to preserve the status quo pending appeal. (If anyone is interested in reading the legal documents, just let me know & I’ll send them to you – there are several, including the RR replies.)
 
Topic: Judge Goodwin Worcester “C” Session
Time: Tuesday, May 3, 9:30am
 
Join ZoomGov Meeting
 
Meeting ID: 160 276 5890
Passcode: 930421
 
As you can see by the above picture (which is just a small fraction of the clearing that has been done in the past few days), the RR is wasting no time. For reference, this view is from the north, looking south, the brown clearing is the gas easement running through the property with Hopedale Pond on the left.
 
Residents in the Overdale Pkwy area could hear the heavy machinery starting in the early morning hours on Saturday and Sunday. It was audible in the Parklands anywhere near the Rustic Bridge all week. Mountain bikers were turned back off of commonly used trails. The current clearing is already impacting the quality of life in Hopedale, and this is only the beginning. 
 
To say that we are so very disappointed in the 2:1 Select Board vote to drop the Town’s appeal in Land Court (which was done with light speed) and that May 10th can’t get here soon enough is an understatement.  The Citizen’s case is not as strong without the Town joining in, but we will continue to try to save our West St Watershed property. And make no mistake, this property needs protecting. We heard detailed presentations from the Conservation Commission, the Water & Sewer Department, and our Finance Committee, and we have letters from the Blackstone Valley Watershed Association and Metacomet that have stated the critical need to leave these acres in their natural state.
 
RCS Aerials took the above photo of the property yesterday (5/1). Here is a link to the collection photos:
 
As always, thank you for staying updated and involved. Lastly, please remember to get out and vote on May 10th. It will be great to show Bernie Stock our full support.
 
Best Regards,
liz
May 9, 2022
Good Morning,
 
Just wanted to send a quick update. Last week Judge Goodwin held a hearing for the injunction pending the Citizen’s appeal. While the court “reluctantly” denied the injunction, as with all of her rulings, Judge Goodwin has given insight into the legal steps the Town can take to continue to pursue the rights to the West St Watershed Property. If you wish to read her ruling, click HERE
 
Judge Goodwin’s last paragraph says it all:
“In the court’s view, the actions of the railroad were wrong. In addition, there appears to be grounds to rescind the Settlement Agreement.”
 
This is in no small part thanks to the votes at the Special Town Meeting last month.
 
Losing the stop work injunctions is certainly disappointing, which fail due to legalese and is primarily related to the “Citizens” lack of standing. But our main case – that the settlement between the RR and the 2 Select Board members is invalid – remains strong. The Citizens will continue on and are hopeful that a new Select Board will strengthen the case with a united approach.
 
Please be sure to get out and vote tomorrow. Although Mr. Stock is running unopposed, it will be great to show him our support.
 
As always, thank you for staying involved.
Picture taken on June 7.

This picture of the West Street land being cleared by the G&U Railroad was taken from Rosebud Lane in Milford. You can also get a glimpse of it from Route 140 near Dairy Queen. Thanks for pointing that out, DJ.

June 28, 2022
Good Morning,
 
A lot has been going on since the May elections. The Select Board has acted quickly to hire new special Town Counsel to represent Hopedale in the West St Watershed property cases, the Citizen’s attorneys have been busy filing appeals looking for rulings regarding the Settlement Agreement to aid the Town in their proceedings, and the Water & Sewer Commission have been busy working with the EPA to protect the water supply from the lack of oversight at West St. And as you can see by the above picture, we can’t act quickly enough…
 
The new Special Town Counsel, Anderson & Kreiger, is a firm out of Boston that specializes in both Town Law and Environmental Law. They are a great fit for our needs and are eager to get the job done for Hopedale. We are so very well represented from all directions now. The legal team has been studying the cases at great length and have come to the determination that the Town should go after the property by Eminent Domain. The West St Watershed property is vital to our town and it warrants this action. I don’t have any further details since I don’t have any contact with this team of attorneys, but it’s a great relief to know that we can now say that we’re all moving in the same direction.
 
Taking West St by Eminent Domain requires yet another Special Town Meeting for an in person town vote. I know we’ve been through this many times, but please be sure to mark your calendars for Monday, July 11th for this very important meeting.
 
The Citizen’s Attorneys have filed appeals in both the Superior Court and the Land Court. Although the Town is now moving forward in the same direction as the residents, we’re not going to leave any stone un-turned and the rulings from these cases will support the Town in any legal actions to negate the Settlement Agreement. For those who like the legalese, click HERE for the Superior Court Brief. Click HERE for the Land Court Brief. The Appendix files for all cases are too big to load even here. They basically contain the previous lawsuits/rulings and associated documents that have been distributed before.
 
The Water and Sewer Commission has been in constant contact with the EPA throughout this whole ordeal. They were recently able to apply for something called a Residual Designation for the GURR site at the West St Watershed property. If granted, this Residual Designation will allow for oversight at the property as they continue to move forward with their “development”. HERE is the letter. It’s worth the read.
 
Please spread the word for the Special Town Meeting, and please don’t hesitate to reach out with any questions or concerns. Thank you, as always, for staying involved and informed.
 
Best Regards,
liz
July 6, 2022
Good Evening,
 
Quick update and reminder regarding Monday’s very important Special Town Meeting, July 11, 7pm at the HS. Please, please attend to support the Select Board and their new legal team by voting YES to authorize the Town to take the West St Watershed property by eminent domain.
 
This authorization will allow the Town to continue forward in the efforts to secure this property for the Town of Hopedale.  Authorization requires a 2/3 majority vote, and timing is critical, thus a mid-July Special Town Meeting. 
 
I’ve heard from several residents that will be away. Unfortunately, there is no way to vote if you don’t attend in person.  (Thank you for the notes of support, we appreciate knowing that the momentum is still there, and hope you have great trips!)
 
For those that can, please make the extra effort to attend, and ensure that this article is passed with the support that properly reflects the community’s history regarding this issue. This is the only article for the meeting, but again, a 2/3 majority (and a quorum) is required.
 
For those interested in the legalese, the Town Attorneys filed their reply to the Citizens Superior Court appeal. You can read it HERE. Even if you just skim read, you will appreciate how a ruling on this matter will help the Town move forward. It’s great to see the synergy between the Citizens & Town Attorney’s briefs, and it’s nice to know that our job is just about done with the Town well prepared to move forward with the directives of the residents of Hopedale.
 
Please let your friends & neighbors know about the meeting, and as always, thank you for staying in the loop.
 
Best Regards,
liz
August 9, 2022
Good Afternoon,
 
Wanted to send out the sign up link for tomorrow’s (Wed 8/10 9:30am) US District Court hearing for the RR’s case looking to enjoin the Town from filing eminent domain. I’ve also provided the filings (from the RR, Town, & Citizens) related to this case for everyone to read. This isn’t a direct link to the hearing, you have to register and they will send one to you before the hearing time.
 
The public can register to join a zoom hearing at this link: https://forms.mad.uscourts.gov/courtlist.html
 
Set the date to Wednesday 8/10 and scroll down to Judge Burroughs docket and you will see the hearing at 9:30am.
 
Here are all of the filings associated with this hearing:
 
You can read the RR’s filing for the Injunctive relief HERE.
 
You can read the Town’s response to the initial filing HERE.
Here are the affidavits for the Town’s response:
You can read Diana Schindler’s (Town Administrator) HERE.
You can read Becca Solomon’s (Conservation Commission) HERE.
You can read Ed Burt’s (Water & Sewer Commission) split in 3 parts due to size:
Affidavit part 1 HERE.
Affidavit part 2 HERE.
Affidavit part 3 HERE.
You can read David Mackey’s (Special Town Counsel) HERE.
 
You can read the Hopedale Citizens Amicus Brief in support of the Town HERE.
 
You can read the RR’s response to the Town’s initial response filing HERE.
You can read the Town’s response to this RR response HERE. (oy, confusing…)
 
The Town has hired a special assessor to evaluate the RR’s “future site plans” since the topography of the site doesn’t seem to support such grand plans. The Town’s motion to include this affidavit can be read HERE.
You can read Sean Reardon’s (special assessor) affidavit HERE.
You can read the RR’s opposition to this affidavit HERE.
 
So, while it’s been fairly quiet on the public front, a LOT has been happening behind the scenes over the past few weeks. We have good reason to remain optimistic for a favorable outcome here. 🙂
 
Big thanks to our donors – because of them we are able to hire all of the best attorneys and any experts required to move our case forward (at no cost to residents). Many thanks to the new special town counsel – because of Anderson & Kreiger, we are now getting the legal efforts we deserve. Special thanks to Glenda Hazard, Bernie Stock, Ed Burt, Becca Solomon, and the Citizen’s attorneys – they are all unwavering in their commitment to fighting for our vital resources, to respecting overwhelming town vote wishes, and to protecting our Town’s literal future.
 
Please join in on tomorrow’s hearing and support the Town if you’re able.
As always, thank you for staying committed and informed.
Best Regards,
liz
August 10, 2022
Good Evening,
 
Court went well today. As expected, no decisions were made on the spot as the issues are very complex and the judge wants to fully understand it all before making a final ruling. Judge Burroughs was fair and firm with both sides. Special Town Counsel did a fantastic job representing the Town’s interests.
 
The Judge stated very strongly that she wanted BOTH parties to halt everything where it is now while she deliberates. She asked both parties their thoughts on that matter. The RR atty objected initially, but then said he wanted to confer with his clients and would be in touch with the court by day’s end. The Town atty agreed that both parties should maintain the status quo and would report back by day’s end.
 
Both parties filed their proposals late this afternoon.
You can read the RR’s proposal HERE.
You can read the Town’s proposal HERE.
 
The Judge will likely provide an update on where everything stands tomorrow, and I will send that out as soon as it’s available.
 
Thank you to everyone who was able to attend, and hear it all first hand.
Today was a good day.
 
Best Regards,
liz

Railroad company bulldozes thousands of trees, enraging residents worried about the impact on water supply

The list of FAQs at the top of this page was prepared by a group of Hopedale citizens opposed to G&U Railroad ownership of the West Street property.

Click here to go to the petition on this matter.

Page of Milford News articles on the land dispute, from July 2019 to October 2021.

Carpenter Road (An old dirt road in the West Street area.)

   G&U Menu              HOME