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.
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.
“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.
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.
Above and below sent by a member of the plaintiffs listed below.
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
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.
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
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.
- 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.
- 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).
- 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__.
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.
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.
Coming to you with an update and, yes, another petition request. Petition Link:
- 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.
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.
Meeting ID: 161 302 6429
May 2, 2022
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.
Railroad company bulldozes thousands of trees, enraging residents worried about the impact on water supply
November 15, 2022
Just wanted to give you a brief update on today’s court hearings.
The Panel of Appeals judges adjusted the docket to move our cases to the end to allow for any added time needed (and they used it!). I was able to watch the Panel in action all day on a range of cases and was impressed with how thorough, logical, and fair they were.
When it was our turn, it was obvious from the questions the judges were asking that they were well informed about our cases by the briefs submitted. The Citizens and Town attorneys did a fantastic job handling the pressure of the time limits and the intense questioning. It was clear that both the Citizens and the Town are looking to get to the bottom of the settlement agreement and our Ch 61 rights. The Panel judges did spend a fair amount of time stating that Judge Goodwin’s Motion for Clarification ruling was clear. The Settlement Agreement required town meeting approval for the appropriation of funds to become valid.
There was no time frame given as to when they will make a final decision. They asked the RR for some further information and gave them a deadline of one week, so we know it will be at least a few weeks.
We are feeling optimistic that this Panel will give us the clarification that we’ve been looking for, and that the rulings from these hearings will be helpful to the Town as it presses forward in acquiring and protecting our West St Watershed property.
As an aside (but not a small matter), I wanted to congratulate our own Christopher Hodgens on being nominated by Governor Baker to become an Associate Justice of the MA Appeals Court. Having spent the day watching a panel of his new peers, I can honestly say that I am so humbled to call him a neighbor and a friend. While it is a giant loss for our own Zoning Board of Appeals, it is a huge gain for us all. The cases he will be ruling on will affect real change.
Here is a link to his Governor’s Council review. It’s a wonderful tribute to his amazing career and well worth the watch: https://www.youtube.com/watch?v=NUR37EM-OVU
Congratulations, Chris!! We look forward to watching you do great things!!
Today was a very good day. 🙂
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.
Carpenter Road (An old dirt road in the West Street area.)