-: SJC13410, Brian C. Carroll and another
(indistinct) Select Board of the Town of Norwell.
-: Okay. -: Good morning.
May it please the court. -: Attorney Carroll.
-: Brian Carroll, here as a pro se plaintiff.
I'm also a member of the Massachusetts Bar.
With me is Tim Wall, the other pro se plaintiff appellant.
This case, Your Honors, presents a question
this court has considered before.
Where land is acquired by a town without restriction,
when and how can that land become subject
to a restriction on transferability
pursuant to Chapter 40, Section 15a.
On the facts of this case,
the land court was wrong to determine
that a restriction arose over the land at issue,
which we've referred to as the Wildcat Land-
-: Before you get going,
so is there a genuine issue of material fact at all?
I mean, both sides agree on the facts.
Is that it?
-: So, Your Honor, there's two competing motions
for summary judgment. -: Right.
-: And two very different interpretations
of the law around Section 15a.
-: But there are no questions about the facts.
-: There are. -: Oh, there are.
For plaintiff's motion, under our interpretation of 15a,
we believe there are no disputes in material fact.
There were no disputes raised by defendants
on plaintiff's motion for summary judgment.
On defendant's motion for summary judgment,
which is a very different interpretation of Section 15a,
which looks at the intent of the town over a period of time,
including sporadic actions of town committees
over a 17-year period
and who thought what and who thought what when.
We said to that, on response to that motion,
there are disputed issues in material fact.
We responded in the affidavits.
We responded in the briefing.
We responded in the pretrial statement.
Sorry, the initial case management conference statement.
And at oral argument, we raised the issue
of discovery on defendant's motion.
But what we told the court and the land court is
we believe our interpretation
of the law of Section 15a is correct,
and that is what should be applied.
At oral argument the court actually agreed
on the transcript with that,
and most of the oral argument was directed
towards our interpretation of the law
and whether mandamus would be appropriate.
But if we're in a world where the court
adopts defendant's interpretation of 15a
and a restriction can arise from something
other than a written instrument
based on the intent of parties over time,
then yes, there are disputes of fact that we-
-: Can you just crystallize for me,
on your affirmative motion,
where is the absence of material,
the disputed material fact from your perspective?
Is it that there's no deeded restriction?
Or the fact that they never conveyed out this property
to the folks or the entity that they created
for affordable housing?
What is the absence of it?
-: Yeah, so the facts pertinent to our interpretation of law,
the predicate facts are identical to what they were
in Selectmen in the town of Hanson versus Lindsay.
There's a permissive town meeting article,
sometime in the past, that doesn't impose any restriction.
It just gives the board authorization to do something.
The board elects not to do anything with that.
And there's no dispute.
The board has never taken any action over this land
in the past 30 years related to that 2004 article.
In fact, the only action the board has ever taken
with respect to the land at issue in this case
was to license the land
to the neighboring open space residential development
for the construction path. -: That's an
over simplification, right?
They do a number of things.
-: The board itself has never done anything.
That's undisputed.
-: Well, the town...
The facts seem much more complicated than that.
The town sort of author...
Well, I don't mean to cut you- -: Sure, no, no, not at all.
Thank you. -: I find it hard,
particularly when neither of you discussed this Smith case,
which is more open-ended than either of the other two cases,
so I'm just not sure how you...
The town does a bunch of different things, right?
First it authorizes it for low-income housing.
Then it does some things pursuant to that.
But then it rejects a low-income housing proposal.
It just seems like we don't really know-
-: Right. -: Yeah, right.
-: But so, isn't it again, that's why I'm...
Is is it like 10 things, and you say they didn't do all 10?
Because they did do some things.
I mean, so they had an analysis of wetland restrictions
to see how much they could actually build on there
and what it would support in terms of affordable housing.
They did reject the offer of the neighboring developer
I understand that they gave a license for that path,
but there were things that were done that were at least
consistent with the idea that this parcel
was still going to benefit affordable housing.
You may not think they did enough,
but there were still some things.
-: Your Honor, I don't think it's
a quantum of activity question at all.
I think it's a threshold question of activity.
Did a use restriction apply to that land?
Lemme just walk through the- -: How do you square that
with Smith?
'Cause Smith says...
Smith seems to be employing a totality of circumstances test
to see whether they've made
a clear and unequivocal commitment
to low-income housing, correct?
-: Smith is, that's correct, Your Honor.
That's a very different
type of restriction under Article 97
than we're talking about under 15a,
and there's some very material differences
between the policies underlying Article 97,
which was adopted basically to codify
the prior public use doctrine, which is the idea of that
is to protect land that has been dedicated
to public conservation, recreation use
for all the Commonwealth, whether it be a road or something.
-: (indistinct) Don't they do the same type of analysis
to determine whether that dedication has taken place?
-: No, Your Honor, not at all.
I think that that analysis in Smith
is very unique to the public use doctrine,
which has been in the common law for
time immemorial- -: But don't they say
they're looking at common law sort of doctrines in Smith?
Doesn't Chief Justice Gants write that in Smith?
That he's looking at common law doctrines,
which are very similar to what we're talking about here?
-: I don't think they are very similar, Your Honor.
I do think that what they're looking at in Smith is
land dedicated to the public use,
and when they say land dedicated to the public use,
they mean land dedicated to the public of the Commonwealth,
and they wanna protect that land,
and the common law doctrine
already protected this before '97,
protected that land from the acts of local boards
and local actors and local towns to say,
we wanna take that away from the people of the Commonwealth.
That's not Norwell's decision.
Once it's been dedicated to the public of the Commonwealth,
the general court now has authority over that land.
And even under the common law, before Article 97,
they'd say that Norwell held that land in trust
for the people of the Commonwealth.
And the question is, when does land
become dedicated to the public good?
And Judge Gants says- -: Aren't we
asking the same question?
Whether the town has sufficiently
dedicated this land to affordable housing?
Dedicated is the wrong word, but whether the town has,
you know, made that commitment to public housing.
And here they've done certain things, but not other things.
They never transferred it to the housing commission,
whatever the local thing responsible for low-income housing.
They didn't do that.
But at the same time,
they do other things that are consistent with that.
-: But again, it's not a quantum
of how much they did or didn't do.
The question is, is there...
I think the question under 15a is,
is there a use restriction over that land?
Could the board have used it for something else
other than affordable housing?
And the creation of a use restriction
or a negative easement, again,
is well established in the common law.
-: No it isn't- -: You can have
an applied easement. -: We have
two conflicting decisions, right?
We have Hanson and the other case, right?
And they're in- -: In Smith you mean?
Or Harris?
-: We have three cases on point, right?
We have Smith, Harris, and what's the other case?
Lindsay, I can't remember. Hanson
versus Lindsay. -: Hanson.
And none of them are completely clear.
Obviously if you file a deed,
or if you transfer it to the relevant committee,
that seems to be enough, right?
-: Yes, I think that the standard 15a is
did you create a- -: I just wanna try
and understand your argument.
Your argument is an objective one.
Unless they do a deed
or they transfer it to the right committee,
they haven't done enough.
Is that right?
-: I don't think that that any of the case law
specifically would be so prescriptive
to say it has to be a deed or it has to be-
-: So what is enough? -: But I think
it has to be a use restriction under the common law,
a negative easement,
that would actually be a land use restriction.
If you look at section 15a- -: What is that?
-: What creates- -: What would be enough?
'Cause I look at this,
and I can't tell whether they've done it enough or they not.
-: So there's three ways under Massachusetts law
to create an easement.
It's either an express easement,
written in writing in a deed
or in an ancillary document to the deed.
-: This isn't an easement case.
-: Right. -: But I would suggest,
Your Honor, that the way 15a is written,
it presumes that there's a restriction on the land.
So 15a, unlike Article 97, is a transferability restriction.
15a doesn't actually say the town can't use the land
for anything else.
It says where land is already held for a specific purpose.
That's the land that 15a applies to.
That sort of presupposes that there's a use restriction.
15a doesn't say you can't use it for anything else.
It says if there's a use restriction,
here's the process you need to follow
to transfer that land to another board.
Article 97, by contrast,
actually says where land is dedicated,
you can't use it for any other purpose
and you can't transfer it.
So 15a is a different policy,
or reflects a different policy.
15a is protecting continuity in local government.
The town is the one imposing the use restriction,
and they're imposing it
for the benefit of the people of the town.
And 15a says once the town has decided to do that
and restrict it itself,
here's the process you must follow in the future
to remove that. -: We have to decide
whether they've done enough to restrict themselves and-
-: Right.
That's where I'm getting a little bit confused,
because you're saying under 15a
you need something explicit,
and I guess if you were looking, again,
going back to Justice Kafker's view,
and I'm not saying that the the town prevails
on summary judgment either,
I'm just saying if you were to presume that
it's a totality of the circumstances view
and say the town's done nothing inconsistent
since the time it said that this is for affordable housing,
it's not like the Harris case
where it was given for school and they came out and said,
"We wanna do something else with it."
The town has always said, "This is for affordable housing."
So although there wasn't anything explicit
in terms of deed restrictions or easements
or anything else that you can point to and say, "Look."
Well, I can understand that they might be accused
of sitting on their hands and not actually executing on it,
but they haven't done anything inconsistent with it.
-: Well, first lemme just quickly address
the factual timeline here,
because I think it is a little bit more simple.
So landhood was acquired without restriction.
We all agree on that.
In 2004, there was this permissive town meeting article.
It said it authorizes the board
to make available the land for affordable housing.
There's no language in that article
that suggests that anyone at that town meeting
thought they were imposing a restriction on the land
or there's no language of exclusivity,
suggesting an exclusive use.
They're authorizing the board to make available the land,
and then nothing happens.
The board says, "Okay,
"we could make available to land for affordable housing.
"It's still on the list of tax possessions of the town.
"It's still general purpose property."
In 2009, they decide,
they're talking to the developer
who's doing the development nearby,
the big conservation, open space development,
and that developer says,
"We could build affordable housing on that land."
And the board says, "No, we reject that proposal.
"We want you to, as a condition to us
"approving your development,
"we want you to build trails on that land,
'tie it into the conservation corridor in Norwell.
There's 100 plus acres in there.
-: It's only a sliver, right?
They make sure they leave the guts of that
available for a development, right?
-: Well, the license is revocable.
They could always revoke the license,
but- -: But it's also
only a tiny portion, right?
-: It's like 1/3 of the lot.
Just from where the path is on the lot,
it would be impacted.
So, yeah, but the point is
that all the possibilities were left open.
The article was permissive.
It says you can use it for affordable housing.
Then the board
never does anything. -: Can I just take you back
to the article?
Brian: Yeah.
-: The article as I understand it says
it authorizes the board to make available certain parcels
consisting of three acres, blah, blah, blah.
Why is that not a specific dedication to this use?
-: Well, it's not a dedication to any use at all.
It says they can. -: So let's just answer
my question as stating it. -: It's permissive.
-: Why?
-: Because it's permissive.
It's not restricted
in any way. -: Well, what about this
is permissive.
-: It says that they're authorized to make it available,
but there's no language of restriction.
No one at that meeting would've thought,
oh, we're restricting all,
we're tying our hands as to this land in the future.
Nobody would've thought that.
-: Your interpretation of that language
is make it available or don't make it available.
-: Well, they can make it available.
I would suggest that they
could have made it available anyway.
This doesn't authorize them to transfer the land.
It doesn't authorize the board
to impose a restriction on the land.
This was passed as part of the consent agenda
at the meeting without any discussion or debate.
So nobody thought that this was
in any way gonna have long-term implications.
My best guess, this would be speculation,
is that the board was looking to say,
"We wanna go out and talk to some developers
"and see whether this is possible.
"And we would like to have this
"to show the developers that this is real
"and we're thinking about this."
But in no way was it a restriction
on using the land for their purposes.
Towns do- -: So to be a restriction,
it would have to say something like
shall be for- -: No, I think that
the way that this would work in practice is
that town would authorize the board to dedicate the land
for affordable housing, to restrict it.
Some language that indicates that everyone intends,
that the board has authority to put
a use restriction on this land.
-: That would be like to make available only is that...
I'm just trying to figure out what words
need to be used. -: I think
they would say to restrict the land for affordable housing.
But then in order, under Hanson,
even, in Hanson the article at issue said
the board is authorized to accept to prepare a deed
and deed it to the Conservation Commission.
They had very specific authorization there.
Justice Kafker: But then they didn't do it.
-: Then they didn't do it.
Same in this case, the board never did it.
-: Well, here, they don't do that, but-
-: The Community Housing Trust,
which was formed after, years after the article,
and in 2012 was then able to hold property,
the Community Housing Trust at some point after 2012
did some exploration of the land.
They hired an engineer- -: They hired consultants
in 2013. -: But there's no indication
that that was somehow sanctioned by the board
or approved by the board.
The executive is the board here, the selectmen,
not the Community Housing Trust.
-: Really?
I mean the CHT isn't in existence when this,
until 2007. -: Right.
-: So you couldn't just transfer it...
You couldn't transfer the property to the CHT-
-: Until 2012, actually. -: Right, okay, so 2012.
Then 2013 they hire consultants.
They are the town committee
responsible for low-income housing, right?
-: That is correct.
-: And then they do a feasibility analysis for the unit
to see if it's good for 40B.
-: Yeah, they did site evaluation.
They hired two consultants
to do that evaluation. -: And then in 2019
they published an update,
which identifies the Wildcat Land
as a housing development, right?
-: That's correct. -: So it's like...
There are a number of things happening here.
-: And this is why we disputed
some of the factual conclusions
based on those limited data points you said,
because if we get into discovery
and we put in the additional evidence,
through all that time while the land
is identified in the housing plan,
it's also identified on the tax treasurer's list
of tax possessions as general corporate property.
The land is also identified in the town's board approved
open space development plan as open space land
in the town of Norwell in this conservation corridor.
That is an important corridor for Norwell.
So it's not...
Taking it in a vacuum you could say,
"Well, yeah, there were four acts over 17 years
by the Community Housing Trust.
But when you look at it altogether, you say,
there's nothing at the executive level
that was a restriction.
And I would just wind up by saying I think
that if we get into a situation where
we're looking at totality of the circumstances
to give rise to use restrictions,
that's antithetical, in a lot of ways,
to the Commonwealth's law about
how restrictions on land use arise.
And there's a lotta value in having towns have
the continued flexibility over general corporate property.
If they elect, they want to explore one use,
but not restrict it,
they should have the capability 20 years later
when circumstances change, to put land to different use.
And that's what happened here with 2/3 of the town deciding
that this land that has been
trees and forests and wetlands for 30 years
and has been recreationally licensed for 14 years
should continue and maintain the status quo.
That's what Norwell decided.
And I think in the absence of restriction,
they do have the freedom to do that.
-: Yeah, one question, Chief.
Counsel, in opposing the town's motion,
you just mentioned the issue about discovery.
Did you oppose it on 56f grounds?
-: We did not specifically file a rule 56f motion.
We did not cite 56f specifically in our response.
We did, and this is in the briefing,
we did extensively object to the lack of discovery
about the other explorations of uses of this land and town
that we don't have access to.
We did wanna expedite the process, Your Honor,
and we did want a ruling from the land court
as to this threshold legal issue about 15a.
We discussed it at oral arguments in the transcript.
We did not expect that there would be
a ruling in favor of defendants
without the opportunity for discovery.
So I do think we preserved that
and asserted that very clearly at all stages.
But we did not cite 56f, expressly.
-: Thank you.
-: Thank you, Chief. -: Thank you very much.
Okay, Attorney Galvin.
-: Good afternoon, Chief Justice, Associate Justice,
may it please the court.
Norwell was taken to the woodshed by the amicus
in this particular case in its progress
in affordable housing,
but I don't think it was completely fair.
This case represents Norwell's efforts to do precisely
what the Commonwealth and the state has asked Norwell to do.
In 2004, it went to town meeting.
The selectmen were in general,
in possession of this general municipal purpose property.
And it asked for the town meeting to decide
whether or not this land
should be made available for affordable housing,
and it passed unanimously.
-: Made available, but then it doesn't...
Okay, well then it's sort of
getting the best of both worlds though, right?
You've made available,
so all that pressure to build low-income housing,
you can say we're doing something,
but you don't actually do very much.
That's where I get caught up
in whether you've done enough to dedicate this
to a public purpose, or at least for
a summary judgment- -: I understand
why you would say that,
Justice Kafker, but- -: You don't give it to
that CHT, or whatever it's called, right?
You don't dedicate it- -: True.
-: Transfer it to that.
'Cause if you transfer it to that,
we're clearly in 15a, right?
-: I think if it was transferred, it would clearly be 15a.
-: So it's not transferred.
It's also, when someone actually proposes to build on it,
you don't do it.
-: Well, that's, because there's probably
a quantitative difference between
that which your developer would do on this property
and that which the town would do.
And in the record, in this particular case,
you'll recall the Community Housing Trust,
there's an affidavit from a Mr. Greg McBride.
Mr. McBride explains that they're working on
a public housing project on this Wildcat Land.
And the they step aside because
the police station is now abandoned.
We have a brand new police station,
and they focus on a public housing project on that property.
And then they return to this property
after they've got a feasibility studies done,
where they know they can construct
26 units of publicly constructed affordable housing.
And that's what causes the attention of the abutters
in this particular case.
-: Okay, but it just seems like
the town is maintaining its ability to change its mind
as it sees fit.
-: I disagree, Your Honor, for the-
-: What binds you legally, consistent with
the three cases that are on point?
-: Well, I think it's pretty clear,
after Smith versus Westfield,
that you have to look at the totality of the circumstances.
And I think it's been clear since Harris versus Wayland
that you don't have to have
a specific restriction on the property.
And I think that was reaffirmed in Smith versus Westfield.
I think the Hanson versus Lindsay case-
-: I agree with that, what you just said.
But if we're doing a totality of the circumstances case,
and we've got disputes on really
what's going on in the town,
it sounds like we've got
a factual fight here. -: Well, Your Honor,
I disagree for the following reasons.
-: Can I add one other obstacle
for you? -: Mm-hm.
-: And it,
the Smith language is clear and unequivocal, right?
That seems like a tough thing to meet.
-: Well, that's only if you're applying
the public dedication rationale
the prior public use issue.
-: What is the test under your view?
It's a totality of the circumstance test,
but it doesn't need to be clear and unequivocal.
It can be what?
-: No, I think, Your Honor,
it has to be clear and unequivocal what was done.
And remember, the land court's finding this case
that was unambiguously the intention of the town
to make this affordable housing.
And to answer your question directly,
if the town didn't intend to do anything
in affordable housing,
all it had to do was not act on this article.
-: Well, but isn't the question, and again, I don't mean to,
it's a real question.
It's not a rhetorical question.
Is it clear and unequivocal
that the town has dedicated this property
to low-income housing?
That's the...
You need to,
to win on summary judgment, you need that to be the case.
Is that right?
-: I believe that if you look at
the plain intent of the language,
and it's undisputed that the land
was general municipal purpose property.
All the town had to do if it wanted to preserve
all of its options was to do nothing.
But what it did is it
affirmatively brought this to the voters,
and they unanimously concluded that this land
should be made available for affordable housing.
And like in Harris-
-: But it didn't say only,
and I think that that's
what your opposing counsel is saying,
is that the 2004 article is not clear enough
to exclude other uses.
And what's your response to that?
-: Well, Your Honor,
it was general municipal purpose property.
I don't think there's any dispute about that
before the town meeting vote.
And it didn't identify-
-: By identifying low-income housing, it's now exclusive.
-: Yes, Your Honor. -: And what's your authority
for that proposition?
That is, like I- -: Well again, I think
it's pretty clear, statutory interpretation.
We know what the land was available for before.
We have this town meeting article,
make the land available for affordable housing.
I agree, it doesn't say only,
and I certainly could agree that
it could have been drafted better.
But we've had the circumstance
in the Harris versus Wayland case
where the town meeting article,
which authorizes the purchase of land,
said for school purpose.
It didn't say only for school purposes.
And then there was nothing ever done
to transfer the land to the school department.
But the SJC concluded in 1984 that
that was specific enough,
even if it was inartfully worded or not explicit enough
to convey the general intent of the town.
And I think what occurs in this case, and why it's critical,
beginning almost in 2009, or thereabouts,
they hire a wetland scientist to delineate the wetlands.
They hire a person to perform a 21e, green environmental-
-: But they don't transfer it to the CHT.
They don't put a deeded restriction on it of any kind.
-: Well, deed restrictions with affordable housing
are very different from deed restrictions
with conservation land.
The deed restriction, in order to be
a perpetual deed restriction for conservation,
has to be approved by the state.
There's a whole review process, and then it's recorded.
-: You wouldn't file anything like that for low income.
-: Absolutely not, Your Honor.
The land becomes affordable in an apartment case
when you sign a regulatory agreement
with the Department of Housing, Community Development,
now the Office of...
I forgot the name of the division, its recent change,
or when you record a deed restriction in the case of
a for-sale condominium unit,
saying that this unit cannot be resold.
-: Do you have reporting obligations to that?
I know we have 40b requirements.
Do you have reporting requirements that you're satisfying
by making things available?
-: Yes, well, there's a subsidized housing inventory
maintained by the department, and-
-: Was that somehow listed?
Again, if it's in the record.
Is there anywhere in...
I haven't read through this whole record.
Is there anywhere-
-: In the record- -: In the record-
-: The only evidence of the town, we say,
it's unmistakable intent was,
we told the department in 2019
in our Housing Production Plan
that we intended to construct 26 units in phase two,
which was in the second year.
-: You filed that when?
-: We filed that in 2019
as an update to our Housing Production Plan.
And there were members of the Select Board that are on that.
-: And had you filed that document previously
with the department,
the state department? -: It gets updated,
I believe, every 10 years, Your Honor.
-: So you do it once, and then...
So was it done 10 years earlier?
-: It was, 'cause it was an update
to the Housing Production Plan,
and I know it's in the record,
and the link was included in our record,
and I think it was included in the amicus record, but-
-: So in 2009, 2019,
you made representations to the relevant state agency
that this was in your inventory of low income...
What was the representation you made?
-: I can't say in 2009, Your Honor.
But I can say in 2019, when the plan was updated,
the town was very specific about
what it intended to do on this particular property.
Because by that point,
all of its pre-planning had been done,
and we knew that the site could support
about 26 units of public affordable housing.
So went on the plan.
It actually went in with a construction timeframe
of the second year thereafter.
So, I think it was very clear there was
a large quantity of evidence in the record
in this particular case about the town's efforts
to study this property, to make sure that it was a-
-: So, let me just ask another...
So when Mr. Carroll and the others go in
and try to convert this into Conservation Commission,
do we have the record what was said?
Does someone go up and say,
"No, this is dedicated to public housing,
"you can't do this."
How does that work?
-: Well, this came to- -: When the town meeting...
Because again, totality of the circumstances,
when this is presented to the town meeting,
does someone stand up and say, from the city,
"We've dedicated this to public housing,"
does someone do that?
-: Yes, Your Honor, in this particular case.
Well, first of all. -: Is that in the record?
'Cause again, that's what worries me
is that this record, and again,
I haven't gone through all of it-
-: If you look at the affidavit of Peter Morin,
who's the Town Administrator,
this was discussed in advance of the town meeting.
But remember how this article was presented.
-: In advance, does someone get up?
'Cause, again, I'm not familiar with
how the town meetings go in Norwell,
but does someone stand up in the town meeting from the town
and say, "We've dedicated this to public housing,
"so don't try to convert this into conservation land."
Or does this just back into this with somebody saying,
"Okay, we haven't satisfied..."
Somebody brings it up at some point, but...
'Cause you would think you would stand up and say,
"Hey, this is public housing," right?
-: There are meeting minutes of the town meeting,
and it was a very well-attended town meeting,
and a lotta people spoke,
and it probably had debate for over an hour, and-
-: But I'm concerned, what did the town say?
Did the town stand up and say,
"This is dedicated to public housing"?
-: I'm sure that the issue came up, Your Honor,
but I cannot honestly tell you what the moderator,
who would be in charge of the meeting, may have said.
But because this is-
-: That suggests that this is premature,
and this requires a trial.
-: No, Your Honor, I don't think that's the case,
because regardless of whether that was-
-: 'Cause if it's clear and unequivocal
that this is dedicated to public housing,
wouldn't we expect someone to stand up in the town meeting
and say, "We've done this"?
-: That's exactly what I recall.
And I attended that town meeting.
I know this isn't in the record,
but there were a number of people that stood up
and talked about the town meeting vote in 2004.
And there were a number of people that talked about
what had been done in the town ever since to study this land
and how we were progressing towards
a project on this site for affordable housing.
-: Does the city solicitor, I don't know,
have a city solicitor-
-: Are you- -: I am the town counsel
of Norwell. -: So do you stand up
in that meeting and say that this is a...
Again, based on what's in the record.
I don't want you to recreate a record, but-
-: The answer is if I'm asked to, I do.
I'm not always asked to.
But remember, this is a citizen petition article.
As long as they get the signatures,
this goes on the warrant and we vote.
And I've been at maybe 50, 60 town meetings
over the last 30 years,
and this happens on a regular basis
that people get enough signatures to do
some things that do not comply with the law.
And if I'm asked, I stand up and I say,
"Look, this is of doubtful or dubious legality."
I think that's the phraseology we use.
I can't remember
whether I did that. -: Based on this record,
were you asked or not?
Or is it- -: I was asked
before town meeting in this particular case,
Your Honor. -: Before it
or at the town meeting? -: Before town meeting.
-: So, but that's not helpful.
So no one asks and no one explains at the town meeting,
at least based on this record.
-: On this record, I cannot say, Your Honor,
one thing or the other.
But what I can tell you is it came up before town meeting,
and in the record an attorney Morin's affidavit.
He was the Town Administrator,
where he recalls me discussing this with him.
And then after the town meeting,
not only did they look at my opinion,
but in the administrative record
is an opinion from Lauren Goldberg at KP Law,
and her opinion is in the record.
And she concurred with me,
that based on the totality of the circumstances
and the 2004 vote and the things that occurred,
this land was clearly set aside.
-: Does the Smith case,
I can't remember the date of the Smith case,
are you aware of the Smith case at that point?
It's 2017.
When's this vote? Yeah, so Smith is old.
-: Yeah, Smith was actually law 2017, Your Honor.
Justice Kafker: I gotcha.
-: I don't think that we mention it by name,
but certainly everything about the town's position
in this particular case
is indicative of the Smith rationale.
We think that there was an unambiguous attempt
to make this land available,
and we've said that is designate the land
for affordable housing back in 2004.
Every conduct by the town,
every action by the town, and its Community Housing Trust,
which are appointed by the selectmen, by the way,
are indicative of an intent to
plan for an affordable housing project on this property.
We told the state that they were gonna do this,
and then when we come forward with actual plans,
it attracts the attention of the
immediate nextdoor neighbors,
and they are not supporters of
a affordable housing project on this site.
And that's what triggers all of this.
I think I'd like to make the point,
even if the land were not restricted,
whether the selectmen, who have custody of this land,
are not obligated in a mandamus action to do anything.
The legislative body is the town meeting.
The legislative body cannot tell
a coordinate branch of government
how to perform a discretionary act.
So I would say regardless of any of those issues,
which I think cut in favor of the town to begin with,
even if they didn't, the town cannot be compelled.
The selectmen cannot be compelled
to perform a discretionary act.
This is as simple as counting the ballots,
which you have an obligation to do correctly.
This isn't the obligation to issue a building permit
or deny a building permit
when you haven't complied with explicit provisions of law.
Those are the traditional mandamus cases.
And I know Justice Smith didn't address the standing issue,
but we raised it as a part of our appellate argument
and gave a notice of appeal relating to it,
because the plaintiffs in this case
invoked the public right doctrine in order to excuse
or relax the standing threshold.
-: Won't they satisfy standing?
I mean, they're abutters, right?
Attorney Galvin: Correct.
-: I take it their housing values are gonna be higher
if it's conservation land.
Isn't that a reasonable- -: Your Honor, I...
This is not in the record,
but I have been involved in development
of affordable housing for as long as I've been a lawyer,
and I've heard repeated expert testimony
given in other circumstances that
the construction of affordable housing
next door to your property- -: I'm not even focused on
affordable housing.
Conservation land itself has...
Basically you've expanded your own property
when you have a conservation land next to you,
because you have open space that no one can build on.
So that tends to add value to your property, doesn't it?
-: I guess they could argue that,
but I'm not sure that value to property
is a cognizable interest
when we're talking about affordable housing.
-: Doesn't that provide standing?
-: I don't think so, under the Standerwick line of cases.
You have to connect it to
a legitimate zoning-related concern
in order to gain standing.
And all they've articulated in the record
is that justice requires the court to intervene
and direct these selectmen to convey this property.
And I say that that's not, under the case law,
enough to invoke the public rights doctrine.
You still have to prove a modicum of standing,
and just claiming a general justice issue
is not sufficient to do that.
And I cited the cases in my brief on this particular issue,
the Madiri case
and the Perella versus MBTA case.
And when there is no clear
and unequivocal duty to the public,
there is no standing, even under the public right doctrine,
to bring a mandamus action.
And I know that Justice Smith had a lot in front of him,
but I would certainly suggest that that was
something that he probably should have examined
as a threshold matter.
The last thing I'd just like to say, Your Honors,
is that at the case management conference,
the issue of discovery came up
and both parties reported to the court
we were prepared to proceed,
I had already served my motion
for summary judgment in the facts,
and the statement by both parties was
we're ready to proceed.
That issue came up at the time of summary judgment,
'cause I filed a motion to strike their affidavit,
because the objections that were raised
to the evidence that the town submitted
were not met with the appropriate countervailing materials.
And that is in the record.
Most of it was, well,
that's information possessed by the town,
and we don't know anything about it.
Things like that.
Those were not sufficient objections
in order to defeat the town summary judgment.
And, I think as the court pointed out,
anytime someone files a rule 56 affidavit,
the court is obligated to look at it very differently,
and there was an election not to do that.
So for those reasons,
I'd ask the court to affirm the decision of the land court
and determine that the land must follow the 40, 15a process,
which may very well likely result,
if it's a popular decision in town,
that that's land being transferred
to the Conservation Commission.
But that's the process we think that should be followed
in light of the totality of the circumstances.