WEBVTT
1
00:00:00.210 --> 00:00:04.404
SJC13410, Brian C. Carroll and another
2
00:00:04.404 --> 00:00:07.039
(indistinct) Select Board of the Town of Norwell.
3
00:00:07.039 --> 00:00:07.872
Okay.
Good morning.
4
00:00:07.872 --> 00:00:09.330
May it please the court.
Attorney Carroll.
5
00:00:09.330 --> 00:00:11.940
Brian Carroll, here as a pro se plaintiff.
6
00:00:11.940 --> 00:00:14.280
I'm also a member of the Massachusetts Bar.
7
00:00:14.280 --> 00:00:17.180
With me is Tim Wall, the other pro se plaintiff appellant.
8
00:00:18.930 --> 00:00:20.790
This case, Your Honors, presents a question
9
00:00:20.790 --> 00:00:23.610
this court has considered before.
10
00:00:23.610 --> 00:00:27.630
Where land is acquired by a town without restriction,
11
00:00:27.630 --> 00:00:29.970
when and how can that land become subject
12
00:00:29.970 --> 00:00:31.920
to a restriction on transferability
13
00:00:31.920 --> 00:00:34.353
pursuant to Chapter 40, Section 15a.
14
00:00:35.550 --> 00:00:37.170
On the facts of this case,
15
00:00:37.170 --> 00:00:39.600
the land court was wrong to determine
16
00:00:39.600 --> 00:00:41.520
that a restriction arose over the land at issue,
17
00:00:41.520 --> 00:00:43.410
which we've referred to as the Wildcat Land-
18
00:00:43.410 --> 00:00:44.560
Before you get going,
19
00:00:45.480 --> 00:00:48.810
so is there a genuine issue of material fact at all?
20
00:00:48.810 --> 00:00:50.310
I mean, both sides agree on the facts.
21
00:00:50.310 --> 00:00:51.180
Is that it?
22
00:00:51.180 --> 00:00:53.820
So, Your Honor, there's two competing motions
23
00:00:53.820 --> 00:00:55.440
for summary judgment.
Right.
24
00:00:55.440 --> 00:00:57.570
And two very different interpretations
25
00:00:57.570 --> 00:00:59.910
of the law around Section 15a.
26
00:00:59.910 --> 00:01:03.600
But there are no questions about the facts.
27
00:01:03.600 --> 00:01:04.920
There are.
Oh, there are.
28
00:01:04.920 --> 00:01:08.100
For plaintiff's motion, under our interpretation of 15a,
29
00:01:08.100 --> 00:01:10.419
we believe there are no disputes in material fact.
30
00:01:10.419 --> 00:01:13.050
There were no disputes raised by defendants
31
00:01:13.050 --> 00:01:15.060
on plaintiff's motion for summary judgment.
32
00:01:15.060 --> 00:01:17.760
On defendant's motion for summary judgment,
33
00:01:17.760 --> 00:01:20.610
which is a very different interpretation of Section 15a,
34
00:01:20.610 --> 00:01:23.910
which looks at the intent of the town over a period of time,
35
00:01:23.910 --> 00:01:27.180
including sporadic actions of town committees
36
00:01:27.180 --> 00:01:28.590
over a 17-year period
37
00:01:28.590 --> 00:01:31.140
and who thought what and who thought what when.
38
00:01:31.140 --> 00:01:34.020
We said to that, on response to that motion,
39
00:01:34.020 --> 00:01:36.240
there are disputed issues in material fact.
40
00:01:36.240 --> 00:01:37.710
We responded in the affidavits.
41
00:01:37.710 --> 00:01:39.270
We responded in the briefing.
42
00:01:39.270 --> 00:01:41.220
We responded in the pretrial statement.
43
00:01:41.220 --> 00:01:45.060
Sorry, the initial case management conference statement.
44
00:01:45.060 --> 00:01:46.650
And at oral argument, we raised the issue
45
00:01:46.650 --> 00:01:48.270
of discovery on defendant's motion.
46
00:01:48.270 --> 00:01:50.460
But what we told the court and the land court is
47
00:01:50.460 --> 00:01:51.780
we believe our interpretation
48
00:01:51.780 --> 00:01:53.730
of the law of Section 15a is correct,
49
00:01:53.730 --> 00:01:56.130
and that is what should be applied.
50
00:01:56.130 --> 00:01:58.650
At oral argument the court actually agreed
51
00:01:58.650 --> 00:01:59.760
on the transcript with that,
52
00:01:59.760 --> 00:02:01.830
and most of the oral argument was directed
53
00:02:01.830 --> 00:02:03.750
towards our interpretation of the law
54
00:02:03.750 --> 00:02:05.850
and whether mandamus would be appropriate.
55
00:02:06.720 --> 00:02:08.820
But if we're in a world where the court
56
00:02:08.820 --> 00:02:11.370
adopts defendant's interpretation of 15a
57
00:02:11.370 --> 00:02:13.530
and a restriction can arise from something
58
00:02:13.530 --> 00:02:15.730
other than a written instrument
59
00:02:17.610 --> 00:02:19.230
based on the intent of parties over time,
60
00:02:19.230 --> 00:02:21.990
then yes, there are disputes of fact that we-
61
00:02:21.990 --> 00:02:24.000
Can you just crystallize for me,
62
00:02:24.000 --> 00:02:26.760
on your affirmative motion,
63
00:02:26.760 --> 00:02:29.880
where is the absence of material,
64
00:02:29.880 --> 00:02:33.480
the disputed material fact from your perspective?
65
00:02:33.480 --> 00:02:37.560
Is it that there's no deeded restriction?
66
00:02:37.560 --> 00:02:42.030
Or the fact that they never conveyed out this property
67
00:02:42.030 --> 00:02:47.030
to the folks or the entity that they created
68
00:02:47.220 --> 00:02:49.740
for affordable housing?
69
00:02:49.740 --> 00:02:51.750
What is the absence of it?
70
00:02:51.750 --> 00:02:56.340
Yeah, so the facts pertinent to our interpretation of law,
71
00:02:56.340 --> 00:02:59.010
the predicate facts are identical to what they were
72
00:02:59.010 --> 00:03:01.773
in Selectmen in the town of Hanson versus Lindsay.
73
00:03:02.640 --> 00:03:04.920
There's a permissive town meeting article,
74
00:03:04.920 --> 00:03:08.550
sometime in the past, that doesn't impose any restriction.
75
00:03:08.550 --> 00:03:10.920
It just gives the board authorization to do something.
76
00:03:10.920 --> 00:03:12.900
The board elects not to do anything with that.
77
00:03:12.900 --> 00:03:13.770
And there's no dispute.
78
00:03:13.770 --> 00:03:16.670
The board has never taken any action over this land
79
00:03:16.670 --> 00:03:20.970
in the past 30 years related to that 2004 article.
80
00:03:20.970 --> 00:03:23.190
In fact, the only action the board has ever taken
81
00:03:23.190 --> 00:03:25.320
with respect to the land at issue in this case
82
00:03:25.320 --> 00:03:27.120
was to license the land
83
00:03:27.120 --> 00:03:30.360
to the neighboring open space residential development
84
00:03:30.360 --> 00:03:31.620
for the construction path.
That's an
85
00:03:31.620 --> 00:03:32.970
over simplification, right?
86
00:03:32.970 --> 00:03:35.190
They do a number of things.
87
00:03:35.190 --> 00:03:37.770
The board itself has never done anything.
88
00:03:37.770 --> 00:03:38.670
That's undisputed.
89
00:03:40.140 --> 00:03:42.500
Well, the town...
90
00:03:43.470 --> 00:03:46.227
The facts seem much more complicated than that.
91
00:03:46.227 --> 00:03:48.450
The town sort of author...
92
00:03:48.450 --> 00:03:50.520
Well, I don't mean to cut you-
Sure, no, no, not at all.
93
00:03:50.520 --> 00:03:53.310
Thank you.
I find it hard,
94
00:03:53.310 --> 00:03:56.910
particularly when neither of you discussed this Smith case,
95
00:03:56.910 --> 00:04:00.630
which is more open-ended than either of the other two cases,
96
00:04:00.630 --> 00:04:03.960
so I'm just not sure how you...
97
00:04:03.960 --> 00:04:06.483
The town does a bunch of different things, right?
98
00:04:07.860 --> 00:04:11.280
First it authorizes it for low-income housing.
99
00:04:11.280 --> 00:04:14.730
Then it does some things pursuant to that.
100
00:04:14.730 --> 00:04:18.398
But then it rejects a low-income housing proposal.
101
00:04:18.398 --> 00:04:21.543
It just seems like we don't really know-
102
00:04:23.100 --> 00:04:25.232
Right.
Yeah, right.
103
00:04:25.232 --> 00:04:28.530
But so, isn't it again, that's why I'm...
104
00:04:28.530 --> 00:04:32.010
Is is it like 10 things, and you say they didn't do all 10?
105
00:04:32.010 --> 00:04:33.390
Because they did do some things.
106
00:04:33.390 --> 00:04:38.160
I mean, so they had an analysis of wetland restrictions
107
00:04:38.160 --> 00:04:40.500
to see how much they could actually build on there
108
00:04:40.500 --> 00:04:43.920
and what it would support in terms of affordable housing.
109
00:04:43.920 --> 00:04:48.900
They did reject the offer of the neighboring developer
110
00:04:48.900 --> 00:04:51.540
I understand that they gave a license for that path,
111
00:04:51.540 --> 00:04:55.740
but there were things that were done that were at least
112
00:04:55.740 --> 00:04:59.220
consistent with the idea that this parcel
113
00:04:59.220 --> 00:05:01.980
was still going to benefit affordable housing.
114
00:05:01.980 --> 00:05:04.200
You may not think they did enough,
115
00:05:04.200 --> 00:05:06.930
but there were still some things.
116
00:05:06.930 --> 00:05:07.763
Your Honor, I don't think it's
117
00:05:07.763 --> 00:05:11.610
a quantum of activity question at all.
118
00:05:11.610 --> 00:05:13.620
I think it's a threshold question of activity.
119
00:05:13.620 --> 00:05:16.890
Did a use restriction apply to that land?
120
00:05:16.890 --> 00:05:18.690
Lemme just walk through the-
How do you square that
121
00:05:18.690 --> 00:05:19.860
with Smith?
122
00:05:19.860 --> 00:05:22.560
'Cause Smith says...
123
00:05:22.560 --> 00:05:25.920
Smith seems to be employing a totality of circumstances test
124
00:05:25.920 --> 00:05:27.240
to see whether they've made
125
00:05:27.240 --> 00:05:30.090
a clear and unequivocal commitment
126
00:05:30.090 --> 00:05:32.430
to low-income housing, correct?
127
00:05:32.430 --> 00:05:34.050
Smith is, that's correct, Your Honor.
128
00:05:34.050 --> 00:05:35.620
That's a very different
129
00:05:37.710 --> 00:05:40.890
type of restriction under Article 97
130
00:05:40.890 --> 00:05:42.210
than we're talking about under 15a,
131
00:05:42.210 --> 00:05:45.000
and there's some very material differences
132
00:05:45.000 --> 00:05:48.270
between the policies underlying Article 97,
133
00:05:48.270 --> 00:05:50.550
which was adopted basically to codify
134
00:05:50.550 --> 00:05:55.550
the prior public use doctrine, which is the idea of that
135
00:05:55.590 --> 00:05:57.660
is to protect land that has been dedicated
136
00:05:57.660 --> 00:05:59.910
to public conservation, recreation use
137
00:05:59.910 --> 00:06:02.172
for all the Commonwealth, whether it be a road or something.
138
00:06:02.172 --> 00:06:04.710
(indistinct) Don't they do the same type of analysis
139
00:06:04.710 --> 00:06:08.790
to determine whether that dedication has taken place?
140
00:06:08.790 --> 00:06:10.006
No, Your Honor, not at all.
141
00:06:10.006 --> 00:06:12.090
I think that that analysis in Smith
142
00:06:12.090 --> 00:06:14.040
is very unique to the public use doctrine,
143
00:06:14.040 --> 00:06:15.840
which has been in the common law for
144
00:06:17.588 --> 00:06:18.421
time immemorial-
But don't they say
145
00:06:18.421 --> 00:06:22.980
they're looking at common law sort of doctrines in Smith?
146
00:06:22.980 --> 00:06:25.350
Doesn't Chief Justice Gants write that in Smith?
147
00:06:25.350 --> 00:06:27.870
That he's looking at common law doctrines,
148
00:06:27.870 --> 00:06:31.260
which are very similar to what we're talking about here?
149
00:06:31.260 --> 00:06:32.880
I don't think they are very similar, Your Honor.
150
00:06:32.880 --> 00:06:35.940
I do think that what they're looking at in Smith is
151
00:06:35.940 --> 00:06:37.650
land dedicated to the public use,
152
00:06:37.650 --> 00:06:39.570
and when they say land dedicated to the public use,
153
00:06:39.570 --> 00:06:42.360
they mean land dedicated to the public of the Commonwealth,
154
00:06:42.360 --> 00:06:44.010
and they wanna protect that land,
155
00:06:44.010 --> 00:06:45.990
and the common law doctrine
156
00:06:45.990 --> 00:06:48.360
already protected this before '97,
157
00:06:48.360 --> 00:06:51.000
protected that land from the acts of local boards
158
00:06:51.000 --> 00:06:52.620
and local actors and local towns to say,
159
00:06:52.620 --> 00:06:54.990
we wanna take that away from the people of the Commonwealth.
160
00:06:54.990 --> 00:06:56.250
That's not Norwell's decision.
161
00:06:56.250 --> 00:06:58.620
Once it's been dedicated to the public of the Commonwealth,
162
00:06:58.620 --> 00:07:02.100
the general court now has authority over that land.
163
00:07:02.100 --> 00:07:05.250
And even under the common law, before Article 97,
164
00:07:05.250 --> 00:07:07.680
they'd say that Norwell held that land in trust
165
00:07:07.680 --> 00:07:09.430
for the people of the Commonwealth.
166
00:07:10.380 --> 00:07:11.670
And the question is, when does land
167
00:07:11.670 --> 00:07:14.100
become dedicated to the public good?
168
00:07:14.100 --> 00:07:16.350
And Judge Gants says-
Aren't we
169
00:07:16.350 --> 00:07:17.820
asking the same question?
170
00:07:17.820 --> 00:07:20.680
Whether the town has sufficiently
171
00:07:21.660 --> 00:07:25.290
dedicated this land to affordable housing?
172
00:07:25.290 --> 00:07:28.860
Dedicated is the wrong word, but whether the town has,
173
00:07:28.860 --> 00:07:32.043
you know, made that commitment to public housing.
174
00:07:33.360 --> 00:07:36.090
And here they've done certain things, but not other things.
175
00:07:36.090 --> 00:07:41.090
They never transferred it to the housing commission,
176
00:07:41.220 --> 00:07:45.330
whatever the local thing responsible for low-income housing.
177
00:07:45.330 --> 00:07:47.130
They didn't do that.
178
00:07:47.130 --> 00:07:48.603
But at the same time,
179
00:07:50.068 --> 00:07:54.930
they do other things that are consistent with that.
180
00:07:54.930 --> 00:07:55.860
But again, it's not a quantum
181
00:07:55.860 --> 00:07:57.450
of how much they did or didn't do.
182
00:07:57.450 --> 00:07:58.350
The question is, is there...
183
00:07:58.350 --> 00:08:00.390
I think the question under 15a is,
184
00:08:00.390 --> 00:08:02.250
is there a use restriction over that land?
185
00:08:02.250 --> 00:08:04.080
Could the board have used it for something else
186
00:08:04.080 --> 00:08:05.550
other than affordable housing?
187
00:08:05.550 --> 00:08:07.860
And the creation of a use restriction
188
00:08:07.860 --> 00:08:09.120
or a negative easement, again,
189
00:08:09.120 --> 00:08:10.620
is well established in the common law.
190
00:08:10.620 --> 00:08:11.453
No it isn't-
You can have
191
00:08:11.453 --> 00:08:12.556
an applied easement.
We have
192
00:08:12.556 --> 00:08:14.063
two conflicting decisions, right?
193
00:08:14.063 --> 00:08:16.560
We have Hanson and the other case, right?
194
00:08:16.560 --> 00:08:20.280
And they're in-
In Smith you mean?
195
00:08:20.280 --> 00:08:21.420
Or Harris?
196
00:08:21.420 --> 00:08:24.810
We have three cases on point, right?
197
00:08:24.810 --> 00:08:26.820
We have Smith, Harris, and what's the other case?
198
00:08:26.820 --> 00:08:28.440
Lindsay, I can't remember.
Hanson
199
00:08:28.440 --> 00:08:29.883
versus Lindsay.
Hanson.
200
00:08:30.720 --> 00:08:34.140
And none of them are completely clear.
201
00:08:34.140 --> 00:08:36.720
Obviously if you file a deed,
202
00:08:36.720 --> 00:08:39.060
or if you transfer it to the relevant committee,
203
00:08:39.060 --> 00:08:41.730
that seems to be enough, right?
204
00:08:41.730 --> 00:08:43.710
Yes, I think that the standard 15a is
205
00:08:43.710 --> 00:08:45.013
did you create a-
I just wanna try
206
00:08:45.013 --> 00:08:45.960
and understand your argument.
207
00:08:45.960 --> 00:08:48.360
Your argument is an objective one.
208
00:08:48.360 --> 00:08:50.970
Unless they do a deed
209
00:08:50.970 --> 00:08:53.253
or they transfer it to the right committee,
210
00:08:54.180 --> 00:08:55.350
they haven't done enough.
211
00:08:55.350 --> 00:08:56.460
Is that right?
212
00:08:56.460 --> 00:08:58.650
I don't think that that any of the case law
213
00:08:58.650 --> 00:09:00.780
specifically would be so prescriptive
214
00:09:00.780 --> 00:09:03.780
to say it has to be a deed or it has to be-
215
00:09:03.780 --> 00:09:05.880
So what is enough?
But I think
216
00:09:05.880 --> 00:09:07.920
it has to be a use restriction under the common law,
217
00:09:07.920 --> 00:09:08.943
a negative easement,
218
00:09:10.083 --> 00:09:11.520
that would actually be a land use restriction.
219
00:09:11.520 --> 00:09:14.336
If you look at section 15a-
What is that?
220
00:09:14.336 --> 00:09:16.530
What creates-
What would be enough?
221
00:09:16.530 --> 00:09:18.180
'Cause I look at this,
222
00:09:18.180 --> 00:09:21.360
and I can't tell whether they've done it enough or they not.
223
00:09:21.360 --> 00:09:23.460
So there's three ways under Massachusetts law
224
00:09:23.460 --> 00:09:24.720
to create an easement.
225
00:09:24.720 --> 00:09:26.040
It's either an express easement,
226
00:09:26.040 --> 00:09:27.930
written in writing in a deed
227
00:09:27.930 --> 00:09:29.293
or in an ancillary document to the deed.
228
00:09:29.293 --> 00:09:31.080
This isn't an easement case.
229
00:09:31.080 --> 00:09:33.090
Right.
But I would suggest,
230
00:09:33.090 --> 00:09:34.890
Your Honor, that the way 15a is written,
231
00:09:34.890 --> 00:09:36.750
it presumes that there's a restriction on the land.
232
00:09:36.750 --> 00:09:41.400
So 15a, unlike Article 97, is a transferability restriction.
233
00:09:41.400 --> 00:09:44.400
15a doesn't actually say the town can't use the land
234
00:09:44.400 --> 00:09:45.360
for anything else.
235
00:09:45.360 --> 00:09:48.750
It says where land is already held for a specific purpose.
236
00:09:48.750 --> 00:09:52.350
That's the land that 15a applies to.
237
00:09:52.350 --> 00:09:55.230
That sort of presupposes that there's a use restriction.
238
00:09:55.230 --> 00:09:57.240
15a doesn't say you can't use it for anything else.
239
00:09:57.240 --> 00:09:59.490
It says if there's a use restriction,
240
00:09:59.490 --> 00:10:01.080
here's the process you need to follow
241
00:10:01.080 --> 00:10:03.180
to transfer that land to another board.
242
00:10:03.180 --> 00:10:04.650
Article 97, by contrast,
243
00:10:04.650 --> 00:10:07.170
actually says where land is dedicated,
244
00:10:07.170 --> 00:10:08.700
you can't use it for any other purpose
245
00:10:08.700 --> 00:10:10.140
and you can't transfer it.
246
00:10:10.140 --> 00:10:14.285
So 15a is a different policy,
247
00:10:14.285 --> 00:10:16.260
or reflects a different policy.
248
00:10:16.260 --> 00:10:19.620
15a is protecting continuity in local government.
249
00:10:19.620 --> 00:10:22.560
The town is the one imposing the use restriction,
250
00:10:22.560 --> 00:10:23.393
and they're imposing it
251
00:10:23.393 --> 00:10:25.789
for the benefit of the people of the town.
252
00:10:25.789 --> 00:10:29.250
And 15a says once the town has decided to do that
253
00:10:29.250 --> 00:10:30.840
and restrict it itself,
254
00:10:30.840 --> 00:10:33.750
here's the process you must follow in the future
255
00:10:33.750 --> 00:10:35.370
to remove that.
We have to decide
256
00:10:35.370 --> 00:10:39.330
whether they've done enough to restrict themselves and-
257
00:10:39.330 --> 00:10:40.560
Right.
258
00:10:40.560 --> 00:10:43.170
That's where I'm getting a little bit confused,
259
00:10:43.170 --> 00:10:47.010
because you're saying under 15a
260
00:10:47.010 --> 00:10:49.143
you need something explicit,
261
00:10:50.070 --> 00:10:53.250
and I guess if you were looking, again,
262
00:10:53.250 --> 00:10:57.330
going back to Justice Kafker's view,
263
00:10:57.330 --> 00:10:59.730
and I'm not saying that the the town prevails
264
00:10:59.730 --> 00:11:01.800
on summary judgment either,
265
00:11:01.800 --> 00:11:04.590
I'm just saying if you were to presume that
266
00:11:04.590 --> 00:11:07.560
it's a totality of the circumstances view
267
00:11:07.560 --> 00:11:10.980
and say the town's done nothing inconsistent
268
00:11:10.980 --> 00:11:15.150
since the time it said that this is for affordable housing,
269
00:11:15.150 --> 00:11:16.680
it's not like the Harris case
270
00:11:16.680 --> 00:11:20.107
where it was given for school and they came out and said,
271
00:11:20.107 --> 00:11:21.987
"We wanna do something else with it."
272
00:11:21.987 --> 00:11:25.710
The town has always said, "This is for affordable housing."
273
00:11:25.710 --> 00:11:28.110
So although there wasn't anything explicit
274
00:11:28.110 --> 00:11:30.000
in terms of deed restrictions or easements
275
00:11:30.000 --> 00:11:33.270
or anything else that you can point to and say, "Look."
276
00:11:33.270 --> 00:11:37.920
Well, I can understand that they might be accused
277
00:11:37.920 --> 00:11:41.250
of sitting on their hands and not actually executing on it,
278
00:11:41.250 --> 00:11:43.770
but they haven't done anything inconsistent with it.
279
00:11:43.770 --> 00:11:45.690
Well, first lemme just quickly address
280
00:11:45.690 --> 00:11:47.130
the factual timeline here,
281
00:11:47.130 --> 00:11:49.380
because I think it is a little bit more simple.
282
00:11:49.380 --> 00:11:52.920
So landhood was acquired without restriction.
283
00:11:52.920 --> 00:11:53.970
We all agree on that.
284
00:11:53.970 --> 00:11:57.493
In 2004, there was this permissive town meeting article.
285
00:11:57.493 --> 00:12:00.060
It said it authorizes the board
286
00:12:00.060 --> 00:12:02.670
to make available the land for affordable housing.
287
00:12:02.670 --> 00:12:05.790
There's no language in that article
288
00:12:05.790 --> 00:12:07.680
that suggests that anyone at that town meeting
289
00:12:07.680 --> 00:12:09.690
thought they were imposing a restriction on the land
290
00:12:09.690 --> 00:12:12.090
or there's no language of exclusivity,
291
00:12:12.090 --> 00:12:13.650
suggesting an exclusive use.
292
00:12:13.650 --> 00:12:17.040
They're authorizing the board to make available the land,
293
00:12:17.040 --> 00:12:19.380
and then nothing happens.
294
00:12:19.380 --> 00:12:20.767
The board says, "Okay,
295
00:12:20.767 --> 00:12:23.107
"we could make available to land for affordable housing.
296
00:12:23.107 --> 00:12:25.327
"It's still on the list of tax possessions of the town.
297
00:12:25.327 --> 00:12:27.395
"It's still general purpose property."
298
00:12:27.395 --> 00:12:29.986
In 2009, they decide,
299
00:12:29.986 --> 00:12:31.470
they're talking to the developer
300
00:12:31.470 --> 00:12:33.540
who's doing the development nearby,
301
00:12:33.540 --> 00:12:36.900
the big conservation, open space development,
302
00:12:36.900 --> 00:12:38.917
and that developer says,
303
00:12:38.917 --> 00:12:40.590
"We could build affordable housing on that land."
304
00:12:40.590 --> 00:12:42.967
And the board says, "No, we reject that proposal.
305
00:12:42.967 --> 00:12:45.187
"We want you to, as a condition to us
306
00:12:45.187 --> 00:12:46.417
"approving your development,
307
00:12:46.417 --> 00:12:48.210
"we want you to build trails on that land,
308
00:12:48.210 --> 00:12:51.030
'tie it into the conservation corridor in Norwell.
309
00:12:51.030 --> 00:12:52.950
There's 100 plus acres in there.
310
00:12:52.950 --> 00:12:54.350
It's only a sliver, right?
311
00:12:55.320 --> 00:12:57.420
They make sure they leave the guts of that
312
00:12:57.420 --> 00:12:59.610
available for a development, right?
313
00:12:59.610 --> 00:13:00.960
Well, the license is revocable.
314
00:13:00.960 --> 00:13:02.163
They could always revoke the license,
315
00:13:02.163 --> 00:13:03.210
but-
But it's also
316
00:13:03.210 --> 00:13:04.890
only a tiny portion, right?
317
00:13:04.890 --> 00:13:08.550
It's like 1/3 of the lot.
318
00:13:08.550 --> 00:13:10.770
Just from where the path is on the lot,
319
00:13:10.770 --> 00:13:11.940
it would be impacted.
320
00:13:11.940 --> 00:13:14.610
So, yeah, but the point is
321
00:13:14.610 --> 00:13:16.380
that all the possibilities were left open.
322
00:13:16.380 --> 00:13:17.640
The article was permissive.
323
00:13:17.640 --> 00:13:20.010
It says you can use it for affordable housing.
324
00:13:20.010 --> 00:13:21.330
Then the board
325
00:13:21.330 --> 00:13:22.500
never does anything.
Can I just take you back
326
00:13:22.500 --> 00:13:23.580
to the article?
327
00:13:23.580 --> 00:13:24.570
Yeah.
328
00:13:24.570 --> 00:13:27.820
The article as I understand it says
329
00:13:29.820 --> 00:13:33.540
it authorizes the board to make available certain parcels
330
00:13:33.540 --> 00:13:36.399
consisting of three acres, blah, blah, blah.
331
00:13:36.399 --> 00:13:41.399
Why is that not a specific dedication to this use?
332
00:13:41.700 --> 00:13:45.270
Well, it's not a dedication to any use at all.
333
00:13:45.270 --> 00:13:46.740
It says they can.
So let's just answer
334
00:13:46.740 --> 00:13:48.270
my question as stating it.
It's permissive.
335
00:13:48.270 --> 00:13:49.260
Why?
336
00:13:49.260 --> 00:13:50.093
Because it's permissive.
337
00:13:50.093 --> 00:13:50.926
It's not restricted
338
00:13:50.926 --> 00:13:51.759
in any way.
Well, what about this
339
00:13:51.759 --> 00:13:52.950
is permissive.
340
00:13:52.950 --> 00:13:55.950
It says that they're authorized to make it available,
341
00:13:55.950 --> 00:13:57.300
but there's no language of restriction.
342
00:13:57.300 --> 00:13:59.268
No one at that meeting would've thought,
343
00:13:59.268 --> 00:14:00.720
oh, we're restricting all,
344
00:14:00.720 --> 00:14:02.790
we're tying our hands as to this land in the future.
345
00:14:02.790 --> 00:14:03.690
Nobody would've thought that.
346
00:14:03.690 --> 00:14:05.490
Your interpretation of that language
347
00:14:05.490 --> 00:14:08.850
is make it available or don't make it available.
348
00:14:08.850 --> 00:14:11.220
Well, they can make it available.
349
00:14:11.220 --> 00:14:13.170
I would suggest that they
350
00:14:13.170 --> 00:14:14.670
could have made it available anyway.
351
00:14:14.670 --> 00:14:16.590
This doesn't authorize them to transfer the land.
352
00:14:16.590 --> 00:14:17.790
It doesn't authorize the board
353
00:14:17.790 --> 00:14:19.650
to impose a restriction on the land.
354
00:14:19.650 --> 00:14:21.600
This was passed as part of the consent agenda
355
00:14:21.600 --> 00:14:23.280
at the meeting without any discussion or debate.
356
00:14:23.280 --> 00:14:25.230
So nobody thought that this was
357
00:14:25.230 --> 00:14:28.410
in any way gonna have long-term implications.
358
00:14:28.410 --> 00:14:30.540
My best guess, this would be speculation,
359
00:14:30.540 --> 00:14:31.777
is that the board was looking to say,
360
00:14:31.777 --> 00:14:33.757
"We wanna go out and talk to some developers
361
00:14:33.757 --> 00:14:35.827
"and see whether this is possible.
362
00:14:35.827 --> 00:14:37.417
"And we would like to have this
363
00:14:37.417 --> 00:14:38.887
"to show the developers that this is real
364
00:14:38.887 --> 00:14:40.380
"and we're thinking about this."
365
00:14:40.380 --> 00:14:42.930
But in no way was it a restriction
366
00:14:42.930 --> 00:14:45.030
on using the land for their purposes.
367
00:14:45.030 --> 00:14:46.740
Towns do-
So to be a restriction,
368
00:14:46.740 --> 00:14:48.660
it would have to say something like
369
00:14:48.660 --> 00:14:51.870
shall be for-
No, I think that
370
00:14:51.870 --> 00:14:53.880
the way that this would work in practice is
371
00:14:53.880 --> 00:14:57.180
that town would authorize the board to dedicate the land
372
00:14:57.180 --> 00:14:58.620
for affordable housing, to restrict it.
373
00:14:58.620 --> 00:15:01.650
Some language that indicates that everyone intends,
374
00:15:01.650 --> 00:15:03.270
that the board has authority to put
375
00:15:03.270 --> 00:15:04.530
a use restriction on this land.
376
00:15:04.530 --> 00:15:07.950
That would be like to make available only is that...
377
00:15:07.950 --> 00:15:09.661
I'm just trying to figure out what words
378
00:15:09.661 --> 00:15:10.494
need to be used.
I think
379
00:15:10.494 --> 00:15:12.510
they would say to restrict the land for affordable housing.
380
00:15:12.510 --> 00:15:15.390
But then in order, under Hanson,
381
00:15:15.390 --> 00:15:18.840
even, in Hanson the article at issue said
382
00:15:18.840 --> 00:15:23.220
the board is authorized to accept to prepare a deed
383
00:15:23.220 --> 00:15:25.370
and deed it to the Conservation Commission.
384
00:15:26.670 --> 00:15:29.430
They had very specific authorization there.
385
00:15:29.430 --> 00:15:30.660
But then they didn't do it.
386
00:15:30.660 --> 00:15:31.493
Then they didn't do it.
387
00:15:31.493 --> 00:15:33.180
Same in this case, the board never did it.
388
00:15:33.180 --> 00:15:36.901
Well, here, they don't do that, but-
389
00:15:36.901 --> 00:15:38.550
The Community Housing Trust,
390
00:15:38.550 --> 00:15:41.610
which was formed after, years after the article,
391
00:15:41.610 --> 00:15:44.382
and in 2012 was then able to hold property,
392
00:15:44.382 --> 00:15:48.090
the Community Housing Trust at some point after 2012
393
00:15:48.090 --> 00:15:50.400
did some exploration of the land.
394
00:15:50.400 --> 00:15:52.940
They hired an engineer-
They hired consultants
395
00:15:52.940 --> 00:15:56.070
in 2013.
But there's no indication
396
00:15:56.070 --> 00:15:59.400
that that was somehow sanctioned by the board
397
00:15:59.400 --> 00:16:00.720
or approved by the board.
398
00:16:00.720 --> 00:16:03.600
The executive is the board here, the selectmen,
399
00:16:03.600 --> 00:16:05.040
not the Community Housing Trust.
400
00:16:05.040 --> 00:16:05.873
Really?
401
00:16:05.873 --> 00:16:10.873
I mean the CHT isn't in existence when this,
402
00:16:11.340 --> 00:16:14.340
until 2007.
Right.
403
00:16:14.340 --> 00:16:16.500
So you couldn't just transfer it...
404
00:16:16.500 --> 00:16:19.830
You couldn't transfer the property to the CHT-
405
00:16:19.830 --> 00:16:22.890
Until 2012, actually.
Right, okay, so 2012.
406
00:16:22.890 --> 00:16:27.660
Then 2013 they hire consultants.
407
00:16:27.660 --> 00:16:28.830
They are the town committee
408
00:16:28.830 --> 00:16:30.933
responsible for low-income housing, right?
409
00:16:31.860 --> 00:16:32.700
That is correct.
410
00:16:32.700 --> 00:16:36.000
And then they do a feasibility analysis for the unit
411
00:16:36.000 --> 00:16:37.953
to see if it's good for 40B.
412
00:16:38.940 --> 00:16:40.560
Yeah, they did site evaluation.
413
00:16:40.560 --> 00:16:43.680
They hired two consultants
414
00:16:43.680 --> 00:16:45.390
to do that evaluation.
And then in 2019
415
00:16:45.390 --> 00:16:47.280
they published an update,
416
00:16:47.280 --> 00:16:49.280
which identifies the Wildcat Land
417
00:16:49.280 --> 00:16:51.000
as a housing development, right?
418
00:16:51.000 --> 00:16:53.150
That's correct.
So it's like...
419
00:16:54.270 --> 00:16:56.550
There are a number of things happening here.
420
00:16:56.550 --> 00:16:57.840
And this is why we disputed
421
00:16:57.840 --> 00:16:59.040
some of the factual conclusions
422
00:16:59.040 --> 00:17:00.720
based on those limited data points you said,
423
00:17:00.720 --> 00:17:02.190
because if we get into discovery
424
00:17:02.190 --> 00:17:04.434
and we put in the additional evidence,
425
00:17:04.434 --> 00:17:06.210
through all that time while the land
426
00:17:06.210 --> 00:17:07.770
is identified in the housing plan,
427
00:17:07.770 --> 00:17:10.410
it's also identified on the tax treasurer's list
428
00:17:10.410 --> 00:17:12.690
of tax possessions as general corporate property.
429
00:17:12.690 --> 00:17:15.780
The land is also identified in the town's board approved
430
00:17:15.780 --> 00:17:19.304
open space development plan as open space land
431
00:17:19.304 --> 00:17:22.020
in the town of Norwell in this conservation corridor.
432
00:17:22.020 --> 00:17:25.170
That is an important corridor for Norwell.
433
00:17:25.170 --> 00:17:27.120
So it's not...
434
00:17:27.120 --> 00:17:28.507
Taking it in a vacuum you could say,
435
00:17:28.507 --> 00:17:31.200
"Well, yeah, there were four acts over 17 years
436
00:17:31.200 --> 00:17:32.760
by the Community Housing Trust.
437
00:17:32.760 --> 00:17:35.970
But when you look at it altogether, you say,
438
00:17:35.970 --> 00:17:38.730
there's nothing at the executive level
439
00:17:38.730 --> 00:17:39.570
that was a restriction.
440
00:17:39.570 --> 00:17:42.330
And I would just wind up by saying I think
441
00:17:42.330 --> 00:17:44.130
that if we get into a situation where
442
00:17:44.130 --> 00:17:45.960
we're looking at totality of the circumstances
443
00:17:45.960 --> 00:17:48.000
to give rise to use restrictions,
444
00:17:48.000 --> 00:17:50.430
that's antithetical, in a lot of ways,
445
00:17:50.430 --> 00:17:52.590
to the Commonwealth's law about
446
00:17:52.590 --> 00:17:55.230
how restrictions on land use arise.
447
00:17:55.230 --> 00:17:57.870
And there's a lotta value in having towns have
448
00:17:57.870 --> 00:18:00.000
the continued flexibility over general corporate property.
449
00:18:00.000 --> 00:18:01.860
If they elect, they want to explore one use,
450
00:18:01.860 --> 00:18:03.510
but not restrict it,
451
00:18:03.510 --> 00:18:06.630
they should have the capability 20 years later
452
00:18:06.630 --> 00:18:09.240
when circumstances change, to put land to different use.
453
00:18:09.240 --> 00:18:13.050
And that's what happened here with 2/3 of the town deciding
454
00:18:13.050 --> 00:18:14.190
that this land that has been
455
00:18:14.190 --> 00:18:17.280
trees and forests and wetlands for 30 years
456
00:18:17.280 --> 00:18:20.370
and has been recreationally licensed for 14 years
457
00:18:20.370 --> 00:18:22.320
should continue and maintain the status quo.
458
00:18:22.320 --> 00:18:23.400
That's what Norwell decided.
459
00:18:23.400 --> 00:18:24.720
And I think in the absence of restriction,
460
00:18:24.720 --> 00:18:26.370
they do have the freedom to do that.
461
00:18:26.370 --> 00:18:28.260
Yeah, one question, Chief.
462
00:18:28.260 --> 00:18:31.050
Counsel, in opposing the town's motion,
463
00:18:31.050 --> 00:18:33.570
you just mentioned the issue about discovery.
464
00:18:33.570 --> 00:18:36.030
Did you oppose it on 56f grounds?
465
00:18:36.030 --> 00:18:40.050
We did not specifically file a rule 56f motion.
466
00:18:40.050 --> 00:18:44.160
We did not cite 56f specifically in our response.
467
00:18:44.160 --> 00:18:46.050
We did, and this is in the briefing,
468
00:18:46.050 --> 00:18:50.220
we did extensively object to the lack of discovery
469
00:18:50.220 --> 00:18:54.060
about the other explorations of uses of this land and town
470
00:18:54.060 --> 00:18:55.380
that we don't have access to.
471
00:18:55.380 --> 00:18:57.540
We did wanna expedite the process, Your Honor,
472
00:18:57.540 --> 00:18:58.940
and we did want a ruling from the land court
473
00:18:58.940 --> 00:19:02.460
as to this threshold legal issue about 15a.
474
00:19:02.460 --> 00:19:04.710
We discussed it at oral arguments in the transcript.
475
00:19:04.710 --> 00:19:06.600
We did not expect that there would be
476
00:19:06.600 --> 00:19:07.980
a ruling in favor of defendants
477
00:19:07.980 --> 00:19:09.480
without the opportunity for discovery.
478
00:19:09.480 --> 00:19:11.250
So I do think we preserved that
479
00:19:11.250 --> 00:19:13.920
and asserted that very clearly at all stages.
480
00:19:13.920 --> 00:19:16.170
But we did not cite 56f, expressly.
481
00:19:16.170 --> 00:19:17.316
Thank you.
482
00:19:17.316 --> 00:19:18.473
Thank you, Chief.
Thank you very much.
483
00:19:19.470 --> 00:19:20.570
Okay, Attorney Galvin.
484
00:19:28.710 --> 00:19:31.290
Good afternoon, Chief Justice, Associate Justice,
485
00:19:31.290 --> 00:19:32.490
may it please the court.
486
00:19:34.991 --> 00:19:37.980
Norwell was taken to the woodshed by the amicus
487
00:19:37.980 --> 00:19:39.750
in this particular case in its progress
488
00:19:39.750 --> 00:19:40.893
in affordable housing,
489
00:19:41.880 --> 00:19:43.650
but I don't think it was completely fair.
490
00:19:43.650 --> 00:19:47.050
This case represents Norwell's efforts to do precisely
491
00:19:47.970 --> 00:19:52.170
what the Commonwealth and the state has asked Norwell to do.
492
00:19:52.170 --> 00:19:55.170
In 2004, it went to town meeting.
493
00:19:55.170 --> 00:19:57.420
The selectmen were in general,
494
00:19:57.420 --> 00:20:00.540
in possession of this general municipal purpose property.
495
00:20:00.540 --> 00:20:03.120
And it asked for the town meeting to decide
496
00:20:03.120 --> 00:20:04.440
whether or not this land
497
00:20:04.440 --> 00:20:07.290
should be made available for affordable housing,
498
00:20:07.290 --> 00:20:08.910
and it passed unanimously.
499
00:20:08.910 --> 00:20:10.440
Made available, but then it doesn't...
500
00:20:10.440 --> 00:20:13.110
Okay, well then it's sort of
501
00:20:13.110 --> 00:20:15.320
getting the best of both worlds though, right?
502
00:20:15.320 --> 00:20:16.710
You've made available,
503
00:20:16.710 --> 00:20:20.414
so all that pressure to build low-income housing,
504
00:20:20.414 --> 00:20:22.140
you can say we're doing something,
505
00:20:22.140 --> 00:20:24.300
but you don't actually do very much.
506
00:20:24.300 --> 00:20:26.420
That's where I get caught up
507
00:20:26.420 --> 00:20:28.650
in whether you've done enough to dedicate this
508
00:20:28.650 --> 00:20:29.953
to a public purpose, or at least for
509
00:20:29.953 --> 00:20:31.680
a summary judgment-
I understand
510
00:20:31.680 --> 00:20:33.240
why you would say that,
511
00:20:33.240 --> 00:20:35.730
Justice Kafker, but-
You don't give it to
512
00:20:35.730 --> 00:20:37.860
that CHT, or whatever it's called, right?
513
00:20:37.860 --> 00:20:39.480
You don't dedicate it-
True.
514
00:20:39.480 --> 00:20:40.500
Transfer it to that.
515
00:20:40.500 --> 00:20:42.420
'Cause if you transfer it to that,
516
00:20:42.420 --> 00:20:44.970
we're clearly in 15a, right?
517
00:20:44.970 --> 00:20:47.880
I think if it was transferred, it would clearly be 15a.
518
00:20:47.880 --> 00:20:49.800
So it's not transferred.
519
00:20:49.800 --> 00:20:53.910
It's also, when someone actually proposes to build on it,
520
00:20:53.910 --> 00:20:55.023
you don't do it.
521
00:20:57.420 --> 00:20:59.132
Well, that's, because there's probably
522
00:20:59.132 --> 00:21:01.650
a quantitative difference between
523
00:21:01.650 --> 00:21:04.110
that which your developer would do on this property
524
00:21:04.110 --> 00:21:06.330
and that which the town would do.
525
00:21:06.330 --> 00:21:08.610
And in the record, in this particular case,
526
00:21:08.610 --> 00:21:11.872
you'll recall the Community Housing Trust,
527
00:21:11.872 --> 00:21:15.270
there's an affidavit from a Mr. Greg McBride.
528
00:21:15.270 --> 00:21:17.670
Mr. McBride explains that they're working on
529
00:21:17.670 --> 00:21:20.640
a public housing project on this Wildcat Land.
530
00:21:20.640 --> 00:21:23.430
And the they step aside because
531
00:21:23.430 --> 00:21:25.560
the police station is now abandoned.
532
00:21:25.560 --> 00:21:26.820
We have a brand new police station,
533
00:21:26.820 --> 00:21:30.150
and they focus on a public housing project on that property.
534
00:21:30.150 --> 00:21:32.670
And then they return to this property
535
00:21:32.670 --> 00:21:35.520
after they've got a feasibility studies done,
536
00:21:35.520 --> 00:21:36.840
where they know they can construct
537
00:21:36.840 --> 00:21:40.527
26 units of publicly constructed affordable housing.
538
00:21:40.527 --> 00:21:43.213
And that's what causes the attention of the abutters
539
00:21:43.213 --> 00:21:44.250
in this particular case.
540
00:21:44.250 --> 00:21:45.960
Okay, but it just seems like
541
00:21:45.960 --> 00:21:50.960
the town is maintaining its ability to change its mind
542
00:21:51.570 --> 00:21:52.890
as it sees fit.
543
00:21:52.890 --> 00:21:54.873
I disagree, Your Honor, for the-
544
00:21:56.520 --> 00:22:01.110
What binds you legally, consistent with
545
00:22:01.110 --> 00:22:03.360
the three cases that are on point?
546
00:22:03.360 --> 00:22:05.220
Well, I think it's pretty clear,
547
00:22:05.220 --> 00:22:07.260
after Smith versus Westfield,
548
00:22:07.260 --> 00:22:10.320
that you have to look at the totality of the circumstances.
549
00:22:10.320 --> 00:22:14.040
And I think it's been clear since Harris versus Wayland
550
00:22:14.040 --> 00:22:16.110
that you don't have to have
551
00:22:16.110 --> 00:22:18.030
a specific restriction on the property.
552
00:22:18.030 --> 00:22:21.510
And I think that was reaffirmed in Smith versus Westfield.
553
00:22:21.510 --> 00:22:24.180
I think the Hanson versus Lindsay case-
554
00:22:24.180 --> 00:22:26.520
I agree with that, what you just said.
555
00:22:26.520 --> 00:22:30.990
But if we're doing a totality of the circumstances case,
556
00:22:30.990 --> 00:22:33.720
and we've got disputes on really
557
00:22:33.720 --> 00:22:35.553
what's going on in the town,
558
00:22:38.143 --> 00:22:39.150
it sounds like we've got
559
00:22:39.150 --> 00:22:40.890
a factual fight here.
Well, Your Honor,
560
00:22:40.890 --> 00:22:43.080
I disagree for the following reasons.
561
00:22:43.080 --> 00:22:45.030
Can I add one other obstacle
562
00:22:45.030 --> 00:22:46.083
for you?
Mm-hm.
563
00:22:46.083 --> 00:22:47.820
And it,
564
00:22:47.820 --> 00:22:52.200
the Smith language is clear and unequivocal, right?
565
00:22:52.200 --> 00:22:54.990
That seems like a tough thing to meet.
566
00:22:54.990 --> 00:22:56.280
Well, that's only if you're applying
567
00:22:56.280 --> 00:22:59.220
the public dedication rationale
568
00:22:59.220 --> 00:23:01.293
the prior public use issue.
569
00:23:02.430 --> 00:23:04.440
What is the test under your view?
570
00:23:04.440 --> 00:23:06.240
It's a totality of the circumstance test,
571
00:23:06.240 --> 00:23:08.130
but it doesn't need to be clear and unequivocal.
572
00:23:08.130 --> 00:23:09.330
It can be what?
573
00:23:09.330 --> 00:23:10.440
No, I think, Your Honor,
574
00:23:10.440 --> 00:23:12.810
it has to be clear and unequivocal what was done.
575
00:23:12.810 --> 00:23:14.640
And remember, the land court's finding this case
576
00:23:14.640 --> 00:23:18.420
that was unambiguously the intention of the town
577
00:23:18.420 --> 00:23:19.797
to make this affordable housing.
578
00:23:19.797 --> 00:23:22.371
And to answer your question directly,
579
00:23:22.371 --> 00:23:24.540
if the town didn't intend to do anything
580
00:23:24.540 --> 00:23:25.950
in affordable housing,
581
00:23:25.950 --> 00:23:28.590
all it had to do was not act on this article.
582
00:23:28.590 --> 00:23:31.980
Well, but isn't the question, and again, I don't mean to,
583
00:23:31.980 --> 00:23:33.090
it's a real question.
584
00:23:33.090 --> 00:23:34.920
It's not a rhetorical question.
585
00:23:34.920 --> 00:23:36.510
Is it clear and unequivocal
586
00:23:36.510 --> 00:23:39.870
that the town has dedicated this property
587
00:23:39.870 --> 00:23:42.079
to low-income housing?
588
00:23:42.079 --> 00:23:43.620
That's the...
589
00:23:43.620 --> 00:23:45.210
You need to,
590
00:23:45.210 --> 00:23:48.223
to win on summary judgment, you need that to be the case.
591
00:23:49.536 --> 00:23:50.369
Is that right?
592
00:23:50.369 --> 00:23:51.210
I believe that if you look at
593
00:23:51.210 --> 00:23:53.190
the plain intent of the language,
594
00:23:53.190 --> 00:23:56.310
and it's undisputed that the land
595
00:23:56.310 --> 00:23:58.590
was general municipal purpose property.
596
00:23:58.590 --> 00:24:00.840
All the town had to do if it wanted to preserve
597
00:24:00.840 --> 00:24:03.540
all of its options was to do nothing.
598
00:24:03.540 --> 00:24:04.440
But what it did is it
599
00:24:04.440 --> 00:24:06.270
affirmatively brought this to the voters,
600
00:24:06.270 --> 00:24:09.150
and they unanimously concluded that this land
601
00:24:09.150 --> 00:24:11.850
should be made available for affordable housing.
602
00:24:11.850 --> 00:24:13.500
And like in Harris-
603
00:24:13.500 --> 00:24:15.300
But it didn't say only,
604
00:24:15.300 --> 00:24:16.230
and I think that that's
605
00:24:16.230 --> 00:24:19.530
what your opposing counsel is saying,
606
00:24:19.530 --> 00:24:24.530
is that the 2004 article is not clear enough
607
00:24:25.800 --> 00:24:28.710
to exclude other uses.
608
00:24:28.710 --> 00:24:30.390
And what's your response to that?
609
00:24:30.390 --> 00:24:31.223
Well, Your Honor,
610
00:24:31.223 --> 00:24:32.820
it was general municipal purpose property.
611
00:24:32.820 --> 00:24:34.230
I don't think there's any dispute about that
612
00:24:34.230 --> 00:24:35.910
before the town meeting vote.
613
00:24:35.910 --> 00:24:37.890
And it didn't identify-
614
00:24:37.890 --> 00:24:41.850
By identifying low-income housing, it's now exclusive.
615
00:24:41.850 --> 00:24:43.320
Yes, Your Honor.
And what's your authority
616
00:24:43.320 --> 00:24:44.490
for that proposition?
617
00:24:44.490 --> 00:24:47.130
That is, like I-
Well again, I think
618
00:24:47.130 --> 00:24:49.950
it's pretty clear, statutory interpretation.
619
00:24:49.950 --> 00:24:53.430
We know what the land was available for before.
620
00:24:53.430 --> 00:24:54.930
We have this town meeting article,
621
00:24:54.930 --> 00:24:57.420
make the land available for affordable housing.
622
00:24:57.420 --> 00:24:59.100
I agree, it doesn't say only,
623
00:24:59.100 --> 00:25:01.140
and I certainly could agree that
624
00:25:01.140 --> 00:25:03.660
it could have been drafted better.
625
00:25:03.660 --> 00:25:05.610
But we've had the circumstance
626
00:25:05.610 --> 00:25:06.990
in the Harris versus Wayland case
627
00:25:06.990 --> 00:25:08.670
where the town meeting article,
628
00:25:08.670 --> 00:25:10.470
which authorizes the purchase of land,
629
00:25:10.470 --> 00:25:11.820
said for school purpose.
630
00:25:11.820 --> 00:25:14.400
It didn't say only for school purposes.
631
00:25:14.400 --> 00:25:15.750
And then there was nothing ever done
632
00:25:15.750 --> 00:25:18.600
to transfer the land to the school department.
633
00:25:18.600 --> 00:25:21.640
But the SJC concluded in 1984 that
634
00:25:22.560 --> 00:25:24.450
that was specific enough,
635
00:25:24.450 --> 00:25:28.380
even if it was inartfully worded or not explicit enough
636
00:25:28.380 --> 00:25:30.840
to convey the general intent of the town.
637
00:25:30.840 --> 00:25:35.763
And I think what occurs in this case, and why it's critical,
638
00:25:36.780 --> 00:25:40.410
beginning almost in 2009, or thereabouts,
639
00:25:40.410 --> 00:25:43.950
they hire a wetland scientist to delineate the wetlands.
640
00:25:43.950 --> 00:25:47.430
They hire a person to perform a 21e, green environmental-
641
00:25:47.430 --> 00:25:50.130
But they don't transfer it to the CHT.
642
00:25:50.130 --> 00:25:54.420
They don't put a deeded restriction on it of any kind.
643
00:25:54.420 --> 00:25:57.120
Well, deed restrictions with affordable housing
644
00:25:57.120 --> 00:25:58.710
are very different from deed restrictions
645
00:25:58.710 --> 00:26:00.450
with conservation land.
646
00:26:00.450 --> 00:26:02.070
The deed restriction, in order to be
647
00:26:02.070 --> 00:26:04.320
a perpetual deed restriction for conservation,
648
00:26:04.320 --> 00:26:05.760
has to be approved by the state.
649
00:26:05.760 --> 00:26:08.100
There's a whole review process, and then it's recorded.
650
00:26:08.100 --> 00:26:10.650
You wouldn't file anything like that for low income.
651
00:26:10.650 --> 00:26:12.000
Absolutely not, Your Honor.
652
00:26:12.000 --> 00:26:14.940
The land becomes affordable in an apartment case
653
00:26:14.940 --> 00:26:16.470
when you sign a regulatory agreement
654
00:26:16.470 --> 00:26:18.150
with the Department of Housing, Community Development,
655
00:26:18.150 --> 00:26:19.860
now the Office of...
656
00:26:19.860 --> 00:26:23.313
I forgot the name of the division, its recent change,
657
00:26:24.360 --> 00:26:26.880
or when you record a deed restriction in the case of
658
00:26:26.880 --> 00:26:28.830
a for-sale condominium unit,
659
00:26:28.830 --> 00:26:31.050
saying that this unit cannot be resold.
660
00:26:31.050 --> 00:26:33.990
Do you have reporting obligations to that?
661
00:26:33.990 --> 00:26:36.633
I know we have 40b requirements.
662
00:26:37.590 --> 00:26:41.220
Do you have reporting requirements that you're satisfying
663
00:26:41.220 --> 00:26:43.200
by making things available?
664
00:26:43.200 --> 00:26:46.320
Yes, well, there's a subsidized housing inventory
665
00:26:46.320 --> 00:26:49.110
maintained by the department, and-
666
00:26:49.110 --> 00:26:51.093
Was that somehow listed?
667
00:26:52.260 --> 00:26:53.580
Again, if it's in the record.
668
00:26:53.580 --> 00:26:54.660
Is there anywhere in...
669
00:26:54.660 --> 00:26:55.980
I haven't read through this whole record.
670
00:26:55.980 --> 00:26:56.896
Is there anywhere-
671
00:26:56.896 --> 00:26:57.729
In the record-
In the record-
672
00:26:57.729 --> 00:26:59.760
The only evidence of the town, we say,
673
00:26:59.760 --> 00:27:01.740
it's unmistakable intent was,
674
00:27:01.740 --> 00:27:04.530
we told the department in 2019
675
00:27:04.530 --> 00:27:06.030
in our Housing Production Plan
676
00:27:06.030 --> 00:27:10.110
that we intended to construct 26 units in phase two,
677
00:27:10.110 --> 00:27:11.790
which was in the second year.
678
00:27:11.790 --> 00:27:13.500
You filed that when?
679
00:27:13.500 --> 00:27:15.180
We filed that in 2019
680
00:27:15.180 --> 00:27:17.733
as an update to our Housing Production Plan.
681
00:27:18.960 --> 00:27:21.960
And there were members of the Select Board that are on that.
682
00:27:21.960 --> 00:27:24.900
And had you filed that document previously
683
00:27:24.900 --> 00:27:26.898
with the department,
684
00:27:26.898 --> 00:27:28.020
the state department?
It gets updated,
685
00:27:28.020 --> 00:27:29.959
I believe, every 10 years, Your Honor.
686
00:27:29.959 --> 00:27:32.700
So you do it once, and then...
687
00:27:32.700 --> 00:27:34.789
So was it done 10 years earlier?
688
00:27:34.789 --> 00:27:36.630
It was, 'cause it was an update
689
00:27:36.630 --> 00:27:38.250
to the Housing Production Plan,
690
00:27:38.250 --> 00:27:39.270
and I know it's in the record,
691
00:27:39.270 --> 00:27:41.820
and the link was included in our record,
692
00:27:41.820 --> 00:27:44.250
and I think it was included in the amicus record, but-
693
00:27:44.250 --> 00:27:47.070
So in 2009, 2019,
694
00:27:47.070 --> 00:27:50.100
you made representations to the relevant state agency
695
00:27:50.100 --> 00:27:54.560
that this was in your inventory of low income...
696
00:27:54.560 --> 00:27:56.220
What was the representation you made?
697
00:27:56.220 --> 00:27:58.980
I can't say in 2009, Your Honor.
698
00:27:58.980 --> 00:28:02.250
But I can say in 2019, when the plan was updated,
699
00:28:02.250 --> 00:28:03.990
the town was very specific about
700
00:28:03.990 --> 00:28:06.540
what it intended to do on this particular property.
701
00:28:06.540 --> 00:28:07.530
Because by that point,
702
00:28:07.530 --> 00:28:09.900
all of its pre-planning had been done,
703
00:28:09.900 --> 00:28:11.610
and we knew that the site could support
704
00:28:11.610 --> 00:28:14.820
about 26 units of public affordable housing.
705
00:28:14.820 --> 00:28:16.170
So went on the plan.
706
00:28:16.170 --> 00:28:18.540
It actually went in with a construction timeframe
707
00:28:18.540 --> 00:28:20.910
of the second year thereafter.
708
00:28:20.910 --> 00:28:24.630
So, I think it was very clear there was
709
00:28:24.630 --> 00:28:28.080
a large quantity of evidence in the record
710
00:28:28.080 --> 00:28:30.570
in this particular case about the town's efforts
711
00:28:30.570 --> 00:28:33.480
to study this property, to make sure that it was a-
712
00:28:33.480 --> 00:28:34.560
So, let me just ask another...
713
00:28:34.560 --> 00:28:39.540
So when Mr. Carroll and the others go in
714
00:28:39.540 --> 00:28:42.513
and try to convert this into Conservation Commission,
715
00:28:43.410 --> 00:28:44.820
do we have the record what was said?
716
00:28:44.820 --> 00:28:45.787
Does someone go up and say,
717
00:28:45.787 --> 00:28:47.767
"No, this is dedicated to public housing,
718
00:28:47.767 --> 00:28:49.830
"you can't do this."
719
00:28:49.830 --> 00:28:50.670
How does that work?
720
00:28:50.670 --> 00:28:52.740
Well, this came to-
When the town meeting...
721
00:28:52.740 --> 00:28:55.320
Because again, totality of the circumstances,
722
00:28:55.320 --> 00:28:58.470
when this is presented to the town meeting,
723
00:28:58.470 --> 00:29:01.627
does someone stand up and say, from the city,
724
00:29:01.627 --> 00:29:03.960
"We've dedicated this to public housing,"
725
00:29:03.960 --> 00:29:05.640
does someone do that?
726
00:29:05.640 --> 00:29:07.860
Yes, Your Honor, in this particular case.
727
00:29:07.860 --> 00:29:09.810
Well, first of all.
Is that in the record?
728
00:29:09.810 --> 00:29:11.880
'Cause again, that's what worries me
729
00:29:11.880 --> 00:29:14.430
is that this record, and again,
730
00:29:14.430 --> 00:29:15.943
I haven't gone through all of it-
731
00:29:15.943 --> 00:29:18.780
If you look at the affidavit of Peter Morin,
732
00:29:18.780 --> 00:29:20.850
who's the Town Administrator,
733
00:29:20.850 --> 00:29:23.100
this was discussed in advance of the town meeting.
734
00:29:23.100 --> 00:29:24.900
But remember how this article was presented.
735
00:29:24.900 --> 00:29:26.700
In advance, does someone get up?
736
00:29:26.700 --> 00:29:28.290
'Cause, again, I'm not familiar with
737
00:29:28.290 --> 00:29:30.630
how the town meetings go in Norwell,
738
00:29:30.630 --> 00:29:33.750
but does someone stand up in the town meeting from the town
739
00:29:33.750 --> 00:29:36.997
and say, "We've dedicated this to public housing,
740
00:29:36.997 --> 00:29:41.997
"so don't try to convert this into conservation land."
741
00:29:42.402 --> 00:29:46.747
Or does this just back into this with somebody saying,
742
00:29:46.747 --> 00:29:48.240
"Okay, we haven't satisfied..."
743
00:29:48.240 --> 00:29:51.560
Somebody brings it up at some point, but...
744
00:29:53.371 --> 00:29:54.787
'Cause you would think you would stand up and say,
745
00:29:54.787 --> 00:29:56.610
"Hey, this is public housing," right?
746
00:29:56.610 --> 00:29:58.440
There are meeting minutes of the town meeting,
747
00:29:58.440 --> 00:30:00.360
and it was a very well-attended town meeting,
748
00:30:00.360 --> 00:30:01.590
and a lotta people spoke,
749
00:30:01.590 --> 00:30:04.107
and it probably had debate for over an hour, and-
750
00:30:04.107 --> 00:30:06.570
But I'm concerned, what did the town say?
751
00:30:06.570 --> 00:30:08.137
Did the town stand up and say,
752
00:30:08.137 --> 00:30:10.830
"This is dedicated to public housing"?
753
00:30:10.830 --> 00:30:12.780
I'm sure that the issue came up, Your Honor,
754
00:30:12.780 --> 00:30:16.020
but I cannot honestly tell you what the moderator,
755
00:30:16.020 --> 00:30:18.420
who would be in charge of the meeting, may have said.
756
00:30:18.420 --> 00:30:19.253
But because this is-
757
00:30:19.253 --> 00:30:21.870
That suggests that this is premature,
758
00:30:21.870 --> 00:30:23.850
and this requires a trial.
759
00:30:23.850 --> 00:30:26.130
No, Your Honor, I don't think that's the case,
760
00:30:26.130 --> 00:30:29.038
because regardless of whether that was-
761
00:30:29.038 --> 00:30:30.510
'Cause if it's clear and unequivocal
762
00:30:30.510 --> 00:30:32.850
that this is dedicated to public housing,
763
00:30:32.850 --> 00:30:35.640
wouldn't we expect someone to stand up in the town meeting
764
00:30:35.640 --> 00:30:36.900
and say, "We've done this"?
765
00:30:36.900 --> 00:30:39.600
That's exactly what I recall.
766
00:30:39.600 --> 00:30:40.950
And I attended that town meeting.
767
00:30:40.950 --> 00:30:42.150
I know this isn't in the record,
768
00:30:42.150 --> 00:30:44.910
but there were a number of people that stood up
769
00:30:44.910 --> 00:30:47.460
and talked about the town meeting vote in 2004.
770
00:30:47.460 --> 00:30:49.410
And there were a number of people that talked about
771
00:30:49.410 --> 00:30:52.620
what had been done in the town ever since to study this land
772
00:30:52.620 --> 00:30:54.570
and how we were progressing towards
773
00:30:54.570 --> 00:30:57.150
a project on this site for affordable housing.
774
00:30:57.150 --> 00:30:59.730
Does the city solicitor, I don't know,
775
00:30:59.730 --> 00:31:00.563
have a city solicitor-
776
00:31:00.563 --> 00:31:02.570
Are you-
I am the town counsel
777
00:31:02.570 --> 00:31:04.530
of Norwell.
So do you stand up
778
00:31:04.530 --> 00:31:07.680
in that meeting and say that this is a...
779
00:31:07.680 --> 00:31:09.570
Again, based on what's in the record.
780
00:31:09.570 --> 00:31:11.943
I don't want you to recreate a record, but-
781
00:31:13.530 --> 00:31:15.660
The answer is if I'm asked to, I do.
782
00:31:15.660 --> 00:31:18.120
I'm not always asked to.
783
00:31:18.120 --> 00:31:20.340
But remember, this is a citizen petition article.
784
00:31:20.340 --> 00:31:22.470
As long as they get the signatures,
785
00:31:22.470 --> 00:31:25.200
this goes on the warrant and we vote.
786
00:31:25.200 --> 00:31:29.490
And I've been at maybe 50, 60 town meetings
787
00:31:29.490 --> 00:31:30.960
over the last 30 years,
788
00:31:30.960 --> 00:31:32.670
and this happens on a regular basis
789
00:31:32.670 --> 00:31:34.620
that people get enough signatures to do
790
00:31:34.620 --> 00:31:37.560
some things that do not comply with the law.
791
00:31:37.560 --> 00:31:39.607
And if I'm asked, I stand up and I say,
792
00:31:39.607 --> 00:31:42.930
"Look, this is of doubtful or dubious legality."
793
00:31:42.930 --> 00:31:44.970
I think that's the phraseology we use.
794
00:31:44.970 --> 00:31:45.870
I can't remember
795
00:31:45.870 --> 00:31:47.250
whether I did that.
Based on this record,
796
00:31:47.250 --> 00:31:48.600
were you asked or not?
797
00:31:48.600 --> 00:31:49.890
Or is it-
I was asked
798
00:31:49.890 --> 00:31:52.420
before town meeting in this particular case,
799
00:31:52.420 --> 00:31:53.253
Your Honor.
Before it
800
00:31:53.253 --> 00:31:54.840
or at the town meeting?
Before town meeting.
801
00:31:54.840 --> 00:31:56.280
So, but that's not helpful.
802
00:31:56.280 --> 00:32:00.210
So no one asks and no one explains at the town meeting,
803
00:32:00.210 --> 00:32:02.100
at least based on this record.
804
00:32:02.100 --> 00:32:04.620
On this record, I cannot say, Your Honor,
805
00:32:04.620 --> 00:32:06.060
one thing or the other.
806
00:32:06.060 --> 00:32:08.670
But what I can tell you is it came up before town meeting,
807
00:32:08.670 --> 00:32:12.450
and in the record an attorney Morin's affidavit.
808
00:32:12.450 --> 00:32:13.470
He was the Town Administrator,
809
00:32:13.470 --> 00:32:15.810
where he recalls me discussing this with him.
810
00:32:15.810 --> 00:32:17.610
And then after the town meeting,
811
00:32:17.610 --> 00:32:20.280
not only did they look at my opinion,
812
00:32:20.280 --> 00:32:21.840
but in the administrative record
813
00:32:21.840 --> 00:32:25.260
is an opinion from Lauren Goldberg at KP Law,
814
00:32:25.260 --> 00:32:27.180
and her opinion is in the record.
815
00:32:27.180 --> 00:32:28.650
And she concurred with me,
816
00:32:28.650 --> 00:32:30.383
that based on the totality of the circumstances
817
00:32:30.383 --> 00:32:33.390
and the 2004 vote and the things that occurred,
818
00:32:33.390 --> 00:32:37.965
this land was clearly set aside.
819
00:32:37.965 --> 00:32:39.780
Does the Smith case,
820
00:32:39.780 --> 00:32:42.210
I can't remember the date of the Smith case,
821
00:32:42.210 --> 00:32:44.400
are you aware of the Smith case at that point?
822
00:32:44.400 --> 00:32:45.600
It's 2017.
823
00:32:45.600 --> 00:32:48.090
When's this vote?
Yeah, so Smith is old.
824
00:32:48.090 --> 00:32:51.090
Yeah, Smith was actually law 2017, Your Honor.
825
00:32:51.090 --> 00:32:52.440
I gotcha.
826
00:32:52.440 --> 00:32:54.510
I don't think that we mention it by name,
827
00:32:54.510 --> 00:32:57.180
but certainly everything about the town's position
828
00:32:57.180 --> 00:32:58.590
in this particular case
829
00:32:58.590 --> 00:33:01.440
is indicative of the Smith rationale.
830
00:33:01.440 --> 00:33:04.920
We think that there was an unambiguous attempt
831
00:33:04.920 --> 00:33:06.870
to make this land available,
832
00:33:06.870 --> 00:33:09.390
and we've said that is designate the land
833
00:33:09.390 --> 00:33:11.940
for affordable housing back in 2004.
834
00:33:11.940 --> 00:33:13.890
Every conduct by the town,
835
00:33:13.890 --> 00:33:17.040
every action by the town, and its Community Housing Trust,
836
00:33:17.040 --> 00:33:19.490
which are appointed by the selectmen, by the way,
837
00:33:20.700 --> 00:33:23.160
are indicative of an intent to
838
00:33:23.160 --> 00:33:26.070
plan for an affordable housing project on this property.
839
00:33:26.070 --> 00:33:28.140
We told the state that they were gonna do this,
840
00:33:28.140 --> 00:33:31.500
and then when we come forward with actual plans,
841
00:33:31.500 --> 00:33:33.750
it attracts the attention of the
842
00:33:33.750 --> 00:33:35.460
immediate nextdoor neighbors,
843
00:33:35.460 --> 00:33:38.370
and they are not supporters of
844
00:33:38.370 --> 00:33:41.160
a affordable housing project on this site.
845
00:33:41.160 --> 00:33:43.803
And that's what triggers all of this.
846
00:33:44.760 --> 00:33:47.520
I think I'd like to make the point,
847
00:33:47.520 --> 00:33:49.980
even if the land were not restricted,
848
00:33:49.980 --> 00:33:53.040
whether the selectmen, who have custody of this land,
849
00:33:53.040 --> 00:33:58.040
are not obligated in a mandamus action to do anything.
850
00:33:58.453 --> 00:34:01.530
The legislative body is the town meeting.
851
00:34:01.530 --> 00:34:03.180
The legislative body cannot tell
852
00:34:03.180 --> 00:34:05.310
a coordinate branch of government
853
00:34:05.310 --> 00:34:07.800
how to perform a discretionary act.
854
00:34:07.800 --> 00:34:10.740
So I would say regardless of any of those issues,
855
00:34:10.740 --> 00:34:13.830
which I think cut in favor of the town to begin with,
856
00:34:13.830 --> 00:34:16.770
even if they didn't, the town cannot be compelled.
857
00:34:16.770 --> 00:34:18.240
The selectmen cannot be compelled
858
00:34:18.240 --> 00:34:19.920
to perform a discretionary act.
859
00:34:19.920 --> 00:34:22.680
This is as simple as counting the ballots,
860
00:34:22.680 --> 00:34:24.780
which you have an obligation to do correctly.
861
00:34:24.780 --> 00:34:27.970
This isn't the obligation to issue a building permit
862
00:34:28.830 --> 00:34:30.060
or deny a building permit
863
00:34:30.060 --> 00:34:33.090
when you haven't complied with explicit provisions of law.
864
00:34:33.090 --> 00:34:35.280
Those are the traditional mandamus cases.
865
00:34:35.280 --> 00:34:40.280
And I know Justice Smith didn't address the standing issue,
866
00:34:40.680 --> 00:34:43.740
but we raised it as a part of our appellate argument
867
00:34:43.740 --> 00:34:46.110
and gave a notice of appeal relating to it,
868
00:34:46.110 --> 00:34:48.300
because the plaintiffs in this case
869
00:34:48.300 --> 00:34:52.350
invoked the public right doctrine in order to excuse
870
00:34:52.350 --> 00:34:54.543
or relax the standing threshold.
871
00:34:56.400 --> 00:34:58.500
Won't they satisfy standing?
872
00:34:58.500 --> 00:35:01.920
I mean, they're abutters, right?
873
00:35:01.920 --> 00:35:03.210
Correct.
874
00:35:03.210 --> 00:35:06.630
I take it their housing values are gonna be higher
875
00:35:06.630 --> 00:35:08.733
if it's conservation land.
876
00:35:09.810 --> 00:35:12.420
Isn't that a reasonable-
Your Honor, I...
877
00:35:12.420 --> 00:35:13.560
This is not in the record,
878
00:35:13.560 --> 00:35:15.990
but I have been involved in development
879
00:35:15.990 --> 00:35:18.720
of affordable housing for as long as I've been a lawyer,
880
00:35:18.720 --> 00:35:21.600
and I've heard repeated expert testimony
881
00:35:21.600 --> 00:35:23.160
given in other circumstances that
882
00:35:23.160 --> 00:35:24.900
the construction of affordable housing
883
00:35:24.900 --> 00:35:26.220
next door to your property-
I'm not even focused on
884
00:35:26.220 --> 00:35:27.053
affordable housing.
885
00:35:27.053 --> 00:35:29.990
Conservation land itself has...
886
00:35:32.280 --> 00:35:34.410
Basically you've expanded your own property
887
00:35:34.410 --> 00:35:36.240
when you have a conservation land next to you,
888
00:35:36.240 --> 00:35:39.420
because you have open space that no one can build on.
889
00:35:39.420 --> 00:35:43.770
So that tends to add value to your property, doesn't it?
890
00:35:43.770 --> 00:35:45.330
I guess they could argue that,
891
00:35:45.330 --> 00:35:47.250
but I'm not sure that value to property
892
00:35:47.250 --> 00:35:48.450
is a cognizable interest
893
00:35:48.450 --> 00:35:49.710
when we're talking about affordable housing.
894
00:35:49.710 --> 00:35:51.300
Doesn't that provide standing?
895
00:35:51.300 --> 00:35:54.060
I don't think so, under the Standerwick line of cases.
896
00:35:54.060 --> 00:35:55.080
You have to connect it to
897
00:35:55.080 --> 00:35:56.850
a legitimate zoning-related concern
898
00:35:56.850 --> 00:35:57.870
in order to gain standing.
899
00:35:57.870 --> 00:36:00.360
And all they've articulated in the record
900
00:36:00.360 --> 00:36:04.170
is that justice requires the court to intervene
901
00:36:04.170 --> 00:36:06.930
and direct these selectmen to convey this property.
902
00:36:06.930 --> 00:36:09.930
And I say that that's not, under the case law,
903
00:36:09.930 --> 00:36:12.030
enough to invoke the public rights doctrine.
904
00:36:12.030 --> 00:36:15.330
You still have to prove a modicum of standing,
905
00:36:15.330 --> 00:36:18.900
and just claiming a general justice issue
906
00:36:18.900 --> 00:36:21.180
is not sufficient to do that.
907
00:36:21.180 --> 00:36:26.180
And I cited the cases in my brief on this particular issue,
908
00:36:26.550 --> 00:36:27.800
the Madiri case
909
00:36:31.763 --> 00:36:34.560
and the Perella versus MBTA case.
910
00:36:34.560 --> 00:36:35.790
And when there is no clear
911
00:36:35.790 --> 00:36:38.040
and unequivocal duty to the public,
912
00:36:38.040 --> 00:36:42.090
there is no standing, even under the public right doctrine,
913
00:36:42.090 --> 00:36:43.890
to bring a mandamus action.
914
00:36:43.890 --> 00:36:48.390
And I know that Justice Smith had a lot in front of him,
915
00:36:48.390 --> 00:36:50.800
but I would certainly suggest that that was
916
00:36:52.260 --> 00:36:55.830
something that he probably should have examined
917
00:36:55.830 --> 00:36:57.660
as a threshold matter.
918
00:36:57.660 --> 00:37:00.000
The last thing I'd just like to say, Your Honors,
919
00:37:00.000 --> 00:37:03.930
is that at the case management conference,
920
00:37:03.930 --> 00:37:05.910
the issue of discovery came up
921
00:37:05.910 --> 00:37:07.800
and both parties reported to the court
922
00:37:07.800 --> 00:37:08.940
we were prepared to proceed,
923
00:37:08.940 --> 00:37:10.260
I had already served my motion
924
00:37:10.260 --> 00:37:12.450
for summary judgment in the facts,
925
00:37:12.450 --> 00:37:14.910
and the statement by both parties was
926
00:37:14.910 --> 00:37:16.980
we're ready to proceed.
927
00:37:16.980 --> 00:37:19.620
That issue came up at the time of summary judgment,
928
00:37:19.620 --> 00:37:23.130
'cause I filed a motion to strike their affidavit,
929
00:37:23.130 --> 00:37:24.840
because the objections that were raised
930
00:37:24.840 --> 00:37:26.880
to the evidence that the town submitted
931
00:37:26.880 --> 00:37:30.150
were not met with the appropriate countervailing materials.
932
00:37:30.150 --> 00:37:31.773
And that is in the record.
933
00:37:33.210 --> 00:37:34.650
Most of it was, well,
934
00:37:34.650 --> 00:37:36.570
that's information possessed by the town,
935
00:37:36.570 --> 00:37:39.940
and we don't know anything about it.
936
00:37:39.940 --> 00:37:41.250
Things like that.
937
00:37:41.250 --> 00:37:43.860
Those were not sufficient objections
938
00:37:43.860 --> 00:37:45.900
in order to defeat the town summary judgment.
939
00:37:45.900 --> 00:37:48.570
And, I think as the court pointed out,
940
00:37:48.570 --> 00:37:52.080
anytime someone files a rule 56 affidavit,
941
00:37:52.080 --> 00:37:54.390
the court is obligated to look at it very differently,
942
00:37:54.390 --> 00:37:56.430
and there was an election not to do that.
943
00:37:56.430 --> 00:37:57.810
So for those reasons,
944
00:37:57.810 --> 00:38:00.730
I'd ask the court to affirm the decision of the land court
945
00:38:03.727 --> 00:38:08.700
and determine that the land must follow the 40, 15a process,
946
00:38:08.700 --> 00:38:10.920
which may very well likely result,
947
00:38:10.920 --> 00:38:13.110
if it's a popular decision in town,
948
00:38:13.110 --> 00:38:14.850
that that's land being transferred
949
00:38:14.850 --> 00:38:15.930
to the Conservation Commission.
950
00:38:15.930 --> 00:38:19.140
But that's the process we think that should be followed
951
00:38:19.140 --> 00:38:21.483
in light of the totality of the circumstances.