Reilly v. Hopedale

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22-P-314 Appeals Court
22-P-433

ELIZABETH REILLY & others1 vs. TOWN OF HOPEDALE & others2
(and a companion case3).

Nos. 22-P-314 & 22-P-433.

Worcester. November 15, 2022. – March 7, 2023.

Present: Wolohojian, Ditkoff, & Walsh, JJ.

Practice, Civil, Standing, Declaratory proceeding, Judgment on
the pleadings, Intervention, Moot case, Taxable
inhabitants' action. Jurisdiction, Taxable inhabitants'
action.

Civil action commenced in the Superior Court Department on
March 3, 2021.

The case was heard by Karen L. Goodwin, J., on motions for
judgment on the pleadings, and a motion for clarification was
considered by her.

1 Carol J. Hall, Donald Hall, Hilary Smith, David Smith,
Megan Fleming, Stephanie A. McCallum, Jason A. Beard, Amy Beard,
Shannon W. Fleming, and Janice Doyle.

2 Bernie Stock, Brian R. Keyes, Grafton & Upton Railroad
Company, Jon Delli Priscoli, Michael Milanoski, and One Hundred
Forty Realty Trust.

3 Town of Hopedale vs. Jon Delli Priscoli, trustee, &
others.
2

David E. Lurie (Harley C. Racer also present) for Elizabeth
Reilly & others.
Sean M. Grammel for town of Hopedale & others.
Donald C. Keavany, Jr., for Jon Delli Priscoli & others.
Robert A. Indresano, for Friends of the Centerville
Cranberry Bog Preservation, Inc., amicus curiae, submitted a
brief.

Civil action commenced in the Land Court Department on
October 28, 2020.

Following a joint stipulation of dismissal, a motion to
vacate the stipulation was heard by Diane R. Rubin, J., and
motions to intervene and for an expedited hearing were
considered by her.

Harley C. Racer for Elizabeth Reilly & others.
Donald C. Keavany, Jr., for Jon Delli Priscoli & others.

WOLOHOJIAN, J. These two cases stem from a dispute

concerning chapter 61 forest land located in the town of

Hopedale (town) that the Grafton & Upton Railroad (railroad)

wishes, and already has begun, to develop over opposition by the

town and certain of its residents. The first case (No. 22-P-

314) was filed in the Superior Court by a group of town

residents (citizens) challenging a settlement agreement reached

between the town, and the railroad, the owner of the land (the

One Hundred Forty Realty Trust [trust]), and the trustees of the

trust (Jon Delli Priscoli and Michael Milanoski). The essential

question raised in the appeal from the Superior Court case is

whether the citizens have standing to pursue the declaratory
3

relief they sought in count II of their complaint. As pertinent

to this appeal, that count sought a declaration that the town's

agreement, as part of the settlement, to waive its statutory

option to purchase the forest land pursuant to G. L. c. 61, § 8,

was invalid and unenforceable. We affirm the dismissal of Count

II because, like the Superior Court judge, we conclude that the

citizens do not have standing under either G. L. c. 40, § 53

(pertaining to citizen suits), or G. L. c. 231A (pertaining to

declaratory actions) for the particular relief sought in count

II.4

The second case (No. 22-P-433) comes to us on appeal from

the Land Court, where the citizens' motion to intervene in a

suit brought by the town against the railroad and the trust was

denied as moot. We conclude that the Land Court judge should

not have denied the motion to intervene as moot, and accordingly

we vacate that order and remand the matter to the Land Court to

permit the Land Court judge to consider the motion to intervene

on the merits, as well as the citizens' motion to join in the

town's motion to vacate the stipulation of dismissal.

Background. We begin by setting out the pertinent aspects

of G. L. c. 61, which governs the classification and taxation of

forest land and forest products, and the purpose of which is to

We acknowledge the amicus brief submitted by Centerville
4

Cranberry Bog Preservation, Inc.
4

promote the preservation and maintenance of forest land, i.e.,

"land devoted to the growth of forest products." G. L. c. 61,

§ 1. The statute achieves this purpose by giving owners of land

classified as forest land a significantly reduced tax rate for

as long as the land remains certified as forest land by the

State forester and is maintained according to an approved forest

management plan. See G. L. c. 61, §§ 2, 2A, 5. Land certified

under c. 61 is subject to a lien by the municipality in which

the land is located. See G. L. c. 61, § 2.

If an owner of forest land certified under c. 61 wishes to

sell the land or convert it to another use, certain consequences

follow. To begin with, the land may be subject to roll-back

taxes or a conveyance tax. See G. L. c. 61, §§ 6, 7. In

addition, the owner must notify the municipality in which the

land is located so that the municipality may decide whether to

exercise its statutory "first refusal option" (option). G. L.

c. 61, § 8, twelfth par. The municipality may exercise the

option itself or may assign the option to a "nonprofit

conservation organization or to the Commonwealth or any of its

political subdivisions." G. L. c. 61, § 8, seventeenth par.

In this case, the trust owned 155.24 acres of land in the

town located at 364 West Street, 130.18 acres of which were

classified as forest land subject to G. L. c. 61. On June 27,

2020, the railroad entered into a purchase and sale agreement
5

with the trust to buy the land.5 Not long thereafter, on July 9,

2020, the railroad's president notified the town of the planned

land purchase,6 and stated that the railroad intended to use the

land "to provide additional yard and track space in order to

support the current and anticipated increase in rail traffic of

[the railroad's] transloading operations."7 In other words, the

notice clearly conveyed the railroad's intent to convert the

forest land to a use outside the scope of c. 61.

Although the notice clearly conveyed an intent to convert

the forest land to another use, thus implicating the town's

option, the town believed that the notice did not adequately

convey the terms of the offer to which the option applied. See

G. L. c. 61, § 8, eleventh par.8 The town therefore requested

5 Jon Delli Priscoli, the railroad's principal owner, signed
the purchase and sale agreement in his capacity as trustee of
the New Hopping Brook Realty Trust, which was the anticipated
purchaser.

6 The railroad's president, Michael Milanoski, served the
notice on behalf of Charles Morneau, the trustee of the trust.

7 See G. L. c. 61, § 8, seventh par., which provides:

"Any notice of intent to convert to other use shall be
accompanied by a statement of intent to convert, a
statement of proposed use of the land, the location and
acreage of land as shown on a map drawn at the scale of the
assessors map in the city or town in which the land is
situated, the name, address and telephone number of the
landowner and the landowner's attorney, if any."

8 General Laws c. 61, § 8, eleventh par., provides:
6

that a revised notice complying with the requirements of the

statute be submitted. The town identified two defects in

particular: first, that the transaction included land not

classified under c. 61 and second, that the purchase price was

for more than the c. 61 land. At the same time, the town

reserved its rights with respect to the option.9

Instead of sending a corrected notice, and apparently

wishing to prevent the town from exercising the option to which

it was entitled, the railroad restructured the transaction. In

this iteration of the transaction, rather than taking ownership

of the forest land by purchasing it directly from the trust for

$1.175 million, the railroad instead purchased the beneficial

interest in the trust for the exact same amount.10 Also as part

of the restructured transaction, the railroad's president and

"If the notice of intent to sell or convert does not
contain all of the material as described above, then the
town or city, within 30 days after receipt, shall notify
the landowner in writing that the notice is insufficient
and does not comply."

9 On October 7, 2020, the trust claimed to withdraw the
notice of intent. The town responded on October 8, stating its
view that the option ripened with receipt of the July 9 notice
of intent, so the purported withdrawal lacked legal effect.

10The 130.18 acres of forest land subject to c. 61 was
owned by the trust; the non-c. 61 land was purchased by the
railroad for one dollar, and thus no longer remained in the
trust. The railroad also purchased about twenty acres of
nonforest land situated nearby at 363 West Street.
7

the railroad's principal owner were installed as cotrustees of

the trust.11 The practical result of the restructured

transaction was to give the railroad control of the trust and of

the c. 61 forest land the trust owned, while not constituting a

sale of the forest land. It should be noted that, irrespective

of any sale, G. L. c. 61, § 8, thirteenth par., prohibits the

conversion of forest land to residential, industrial, or

commercial use without first offering the municipality the right

to purchase it.

On October 21, 2020, the town informed the trust and the

railroad that, because the trust was a nominee trust, the

transfer of a controlling beneficial interest constituted the

transfer of an interest in real estate, again triggering the

town's option of first refusal under G. L. c. 61, § 8. At a

special town meeting on October 24, 2020, it was unanimously

voted to appropriate $1.175 million to acquire (either by

purchase or eminent domain) the 130.18 acres of forest land, and

to appropriate $25,000 to acquire the 25.06 acres of nonforest

land.12

11Charles E. Morneau, the former trustee, resigned as part
of the transaction.

12The board of selectmen voted to exercise the town's
option, and the town recorded the exercise of its option
regarding the forest land and an order of taking as to the
nonforest portion of the property in the Worcester County
registry of deeds on November 2, 2020.
8

Meanwhile, the railroad began site work on the forest land,

including large-scale tree cutting. The town accordingly filed

a complaint in the Land Court seeking injunctive relief, a

declaratory judgment, approval of the town's memorandum of lis

pendens, an order for specific performance directing that forest

land be conveyed to the town, and an order permitting the town

to enter the forest land to conduct inspections.13 The railroad

and the trust responded to the Land Court complaint in various

ways, including by filing a petition with the Surface

Transportation Board (STB), seeking a declaration that Federal

railroad law preempted the town from exercising its c. 61

rights.

After a hearing, the Land Court judge denied the town's

motion for a preliminary injunction. The judge reasoned that,

13Through its request for declaratory judgment, the town
sought to establish that the July 9 notice of intent complied
with G. L. c. 61, § 8; the offer in the purchase and sale
agreement was a bona fide offer; the town's option vested on
July 10, 2020; the town held an irrevocable option to purchase
the forest land for the length of the statutory period; the
town's time period in which it needed to exercise its option was
tolled until the end of Governor Baker's March 10, 2020
declaration of a state of emergency related to the COVID-19
pandemic; the trust and the railroad were prohibited from
alienating the forest land or converting its use from forest
land until the town's option expired; the town was entitled to
conveyance of the forest land from the trust; and the trust's
assignment of its beneficial interest to the railroad
constituted a sale of forest land that separately triggered the
town's option.
9

although the town was entitled to an option under G. L. c. 61,

§ 8, it was not clear whether or when the option period had been

triggered, because the July 9 notice of intent was defective for

the reasons identified by the town. The judge did not decide

whether the subsequent restructured transaction triggered the

town's option under G. L. c. 61, § 8. Nor did she reach the

question of preemption. The judge also concluded that there was

no irreparable harm, because the parties had agreed to work

cooperatively to prepare a stipulation to maintain the status

quo while the STB proceeding and the Land Court case were

pending. Finally, the judge referred the parties to mediation.

Through mediation, the parties then reached a settlement,

which the town's board of selectman (board) approved on January

25, 2021. In broad strokes, the settlement agreement provided

that (1) the parties would stipulate to the dismissal with

prejudice of the Land Court suit, (2) the railroad would

withdraw its petition to the STB, (3) the town would purchase

about forty acres of forest land and twenty-four acres of

nonforest land for $587,500, plus the cost of any roll-back

taxes that might be due, (4) subject to a vote at town meeting,

the railroad would donate twenty acres of nonforest land at 363

West Street to the town or its designee, (5) all the remaining

land would remain in the trust's ownership, free from G. L.
10

c. 61, and (6) the town would waive its option under c. 61, as

well as its eminent domain rights under G. L. c. 79.14

As agreed, the parties filed a joint stipulation of

dismissal with prejudice in the Land Court case on February 10,

2021. The settlement agreement was not filed with the Land

Court, nor were its terms otherwise submitted to the judge. The

board took the position that the previous town meeting vote

authorizing the purchase of all of the forest land implicitly

authorized the purchase of only a subset of that land.

The citizens then filed the Superior Court case. The

citizens' complaint asserted three counts, the nature and

ultimate disposition of which were as follows:

Count I was brought against the board and sought to enjoin

the board from expending funds under the settlement agreement.

The citizens brought this claim under G. L. c. 40, § 53

(allowing ten taxpayers to enjoin a town from raising or

spending money without legal or constitutional authorization);

14 The settlement agreement also contained a severability
provision, which stated as follows:

"The provisions of this [a]greement are severable and should
any provision be deemed for any reason to be unenforceable the
remaining provisions shall nonetheless be of full force and
effect; provided however, that should any provision be deemed
unenforceable by a court of competent jurisdiction, the
parties shall negotiate in good faith to cure any such
defect(s) in the subject provision(s)."
11

G. L. c. 44, § 59 (allowing a taxpayer to compel a municipality

"to conform to [chapter 44]," which relates to municipal finance

generally); and G. L. c. 214, § 3 (10) (allowing ten taxpayers

to bring an action to "enforce the purpose or purposes of any

gift or conveyance which has been or shall have been made to and

accepted by any . . . town"). After cross motions for judgment

on the pleadings, the citizens prevailed on count I on the

ground that the authority granted to the board in the special

town meeting required acquisition of the entire parcel of forest

land and did not allow the town to acquire only the subset to

which it had agreed under the settlement agreement. The

Superior Court judge explained the meaning and consequences of

her ruling as follows:

"[A]lthough the terms of the [s]ettlement [a]greement are
legal (including the [b]oard's agreement to waive the
[o]ption), the [b]oard exceeded its authority when it
unilaterally entered into that agreement without [t]own
[m]eeting approval of the reduced acquisition. Therefore,
the [s]ettlement [a]greement is not effective. The [b]oard
might not hold the required [t]own [m]eeting or might fail
to obtain enough votes to approve the acquisition. In
either case, the [s]ettlement [a]greement would fail to
take effect, meaning that the [r]ailroad would retain the
land and the [t]own would retain its money and the right to
continue attempting to enforce the [o]ption. Until the
reduced acquisition is approved by [t]own [m]eeting, the
agreement is not effective, and the [t]own may (but is not
required to) attempt to enforce the [o]ption." (Footnote
omitted.)

No one has appealed from this aspect of the judgment. As a

matter of practical interest, we note that the board's
12

subsequent request for approval to fund the purchase of land as

provided in the settlement agreement was rejected at a town

meeting in March 2022.

Count II was asserted against the board and the railroad,

and sought a declaration that the board's release of its G. L.

c. 61 option as part of the settlement agreement was void, that

the town's c. 61 rights remain enforceable, that the

restructured transaction by which the railroad obtained control

of the trust and its beneficial interest triggered the town's

option, that all forest land held by the trust be transferred to

the town with no easements, and that the railroad be prevented

from alienating the forest land or converting any of it from its

current use. Count II was brought under G. L. c. 40, § 53, and

G. L. c. 214, § 3 (10), as well as G. L. c. 40, § 3 (authorizing

towns to hold and convey property through their selectmen), and

G. L. c. 231A, § 1 (the declaratory judgment statute). The

judge dismissed count II on the ground that the citizens lacked

standing to pursue the relief sought. The citizens' appeal of

this ruling is before us.

Count III was asserted against the board and sought a

declaration that use of G. L. c. 61 forest lands for nonparkland

purposes constitutes illegal harm to the environment. This

count was brought under G. L. c. 40, § 53; G. L. c. 214, §§ 3

(10) and 7A (allowing ten citizens to bring claims to prevent
13

damage to the environment); G. L. c. 45, § 7 (allowing ten

taxpayers to restrain the erection of a building in a park); and

mandamus. The judge dismissed count III on the ground that the

town never acquired the forest land. The citizens do not

challenge this portion of the judgment on appeal. Additional

details of the procedural history in the Superior Court case

that are not pertinent to this appeal are set forth in the

margin.15

15 The citizens filed a motion for preliminary injunction,
which was denied by a Superior Court judge on March 11, 2021. A
single justice of this court reversed, concluding that the
citizens had demonstrated a reasonable likelihood of success on
their claim that the board had acted without authority to
purchase the forest land described in the settlement agreement,
and enjoining the town from "issuing any bonds, making any
expenditures, paying any costs, or transferring any property
interests pursuant to the [s]ettlement [a]greement."

On June 3, 2021, all parties separately moved for judgment
on the pleadings. Before these cross motions could be resolved,
the citizens filed an emergency motion to preserve status quo on
September 9, 2021, in response to learning that the railroad had
resumed clearing trees from the forest land. A second Superior
Court judge, who presided over all subsequent events in this
case, issued a temporary restraining order the next day, pending
further action by the court; the temporary restraining order
became a preliminary injunction on September 24, 2021. The
railroad and the trust appealed, and a second single justice of
this court declined to intervene because the Superior Court
judge was then considering dispositive motions.

The Superior Court judge ruled on the cross motions for
judgment on the pleadings on November 10, 2021. As we describe
in the text, the judge issued judgment in favor of the citizens
on count I, but against the citizens on counts II and III.
Nevertheless, the judge extended the temporary injunction
against the railroad defendants for sixty days to give the town
time to "decide whether to seek the [t]own [m]eeting
14

In light of the Superior Court judge's ruling that the

settlement agreement was not effective because the board had

acted outside the authority given by the town meeting, the town

then filed in the Land Court a motion pursuant to Mass. R. Civ.

P. 60 (b), 365 Mass. 828 (1974), to vacate the stipulation of

dismissal that had been filed pursuant to the settlement

agreement. In essence, the town argued that the Superior Court

judge's ruling that the settlement agreement was ineffective

constituted an extraordinary circumstance warranting

reinstatement of the Land Court case.

The citizens advanced in the Land Court case on different,

but related, fronts. To begin with, the citizens sought an

interdepartmental assignment and transfer of the Land Court case

to the Superior Court for consolidation with the Superior Court

case. The citizens also moved to intervene in the Land Court

case, both as a matter of right and permissively. See Mass. R.

Civ. P. 24, 365 Mass. 769 (1974). They also moved to join the

town's motion to vacate the stipulation of dismissal. The Land

Court judge deferred consideration of these motions until after

she decided the town's motion to vacate, a decision that

authorization necessary to validate the [s]ettlement [a]greement
or to take the necessary steps to proceed with its initial
decision to exercise the [o]ption for the entire [p]roperty."
15

prompted the citizens to file a motion for expedited treatment

of their motion to intervene. That motion was denied.

After a hearing, the Land Court judge denied the town's

motion to vacate. The core of the judge's reasoning was that,

unlike Bowers v. Board of Appeals of Marshfield, 16 Mass. App.

Ct. 29 (1983), which involved similar circumstances, the parties

in this case did not file an agreement for judgment with the

court, but rather filed only a stipulation of dismissal with

prejudice without submitting the terms of the settlement

agreement to the court. The judge reasoned that, even accepting

that the town acted outside its authority in entering into the

settlement agreement, it was beyond dispute that the town had

the authority to stipulate to the dismissal of the Land Court

case that the town itself had filed. Accordingly, the judge

concluded that there were no extraordinary circumstances that

warranted vacating the stipulation of dismissal. It bears

noting that the Land Court judge understood the motion to vacate

to present only the narrow issue whether exceptional

circumstances existed to vacate the stipulation of dismissal;

she did not consider the validity or enforceability of the

settlement agreement to be before her. The town no longer
16

challenges the order denying its motion to vacate the

stipulation of dismissal.16

Having denied the motion to vacate, the Land Court judge

then denied the citizens' motion to intervene and to join the

town's motion to vacate on the ground that it was moot. The

citizens' appeal of this order is before us, as is the order

denying the citizens' motion to expedite hearing on their motion

to intervene.17

16Initially, the town vigorously pursued relief from the
Land Court judge's order denying the motion to vacate. The town
filed a timely notice of appeal and also sought an injunction
pending appeal to prevent any further destruction or alteration
of the forest land, a request that was joined by the citizens.
The Land Court judge denied the request for injunctive relief on
the ground that the filing of the stipulation of dismissal with
prejudice had closed the case, and so the town could not
demonstrate a likelihood of success on the merits. The town and
the citizens appealed to a single justice of this court, who
upheld the denial of the motions on the grounds that neither
party had demonstrated that the Land Court judge "likely erred."
The town then moved to voluntarily dismiss its appeal from the
order denying its motion to vacate, and that motion was allowed
on May 2, 2022. On May 5, 2022, the citizens filed a motion
asking the Land Court judge to reconsider both her order
allowing the town's motion for voluntary dismissal and her order
denying the citizens' motion to intervene. The judge denied
that motion the next day, and the citizens filed an amended
notice of appeal to include the order denying their motion for
reconsideration.

17The parties are also engaged in litigation in the United
States District Court for the District of Massachusetts, where
the railroad and the trust have sued the town over its attempt
to take the forest land by eminent domain, which they claim is
preempted by the Interstate Commerce Commission Termination Act,
49 U.S.C. § 10101 et seq. That litigation is ongoing.
17

Discussion. Despite the complicated path that has led to

these appeals, the issues at this point are only two: first,

whether the citizens have standing to pursue a declaration that

the settlement agreement is void and unenforceable (count II of

the complaint in the Superior Court case); and second, were the

citizens' motions (a) to intervene and to join the town's motion

to vacate, and (b) to expedite hearing of those motions in the

Land Court case properly denied.

1. Standing. The citizens assert three theories of

standing to pursue a declaration that the settlement agreement

is void and unenforceable. Because the issue of standing was

decided on cross motions for judgment on the pleadings under

Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), our review is de

novo. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721,

726 (2013). We discuss each of the citizens' theories in turn.

a. Taxpayer standing under G. L. c. 40, § 53. Since 1847,

see St. 1847, c. 37, the Legislature has given groups of ten or

more taxable inhabitants of a town the right to sue to restrain

the unlawful or unconstitutional exercise of the town's power to

raise or expend funds:

"If a town, . . . or any of its officers or agents are
about to raise or expend money or incur obligations
purporting to bind said town . . . for any purpose or
object or in any manner other than that for and in which
such town . . . has the legal and constitutional right and
power to raise or expend money or incur obligations, the
supreme judicial or superior court may, upon petition of
18

not less than ten taxable inhabitants of the town . . .
restrain the unlawful exercise or abuse of such corporate
power."

G. L. c. 40, § 53.

The basic provision of the statute is that the "town or its

officers must be about to raise or expend money or incur

obligations" in an unlawful manner. North v. City Council of

Brockton, 341 Mass. 483, 484 (1960). Equitable principles do

not confer on taxpayers the right to sue "to restrain cities and

towns from carrying out invalid contracts, and performing other

similar wrongful acts." Pratt v. Boston, 396 Mass. 37, 42

(1985), quoting Fuller v. Trustees of Deerfield Academy, 252

Mass. 258, 259 (1925). Instead, taxpayer plaintiffs must show a

statutory foundation for standing apart from G. L. c. 40, § 53,

in order to challenge a town's entering into a contract or

settlement. See Pratt, supra at 42-44.

It is important at this point to focus on the difference

between count I and count II of the Superior Court complaint.

In count I, the citizens sought to enjoin the town from

expending funds under the settlement agreement because the

expenditure had not been authorized at a town meeting. This

type of allegation falls easily within the ambit of G. L. c. 40,

53, as the Superior Court judge determined when she ruled in

favor of the citizens on count I.
19

By contrast, in count II, the citizens sought declarations

that the board's waiver of its G. L. c. 61 option as part of the

settlement agreement was void, that the town's c. 61 rights

remain enforceable, that the restructured transaction by which

the railroad obtained control of the trust and its beneficial

interest triggered the town's option, that all forest land held

by the trust be transferred to the town with no easements, and

that the railroad be prevented from alienating the forest land

or converting any of it from its current use. None of these

forms of relief can be characterized as the raising or

expenditure of funds or as the incurring of obligations by the

town and, accordingly, G. L. c. 40, § 53, did not give the

citizens standing to pursue them.

b. Standing under G. L. c. 231A, § 1. The citizens also

claim that the declaratory judgment statute, G. L. c. 231A, § 1,

independently gives them standing to pursue the relief they seek

in count II. But c. 231A, § 1, "does not in and of itself

provide the plaintiffs with the 'standing' required to maintain"

a taxpayer suit such as this one. Pratt, 396 Mass. at 43.

Instead, the citizens have standing under the declaratory

judgment statute only if they "can allege an injury within the

area of concern of the statute or regulatory scheme under which

the injurious action has occurred." Revere v. Massachusetts

Gaming Comm'n, 476 Mass. 591, 607 (2017). Thus, fundamentally,
20

the standing inquiry under the declaratory judgment statute

depends on whether the citizens are seeking in count II to

protect a cognizable interest under either G. L. c. 40, § 53, or

G. L. c. 61. As we have already said, they do not have such a

cognizable interest under G. L. c. 40, § 53. And so we turn to

c. 61.

General Laws c. 61 reflects a legislative interest in

promoting and maintaining forest land, which it seeks to achieve

through an incentive structure of reduced taxation on landowners

who submit their forest land to regulation under the statute.

Although a town's citizens clearly have an interest -- as that

term is colloquially understood -- in the preservation of green

space, including forest land, that generalized interest in

protecting the environment, as laudable as it is, is not enough

to confer standing in the absence of cognizable injury. See

Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 138, 141

(2000) (interest in protecting environment, in absence of

cognizable injury, is too generalized to confer standing). The

statute creates a voluntary tax program by which landowners can

agree to preserve and maintain forest land in order to receive

advantageous tax treatment, in exchange for which the town

receives certain rights should the land be transferred or

otherwise fail to continue to qualify. Individual taxpayers

whose land is not subject to c. 61 have been given no rights
21

under the statutory scheme. Contrast G. L. c. 61, §§ 2, 3

(creating procedures for landowner to challenge land

classification and tax assessment).

c. Standing to pursue mandamus. The citizens argue that

the town's waiver of its option constituted an illegal

assignment of the option, and as such they have standing to

pursue a mandamus action against the assignment. Setting aside

the fact that the citizens did not raise this argument below

with respect to count II of the Superior Court complaint and it

is accordingly waived, we note that the argument is based on a

faulty premise.

Although it is true, as the citizens argue, that G. L.

c. 61, § 8, does not allow a town to assign its option to a

private for-profit organization, but only to nonprofit

conservation organizations, the Commonwealth, or any of its

political subdivisions, it does not follow that the town's

waiver of its option in this case, simply because it occurred

within the context of the settlement agreement with the railroad

and trust -- neither of which is a nonprofit conservation

organization -- constituted an illegal assignment. A waiver is

the "intentional relinquishment of a known right,"

BourgeoisWhite, LLP v. Sterling Lion, LLC, 91 Mass. App. Ct.

114, 119 (2017); it is not a transfer of that right to another.
22

By contrast, the hallmark of an assignment is the

assignor's transfer of a right to an assignee. See H.J.

Alperin, Summary of Basic Law § 5:99, at 1190 (5th ed. 2014).

Here, the town did not transfer its option to anyone under the

settlement agreement, which by its plain language provided only

for a waiver of the option:

"Waiver of Right of First Refusal. The [t]own acknowledges
that it waives any and all claims and/or rights to acquire
any property subject to this [a]greement by right of first
refusal under [c]hapter 61 or by eminent domain under
[c]hapter 79 of the Massachusetts General Laws."

2. Motion to intervene. a. Mootness. In order to

understand why the citizens' motion to intervene in the Land

Court case should not have been denied on the ground that it was

moot, we begin by setting out the relevant chronology of events.

On November 4, 2021, the Superior Court judge issued her

decision on the parties' cross motions for judgment on the

pleadings, ruling in the citizens' favor that "the [b]oard

exceeded its authority when it entered into the [s]ettlement

[a]greement without [t]own [m]eeting authorization." No one

challenges this ruling.18 Also never appealed are the Superior

Court judge's clarification rulings that the settlement

agreement could not take effect until approved by a town meeting

18The town moved for clarification on December 1, 2021, and
that motion was allowed in part on December 14, 2021.
23

and that, without such town meeting approval, the town retained

its right to attempt to enforce its option.

On December 30, 2021, approximately two weeks after the

Superior Court judgment was clarified, the town filed in the

Land Court, pursuant to Mass. R. Civ. P. 60, a motion to vacate

the stipulation of voluntary dismissal on the ground that the

Superior Court judgment invalidating the settlement agreement

was an extraordinary circumstance warranting such relief.

On January 18, 2022, the railroad and the trust filed their

opposition to the motion to vacate. Two days later, on January

20, the citizens filed a motion to intervene in the Land Court

case and to join the town's motion to vacate the stipulation of

dismissal. The citizens' motion sought to effectuate the

favorable judgment they had obtained on count I of their

complaint in the Superior Court, including -- but not limited to

-- the injunction the citizens had obtained to preserve the

forest land. In addition, the citizens sought to vacate the

stipulation of dismissal, to obtain a preliminary injunction

against land clearing pending disposition of the claim to vacate

the dismissal, to obtain a declaratory judgment that any

settlement between the town and the railroad and trust could not

include the waiver of the town's G. L. c. 61 rights without town

meeting authorization, and to obtain a declaration that the

town's ultimate purchase price of the forest land be reduced due
24

to the railroad's unlawful clearing of the land during the

pendency of the Superior Court case and the single justice's

injunction.

On January 21, 2022, the town filed its reply brief in

support of the motion to vacate. On January 24, 2022, the

railroad and the trust filed a sur-reply brief. In other words,

the citizens' motion was fully briefed by January 24, 2022, when

the Land Court judge held a hearing on the town's motion to

vacate the stipulation of dismissal.

At the January 24 hearing, the Land Court judge heard

argument from the town, the railroad, and the trust on the

motion to vacate, but did not permit argument by counsel for the

citizens. The judge then took the town's motion to vacate under

advisement, deferring the submission of oppositions and a

hearing on the citizens' motion to intervene until after she

decided the motion to vacate. The next day, the citizens filed

a motion seeking an expedited hearing on their motion to

intervene and to join, which the Land Court judge denied two

days later on the ground that it was untimely.19

19The judge reasoned that the citizens should have filed
their motion to intervene several days earlier instead of first
seeking interdepartmental transfer. Although the judge failed
to identify any prejudice from the timing, we cannot say that
she abused her wide discretion in denying the motion to expedite
on timeliness grounds.
25

The following day, the Land Court judge denied the town's

motion to vacate the stipulation of dismissal. The judge's core

reasoning was that even if the board did not have authority to

enter into the settlement agreement on the terms that it did

without town meeting approval, the board had authority to

stipulate to the dismissal of its Land Court case. Central to

the judge's reasoning was the fact that neither the settlement

agreement, nor its terms, had ever been put before the court.

The Land Court judge then denied the citizens' motion to

intervene on the ground that it was moot because the judge had

denied the town's motion to vacate the stipulation of

dismissal.20

As should be clear from the above recitation, the

fundamental problem here is that the Land Court judge conflated

the citizens' right to enforce the Superior Court judgment they

had obtained with the town's motion to vacate the stipulation of

dismissal in the Land Court case. Although the motions were

20The Land Court judge's order denying the motion to vacate
did not mention the citizens' pending motion to intervene.
Instead, the order on that motion appears in a docket entry
dated February 1, 2022:

"The court today received an inquiry as to whether the
court would be issuing a decision on the merits of the
citizens' motion to intervene. However, that motion is
moot since in a decision issued on January 28, 2022, the
court declined to vacate the stipulation with prejudice
filed by the parties to this case."
26

conceptually related, they were not mutually dependent for at

least two reasons. First, the relief they sought was not

coterminous and, second, the citizens' right to protect the

Superior Court judgment was independent of the town. The

Superior Court judgment was obtained through the citizens'

exercise of their statutory right as ten or more taxpayers under

G. L. c. 40, § 53. The citizens' entitlement to enforce that

favorable judgment did not depend on whether the town had the

authority to stipulate to the dismissal of its own claims in the

Land Court. The stipulation of dismissal did not -- and could

not -- extinguish the citizens' claims or judgment under G. L.

c. 40, § 53. See Jarosz v. Palmer, 436 Mass. 526, 529 (2002)

("a stipulation of dismissal with prejudice is not the

equivalent of a final judgment on the merits for the purposes of

issue preclusion"). Not only were the citizens not parties to

the stipulation of dismissal, they were not before the Land

Court when the stipulation of dismissal was filed (nor is there

any claim that the citizens should have been), nor had the

validity of the settlement agreement been placed before the Land

Court. Thus, to the extent that the citizens sought to

intervene in the Land Court suit to effectuate the Superior

Court judgment by having the Land Court stipulation of dismissal
27

vacated on the ground that the settlement agreement was not

effective, the citizens' motion to intervene was not moot.21

b. Merits of motion to intervene. The citizens argue that

we should decide the merits of their motion to intervene even

though the Land Court judge did not reach them. Although there

may be limited situations in a civil case where an appellate

court may decide the merits of an issue in the first instance,

this is not one of them. Both permissive intervention and

intervention as of right entail factual assessments that are

best left to determination by the trial judge in the first

instance.

Intervention is governed by Mass. R. Civ. P. 24, which

allows nonparties to intervene in an action, either as of right

under subsection (a), or permissively under subsection (b). As

to intervention as of right, the proposed intervener

"must satisfy four criteria: (1) the application must be
timely;[22] (2) the applicant must claim an interest relating

21We note that after the citizens' motion to intervene was
denied, the citizens' request for interdepartmental transfer was
denied on the ground that the Land Court case was closed. In
the event the Land Court judge permits the citizens to intervene
in the Land Court suit, it seems to us that it would make sense
to reconsider the citizens' request for interdepartmental
transfer so as to avoid any inconsistency between the Superior
Court judgment and its effect on the claims asserted in the Land
Court case.

22The railroad and the trust make much of the fact that the
citizens' motion to intervene was filed after the stipulation of
dismissal in the Land Court case. "[P]ostjudgment motions to
intervene, whether as of right or permissive, are seldom
28

to the property or transaction which is the subject of the
litigation in which the applicant wishes to intervene; (3)
the applicant must show that, unless able to intervene, the
disposition of the action may, as a practical matter,
impair or impede his ability to protect the interest he
has; and (4) the applicant must demonstrate that his
interest in the litigation is not adequately represented by
existing parties."

Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct.

56, 61 (2000). Contrary to the citizens' argument, intervention

as of right is not purely a question of law. "A judge has

discretion in determining whether an intervening party has

demonstrated facts that entitle him or her to intervention as of

right." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217

(2011). It is only after the subsidiary facts have been

determined that an appellate court then determines as a matter

of law whether the circumstances are sufficient to meet the

requirements of intervention as of right. See id.

timely . . . . The proposed postjudgment intervener must
accordingly not only justify its failure to intervene at an
earlier stage of the action, but must also establish that it has
not just an interest, but a compelling one, in the litigation."
Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct.
56, 61 (2000). Here, there was no reason nor basis for the
citizens to intervene until the parties to the Land Court case
entered into the settlement agreement and filed their
stipulation of dismissal, and after the citizens obtained the
favorable Superior Court judgment. See McDonnell v. Quirk, 22
Mass. App. Ct. 126, 133 (1986) ("If the underlying action takes
an unexpected turn, we perceive no reason why the third party
cannot intervene to protect its position").
29

Permissive intervention is also a fact-dependent decision

conferred to a judge's sound discretion, and is governed by

Mass. R. Civ. P. 24 (b), which provides:

"Upon timely application anyone may be permitted to
intervene in an action: (1) when a statute of the
Commonwealth confers a conditional right to intervene;
or (2) when an applicant's claim or defense and the
main action have a question of law or fact in
common. . . . In exercising its discretion the court
shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of
the original parties."

See Matter of the Liquidation of Am. Mut. Liab. Ins. Co., 417

Mass. 724, 734-736 (1994) (creditors had no standing to

intervene in settlement agreement between bankruptcy receiver

and other creditors). "[A] judge might consider such factors as

a party's delay in seeking intervention (and the circumstances

of such a delay), the number of intervention requests or likely

intervention requests, the adequacy of representation of the

intervening party's interests, and other similar factors."

Fremont Inv. & Loan, 459 Mass. at 219.

Although we are not in a position to decide the merits of

the citizens' motion to intervene in the first instance, the

following observations may be helpful on remand. First, we

acknowledge the general rule that "postjudgment motions to

intervene, whether as of right or permissive, are seldom

timely," but stress that the rule has little application on the

facts of this case because the basis for intervention did not
30

arise until the town settled and stipulated to the dismissal of

the Land Court case. See Bolden, 50 Mass. App. Ct. at 61. This

is a situation where "the underlying action takes an unexpected

turn" at its very end, and accordingly, there is "no reason why

the third party cannot intervene to protect its position."

McDonnell v. Quirk, 22 Mass. App. Ct. 126, 133 (1986).

Second, we recognize that the citizens' road to relief in

the Land Court case has been made difficult by the fact that the

town has not pursued an appeal of the order denying its motion

to vacate the stipulation of dismissal. But it is nonetheless

important to ensure that events and decisions in the Land Court

case not make toothless the judgment and rulings in the Superior

Court case, particularly in a matter of public significance such

as this one and where the citizens have not been given an

opportunity to be heard. On remand, the Land Court judge should

keep in mind that the Superior Court has determined some of the

substantive issues on the merits, that the citizens are entitled

to the benefit of those favorable rulings, that the rulings are

binding on the town, the railroad, and the trust (all of whom

were parties in the Superior Court case and have not appealed),

and that those rulings are entitled to full respect and force.

The Land Court judge should ensure that her rulings are not

inconsistent or unfair in light of rulings that have been made

in a sister department of the trial court. These considerations
31

will come into special play when deciding the citizens' motion

to vacate the stipulation of dismissal.

Conclusion. In the Superior Court case, the judgment, as

clarified by the order dated December 14, 2021, is affirmed. In

the Land Court case, the order denying the citizens' motion to

expedite hearing on their motion to intervene is affirmed. The

order denying the citizens' motion to intervene as moot is

vacated, and the matter is remanded to the Land Court for

further proceedings consistent with this opinion, including

consideration of the citizens' motion to join the town's motion

to vacate the stipulation of dismissal.23

So ordered.

23The defendants in the Land Court case have requested
double costs and attorney's fees in connection with the appeal.
That request is denied.