MISC 370294

November 4, 2008


Long, J.



This case presents a single question. May a no-leash dog park be operated at Cocasset River Park in Foxborough and, if so, under what conditions? The parties to this action have now reached an agreement that leaves that question unanswered, but, nonetheless, resolves the case fully and finally. The dog park is to be closed and all other claims and counterclaims are to be dismissed. They have presented that agreement, in the form of an agreed judgment, for this court to approve. The proposed intervenors (eleven Foxborough taxpayers who are strong advocates of the dog park) are opposed to such approval.

For the reasons discussed below, the motion to approve the agreement for judgment is ALLOWED and that judgment is entered as a judgment of this court. The proposed intervenors’ motion to intervene is DENIED.


Cocasset River Park consists of two parcels, each of which was separately gifted to the town. The first was conveyed by E. Marion Daniels to the Inhabitants of the Town of Foxborough “under the provisions of General Laws Ch. 40, Sec. 8-C [Note 1] as it may hereafter be amended to be managed and controlled by the Conservation Commission of the Town of Foxborough for the protection and development of the natural resources of said town.” Deed from E. Marion Daniels to the Inhabitants of the Town of Foxborough (Nov. 27, 1962), recorded at the Norfolk Registry of Deeds in book 4053, Page 372. The town accepted the gift with this condition. Id. The second parcel was conveyed by Milton and Geraldine Parker to the Town of Foxborough “for the purposes authorized by General Laws Ch. 40, Sec. 8-C as it may hereafter be amended, and other Massachusetts statutes relating to Conservation, including the protection and development of the natural resources and the protection of the watershed resources of the Town of Foxborough.” Deed from Milton E. Parker and Geraldine O. Parker to the Town of Foxborough (Aug. 31, 1965), recorded at the Norfolk Registry of Deeds in Book 4319, Page 5. The town accepted the gift on these terms. Id.

The dog park was established by a group of Foxborough citizens with the approval and under the supervision of the town’s Conservation Commission. It is currently operating under the terms of a preliminary injunction issued by this court on March 13, 2008 and supplemented by order dated April 28, 2008.

The plaintiffs live in close proximity to Cocasset River Park and are citizens and taxpayers of the Town of Foxborough. They have brought this action, inter alia, pursuant to G.L. c. 214, § 3(10) (ten taxpayer action) seeking a declaration, with associated preliminary and permanent injunctive relief, that the current location and operation of the no-leash dog park violates the deed restrictions that govern the use of the land. [Note 2] The land court has jurisdiction over such a claim pursuant to G.L. c. 185, § 1(l) since it involves an “interest” in real estate (enforcement of a restriction). See Wolfe v. Gormally, 440 Mass. 699 (2004). For that same reason, this court has authority to issue a writ of mandamus for the requested relief. G.L. c. 249, § 5.

Trial was originally scheduled for August 6-8, 2008 but was continued at the parties’ request while they pursued settlement negotiations. The new dates of November 12-14, 2008 were set with the consent of the parties, based on their representation that that was more than adequate time to complete those negotiations. Their subsequent motion to further continue the trial dates was thus denied. Order (Oct. 1, 2008). The parties have now reached agreement in the form of a proposed consent order (now re-filed as an agreement for judgment), which they have presented to the court for entry as the final judgment in this case, to be “enforceable as a judgment of this Court in all respects.” Agreement for Judgment at 3, ¶ 6 (filed Oct. 29, 2008). That agreement closes the dog park, directs the removal of all dog park facilities, and dismisses all claims in the lawsuit, with prejudice. Id. at 2-3.

The motion for entry of the agreement for judgment and court enforcement of its terms raises two issues. First, as a substantive matter, is it a judgment this court can enter and enforce? The answer to that is yes. This court has subject matter jurisdiction over the dispute. There is nothing in the terms of the judgment that is contrary to law or public policy. [Note 3] The commands of the agreed judgment are clear and unequivocal (closure of the dog park) and are thus capable of judicial enforcement. Most importantly, the judgment does not seek judicial approval of a resolution, one way or the other, of the underlying merits of the case — something this court would not do without first hearing the evidence and independently coming to the same conclusion. [Note 4] All it does is reflect an agreed bottom line — the closure of the dog park at this location.

The second issue is the more interesting one. Do the parties have the authority to enter into this agreement? Counsel have been admirably candid. The town’s selectmen and town manager are in favor of the agreement. The conservation commission, except insofar as it is bound by the commands of the selectmen and manager, is not. The selectmen and town manager believe they have full authority to enter into the agreement for judgment both for themselves and on behalf of the conservation commission pursuant to St. 2004, c. 5, “An Act Providing for a Selectmen-Town Manager Form of Government in the Town of Foxborough.” The proposed intervenors, with the support of the members of the conservation commission speaking in their personal capacity, believe the selectmen and town manager do not. [Note 5] Their argument is two-fold: (1) a contention based on the terms of the gifts by which the town acquired the Cocasset River Park parcels and (2) a policy-based argument. Neither is persuasive.

The proposed intervenors argue that the gifts of the two Cocasset River park parcels were conditioned on their administration by the conservation commission and thus that the selectmen and town manager cannot act contrary to the commission’s wishes regarding the uses of the park. I disagree. The gifts were to the town and they mention the conservation commission because that is the way the statute (G.L. c. 40, § 8C) was structured at the time. Moreover, both gifts recognized that the statute could later be amended and the gift would still continue in full force and effect.

St. 2004, c. 5 is such an amendment. Section 1 provides that “the town of Foxborough shall be governed by the provisions of this act. To the extent this act modifies or repeals existing General Laws and special acts or the by-laws of the town of Foxborough, this act shall govern.” Section 3(A) vests “the executive powers of the town . . . in the board of selectmen . . . who shall have all the powers given to boards of selectmen by the General Laws, except for those executive powers granted to the town manager.” Section 3(C) provides that “the [board of selectmen] shall serve as the chief goal-setting and policy-making agency of the town,” with the administration of the “day to day affairs of the town . . . delegated to the town manager.” Section 3(D)(2) states that the board of selectmen shall “exercise, through the town manager, general supervision over all matters affecting the interests or welfare of the town,” and section 3(D)(4) states that the selectmen shall “[h]ave general administrative oversight of such boards, committees and commissions appointed by the [board of selectmen]” (the conservation commission is such a board). For his part, “[t]he town manager shall be the chief administrative officer of the town and shall act as the agent for the [board of selectmen].” St. 2004, c. 5, Section 4(A). He is “responsible to the [selectmen] for coordinating and administering all town affairs under the jurisdiction of the [board].” Id. Most importantly for the matters at issue in these motions, he is empowered to “[m]anage and be responsible for all the town buildings, properties and facilities, except those under the jurisdiction of the school committee, library trustees, fire chief and the board of water and sewer commissioners, unless requested by that agency,” Id. at Section 4(B)(21) (note that there is no exception for matters under the jurisdiction of the conservation commission), and to “[p]rosecute, defend or comprise [sic: compromise] all litigation for or against the town in accordance with the guidance provided by [the board of selectmen],” Id. at Section 4(B)(23). St. 2004, c. 5 took effect on January 22, 2004 and, as these cited provisions make clear, fully authorizes the board of selectmen and the town manager to order the closure of the dog park and settle the remainder of this lawsuit. Whatever independent authority the conservation commission may once have had to take a contrary position (a question I need not and do not decide) has been superseded by this enactment.

The proposed intervenors raise a policy-based argument against this conclusion, contending that it renders the conservation commission powerless and thus could not have been the statute’s intent. I disagree with both the argument and its premise. First, the commission is not rendered powerless. It is free to act within its jurisdiction, so long as the selectmen have not directed otherwise. The selectmen have not unduly intruded into the commission’s oversight of the town’s conservation lands with this action. All they have done, for reasons they deem in the town’s best interests, is prohibit a single use (a no-leash dog park) in a single town park. The commission is free to set and regulate the park’s other uses. Second, I would be bound to uphold the selectmen’s and town manager’s actions even if they were a significant intrusion into what would otherwise be considered matters for the conservation commission. Statutes are to be interpreted as they are written, unless such an interpretation would lead to an unconstitutional or absurd result. Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004). [Note 6] It is not unconstitutional to give the selectmen the powers set forth in St. 2004, c. 5 even if they come (in part) at the expense of the conservation commission. They are normal governmental powers and the legislature is free to determine the municipal bodies that may exercise them. See Cambridge v. Commissioner of Public Welfare, 357 Mass. 183 , 185 (1970) (“Cities and towns are territorial subdivisions of the Commonwealth created as public corporations for convenience in the administration of government.”). Moreover, the result is not absurd. The legislature has determined that the Foxborough selectmen shall have full executive powers in the town, including goal setting, policy-making, general supervision over all matters affecting the interests or welfare of the town, and the authority to prosecute, defend or comprise all litigation for or against the town. All jurisdictional ambiguities that might otherwise exist are thus resolved and the voters know whom to hold accountable at the ballot box.

Having resolved the two issues the proposed intervenors seek to raise in their intervention (the ability of the court to enter the agreed judgment as a judgment of the court and the authority of the selectmen and town manager to agree to its terms over the objection of the conservation commission) on their merits, it is perhaps unnecessary for me to determine whether the motion to intervene should be allowed or not. I do so, however, denying the motion to intervene, to make the record complete. No statute confers an unconditional right to intervene. Mass. R. Civ. P. 24(a)(1). To the extent the proposed intervenors’ “ten-taxpayer”-based claim arguably gives them grounds to intervene under either Mass. R. Civ. P. 24(a)(2) or (b), that intervention fails for two reasons. First, their interests as taxpayers are adequately represented by the selectmen, whom they participate in electing. They may disagree with the selectmen’s decision to settle this case, but that disagreement does not equate to inadequate representation. Indeed, the record reflects the zealous advocacy of town counsel throughout the litigation. The selectmen have settled this case primarily for financial reasons — their judgment that the fiscal resources of the town are best spent on matters other than this litigation. That is a judgment they are entitled to make. St. 2004, c. 5, §§ 3(A), 3(D)(2). Second, the relief sought by the intervention — the prosecution of this case until the question it presents (the legality of the use of Cocasset River Park as a no-leash dog park) is resolved — is, as a practical matter, a completely moot point. The selectmen and town manager have agreed that Cocasset River Park will not be used as a no-leash dog park. Whether the park could be used as such a dog park is thus a moot issue. Accordingly, there is no real “case in controversy” for which a declaratory judgment would be appropriate. See G.L. c. 231A, § 3.


For the foregoing reasons, the parties’ joint motion for entry of their agreement for judgment as an order of the court is ALLOWED. The proposed intervenors’ conditional request for intervention is DENIED.


By the court (Long, J.)


[Note 1] G.L. c. 40, § 8C allows cities and towns to establish conservation commissions “for the promotion and development of the natural resources and for the protection of watershed resources of said city or town.” Such commissions, as here, “may receive gifts, bequests or devises of personal property or interests in real property . . . in the name of the city or town, subject to the approval of the city council in a city or of the selectmen in a town.”

[Note 2] For present purposes, I need not and do not address the plaintiffs’ other claims, e.g., violation of the town’s dog control regulations and defamation, except to note that they (like the nuisance claim contained in the original complaint) likely (and in the case of the defamation claim, certainly) fall outside the land court’s jurisdiction. See generally, G.L. c. 185, § 1. The plaintiffs’ nuisance claim was voluntarily dismissed on July 23, 2008.

[Note 3] The proposed consent order originally submitted by the parties contained language purporting to enjoin the town’s Board of Selectmen from ever sponsoring or supporting “any warrant article for a Town Meeting that would allow a Dog Park Use of the Premises.” Proposed Consent Order at 3, ¶ 4 (filed Oct. 23, 2008). This language was voluntarily deleted at the court’s request, which considered any such injunction of a legislative body’s future actions inappropriate in the circumstances of this case.

[Note 4] “The central characteristic of a consent judgment is that the court has not actually resolved the substance of the issues presented.” 18A J. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4443, at 256-57 (2008 Supp.). “Any findings made as part of the approval process go to the reasonableness of the settlement, not the merits of the dispute. The judgment results not from adjudication but from a basically contractual agreement of the parties. It can be entered only if the parties have in fact agreed to entry, it is to be enforced in accord with the intent of the parties, and it can be vacated according to basically contractual principles of fraud, ignorance, mistake, mutual breach, or special protection of favored parties.” Id. at 257-58.

[Note 5] The proposed intervenors are Debbie Stewart, Michael Stewart, Debbie Cunniff, Chris Cunniff, Anita Kloss, Marty Kloss, Diana Griffin, Matt Griffin, Paul Hubrich, Steve Harding and Heather Harding, who allege themselves to be “11 taxpaying citizens of Foxborough who under the provisions of M.G.L. c. 214[,] § 3(10) request the opportunity to be heard on the Joint Motion for Entry of Consent Order.” Emergency Request to be Heard at Hearing on Joint Motion for Entry of Consent Order and Conditional Request to Intervene as Full Parties (Oct. 27, 2008). Their motion was accompanied by an affidavit signed by six of the seven members of the conservation commission, attesting that “[n]either the Conservation Commission acting as a body, nor any of the individual members of the Commission listed below, have ever agreed to the closure of the dog park as part of a settlement of the pending Land Court case” and representing that “[w]e all individually, and as the Conservation Commission (unanimously), oppose the sought Consent Order, and ask the Land Court to deny the Joint Motion for Entry of Consent Order now pending before the Court.” Aff. of Robert W. Boette, Allan F. Curtis, Harold W. Blomberg, Judith L. Johnson, Bernard Marshall and Valerie Bataille-Ferry at ¶¶ 10, 12 (Oct. 25, 2008). There is no indication that the conservation commission ever took a formal vote at a duly noticed meeting, so I consider the affidavit only as the individual statement of its affiants, not as a statement of the commission. I note also that the signatures were notarized by Heather Harding, one of the proposed intervenors, and I thus question the propriety of that notarization. See Revised Executive Order No. 455 (04-04), Standards of Conduct for Notaries Public, §§ 6(5)-6(6) (May 14, 2004); see also Hush v. Sherman, 2 Allen (84 Mass.) 596 (1861) (conviction for keeping unregistered dog reversed because justice of peace, as inhabitant of town where dog was kept, had interest in outcome of case, even though only “minute”). I nonetheless consider the affidavit (as the individual statements of its affiants) for purposes of these motions.

[Note 6] “As always when the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its [plain] wording, which we are constrained to follow . . . [so long as] its application would not lead to an absurd result. . . . [W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished. [We] need not look beyond the words of the statute in such a case, even if we . . . recognize a potential unfairness within a statute’s clear language . . . . [or] that a statute creates a potential anomaly.” Martha’s Vineyard Land Bank Comm’n, 62 Mass. App. Ct. at 27-28 (internal citations and quotations omitted) (alternations in original).