MISC 19-000187

AUGUST 31, 2020

ESSEX, ss.



The Complaint was filed on April 19, 2019, and the Plaintiff's Amended Complaint was filed on June 27, 2019. On June 30, 2020, plaintiff Michael Silverio filed Plaintiff's Motion for Leave to File a Supplemental Pleading or, Alternatively, to Amend the Amended Complaint to Add Two Additional Counts (Motion to Amend). On July 8, 2020, the defendants Town of North Andover and Planning Board of North Andover and its members (together, the Town) filed Defendants' Opposition to Plaintiff's Motion to File Supplemental Pleading or Amend the Complaint. On July 10, 2020, Silverio filed Plaintiff's Motion to Strike Defendants' Opposition to Plaintiff's Motion for Leave to File a Supplemental Pleading or, Alternatively, to Amend the Amended Complaint to Add Two Additional Counts (Motion to Strike). The Town filed Defendant's Opposition to Plaintiff's Motion to Strike on July 14, 2020. Pursuant to Land Court Rule 6, the court decides the Motion to Amend and the Motion to Strike without hearing. For the reasons set forth below, the Motion to Amend and the Motion to Strike are both DENIED.

While the Motion to Amend makes reference to the filing of a supplemental pleading, it is really a motion to amend the amended complaint to add two counts: Count XII, Violation of Massachusetts Environmental Policy Act (G.L. c. 30, § 61 et seq.) and its attendant regulations (301 CMR 11.03), and Count XIII, Trespass. Leave to amend a pleading "shall be freely given when justice so requires." Mass. R. Civ. P. 15(a). Thus, "[t]he expressed tendency is in favor of allowing amendments, and a motion to amend should be allowed unless some good reason appears for denying it." Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289 (1977). Considerations justifying denial of a motion to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Id. at 290; see Brown v. Savings Bank Life Ins. Co., 93 Mass. App. Ct. 572 , 587 (2018).

Silverio's proposed Count XII is a claim that the Town violated the Massachusetts Environmental Policy Act, G.L. c. 30, § 61 et seq. (MEPA), for failing to give notice about the project and/or provide environmental impact statements, assessment/review of the project. This claim is futile for two reasons. First, a complaint for MEPA review must be brought by ten persons domiciled in the Commonwealth as joint plaintiffs. G.L. c. 214, § 7A; Ten Persons of the Commonwealth v. Fellsway Dev. LLC, 460 Mass. 366 , 375 (2011). Here, the MEPA review claim is sought by a single plaintiff, Silverio. Second, MEPA review claims must be brought in the Superior Court, and not the Land Court. G.L. c. 214, §7A. The Land Court does not have subject matter jurisdiction to hear the proposed Count XII, so an amendment to add that count would be futile.

Count XIII, the claim for trespass, presents a different issue. To plead a trespass claim, the plaintiff must allege that he or she had actual possession of the land and that there was an illegal entry by the defendant. New England Box Co. v. C & R Const. Co., 313 Mass. 696 , 707 (1943). Here, Silverio acknowledges that he does not have record title to the strip of land over which he alleges a trespass. "Actual possession," however, does not mean the claimant must have legal title to the property. "The action is founded merely on the possession, and it is not necessary for the plaintiff to show a right of property. He must prove such a lawful possession of the land as the defendant has no right to disturb." Id. Here, Silverio claims he had been using the disputed strip of land for gardening, recreation, barbeque, star gazing, and entertaining since 1997. If these facts are proven to be true, Silverio may have a valid claim of actual possession.

Silverio has not alleged, however, that there has been an illegal entry on the strip of land. While the permit at issue gives the Town leave to put a fence on the property, it has not done so, and is not about to do so anytime soon. In other words, Silverio's trespass claim is not ripe, at least until the Town actually takes steps to construct the fence. At that time, Silverio may bring a trespass claim, either in this case if it is pending or in a separate case. If he does so, Silverio will have to establish title by adverse possession over the disputed strip of land. He may face some difficulty in doing so. Adverse possession may not be had against a subdivision of the Commonwealth, such as the Town, for "land held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose." G.L. c. 260, § 31. From the facts alleged in this action, the Town appears to use the disputed strip of land as part of athletic fields, which could qualify as a recreational use. The court does not reach this issue. Suffice to say that Silverio's proposed Count XIII, claiming trespass by the Town over the disputed strip of land, is not ripe because no actions have been taken or are about to be taken by the Town to enter the land. As the proposed Count XII is futile and the proposed Count XIII is not ripe, the Motion to Amend is DENIED.

When read, the Motion to Strike reveals itself merely as a reply to the Town's opposition to the Motion to Amend. Even if the Motion to Amend were to be allowed, there would be no grounds for striking the Town's opposition - it is entirely justified in filing an opposition to a motion. The Motion to Strike is DENIED.