MISC 20-000053

May 27, 2020

Suffolk, ss.




This action was commenced by pro se plaintiff Dennis M. Cloherty ("Mr. Cloherty") with the filing of a complaint ("the Complaint") on January 29, 2020 against the defendants Waterstone Wakefield LLC ("the LLC"), the Wakefield ("the Town") Zoning Board of Appeals ("ZBA"), ZBA members David Hatfield, Ami Wall, James H. McBain, Joseph Pride and Charles L. Tarbell ("the ZBA Members"), and Chairman of the Wakefield Town Council Edward F. Dombroski, Jr., Wakefield Director of Assessments Victor P. Santaniello, and Town Administrator Stephen P. Maio ("Mr. Dombroski," "Mr. Santaniello," and "Mr. Maio" respectively, and "the Moving Parties" collectively). Among other things, the Complaint purports to be an appeal from three decisions by the ZBA approving three applications by the LLC under the Town's zoning bylaw with respect to property owned by the LLC at 200-400 Quannapowitt Parkway, Wakefield, Massachusetts. In addition to the appeal of those three zoning decisions, Mr. Cloherty also seeks the following declaratory relief: [Note 1]

That a 99-year lease granted by the then Board Of Selectmen of the Town to American Mutual Liability Insurance Company ("AMLIC") on July 15, 1955 and recorded in the Middlesex South Registry of Deeds ("the Registry") at Book 8519, Page 453 be declared null and void;

That a deed from the Town to one Calvin P. Bartlett, also dated July 15, 1955 and recorded in the Registry at Book 8519, Page 444, be rescinded so as to return the property to the "rightful owners, the inhabitants of the Town of Wakefield and all mankind;"

That a second lease between the Town's then Board of Selectmen and AMLIC in 1957, recorded in the Registry at Book 9080, Page 378, be declared null and void;

That the land conveyed by the Commonwealth of Massachusetts to the Inhabitants of the Town by deed dated August 11, 1950 and recorded in the Registry at Book 7621, Page 541, and registered as Document No. 7621429 be declared "the property of the inhabitants of the Town of Wakefield and for the enjoyment of all mankind;"

That the court "determine if Quannapowitt Parkway is a boundary of width with the exception of Harvest Road which proceeded [sic] Quannapowitt Parkway;"

That the court determine whether the Town's then Board of Selectmen exceeded its authority when it released restrictions contained in certain conveyances to the Commonwealth through a series of deeds;

That the court determine whether the land leased to AMLIC in 1955 and 1957 has reverted to the Inhabitants of the Town because it is no longer the site of AMLIC's home office;

That the court determine whether the Town's then Board of Selectmen exceeded its authority when it alienated parkland without the legislative approval required by Article 97 of the Commonwealth's Constitution; and

That the sale of properties in a subdivision described as the "Wakefield-Reading Fairgrounds [S]ubdivision" ("the Subdivision"), which included the fee in Harvest Road, be declared null and void.

Mr. Cloherty also seeks the following relief by way of mandamus:

That the Town's Town Council or the Town be ordered to remove the dams at Lowell Street and Willard Road used to raise and lower the levels of a great pond in violation of G.L. c. 91, §19;

That the Town's Board of Selectmen, through its Chairperson or the Chair of the Town Council, be ordered to remove a gate on the public way known as Quannapowitt Parkway at the corner of Lowell Street;

That Quannapowitt Parkway be restored to its original configuration with access to and parking for "Boulevard Beach" that "was used and enjoyed by the public for about a half century and was seized by the Commonwealth to be used as Parkland and so recorded at the [Registry];"

That the Town's Director of Assessments be ordered to show the 1.4 acre parcel with 430 feet frontage on the Lake Quannapowitt ("the Lake") as "forever parkland," as required by the deed recorded in the Registry at Book 4050, Page 407;

That the LLC be ordered to cease using Harvest Road, a private way in which Mr. Cloherty holds a fee interest, to access land adjacent to and beyond the Subdivision; and

That the court "issue a mandamus ordering that a proper public usage be found for the abandoned structure formerly occupied by the defunct American Mutual Liability Insurance Company. Wakefield has a current need for a new High School, Police Station, DPW garage, elderly housing, and Town Hall."

Finally, Mr. Cloherty seeks the following relief, although it is not clear under what theory the relief is requested:

That if the LLC is determined to be the owner of 200 Quannapowitt Parkway, that a fence be installed at the LLC's expense to prevent access to certain lands by way of Quannapowitt Parkway.

On February 26, 2020, the Moving Parties filed the Motion Of Defendants Edward F. Dombroski, Jr., Victor P. Santaniello And Stephen P. Maio To Dismiss Complaint Against Them ("the Motion"). According to the Moving Parties, to the extent that the Complaint seeks relief by way of mandamus - to compel an official to perform a clear legal duty - the Moving Parties do not have the duty or the power to take the actions sought by Mr. Cloherty and, to the extent that the Complaint seeks declaratory relief, it is unavailable because of the absence of indispensable parties, the passage of time, and because the challenged transactions were properly authorized by the Legislature and Town Meeting. Because this court lacks subject matter jurisdiction over the claims against two of the Moving Parties (Messrs. Dombroski and Santaniello), and because no claims are asserted against the third (Mr. Maio), the Motion is ALLOWED.

The court notes that, on May 26, 2020, the deadline established by the court for filing any further argument with respect to the Motion, Mr. Cloherty filed Plaintiff's Request For Leave Of The Court To Amend Complaint; R. Of C.P. 15, in which, among other things, Mr. Cloherty proposes to dismiss the Moving Parties and add the Town and the Commonwealth of Massachusetts as defendants. Because Mr. Cloherty's proposal does not consider the issues of subject matter jurisdiction addressed below, the court is issuing this decision so that those concerns can be addressed in any amended complaint that Mr. Cloherty may request permission to file.


The following facts are alleged in the Complaint and are accepted as true for purposes of ruling on the Motion or are matters of public record of which the court takes judicial notice.

The History Of Boulevard Beach And Quannapowitt Parkway

The Lake, apparently then known as Reading Pond, first appears in this record on a plan of land entitled "South Reading in the County of Middlesex," surveyed in September 1830. Complaint Ex. A1. By circa 1890, grounds known as the Wakefield-Reading Fairgrounds ("the Fairgrounds"), abutted by Lowell Street to the northeast and by the Lake to the southeast, Complaint Ex. A12, appear to have been used for purposes associated with local fairs. See Complaint Ex. A11.

In 1909, by enactment of Chapter 539 of the Acts of 1909, the General Court enacted An Act To Establish A Low-Water Mark In Lake Quannapowitt In The Town Of Wakefield, And To Provide For the Drainage Of The Adjacent Meadows. Among other things, chapter 539 authorized the reconstruction of a culvert beneath Lowell Street at the Lake's outlet, and the construction of a new culvert at a specified elevation "for the proper removal of the water of the lake at all times and for preventing the flooding of the lands about it." Complaint Ex. H16.

Shortly thereafter, in 1912, the General Court enacted chapter 699 of the Acts of 1912: An Act To Provide For The Purchase Of Land And Construction Of Certain Parkways And Boulevards By The Metropolitan Park Commission. Complaint Ex. A4. Of particular note, that act authorized the Metropolitan Park Commission to expend funds to acquire land and construct parkways or boulevards, including "for a parkway or boulevard around Lake Quannapowitt in the town of Wakefield, a sum not exceeding fifty thousand dollars." Complaint Ex. A5.

Presumably as part of the authorization granted by the 1912 act, the Metropolitan Park Commissioners obtained a 1.4 acre parcel of land bounding "southeasterly in part by the mouth of a ditch or inlet of Lake Quannapowitt and in part by the shore of said Lake, four hundred thirty (430) feet, more or less," by deed dated January 17, 1916 from the Quannapowitt Agricultural Association ("the Association") and recorded in the Registry at Book 4050, Page 507 ("the 1916 Deed"). Complaint A13-16. This appears to be some or all of that portion of the Fairgrounds abutting the Lake and appears to have been known in the 1940s as "Boulevard Beach." See Complaint A32-32A. It is so referenced in this memorandum of decision.

Of note, in the 1916 Deed of Boulevard Beach the Association excepted and reserved as appurtenant to its remaining land the following rights and easements: the right to pass over the granted land to the lake "in a location to be determined by said Metropolitan Park Commission;" the right to maintain upon the shore of the Lake in a location to be determined by the Metropolitan Park Commission a landing for boating, bathing, skating and any sports or amusements that the association or its successors might conduct, subject to reasonable rules and regulations of the Metropolitan Park Commission; and the right as appurtenant to the Association's adjoining land of free access to whatever walk or roadway that might thereafter be constructed. In addition, the Association restricted its remaining land, to a distance of 20 feet from the premises conveyed, so that for 999 years no structure or building, except stairs, would be erected on that restricted land. The restriction was enforceable in equity and the right to enter upon the walk and roadway from the Association's remaining land was suspended upon breach of the restriction. The property was conveyed to the Commonwealth, with the rights, easements and appurtenances "thereto belonging," "to its use and behoof forever." Shortly after the recording of the 1916 Deed, the Metropolitan Park Commissioners recorded an order of taking that included the land previously conveyed to them by the Association ("the 1916 Order Of Taking"). Complaint A33a-f.

By 1924, the balance of the Fairgrounds had been subdivided into a series of house lots. See Complaint Ex. A17, A22. Of note, the former oval track at the Fairgrounds is shown as Track Road. It is bisected at its center in a southwest to northeast direction by Line Road, which is the boundary between the towns of Wakefield and Reading, and in a southeast to northwest direction by Harvest Road. Id. Harvest Road ends at "State [proposed] Boulevard" (brackets in original).

Also in early 1926, the then named Metropolitan District Commission took two additional parcels adjacent to the parcels taken in 1916 by order of taking recorded in the Registry at Book 4941, Page 485 ("the 1926 Order Of Taking"). Complaint Ex. 33h-j. According to a newspaper article attached to the Complaint, in 1929 the Metropolitan District Commission announced that it would surface Quannapowitt Boulevard at the head of the Lake in the near future. Complaint Ex. A19. An aerial photograph from 1938 shows Quannapowitt Parkway and the future location of AMLIC's office complex. Complaint Ex. A24.

In 1948, the General Court authorized the Metropolitan District Commission to transfer the care and control of property taken in 1916 and 1926, which included Boulevard Beach and Quannapowitt Parkway, to the Town upon such terms and for such period as might be mutually agreed upon. Acts of 1948, ch. 479. Complaint Ex. A33. One year later, the General Court enacted a new statute that authorized the Metropolitan District Commission to sell the same land ("adjacent to Quannapowitt lake . . . including the roadway known as Quannapowitt parkway . . . acquired by, and described in" the 1916 and 1926 Orders Of Taking) to the Town for $1. Acts of 1949, ch. 679. Complaint Ex. A35. In 1950, acting through the Metropolitan District Commission, the Commonwealth transferred the parcels obtained in the 1916 and 1926 Orders Of Taking to "the Inhabitants of the Town of Wakefield," "subject to and together with all water rights, rights of way, restrictions, easements, reservations, rights and privileges of record so far as the same are now in force and applicable." Complaint Ex. A37-39. That deed is dated July 13, 1950 and is recorded in the Registry at Book 7621, Page 541 ("the 1950 Deed").

Four years later, in 1954, the Town approved articles at a special town meeting authorizing the sale of certain parcels, including that acquired from the Metropolitan District Commission, and the sale or lease of other land bounded southeasterly by the Lake and northeasterly by the line of Harvest Road extended to the Lake. Complaint Ex. A45a-46. And, on July 13, 1955, the Town deeded seventeen parcels of land to one Calvin P. Bartlett ("Bartlett"), including the land conveyed in the 1950 Deed, "but excluding the land hereby conveyed and such of the land of the grantor lying northeast of the line of Harvest Road extended as is not within the travelled way as shown on said above referred to plan dated May, [sic] 1955." Complaint A49-58. On the same date, the Town entered into an indenture with AMLIC in which the Town leased land bounded by the Lake to the southeast, land now of Bartlett to the south, Quannapowitt Parkway to the northwest and, to the northeast, by the northeasterly line of Harvest Road extended to the Lake ("the 1955 Lease"). Complaint Ex. A59-61. The 1955 Lease was recorded in the Registry at Book 8519, Page 453. Id.

A February 6, 1987 legal memorandum on Hill & Barlow letterhead attached as an exhibit to the complaint reports that, on July 13, 1955, the Town also executed a deed to AMLIC, recorded in the Registry prior to the 1955 Lease at Book 8519, Page 444 ("the 1955 Deed"). Complaint Ex. A71. That deed is represented as granting an appurtenant easement for access, utilities and landscaping over land owned by the Town along the Lake. Id. According to the Hill & Barlow memorandum, the Town's land subject to this easement is the same land leased in the 1955 Lease and in a subsequent indenture between the Town and AMLIC dated September 10, 1957 of additional land ("the 1957 Lease"), "intending hereby to lease all of the land and only the land conveyed by the Lessor by deed of the Commonwealth of Massachusetts dated July 13, 1950," except the land conveyed to Bartlett and the land that was the subject of the 1955 Lease. Complaint Ex. A63a-c. The term of both the 1955 Lease and the 1957 Lease is 99 years. Complaint Exs. A49-58, A63a-c.

According to an opinion from the Town's Counsel dated September 5, 1995, Complaint Ex. A102, the Town conveyed to AMLIC the fee in the land north of Quannapowitt Parkway and south of Route 128 in the 1955 Deed, but retained the fee to the land south of Quannapowitt Parkway and north of the Lake, subject to an easement for access, utilities and landscaping.

Ownership Of The AMLIC Property After Its Conveyance To AMLIC

It appears that AMLIC developed the land conveyed and leased to it for an office complex and parking. See Complaint Ex. A123, A106a. At about this time (whether before or after the conveyance and lease to AMLIC is unclear from this record), the land conveyed to AMLIC was registered in Reg. Case No. 25969 and shown on Land Court Plan ("LCP") 25969A. Thereafter, minor adjustments to the lot lines were made in LCP 25969B and LCP 25969C, apparently to reflect takings associated with the construction of Route 128. Three decades later, AMLIC was determined to be insolvent and a permanent receiver was appointed to wrap up its affairs on March 9, 1989. See Complaint Ex. A77-82. By deed dated January 2, 1991 and recorded in the Registry at Book 20947, Page 454 ("the 1991 Deed"), AMLIC, by its Permanent Receiver, conveyed the property then owned by it to Amrevest, Inc. Complaint Ex. A84-88. According to that deed, the property conveyed to Amrevest, Inc. consisted of Lot 4 as shown on LCP 25969C, which appears to be the land conveyed to AMLIC by the Town in the 1955 Deed less the takings for Route 128, a parcel of registered land shown on LCP 3695B as Lot A, a parcel of registered land shown on LCP 3965C as Lot 1, and a parcel of unregistered land being a portion of the March 7, 1950 State Highway layout (Route 128) and shown on a plan entitled "The Commonwealth of Massachusetts Plan of Road in Town of Wakefield Middlesex County Altered and laid out as a State Highway by the Department of Public Works Scale: 40 feet to the inch" dated November 25, 1964 ("the Unregistered Parcel"). Immediately thereafter, Amrevest, Inc. conveyed the property that it had received pursuant to the 1991 Deed to WBAM Limited Partnership by deed also dated January 2, 1991 and recorded in the Registry at Book 20947, Page 461.

By deed dated October 3, 1997 and recorded in the Registry at Book 27762, Page 223 and registered as Document No. 1044318, WBAM Limited Partnership deeded the property that it had received from Amrevest, Inc. in 1991 to Wakefield 100 LLC. The property conveyed was again described as Lot 4 as shown on LCP 25969C, Lot A as shown on LCP 3695B, and Lot 1 as shown on LCP 3695C and the Unregistered Parcel.

In 1996, by plan recorded on May 24, 1996, Lot 4 as shown on LCP 25969C, Lot A as shown on LCP 3695B and Lot 1 as shown on LCP 3695C were combined and resubdivided into Lots 5, 6 and 7 as shown on LCP 25969D.

By deed dated October 20, 1997 and recorded in the Registry at Book 28296, Page 185 on March 12, 1998, and registered as Document No. 1047828 on November 26, 1997, Wakefield 100 LLC conveyed Lot 5 as shown on LCP 25969D and the Unregistered Parcel to Wakefield 300 LLC. According to the Town's assessors' records, those parcels are currently identified as Parcel ID 01-36B-AM3 and are now owned by Wakefield 200 LLC.

By plan filed in the Land Registration Office on November 20, 1997, the lot lines for Lot 6 and Lot 7 were adjusted, creating new Lot 8 and Lot 9 on LCP 25969E. By deed dated October 20, 1997 and registered as Document No. 1047829 on November 26, 1997, Wakefield 100 LLC conveyed Lot 8 as shown on LCP 25969E to Wakefield 200 LLC. By deed dated April 19, 1998 and registered as Document No. 1062663 on April 21, 1998, Wakefield 200 LLC reconveyed Lot 8 to Wakefield 100 LLC.

By plan filed in the Registration Office on May 13, 1998, the lot lines for Lots 8 and 9 as shown on LCP 25969E were adjusted, resulting in new Lot 10 and Lot 11 on LCP 25969F. Wakefield 100 LLC conveyed Lot 10 to Wakefield 200 LLC by deed registered as Document No. 1065398 on May 13, 1998. According to the Town's assessors' records, Lot 10 is currently identified as Parcel ID 01-36A-AM2 and is now owned by an entity named 100 Q Owner LLC. With respect to Lot 11, Wakefield 100 LLC conveyed that lot to SC Wakefield 200, Inc. by deed registered as Document No. 1109527 on June 14, 1999. SC Wakefield 200, Inc. next conveyed Lot 11 to GIP Wakefield, LLC by deed registered as Document No. 1338130 on June 18, 2004. GIP Wakefield, LLC then conveyed Lot 11 to the LLC by deed dated January 25, 2018 and registered as Document No. 01780706. Lot 11 is an amalgamation of a portion of the property originally conveyed to AMLIC by the Town through the 1955 Deed, and the property shown on LCP 25969A as then belonging to Willard Welsh, L.C. No. 3695A.

The ZBA Appeals

By unanimous decision dated December 11, 2019, which was recorded with the Town Clerk on January 14, 2020 and attached to the Complaint as Ex. L, the ZBA granted a special permit and site plan approval to the LLC pursuant to Sections 190-23, 190-44 and 190-45 of the Town's zoning bylaw, allowing a research or testing laboratory use with a combination of office use for the land and buildings located at 200-400 Quannapowitt Parkway and shown on Map 01, Lot AM1 of the Wakefield Assessors' Maps. The title reference to this property, as shown on the Town's assessors' records, is the January 25, 2018 deed from GIP Wakefield, LLC to the LLC of Lot 11.

On the same date, also by unanimous decision, recorded with the Town Clerk on January 14, 2020 and attached to the Complaint as Ex. L, the ZBA granted a special permit to the LLC pursuant to Section 190-47 of the Town's zoning bylaw, allowing accessory uses in connection with scientific research and scientific development or related production.

Also on the same date, by unanimous decision, recorded with the Town Clerk on January 14, 2002 and attached to the Complaint as Ex. L, the ZBA made a finding pursuant to Section 190-50B of the Town's zoning bylaw that the changes, extensions or alterations of a preexisting nonconforming building proposed by the LLC were not substantially more detrimental than the existing nonconforming use to the neighborhood.

Mr. Cloherty's Title

By deed dated January 5, 1926 ("the 1926 Deed"), William H. Stickney, Eugene B. Hamilton and George Chandler Coit, as trustees under the will of Wilbert S. Bartlett, conveyed lots 140 and 154 as shown on a plan entitled "Wakefield-Reading Fair-Grounds" made by Dana F. Perkins, C.E., dated June 1921 and recorded in the Registry at Book 295, Page 46 ("the 1921 Plan") to Valentine Cloherty, Mr. Cloherty's grandfather. Complaint Ex. A145-146. The two lots are described as containing 11,189 square feet, more or less. They are subject to the restrictions that nothing more than a single house adapted for use by not more than two families be built on each lot, set back 20 feet from the lot line, and that no flat roof or tar paper sides be used. Id.

The 2008 title examiner's report attached to the Complaint as Exhibit O contains a copy of the 1921 Plan. The 1921 Plan shows Lot 154 abutting Harvest Road to the southwest and shows Harvest Road running roughly north to south from Green Street to "State [proposed] Boulevard" (brackets in original). The property on the other side of the proposed boulevard appears to be Boulevard Beach, previously conveyed by the Association to the Metropolitan Park Commission.

Valentine Cloherty died on January 26, 1942, leaving a daughter, Anna M. Funicella, and a son, Mr. Cloherty's father, William C. Cloherty. Complaint Ex. O. The inventory of Valentine's estate reflects a house in Malden and real estate in Wakefield. Mr. Cloherty's father, William, died on May 15, 1970, leaving a widow and seven children. Id. The inventory of William's estate lists a one-half interest in property located in Wakefield through the estate of Valentine Cloherty. Id. In a series of deeds from late 1985 through the first half of 1986, Mr. Cloherty's aunt, mother and six siblings conveyed their interests in Lots 140 and 154 to Mr. Cloherty. All of these deeds reference the 1921 Plan and include the restrictions contained in the 1926 Deed.

Allegations Relevant To Particular Requests For Relief Contained In The Complaint

The Gate At The Intersection Of Quannapowitt Parkway And Lowell Street

At Ex. A115, the Complaint contains page 10 of an unidentified document that states that "[t]he 200 Owner may, but shall not be obligated to, close the gate at the Lowell Street entrance to Quannapowitt Parkway between the hours of 7 p.m. and 7 a.m. 200 Owner shall have the right to close such gate at all other times only with the prior written consent of all Owners, and only in accordance with all applicable Town ordinances, regulations and requirements." The Complaint does not identify "the 200 Owner" or "the Owners," or allege who has authority to control the gate.

The Town Assessors' Map

A copy of the Town's assessors' map for the north end of the Lake, attached to the Complaint as Ex. A116, shows a narrow strip of land along the shore of the Lake stretching from the southwest to its intersection with Lowell Street. From other material attached to the Complaint, this appears to be the original location of Quannapowitt Parkway and is shown on LCP 25969C, Ex. A119, registered in 1959, as being owned in sections by the Town and by the Commonwealth. The current owner of the section, the ownership of which is attributed to the Commonwealth on the 1959 LCP, is not alleged and cannot be determined on this record.


While the Moving Parties brought their Motion pursuant to Mass. R. Civ. P. 12(b)(6), this court has also evaluated the Complaint pursuant to Mass. R. Civ. P. 12(b)(1) to assess this court's subject matter jurisdiction. The standard employed is the same under either section of Rule 12. Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998) ("In reviewing a dismissal under 12(b)(1) or (6), we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true"), citing Nader v. Citron, 372 Mass. 96 , 98 (1977); Kirk v. Li, 25 LCR 725 (2017) (Foster, J.) (rule 12(b)(1) motion) ("Further, the court may either consider matters and documents outside the pleadings without converting the motion to one for summary judgment or, considering the same materials, convert the motion to dismiss into a motion for summary judgment. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 555, 709 N.E.2d 815 (1999), abrogated on other grounds by Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 876 N.E.2d 820 (2007); Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106 , 108-109, 653 N.E.2d 589 (1995)."). With respect to Rule 12(b)(6), this court must "accept as true the factual allegations in the complaint and the attached exhibits, draw all reasonable inferences in the plaintiff's favor, and determine whether the allegations 'plausibly suggest' that the plaintiff is entitled to relief on that legal claim." Buffalo-Water 1, LLC v. Fidelity Real Estate Company, LLC, 481 Mass. 13 , 17 (2018) quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160 , 164 (2014). "The allegations must be more than 'mere labels and conclusions,' and must 'raise a right to relief above the speculative level.'" Id.

Leaving aside Mr. Cloherty's appeal from the zoning relief granted to the LLC, to which only Mr. Cloherty, the ZBA, its Members, and the LLC are the proper parties, and despite the breadth of his remaining allegations - implicating certain acts by the Town, the state legislature, and multiple private parties over the last century with respect to property along the shore of the Lake and abutting what was once Harvest Road - Mr. Cloherty's Complaint does not assert claims against Mr. Dombroski or Mr. Santaniello that are within this court's jurisdiction, and he asserts no claims against Mr. Maio at all.

Turning to Mr. Maio first, the Complaint makes no allegations of fact or requests for relief that are specific to him. On that ground alone, Mr. Cloherty has failed to state a claim upon which relief could be granted as to Mr. Maio. And, even were the Complaint indulgently read, the Town's charter [Note 2] does not give Mr. Maio the authority or the duty to do any of the things that Mr. Cloherty requests be done. See Wakefield Town Charter, §4-3. He is not the proper party against whom to assert Mr. Cloherty's claims. Accordingly, the Complaint will be dismissed as to Mr. Maio.

With respect to Mr. Dombroski and Mr. Santaniello, Mr. Cloherty seeks relief against them pursuant to G.L. c. 249, §5, which provides:

A civil action to obtain relief formerly available by writ of mandamus may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court.

As it relates to the land court's jurisdiction, §5 has been held not to provide jurisdiction over an action pertaining to a non-zoning wetlands by-law, Sayle v. Town of Nantucket Conservation Commission, 12 LCR 438 , 439 (2004) (Lombardi, J.), but to provide jurisdiction over a dispute as to whether town-owned property could properly be leased without a two-thirds vote of the legislature. Curley v. Town of Billerica, 2013 Mass. LCR LEXIS 128 at *10.

Arguably, Mr. Cloherty's request that Mr. Dombroski be required to remove the gate at the intersection of Quannapowitt Parkway and Lowell Street and that the Director of Assessments, Mr. Santaniello, be required to show Boulevard Beach "as forever parkland" on the Town's assessors' map may implicate ownership of the fee in Quannapowitt Parkway and Boulevard Beach. However, even if this court has jurisdiction under G.L. c. 249, §5, a point that it does not decide, Mr. Cloherty must also have standing. As is set forth below, he does not with respect to these claims.

Standing is a matter of subject matter jurisdiction. Marchese v. Boston Redevelopment Authority, 483 Mass. 149 , 156 (2019) ("The question of standing is a jurisdictional matter."); Phone Recovery Services, LLC v. Verizon of New England, Inc., 480 Mass. 224 , 227 (2018) ("Our consideration whether the court has subject matter jurisdiction depends, in this case, upon whether [plaintiff] has standing to pursue its claims."). "Where a plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must therefore dismiss the case." Marchese, 483 Mass. at 156, citing Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542 , 546-547 (2018). "If an issue of standing becomes apparent . . . , it falls to the judge to inquire into the plaintiff's standing sua sponte." HSBC Bank USA, N.A. v. Matt, 464 Mass. 193 , 200 (2013). Accord Abate v. Fremont Investment & Loan, 470 Mass. 821 , 828 (2015) ("a judge may consider, sua sponte, standing under rule 12(b)(1) at any time.").

"To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury." HSBC Bank USA, 464 Mass. at 200, quoting Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 14 , 21 (2006). Accord Slama v. Attorney Gen., 384 Mass. 620 , 624 (1981). "Injuries that are speculative, remote and indirect are insufficient to confer standing." Ginther, 427 Mass. at 323, citing Burlington v. Bedford, 417 Mass. 161 , 164 (1994); Massachusetts Auto Body Ass'n v. Commissioner of Ins., 409 Mass. 770 , 780-781 (1991). "Moreover, the complained of injury must be a direct consequence of the complained of action." Id., citing Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 44 (1977).

"Injury alone, however, is 'not enough; a plaintiff must allege a breach of duty owed to it by the public defendant.'" Marchese, 483 Mass. at 157, quoting Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence, 403 Mass. 531 , 545 (1988). "Standing usually is not present unless the government official or agency can be found to owe a duty directly to the plaintiffs." Revere v. Massachusetts Gaming Commission, 476 Mass. 591 , 607 (2017), quoting Enos v. Secretary of Envtl. Affairs, 432 Mass. 132 , 135-136 (2000).

In addition, "the injury alleged must fall 'within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.'" HSBC Bank USA, 464 Mass. at 200, quoting Ginther, 427 Mass. at 323. Accord Marchese, 483 Mass. at 157 ("That is, to have standing in this case, the plaintiff's interests 'must come within the zone of interests arguably protected'" by the relevant statute). "A plaintiff must have a 'definite interest in the matters in contention in the sense that his rights will be significantly affected by a resolution of the contested point.'" HSBC Bank USA, 464 Mass. at 200.

With respect to the gate at the intersection of Quannapowitt Parkway and Lowell Street that Mr. Cloherty seeks to compel Mr. Dombroski to remove, Mr. Cloherty cites to G.L. c. 231, §9, which provides:

In an action to recover possession of real property for a term of years or other interest, if the defendant is wrongfully in possession it shall not be material how he obtained such possession.

This statute appears never to have been cited. Its plain language indicates that it applies to actions to recover possession of property and makes evidence of how a defendant came into possession of the property irrelevant. The statute's relevance to Mr. Cloherty's request that Mr. Dombroski remove the gate is not immediately obvious. It does not by its terms create a duty owed by Mr. Dombroski, as a public official, to Mr. Cloherty. There is nothing in this statute from which this court could conclude that Mr. Cloherty's interest in having the gate removed is one that this statute was intended to protect. In addition, there is nothing in the allegations of the Complaint from which this court could conclude that Mr. Cloherty has suffered any injury or has any rights that would be significantly affected by the resolution of this issue: he lives on the other side of Route 128 from Quannapowitt Parkway and makes no claim that his interest in removing the gate is different than that of any other resident of the Town.

Mr. Cloherty cites no statute supporting his request that Mr. Santaniello show Boulevard Beach as "forever parkland" on the Town's assessors' map, [Note 3] and alleges no duty owed to him by Mr. Santaniello. The allegations of the Complaint do not suggest that Mr. Cloherty has any right that will be significantly affected by the failure to show Boulevard Beach on the Town's assessors' map and so no injury particular to him arising from that failure.

In HSBC Bank USA, quoting Razin v. Razin, 332 Mass. 754 , 754 (1955), which in turn quotes Hogarth-Swann v. Weed, 274 Mass. 125 , 132 (1931), the court stated that "[c]ourts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property." 464 Mass. at 199. With respect to the claims against Mr. Dombroski and Mr. Santaniello, Mr. Cloherty seeks to do just that. He does not have standing to do so. The conclusions reached by this court make consideration of the other arguments raised by the Moving Parties unnecessary.


For the foregoing reasons, the Motion Of Defendants Edward F. Dombroski, Jr., Victor P. Santaniello And Stephen P. Maio To Dismiss Complaint Against Them is ALLOWED. Should he choose to do so, within 30 days of the docketing of this memorandum of decision and order, Mr. Cloherty may file a motion to amend his complaint to assert, in addition to the appeals pursuant to G.L. c. 40A, any remaining claims that he has standing to pursue against properly named defendants. In doing so, Mr. Cloherty is cautioned that, while motions to amend are freely granted when justice so requires, see Mass. R. Civ. P. 15, it is grounds for denying such a motion if the proposed amendment would be futile as, for example, because of one or more of the reasons cited by the Moving Parties. See Castellucci v. United Fidelity & Guarantee Co., 372 Mass. 288 , 289-290 (1977).



[Note 1] The Complaint contains at pp. 4-6 a list of "demands" and, at pp. 26-28, seventeen numbered paragraphs under the heading "Relief Requested." The following is an amalgamation of those two sections of the Complaint.

[Note 2] As noted by the Moving Parties, G.L. c. 43B, §12 allows this court to take judicial notice of municipal charters.

[Note 3] For authority that Mr. Santaniello is statutorily obligated to assess properties to the owners of record as of January 1 of each year, the Moving Parties point to G.L. c. 59, §11, which requires that the Town's assessors assess taxes to the person who is the owner on January 1, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, where the estate lies, as owner on January 1, even though deceased, shall be held to be the true owner thereof.