MISC 20-000053

SEPTEMBER 25, 2020




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. ("Mr. Dombroski"), Wakefield Director of Assessments Victor P. Santaniello ("Mr. Santaniello"), and Town Administrator Stephen P. Maio ("Mr. Maio" and, collectively, "the Municipal Defendants"). In addition to appealing pursuant to G.L. c. 40A from three decisions by the ZBA approving 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, Mr. Cloherty also sought declaratory relief, [Note 1] relief by way of mandamus, [Note 2] and relief under some unidentified theory. [Note 3] In a memorandum of decision and order issued on May 27, 2020, the court (Roberts, J.) granted the Municipal Defendants' motion to dismiss Mr. Cloherty's claims against them on the grounds that, as to Mr. Maio, no claims were asserted against him and, as to Messrs. Dombroski and Santaniello, because Mr. Cloherty did not have standing to pursue the claims asserted against them. In that memorandum of decision, the court permitted Mr. Cloherty to 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 had standing to pursue against properly named defendants.

On June 26, 2020, Mr. Cloherty filed a Motion To Docket Amended Complaint. Mr. Cloherty's proposed amended complaint ("Amended Complaint"), entitled "First Amendment To Complaint," picks up where the Complaint left off, at paragraph 94, and continues to name the LLC, the ZBA and its members as defendants. Rather than name the Municipal Defendants again, the Amended Complaint names the Town and the Commonwealth of Massachusetts as additional defendants. After setting forth what Mr. Cloherty asserts are the jurisdictional bases for this action (G.L. c. 40A regarding the zoning appeal, Chapter 458 of the Acts of 1939 regarding the boundaries of flats, [Note 4] G.L. c. 237 regarding ownership of the fee in two roads [Note 5] and "any matters under G.L. c. 185, § (k)"), the Amended Complaint sets forth seven counts, as follows.

Count 1

In Count 1, entitled "Notice of Contract G.L. c. 254," [Note 6] the matters being deleted from the Complaint are described in its first paragraph (¶ 105). In its second and last paragraph (¶ 106),

Count 1 states:

On February 9th 1926 the Wakefield Board of Selectmen "VOTED that the Board of Selectmen of said Town of Wakefield, in conformity with Section 80 of Chapter 92 of the General Laws, hereby concurs with said Metropolitan District Commission in said Order of Taking and in every act, matter and thing connected therewith. MSRD Book 4941 Page 485 (487).

Count 2

Count 2, entitled "Fraudulent Conveyance," [Note 7] contains the same first paragraph as that set forth in Count 1 (¶ 107a). In its second paragraph (¶ 107), Count 2 quotes G.L. c. 92, § 85, [Note 8] and in its last paragraph (¶ 108), Count 2 quotes from a March 31, 1950 newspaper article regarding the "acceptance of the land from the MDC under the jurisdiction of the selectmen."

Count 3

Count 3, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 109a), quotes Ch. 407 of the Acts of 1893, § 6, [Note 9] in its second paragraph (¶ 109) and alleges in its third paragraph (¶ 110), that "[t]here was no mutually agreed upon period of time in Chapter 679 of the Acts of 1949, which transferred the parklands to the inhabitants of the Town of Wakefield."

Count 4

Count 4, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 111a), alleges that the "Townspeople thought that they were selling . . . their land to the American Mutual Liability Insurance Company" (¶ 112), that the townspeople inserted a clause in the lease that reads "and will occupy the same grounds for the home office building of one or more insurance companies" (¶ 112), that the selectmen were only requesting authority to sell from the inhabitants of the Town (¶ 113), that The Wakefield Item (presumably a local newspaper) reported the sale of 16 acres of land to AMLIC in July 1955 (¶ 114), and that legal counsel for AMLIC recorded the sale of the 16 acres of Town-owned land in his own name (¶ 115).

Count 5

Count 5, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 116), alleges that, on April 26, 1926, The Wakefield Item reported on the work of the Greenough Construction Company pursuant to a contract to fill in the marsh at the north end of Lake Quannapowitt (¶ 117), that Quannapowitt Parkway was included in the land conveyed to the inhabitants of the Town in 1950 (¶ 118), and that "[t]he Commonwealth is sovereign over lands under the sea and lands under Great Ponds" (¶ 119).

Count 6

Count 6 is also entitled "Fraudulent Conveyance" and contains the same first paragraph as set forth in Count 1 (¶ 120a). Paragraph 120 then states fragmented quotes from a July 11, 1950 article in The Wakefield Item regarding the transfer of real property from the Metropolitan District Commission to the Town; ¶ 121 describes the properties shown on Land Court Plan 25969, sheets 1 and 2, that were allegedly transferred to the Town; ¶ 122 references the original transfer of those lands from the Quannapowitt Agricultural Association, which Mr. Cloherty alleges is his predecessor in title, to the Commonwealth of Massachusetts; ¶ 123 alleges that the Fourteenth Amendment to the Constitution forbids the taking of private property without compensation; ¶ 124 alleges that the Town "now claims ownership of my property rights;" ¶ 125 alleges that "[t]he MSRD [presumably the Middlesex South Registry of Deeds] is ministratal [sic] in nature;" ¶ 126 alleges that "under the provisions of Section 114 of G.L. Chapter 185 this is a matter subject to be overseen by The Land Court;" and ¶ 127 alleges that the "Land Court Plan of Land in Wakefield 25969 Sheet 1 and 2 is correct and that the Town of Wakefield's claim of ownership is incorrect."

Count 7

Count 7 is also entitled "Fraudulent Conveyance" and contains the same first paragraph as set forth in Count 1 (¶ 128a). In the following 27 numbered paragraphs, Mr. Cloherty alleges that Harvest Road, which his property abuts, previously provided unimpeded access to Lake Quannapowitt (¶¶ 128-133); that, with the construction of Route 128/Interstate 95 in the 1950s, it was no longer possible to access Lake Quannapowitt from Mr. Cloherty's property over Harvest Road (¶¶ 134-139); that Mr. Cloherty must now cross a rotary where four lanes of traffic merge into two lanes and where there are an interstate on-ramp and off-ramp, with attendant safety issues (¶¶ 140-147); and that there should be safe passage for residents to access their deeded park rights and Lake Quannapowitt (¶ 148). Count 7 ends with five paragraphs of miscellaneous allegations regarding a gift of a portion of Harvest Road in 1954 (¶ 149); the transfer of a permit by the Town's conservation commission to drain parking lot effluent across Harvest Road (¶ 150); that there is a drainage pipe under Interstate 95 near Harvest Road (¶ 151); that a neighbor attempted for 17 years to have the Commonwealth maintain the drainage pipe (¶ 152); and that "[t]he Plaintiff moves this Court to show Harvest and Track Roads according to section three of G.L. c. 185 Section 46." [Note 10]

After Count 7, the Amended Complaint lists seven substantive prayers for relief. Five are requests for declaratory relief (that the LLC's property "has been irrevocably granted to the inhabitants of the Town;" that Quannapowitt Parkway is a public way; that the owners of the fee in Harvest Road and Track Road "are the residents of the Wakefield-Reading Fairgrounds subdivision;" that the Commonwealth is "the true owner of the 1.4 acre park with 430 feet of frontage on Lake Quannapowitt;" and that "the residents of the Wakefield-Reading Fairgrounds sub-division have littoral rights in the aforementioned 1.4 acre park"). The other two request that the court "[o]rder that the defendants remove the gate and accructremonts [sic] of ownership from Quannapowitt Parkway" and "[o]rder that Harvest and Track Road be shown on all maps whether Court or Assessor."

In opposition to Mr. Cloherty's motion to amend his complaint, the Town and the LLC argue that such an amendment should be denied as futile, relying on case law starting with Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289 (1977). See Lipsitt v. Plaud, 466 Mass. 240 , 254 (2013), quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547 , 549-50 (1987), which in turn quotes Castellucci, 372 Mass. at 290 (reasons for denying 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 . . . futility of amendment, etc."). According to the Town, neither G.L. c. 254 nor G.L. c. 109A has any relevance to the facts asserted in the Amended Complaint; Mr. Cloherty's attempt to undo real estate transactions from more than 60 years ago on which reliance has been place is barred by laches; G.L. c. 40, § 3A, renders deeds and leases by a town binding if signed by the selectmen and relied upon by others; G.L. c. 185, § 46, prevents Mr. Cloherty from questioning the rights of owners of registered land, as is involved here; and the transactions challenged by Mr. Cloherty were accomplished by the Commonwealth and the Town in conformity with then applicable laws. The LLC, in a separate opposition, echoes the Town's arguments.

While crediting the Town and the LLC for their efforts to ascertain what it is that Mr. Cloherty claims and to identify defenses to those claims that would render them futile, the court has a more fundamental problem with the Amended Complaint: it fails to comply with Mass. R. Civ. P. 8(a). That rule requires that Mr. Cloherty set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." A plaintiff's failure to comply with that rule can be raised by the court sua sponte. See Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000) ("As a threshold matter, we note that the judge could have dismissed Schaer's complaint for failure to state ‘a short and plain statement of the claim.'"); Garrity v. Garrity, 399 Mass. 367 (1987) (affirming trial court's dismissal pursuant to Mass. R. Civ. P. 12(b)(6) on the grounds that the complaint failed to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief"). And, while "some leniency is appropriate in determining whether a pro se complaint meets the requirements of those rules, the rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985) (citations omitted).

In Schaer, the offending complaint, including attachments, was more than 115 pages and included 125 separately numbered paragraphs. Schaer, 432 Mass. at 477. In Mmoe, the amended complaint had 35 pages and 174 numbered paragraphs separated into 30 counts. Mmoe, 393 Mass. at 618. In Garrity, the complaint had 22 pages and 107 separately numbered paragraphs. Garrity, 399 Mass. at 368. [Note 11]

Here, with very modest modifications, [Note 12] the Amended Complaint incorporates the allegations and exhibits of the original Complaint. Before considering its prayers for relief set forth at pp. 4-6 and 26-29 or its attachments, the Complaint consists of 29 pages and 103 paragraphs (some paragraphs are labelled with letters as wells as numbers, e.g. ¶¶ 1, 1a, 1b, 1c, 1d). The attachments consist of a three-page list of the exhibits to the Complaint, a 19-page index of the same, and a four-page table of contents. The exhibits themselves, labeled A through O, contain multiple documents totaling some 392 pages. To this, one must add the 12-page Amended Complaint and its 66 numbered paragraphs, for a total of 41 pages and 169 paragraphs in addition to the 392 pages of exhibits.

The characterizations of the complaints that did not pass muster under the case law described above fully apply here. See Garrity, 399 Mass. at 369 ("rambling"); Mmoe, 393 Mass. at 621 ("verbose and confusing"); Richardson, 2008 Mass. App. Unpub. LEXIS 273 at *1 n. 1 ("prolix and filled with irrelevancies"). Accordingly, the Motion To Docket Amended Complaint is DENIED as futile because, by virtue of its failure to comply with Mass. R. Civ. P. 8(a), the Amended Complaint, if docketed, would be subject to a successful motion to dismiss it on that ground. [Note 13] This matter is set down for a Telephone Status Conference at 9:00 a.m. on Wednesday, October 14, 2020.



[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.

[Note 2] 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 of frontage on Lake Quannapowitt 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."

[Note 3] 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.

[Note 4] Chapter 458 of the Acts of 1939 is entitled "An Act Providing For The Drainage Of The Low Lands Adjacent To Lake Quannapowitt In The Town Of Reading" and does not address the boundaries of flats.

[Note 5] Chapter 237, §§ 1-44, regulates writs of entry for the recovery of estates in fee simple, fee tail or for life.

[Note 6] G.L. c. 254, § 1 et seq., regulates mechanic's liens arising out of the provision of labor and/or materials for improvements to real property and has no applicability here.

[Note 7] Massachusetts has adopted the Uniform Fraudulent Transfer Act, G.L. c. 109A, which "provides a means by which a creditor may avoid transfers intended to frustrate the creditor's claims." Bakwin v. Mardirosian, 467 Mass. 631 , 637 (2014). It has no applicability here.

[Note 8] "The department (MDC Parks Division) with the concurrence of the park commissioners, if any, in the town within the urban parks district where the property is situated, may sell at public or private sale any portion of the lands or rights in land the title to which has been taken or received or acquired and paid for by it for the purpose set forth in sections thirty-three and thirty-five, and may, with the concurrence of such park commissioners, execute a deed thereof..."

[Note 9] "[A]nd the metropolitan park commission may in like manner transfer the care and control of any open space controlled by it to any local board of a city or town within the said district, with the consent of such city or town and upon such terms and for such period as may be mutually agreed upon."

[Note 10] G.L. c. 185, § 46, third par. states:

Every plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate, and any of the following encumbrances which may be existing:

. . .

Third, Any highway, town way, or any private way laid out under section twenty-one of chapter eighty two, if the certificate of title does not state that the boundary of such way has been determined.

That provision has no applicability here.

[Note 11] See also Richardson v. Northeast Hosp. Corp., 2008 Mass. App. Unpub. LEXIS 273, *1 n.1 ("Indeed, the complaint's 121 paragraphs are so prolix and filled with irrelevancies that the judge would have been warranted in ordering it dismissed for failure to comply with rule 8(a).") (citing Schaer).

[Note 12] The first paragraph of each count states that "Try Title is deleted from Section 1, also in section 1 repairian [sic] is replaced by littoral. Also deleted is section 1a, sections (v), (vi), (vii) from section 1b. And from the DEMAND sections (v.), (vi), (vii), (ix) and (x). Also deleted are paragraphs 75 and 90. Also deleted is PARTIES number 1f. through 9a. To be replaced with new PARTIES numbered 94-103. From RELIEF REQUESTED sections 4,5,6,7, 8, 9, 10 and 11 are deleted."

[Note 13] In reaching this decision, the court has not addressed the grounds relied upon by the Town and the LLC in their opposition to the Motion To Docket Amended Complaint, or the issue of standing raised by the court previously, not because of a lack of merit, but because of the difficulty of applying those concepts to the Complaint and Amended Complaint in the current condition of those two documents.