MISC 20-000053

NOVEMBER 4, 2020




Before the court is pro se plaintiff Dennis M. Cloherty's ("Mr. Cloherty") Motion To Docket Second Amendment to Complaint ("the Motion"), in which he makes a third attempt to state a claim, this time against the defendants named therein: Waterstone Wakefield LLC ("the LLC"), the Town of Wakefield ("the Town") and the Commonwealth of Massachusetts ("the Commonwealth"). In a memorandum of decision and order dated May 27, 2020, this court dismissed defendants Edward F. Dombroski, Jr., Victor P. Santaniello and Stephen P. Maio, finding that Mr. Cloherty had failed to assert any claims at all against Mr. Maio, and that he had failed to assert any claims that he had standing to assert against Messrs. Dombroski and Santaniello. The discussion on standing set forth therein is fully applicable here. In a memorandum of decision and order dated September 25, 2020, this court denied Mr. Cloherty's request to file an amended complaint, finding that his proposed amended complaint, consisting of 41 pages of allegations set forth in 169 paragraphs and 392 pages of exhibits, ran afoul of Mass. R. Civ. P. 8(a)'s requirement that Mr. Cloherty set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Mr. Cloherty's second proposed amended complaint, asserting seven counts, contains these defects and others, as set forth below. Because Mr. Cloherty's proposed amendment would be futile, as it would be subject to an immediate motion to dismiss if docketed, see N. Am. Expositions Co. Ltd. P'ship v. Corcoran, 452 Mass. 852 , 872 (2009) ("allowing the motion to amend would have been futile, because North American's claims would still have been properly dismissed"), the Motion is DENIED. All the claims in the original complaint filed herein having been dismissed, either by order of this court or the agreement of all parties, this matter is DISMISSED WITH PREJUDICE.

Count I of Mr. Cloherty's proposed second amended complaint ("the Proposed Complaint") purports to be brought pursuant to G.L. c. 249, § 4, which governs civil actions in the nature of certiorari. Mr. Cloherty appears to challenge the legality of a transfer by the Town to one Calvin P. Bartlett on July 15, 1955 of property previously conveyed to the Town by the Metropolitan District Commission in 1950. As the LLC and the Town point out, proceedings under this statute must be brought within "sixty days next after the proceeding complained of," G.L. c. 249, §4, and Mr. Cloherty is well past that deadline. In addition, Mr. Cloherty does not appear to have standing to challenge this transfer.

Count II of the Proposed Complaint, purportedly seeking a declaratory judgment, consists of one paragraph that states that "[t]he defendant's property is bound by Harvest Road as stated in Registration No. 296368, and in the 1955 Lease as recorded at the Southern Middlesex Registry of Deeds in Book 8519 Page 453." Proposed Complaint at ¶ 35. Mr. Cloherty does not say who the defendant is, or what case or controversy requires a declaration of rights. The allegation is simply too vague to assess whether Mr. Cloherty has standing and does not pass muster under Mass. R. Civ. P. 8(a).

Count III, as with Count I, purports to be brought pursuant to G.L. c. 249, § 4. Here, Mr. Cloherty appears to allege that an October 25, 1954 Town Meeting vote deprived Mr. Cloherty of his property rights in Harvest and Track Roads, and that Chapter 679 of the Acts of 1949 [Note 1] deprived him of his property rights in Boulevard Beach and Quannapowitt Parkway. Whatever other arguments may defeat this claim, it is plainly barred by the 60-day time limit set forth in the statute.

Count IV also seeks declaratory relief, this time as to ownership of the fee in Quannapowitt Parkway. Mr. Cloherty alleges that his family, [Note 2] as assigns (presumably of the Quannapowitt Agricultural Association, although that is not established in the record) "were granted a fee interest in Quannapowitt Parkway in exchange for granting 430 feet of land 10 years before construction as recorded at the Southern Middlesex Registry of Deeds as Document No. 4050329 in Book 4050 on Page 407." Proposed Complaint ¶ 47. The rights reserved to the grantor and its successors and assigns in the deed recorded at Book 4050, Page 407 ("the 1916 Deed") with respect to Quannapowitt Parkway are as follows:

And for the above named consideration, and the further consideration that the said grantor and its successors and assigns (owners or occupants of adjoining lands now of grantor) shall have as appurtenant to said adjoining land free access to whatever walk and roadway may hereafter be constructed by said Commonwealth along or in front of said adjoining land and over the premises hereby conveyed, with the right to use the same for the purposes of a way, subject, however, to such reasonable rules and regulations as may from time to time be made by the Metropolitan Park Commission of said Commonwealth, or by said other board or department…

Assuming that Mr. Cloherty and his predecessors in title are successors in title to the Quannapowitt Agricultural Association with the benefit of the rights established in the 1916 deed from that association to the Metropolitan Park Commission, the right established was one of passage ("the right to use the same for purposes of a way"), i.e. an easement, not ownership of the fee. Accordingly, whatever controversy there may be over the ownership of the fee in Quannapowitt Parkway (and the court does not discern any), Mr. Cloherty does not have standing to pursue it.

Count V purports to be brought pursuant to G.L. c. 237, §§ 1-5, which governs writs of entry. Mr. Cloherty appears to allege that he and his predecessors in title, as successors to the Quannapowitt Agricultural Association, have the benefit of additional easements set forth in the 1916 Deed, as follows:

the right to enter upon and pass over the above described premises from its said remaining land to and from said Lake in a location to be determined by said Metropolitan Park Commission or by any other board or department having for the time being the control and management of the premises hereby conveyed; also the right to maintain upon the shore of said Lake in a location to be determined by said Metropolitan Park Commission or by said other board or department a landing for boating, bathing, skating and any sports or amusements which said Association or its successors may conduct on or upon the said lake in connection with its said remaining land; but the exercise of said rights or easements hereinabove excepted and reserved shall always be subject to the reasonable rules and regulations of said Metropolitan Park Commission or said other board or department. . . .

According to Mr. Cloherty, Chapter 679 of the Acts of 1949 deprived him and his predecessors in title their right to use what he has called Boulevard Beach, the area owned by the Commonwealth of Massachusetts along the shore of Lake Quannapowitt as shown on Land Court Plan 25969A, sh. 1. The proceeding set forth in c. 237, §§ 1-5 is archaic, [Note 3] and requires that:

[t]he plaintiff shall declare on his own seisin within twenty years then last past, without specifying any particular day, and shall allege a disseisin by the defendant, but need not aver a taking of the profits. He shall set forth the estate which he claims in the land whether in fee simple, fee tail or for life, and if the latter, whether for his own life or the life of another, but he need not set forth the original gift, devise or other conveyance or title by which he claims the estate.

G.L. c. 237, § 3. Mr. Cloherty has not complied with those requirements, nor could he, as he is not the owner in fee simple, fee tail or for life of Boulevard Beach and more than twenty years have passed since the events of which he complains. Accordingly, Count V fails.

Count VI asserts another claim for declaratory relief. Here, Mr. Cloherty appears to allege that, because of the Commonwealth's construction of Route 128, now Interstate 95, access to Boulevard Beach over Harvest Road has been blocked. He alleges that a pedestrian tunnel under the highway would provide safe access to Boulevard Beach and Lake Quannapowitt from the Wakefield-Reading Fairgrounds subdivision. The court takes judicial notice of the fact that this section of Route 128 was constructed in or about 1951. [Note 4] Mr. Cloherty does not have standing to challenge this construction, his claim is time-barred under any theory that the court can conceive, and the court is unaware of any authority for the proposition that it could order the relief sought by Mr. Cloherty on the facts presented here.

Count VII purports to assert a claim for declaratory relief. The allegations of this count state that the federal government paid for utilities installed on the land at issue here, and that parklands improved with federal funds cannot be alienated to private individuals. Whatever the merits of these assertions, Mr. Cloherty does not have standing to pursue them and they would appear to be long since barred.

Finally, the court notes that Mr. Cloherty filed a document entitled "Affidavit In Support Of Motion (Second) To Amend and dated October 28, 2020 in which he states: "I want two things, A [sic] dock on Lake Quannapowitt and safe passage to the park on Lake Quannapowitt." Whether Mr. Cloherty would ever be entitled to that relief (a subject about which this court has significant doubt), he is not entitled to it based on the allegations of the Proposed Complaint.

The court agrees with the LLC's characterization of the Proposed Complaint as "confusing, contradictory and ambiguous." Waterstone Wakefield LLC's Opposition To Motion To Docket Second Amendment To Complaint at 11. This case will be dismissed with prejudice for all of the reasons set forth in this and the court's prior two orders. This is not the first time that Mr. Cloherty has encountered such a fate based on similar reasoning. See Cloherty v. First Horizon Home Loans, 17 LCR 607 (2009), aff'd 2010 Mass. App. Unpub. LEXIS 1162 (2010); In the Matter of Digital Realty Trust, Docket No. Wet-2013-018, File No. 313-0518 (dismissing Mr. Cloherty's Wetlands Protection Act appeal of a permit granted to the LLC's predecessor in title on the grounds that (1) no cognizable claim was asserted under the Act or its regulations, (2) Mr. Cloherty did not support his claim with evidence from a competent source, and (3) Mr. Cloherty did not have standing to pursue his claim).



[Note 1] Chapter 679 authorized the Metropolitan District Commission to sell the land that it had previously acquired, including Boulevard Beach and Quannapowitt Parkway, to the Town for $1. A deed accomplishing that conveyance is dated July 13, 1950 and was recorded in the Middlesex South Registry of Deeds at Book 7621, Page 541.

[Note 2] As previously described by this court in its May 27, 2020 memorandum of decision and order, Mr. Cloherty's property has been in his family since 1926, when it was conveyed to his grandfather, Valentine Cloherty.

[Note 3] See Abate v. Fremont Investment & Loan, 470 Mass. 821 , 827 n. 13 (2015) ("As noted in Bevilacqua, 460 Mass. at 766 n.3, the 'try title statue may now be something of an anachronism' when considered in light of modern statutes that allow a landowner to bring various actions to determine title.").

[Note 4] See Mass. G. Evid. §201(b); "Opening of Route 128, August 1951," Lucius Beebe Memorial Library, Wakefield, Mass., accessed November 3, 2020, https:digitalheritage.noblenet.org/wakefield/items/show/3076.