By Theresa Knapp 

 After many hours of public meetings and executive sessions in January and February, the Hopedale Select Board voted on Feb. 10, to file a Notice of Appeal and pursue an injunction in a suit the town has filed against the Grafton & Upton Railroad, et al. 

At the board’s Jan. 31, meeting, special counsel Peter Durning of Mackie Shea Durning, PC announced Land Court Judge Diane Rubin had denied the town’s Motion to Vacate the Stipulation of Dismissal, and members of the public asked the board to appeal the decision. 

At that meeting, Durning and town counsel Brian Riley of KP Law said there was likely nothing the town could add to an appeal that had not been included in previous filings.

At the board’s next meeting on Feb. 10, while in executive session, the Select Board voted to appeal the Land Court decision. It is not clear why the board changed its mind as executive sessions are not open to the public. 

A special town meeting will be scheduled in the near future to ask residents to vote on the appropriation of monies for the land at and near 364 West Street in the amount of $587,500 - the amount the Select Board agreed to pay in Jan. 2021 (as part of a court-ordered mediation) for a different configuration of land than the 155 acres approved at the Oct. 2020 special town meeting. 

Timeline:

Dec. 30, 2021 - Select Board authorized special counsel to return to the Land Court to seek a Motion to Vacate the Stipulation of Dismissal before Judge Diane Rubin.

Jan. 24, 2022 – Durning reports a hearing was held on the Motion to Vacate.

At this hearing, Judge Rubin expressed concern about ruling because town officials hadn’t called another town meeting to gauge the will of the voters; town officials had instead submitted a citizens’ petition with several hundred signatures plus the original vote of 400 to 1 from the October 2020 special town meeting. 

Jan. 28 -- Judge Rubin issued a decision denying the town’s Motion to Vacate the Stipulation of Dismissal. 

 Jan. 31 – Select Board holds executive session and returns to public meeting with details on Land Court’s Jan. 28 decision.

Special Counsel Peter Durning said the question before Land Court Judge Rubin was a narrow one: “Would the court agree that under Rules of Civil Procedure 60(b)(6) that ‘extraordinary circumstances’ existed whereby the Land Court should vacate the Stipulation of Dismissal and reopen the case in the Land Court.”

The town claimed the extraordinary circumstances was an earlier ruling by Superior Court Judge Karen Goodwin “in her Memorandum of Decision and subsequently in her Decision on Reconsideration, indicated with her ruling that the appropriation that the town originally made [Oct. 2020] for the original acquisition [155 acres] could not be applied to the acquisition that was contemplated by the [January 2021] settlement agreement,” according to Durning.

“Judge Rubin, in a carefully-worded decision, declined to exercise the discretion that she has under [Rule] 60(b)(6). She came to the conclusion that the Superior Court’s determination that the appropriation was not appropriate did not, by itself, constitute extraordinary circumstances such that the Stipulation of Dismissal that had been entered by the parties should be vacated,” reported Durning.  

Members of the public asked about filing an appeal.

Durning said the chances of Judge Rubin’s ruling being overturned were low. “I think that it is highly unlikely that an Appeals Court, reviewing Judge Rubin’s decision and her exercise of her discretion, would find that Judge Rubin abused her discretion in finding that there were not sufficient extra circumstances to warrant vacating the stipulation of dismissal under 60(b)(6).”

Town Counsel Peter Riley agreed with Durning that the ruling was not likely to be overturned. “I think there’s a very slim likelihood of the Appeals Court overturning Judge Rubin and that, while there are different litigation styles, sometimes you want to go to the mat as long as you can afford it…I think that when you get a decision such as Judge Rubin issued, you look at it, you try to parse out if maybe she ignored some crucial fact or if she came to some legal conclusion that just doesn’t hold up…but i don’t feel that’s the case right now in this matter and I’m certainly not pushing the town to appeal.” 

Liz Reilly is the lead plaintiff in the “10 Citizen Lawsuit” which contends the Select Board (and representatives for the Grafton & Upton Railroad) did not follow the directive of an Oct. 2020 special town meeting to purchase 155 acres of land at or near 364 West Street for $1.175 million. In January 2021, the Select Board entered into an agreement for fewer acres for less money, neither of which were approved by town meeting.  

Reilly said the attorneys representing the group in the suit against the town - David Lurie and Harley Racer of Lurie Friedman LLP - feel “very strongly that an appeal is worthwhile and something that could lead to positive things for the town.” She reiterated that Lurie had offered to help the town in this matter, for free, and urged the town to collaborate on an appeal. “We’re dead in the water if we do nothing…I just don’t understand the downside of an appeal.”

Durning said he stands by his “independent assessment of whether or not an appeal would be successful. That’s what I’m bound to do for the Board of Selectmen [sic] is to give them my best legal interpretation.” 

Feb. 10 – The Select Board held an executive session after which Attorney Durning updated the public meeting. “I can report that a vote was taken to appeal Judge Rubin’s decision from the Land Court on the Motion to Vacate the Stipulation of Dismissal to the Appeals Court and to seek an injunction in the Appeals Court in connection with that request.”  

Durning said a special town meeting will be scheduled in the near future for residents to vote on the matter. “What we’ve learned from the rulings in the Superior Court and in the Land Court is that much of this matter hinges on town meeting’s review of the potential land acquisition and the appropriations for that acquisition,” said Durning.