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Case Information
Filed
2022-08-25
Status
Closed
Type
Ota Other
Docket
100 entries
Disposition
judgment
Parties
Plaintiff
Town Of Westborough, By And Through Its Select Board
Defendant
Northland Tplp Llc
Lawyers
Docket Entries
- Case entered in the Appeals Court as Case No. 2025-P-0698.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 433599 Date: 08/25/2022
- Land Court surcharge Receipt: 433599 Date: 08/25/2022
- Land Court summons Receipt: 433599 Date: 08/25/2022
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Rubin, Hon. Diane R. Event: Hearing on Preliminary Injunction Date: 09/01/2022 Time: 02:00 PM
- Town of Westborough's Motion for a Short Order of Notice, filed and ALLOWED. Judge: Rubin, Hon. Diane R.
- Plaintiff's Motion for Preliminary Injunction and Supporting Memorandum of Law, filed.
- Case has been REASSIGNED to the Honorable Diane R. Rubin. Judge Rubin's Sessions Clerk is Jennifer Noonan who can be reached directly via email at [email protected]. Please direct all correspondence for the Court to Clerk Noonan. Also, please ensure that you add the Court's initials to the end of the case number on all cover letters and documents being submitted to the court: 22 MISC 000445 (DRR). Email notice to: Attorney George X. Pucci and Attorney Devan C. Braun. Judge: Rubin, Hon. Diane R.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 09/01/2022 02:00 PM Has been: Rescheduled at the emailed request of Plaintiff's counsel. Hon. Diane R. Rubin, Presiding
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Rubin, Hon. Diane R. Event: Hearing on Preliminary Injunction VIA ZOOM Date: 09/07/2022 Time: 03:30 PM Email notice to: Attorney George X. Pucci and Attorney Devan C. Braun.
- Notice of Removal to United States District Court, filed.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 09/07/2022 03:30 PM Has been: Canceled. This case has been removed to the United States District Court. Counsel will be filing a Joint Status Report on November 7, 2022 and it will be decided at that point how this case will proceed, if at all. Counsel will keep the court updated if anything happens in the District Court. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Copy of Defendant Northland TPLP LLC's Answer to Plaintiff's Complaint and Affirmative Defenses, Jury Demand, and Counterclaim, filed. (THIS WAS FILED IN THE DISTRICT COURT CASE 22-11428-DJC)
- Copy of Defendant Northland TPLP LLC's First Amended Counterclaim, filed.. (THIS WAS FILED IN THE DISTRICT COURT CASE 22-11428-DJC)
- Copy of Plaintiff's Motion to Dismiss Northland's First Amended Counterclaim, filed. (THIS WAS FILED IN THE DISTRICT COURT CASE 22-11428-DJC)
- Copy of Plaintiff's Memorandum in Support of its Motion to Dismiss Northland's First Amended Complaint, filed. (THIS WAS FILED IN THE DISTRICT COURT CASE 22-11428-DJC)
- Memorandum and Order of Remand Issued on October 31, 2022.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 11/30/2022 Time: 02:30 PM Counsel notified via email.
- Appearance of Meghan E Huggan, Esq. for Northland TPLP LLC, filed
- Event Resulted: Status Conference scheduled on: 11/30/2022 02:30 PM Has been: Status conference held via videoconference. Attorneys George Pucci and Devan Braun appeared on behalf of the plaintiff and Attorneys Michael Duffy and Benjamin Tymann appeared on behalf of the defendant. Court is in receipt of the Memorandum and Order of Remand Issued on October 31, 2022, by the U.S. District Court for the District of Massachusetts. Court noted that this case is in the Land Court on remand after a Notice of Removal to United States District Court. With respect to Plaintiff's pending Motion for Preliminary Injunction, Attorney Pucci advised that the parties are working to reach a standstill agreement to obviate the need for injunctive relief. By December 9, 2022, parties to file a written stipulation to preserve the status quo, for the court's signature, with plaintiff invited to request a hearing on the motion for preliminary injunction if a stipulation cannot be achieved. Court inquired as to prospects for settlement or mediation in order to reach a mutually agreeable resolution. Following colloquy, counsel to confer with their clients as to prospects for settlement or mediation, and whether they would welcome a mediation screening order. Attorney Pucci then advised that plaintiff does not believe that discovery is necessary and intends to file a motion for summary judgment, while Attorney Tymann advised that defendant would like to conduct some discovery before filing dispositive motions. Court put in place the following discovery schedule: By April 14, 2023, discovery to be complete, to include expert designations and disclosures; and by April 21, 2023, counsel to file a joint report confirming that discovery is complete, advising as to whether any party intends to file a dispositive motion (and the basis therefore), whether a pre-trial conference should be scheduled, prospects for settlement or further mediation, and advising of any other matters necessitating the court's attention. Status conference scheduled for May 2, 2023, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 05/02/2023 Time: 09:30 AM
- The court is in receipt of an emailed request from counsel to extend the date of filing a Stipulation to December 13, 2022. The court has ALLOWED that request. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Order on Stipulation Issued. In the event the Court has not ruled on the merits of the Town's claim by August, 2023, Northland and the Town shall return to Court for a further status conference to discuss Northland's intentions as to maintaining the affordability restrictions in place until the Court has ruled on the merits, and the Town may renew its motion for preliminary injunctive relief in the event the parties are unable to reach agreement on the issue at that time." Counsel emailed the Order. Judge: Rubin, Hon. Diane R.
- Joint Status Report, filed.
- Event Resulted: Status Conference scheduled on: 05/02/2023 09:30 AM Has been: Status conference held via videoconference. Attorney George Pucci appeared on behalf of the plaintiff and Attorney Benjamin Tymann appeared on behalf of the defendant. Court is in receipt of the parties' Joint Status Report. Attorney Pucci advised that from the plaintiff's perspective, discovery is not necessary, and the case is ready for dispositive motions. Attorney Pucci further advised that plaintiff has responded to defendant's written discovery, but that he needs to confer with his client as to some purported deficiencies in those responses, as identified by defendant, and that plaintiff objects to the depositions noticed by defendant. Court discussed with Attorney Tymann whether such depositions are relevant or necessary in light of the plaintiff's claims under the Ardemore case (436 Mass. 811) and further inquired as to the Order on Stipulation. The court also inquired whether the defendant might extend its stipulation regarding the affordability restrictions through a ruling on the merits in this case, particularly in light of defendant's request for extended discovery practice. Following colloquy, counsel to confer and endeavor to resolve any discovery disputes, otherwise, any motion to compel and/or motion for protective order to be filed by May 31, 2023, with oppositions filed by June 15, 2023, replies filed by June 29, 2023, and hearing scheduled for July 19, 2023, at 2:30 P.M. Counsel further to each confer with their clients and then with each other as to prospects for a negotiated resolution. Counsel to file by July 12, 2023, a status report advising as to prospects for settlement or mediation, whether a mediation screening order may be appropriate, and whether an extended stipulation on affordability restrictions had been discussed and/or agreed to. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 07/19/2023 Time: 02:30 PM
- Counsel jointly emailed the court requesting the current tracking schedule be amended as follows which the court has adopted: - Any Discovery Motions to be filed by June 16, 2023; - Oppositions to be filed by June 28, 2023; and - Replies due July 10, 2023. The current hearing date of July 19, 2023 will remain as scheduled. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Plaintiff's Motion for Protective Order, filed.
- Opposition of Defendant Northland TPLP, LLC to the Plaintiff Town of Westborough's Motion for Protective Order, filed.
- Joint Status Report, filed.
- Event Resulted: Status Conference scheduled on: 07/19/2023 02:30 PM Has been: Rescheduled to August 10, 2023 at 10:00 am at the request of counsel and by agreement of the court. Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 08/10/2023 Time: 10:00 AM Counsel notified via email.
- Event Resulted: Status Conference scheduled on: 08/10/2023 10:00 AM Has been: Hearing held via videoconference. Attorney George Pucci appeared on behalf of the plaintiff and Attorney Benjamin Tymann appeared on behalf of the defendant, with Beth Kinsley present. Before the court were Plaintiff's Motion for Protective Order and Opposition of Defendant Northland TPLP, LLC to the Plaintiff Town of Westborough's Motion for Protective Order, with court also in receipt of the parties' Joint Status Report. Attorney Pucci advised that plaintiff has assented to the proposed Second Order on Stipulation, attached as Exhibit A to the Joint Status Report and extending the agreement to maintain affordability restrictions to June 30, 2024. Following colloquy, counsel to file a copy of the Second Order on Stipulation, executed by both parties, to be endorsed by the court. Following argument, court then ALLOWED in part and DENIED in part Plaintiff's Motion for Protective Order, for the reasons articulated on the record and as follows. Defendant contends that Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. P'ship, 436 Mass. 811 (2002) is not dispositive of this case and that its project is not bound by permanent affordability restrictions because they read a single sentence in the 1994 HAC Order to mean that the restrictions are for a term and therefore not permanent. The provision at issue states: "We are confident that the MHFA will ensure that twenty percent of the units are set aside for tenants with incomes no higher than fifty percent of median income, that long-term affordability will be assured, and that the other normal requirements for subsidized housing are met." Defendants also allege that the town and the then-developer negotiated a termination of the restrictions that was more or less coincident with the termination of the financing agreement (and those negotiated terms resulted in the above quoted sentence from the 1994 HAC Order), though I note that the town vigorously opposes that reading. To ensure that the case is resolved efficiently so as to provide certainty for residents of these affordable units, as well as the parties, and in light of potential appellate issues, I conclude that it is most prudent to complete all discovery prior to any motion for summary judgment, to ensure complete record is before the court. Because the parties agree that the sole question before the court relates to the meaning of the 1994 HAC Order and because Defendant argues the 1994 HAC Order is ambiguous, I conclude that what happened on and around the date of that 1994 HAC Order may be relevant, however more recent statements, knowledge, or perceptions by town employees would not be relevant to the court's inquiry. Court to ALLOW deposition of James Robbins, recently retired Town Planner, who was the Town Planner at the time the 1994 HAC Order was issued and may have relevant knowledge. Accordingly, I conclude that deposition of Mr. Robbins would be reasonably calculated to lead to the discovery of admissible evidence, but that the other five depositions requested would not and would be unduly burdensome. There is no indication that the other five individuals have actual personal knowledge related to the 1994 HAC Order, such that those requested depositions are overbroad. Further, in light of the Defendant's objection, court is willing to take any further briefing on the issues of whether the recent understanding of Town employees would be relevant to the issue before the court, whether those statements would be statements of a party opponent, and/or whether there are other individuals with relevant knowledge of that time period. Once all depositions are completed, Plaintiff to file any Motion for Summary Judgment, with counsel to endeavor to file an agreed upon statement of facts, at least in part, and briefing otherwise in accordance with Land Court Rule 4. Hearing scheduled for January 17, 2024, at 2:00 P.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 01/17/2024 Time: 02:00 PM
- Joint Motion for Entry of Court's Second Order on Stipulation, filed.
- Plaintiff's Motion for Summary Judgment, filed.
- Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment, filed.
- Agreed-Upon Statement of Undisputed Material Facts, filed.
- Appendix to Town's Statement of Undisputed Material Facts, filed. (Courtesy copy filed 11/20/2023)
- Second Order on Stipulation, Issued. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Northland TPLP LLC's Cross-Motion for Summary Judgment, filed.
- Northland TPLP LLC's Memorandum in Support of its Cross-Motion for Summary Judgment and Opposition to Westborough's Motion for Summary Judgment, filed. (Courtesy Copies filed December 18, 2023)
- Supplemental Agreed-Upon Statement of Undisputed Material Facts, filed.
- Northland TPLP LLC's Response to Westborough's Statement of Undisputed Facts, filed.
- Northland TPLP LLC's Appendix of Summary Judgment Exhibits, filed. (Courtesy Copies filed December 18, 2023)
- Plaintiff's Motion to Strike Certain of Northland's Evidence, filed.
- Plaintiff's Opposition to Northland's Cross-Motion for Summary Judgment, filed.
- Town of Westborough's Responses to the Defendant's Statement of Undisputed Facts, filed.
- Motion of the Office of the Attorney General Seeking Leave to File an Amicus Brief in Support of the Town of Westborough, filed and ALLOWED. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Amicus Brief of the Office of the Attorney General in Support of the Town of Westborough, filed.
- Northland TPLP LLC's Reply to Westborough's Opposition Brief and Opposition to Westborough's Motion to Strike, filed.
- Event Resulted: Status Conference scheduled on: 01/17/2024 02:00 PM Has been: Hearing on Motion for Summary Judgment held via videoconference. Attorneys Devan Braun and George Pucci appeared on behalf of the plaintiff, Attorneys Benjamin Tymann and Patrick Yerby appeared for the defendant, and Attorney Kendra Kinscherf appeared on behalf of the Office of the Attorney General. Before the court is (1) Plaintiff's Motion for Summary Judgment along with a memorandum and appendix in support thereof; (2) Northland TPLP LLC's Cross-Motion for Summary Judgment along with a Memorandum in Support of its Cross-Motion for Summary Judgment and Opposition to Westborough's Motion for Summary Judgment and appendix; (3) Plaintiff's Opposition to Northland's Cross-Motion for Summary Judgment; (4) the Agreed-Upon Statement of Undisputed Material Facts, Northland TPLP LLC's Response to Westborough's Statement of Undisputed Facts, and Town of Westborough's Responses to the Defendant's Statement of Undisputed Facts; (5) Plaintiff's Motion to Strike Certain of Northland's Evidence and Northland TPLP LLC's Reply to Westborough's Opposition Brief and Opposition to Westborough's Motion to Strike; and (6) Amicus Brief of the Office of the Attorney General in Support of the Town of Westborough. After argument, the court DENIED both parties' motions for summary judgment for the reasons articulated on the record and as follows: "Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr., Inc., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982). As recently articulated by the Supreme Judicial Court, a court must limit itself to "logically permissible inferences" that "flow rationally from the underlying facts." Carroll v. Select Board of Norwell, 493 Mass. 178, 192 (2024) (citations omitted). Whether a fact is material or not is determined by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Further, "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr., Inc., 436 Mass. at 648. "If the opposing party fails properly to present specific facts establishing a genuine, triable issue, summary judgment should be granted." O'Rourke v. Hunter, 446 Mass. 814, 821-822 (2006), quoting Cullen Enters., Inc. v. Mass. Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 890 (1987). The court is cognizant of the broad language in the Zoning Board of Appeal of Wellesely v. Ardmore, 436 Mass. 811 (2002), discussing the importance of affordable housing under the statutory framework in G.L. c. 40B, as well as the distinction between zoning relief afforded by a local municipality and financial terms between a developer and its lender. Nonetheless, I conclude that the cross-motions for summary judgment must be denied due to genuine and material factual issues that appear to be in dispute as to whether the Town of Westborough (the "Town") and Avalon Properties, Inc. ("Avalon"), the predecessor-in-interest to the Defendant Northland TPLP LLC, expressly agreed to limit the duration of the affordability restrictions on the Chapter 40B development project here at issue coincident with the term of financing, and whether the footnote at issue in the 1994 Massachusetts Housing Appeals Committee order ("1994 HAC Order") reflects such an agreement. Central to the parties' dispute is the Joint Status Report and Recommendation filed by the Town and Avalon on June 6, 1994, which states that the "Town does not contest fundability ," and Footnote 1 to the 1994 HAC Order ("Footnote 1"), where the HAC appears to have adopted the recommendation in the Joint Status Report. Footnote 1 states in pertinent part: " We are confident that MHFA will ensure that twenty percent of the units are set aside for tenants with incomes no higher than fifty percent of median income, that long-term affordability will be assured, and that other normal requirements for subsidized housing are met.". While the Town, together with the Attorney General's Office which files a brief as amicus curiae, contend that Footnote 1 is irrelevant, that the duration of affordable housing restrictions for the property at issue are governed by Ardmore, and that there are no material factual distinctions from the circumstances in Ardmore, the Defendants cite Footnote 1 as evidence of an agreed upon limit on the duration of the affordable housing obligations. Drawing all logically permissible inferences in favor of the Defendant, as is required on the Town's motion for summary judgment, I conclude there are a number of disputed material facts bearing a rational connection to the Defendant's position that will benefit from a full presentation at trial. See Carroll, 493 Mass. at 192. For instance, in support of its contention that an express agreement existed between the Town and Avalon to limit the duration of the obligation to provide affordable housing at the property, the Defendant has provided attested evidence of the Town's historic housing affordability inventory filings listing an end-date to the affordable status of units at the property, as well as testimony of a former Town official as to the reason for inclusion of Footnote 1 in the 1994 HAC order. This and other evidence presented at trial may clarify the meaning of Footnote 1 in the appropriate factual and procedural context and the existence of any agreement between the Town and Avalon. Following colloquy regarding an expedited trial schedule, court sets the following schedule: Pre-trial conference scheduled for March 27, 2024, at 2:00 P.M., with parties to file a joint pre-trial memorandum by March 20, 2024, including a unified statement of the issues; detailed and enumerated statements of agreed upon and disputed facts; detailed numbered lists of agreed upon and disputed exhibits (to include any document the parties intend to rely upon or produce and naming each document with specificity, i.e. title and date); identifying any witnesses; and identifying any motions in limine. Hearing scheduled for May 22, 2024, at 2:00 P.M., for the presentation of any motions in limine. Trial scheduled for May 29-30, 2024. By January 24, 2024, counsel to confer on the extension of the stipulation maintaining the affordable units for the pendency of this matter and file a report as to the stipulation and proposing a more detailed briefing and filing schedule based on the court's schedule as set forth above. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 03/27/2024 Time: 02:00 PM
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion in Limine Date: 05/22/2024 Time: 02:00 PM
- Appearance of J. Patrick Yerby, Esq. for Northland TPLP LLC, filed
- Joint Report and Proposed Order on Stipulation, filed.
- Third Order on Stipulation, filed.
- Third Order of Stipulation Issued. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Pre-Trial Conference scheduled on: 03/27/2024 02:00 PM Has been: Rescheduled to April 24, 2024 at 2:00 pm, at the request of counsel and by agreement of the court. Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 04/24/2024 Time: 02:00 PM
- Joint Pre-Trial Memorandum, filed.
- Event Resulted: Pre-Trial Conference scheduled on: 04/24/2024 02:00 PM Has been: Pre-trial conference held via videoconference. Attorneys George Pucci and Devan Braun appeared on behalf of the plaintiff, with Town Manager Kristi Williams present, and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant, with general counsel Beth Kinsley present. Court is in receipt of the parties' Joint Pre-Trial Memorandum. Court noted two preliminary matters indicating that this case might not be ready for trial. The first such matter being defendant's counterclaims, which had been pled in the alternative in the event that the court determines that the affordability restrictions in perpetuity, based on the Fifth and Fourteenth Amendment to and the Contracts Clause of the United States Constitution and for declaratory judgment. By way of background, Attorney Tymann explained these counterclaims had been filed in federal court and were subject to a pending motion to dismiss that has not yet been argued on remand. Court noted the Land Court's lack of subject matter jurisdiction to hear these claims as unrelated to "right, title, or interest in land," and too expansive and independent factually and legally to be appropriate for the exercise of the Land Court's ancillary jurisdiction. See G.L. c. 185, 1(k); Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008). Accordingly, Court DISMISSES the counterclaims without prejudice and without preclusive effect, such that the defendant may file those claims in a court of competent jurisdiction at a later date. Court then discussed the status of discovery, noting that the Pre-Trial Conference Memorandum appeared to indicate that neither party had finalized preparations for trial and that the court had not set a firm date for the close of discovery. Plaintiff sought leave to undertake limited and speedy discovery, while Defendant had yet to identify a witness from Avalon Properties, Inc. (the prior owner of the property). Accordingly, court to permit a further brief discovery for all purposes as follows: By June 30, 2024, parties to disclose all witnesses expected to testify at trial. By July 31, 2024, discovery to close, and to include all expert designations and disclosures. In addition, and by September 6, 2024, parties to file a revised and refined pre-trial memorandum. Pre-trial conference scheduled for September 13, 2024, at 10:00 A.M. Tentative trial dates scheduled for October 29 and 30, 2024. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 09/13/2024 Time: 10:00 AM
- Event Resulted: Motion in Limine scheduled on: 05/22/2024 02:00 PM Has been: Canceled Hon. Diane R. Rubin, Presiding
- Assented-to Motion of Defendant to Continue Final Pre-Trial Conference, filed and ALLOWED. Pre-Trial Conference continued to September 25, 2024 at 10:00 am via zoom. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Pre-Trial Conference scheduled on: 09/13/2024 10:00 AM Has been: Continued For the following reason: Request of all Parties Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 09/25/2024 Time: 10:00 AM VIA ZOOM. Counsel notified via email.
- Revised Joint Pre-Trial Memorandum, filed.
- Event Resulted: Pre-Trial Conference scheduled on: 09/25/2024 10:00 AM Has been: Pre-trial conference held via videoconference. Attorneys Devan Braun and Catherine Brown appeared on behalf of the plaintiff and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant, with general counsel Beth Kinsley present. Court is in receipt of the parties' Revised Joint Pre-Trial Memorandum. Court first confirmed with counsel the issue for trial, specifically: Whether plaintiff is entitled to a declaration pursuant to G.L. c. 231A and an order that the defendant maintain affordability restrictions on property located known as The Residences at Westborough Station, located at 101 Charlestown Meadows Drive, for so long as the property does not conform with the local bylaw. Court discussed with counsel the plaintiff's position that trial should proceed on a case stated basis, since plaintiff does not intend to introduce any witnesses in its case-in-chief (although reserving the right to call any witnesses on cross examination or for purposes), as well as defendant's opposition and list of witnesses, whose testimony plaintiff intends to challenge by way of motions in limine. Court concluded that full and fair adjudication of the defense would benefit from trial with witnesses, with court taking all challenged testimony de bene. As stated in Harris-Lewis v. Mudge, "it is up to the judge's sound discretion whether evidence should be admitted de bene, subject to later motion to strike. See Ellis v. Thayer, 183 Mass. 309, 310-311 (1903); R.L. Polk & Co. v. Living Aluminum Corp., 1 Mass. App. Ct. 170, 172 (1973)." Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). Accordingly, by October 11, 2024, parties to file all motions in limine, with oppositions to be filed by October 17, 2024, with counsel noting any issues that require decision prior to the presentation of the evidence instead of de bene. Hearing on motions in limine scheduled for October 22, 2024, at 12:00P.M. Following colloquy, counsel to confer and further refine and expand the parties' pre-trial conference memorandum. By October 22, 2024, counsel to file a final pre-trial memorandum to include: (1) a unified statement of the issue(s) to be tried (which may differ from the court's framing, above, if agreed), (2) an amended agreed upon statement of facts, to include the dates and book and page numbers for all documents identified therein, if applicable, and (3) agreed upon and disputed exhibit lists, identifying each document with specificity, narrowing disputed exhibits to the extent possible to streamline presentation of the evidence at trial. Also, by October 22, 2024, parties to deliver Exhibit Binders to the Land Court (one copy for the court and one copy for the witness stand). The following trial dates are confirmed: October 29 and 30, 2024, in person at the Land Court commencing at 9:30 A.M. Counsel to notify Clerk Noonan with the name and contact information of the court reporter engaged by the parties a week prior to trial. Court set the following post-trial schedule: post-trial briefs due thirty (30) days after filing of the trial transcripts (anticipated for October 29, 2024), post-trial briefs to be filed by January 10, 2024, and closing argument scheduled for January 29, 2025, at 2:30 P.M. Lastly, counsel confirmed and agreed that the stipulation on affordability restrictions would be continued in full force and effect and be extended through March 28, 2025, to be filed by October 1, 2024. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion in Limine VIA ZOOM. Date: 10/22/2024 Time: 12:00 PM Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Trial IN-PERSON Date: 10/29/2024 Time: 09:30 AM Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Ongoing Trial IN-PERSON Date: 10/30/2024 Time: 09:30 AM Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Ongoing Trial. Closing Arguments Date: 01/29/2025 Time: 02:30 PM Counsel notified via email.
- Joint Motion for Endorsement of Fourth Order on Stipulation, filed.
- (Proposed) Fourth Order on Stipulation, filed.
- Joint Motion for Endorsement of Fourth Order on Stipulation APPROVED and Endorsed. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Town of Westborough's Motion in Limine to Preclude Witnesses Identified by the Defendant from Testifying at Trial, filed. (Courtesy Copy filed 10/17/2024)
- Northland's Memorandum in Opposition to Westborough's Motion in Limine, filed.
- Event Resulted: Motion in Limine scheduled on: 10/22/2024 12:00 PM Has been: Hearing on motion in limine held via videoconference. Attorneys Devan Braun and Catherine Brown appeared on behalf of the plaintiff and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant. Court is in receipt of Joint Motion for Endorsement of Fourth Order on Stipulation, (Proposed) Fourth Order on Stipulation, Town of Westborough's Motion in Limine to Preclude Witnesses Identified by the Defendant from Testifying at Trial, and Northland's Memorandum in Opposition to Westborough's Motion in Limine. Following hearing, court DENIED plaintiff's motion to preclude witnesses identified by the defendant from testifying at trial for the reasons articulated on the record and as set forth below, provided however, court will hear the proffered evidence de bene and invites the plaintiff to file a motion to strike at the close of evidence for further consideration of the court in light of the evidence before the court at that time. Plaintiff seeks to preclude the witnesses from testifying because it argues the witnesses' testimony is irrelevant. Court notes that at this time it is not clear that the witnesses' testimony will be irrelevant. By October 25, 2024, parties to file pre-trial memorandum. Trial scheduled for October 29-30, 2024, in person at the land court, with court to entertain any requests for individual witnesses to appear via zoom. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Revised Joint Pre-Trial Memorandum, filed.
- Event Resulted: Trial scheduled on: 10/29/2024 09:30 AM Has been: Held - First Day of Trial held in person. Attorneys Devan Braun and Catherine Brown appeared on behalf of the plaintiff and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant. Court is in receipt of Revised Joint Pre-Trial Memorandum. Court Reporter, Dawn Mack, sworn in and transcribed the proceedings. Court confirmed the issue before the court is as stated in the Revised Joint Pre-Trial Memorandum, docketed on October 24, 2024, specifically: Whether plaintiff is entitled to a declaration pursuant to G.L. c. 231A and an order that the defendant maintain affordability restrictions on property known as The Residences at Westborough Station, located at 101 Charlestown Meadows Drive, for so long as the property does not conform with the local bylaw. Parties introduced Joint Exhibits 1-25, with Parties' Statement of Agreed Facts Nos. 1-25 stipulated as set forth in the Revised Joint Pre-Trial Memorandum. Disputed Exhibits 1-21 were admitted de bene with respect to the issue of relevance in accordance with prior docket entries, with plaintiff to object on other grounds at the time the exhibits are introduced. Trial was held, with Town Manager, Kristi Williams, giving testimony followed by the testimony of Northland's COO and President, Suzanne Abair. At the close of the first day of trial, plaintiff filed Town of Westborough's Motion to Strike Witness Suzanne Abair's testimony, with opposition from defendant to be included in its post-trial briefing. Trial to continue on October 30, 2024, with the testimony of Mr. James Robbins via videoconference/zoom at 11:30 a.m., followed by the in-person testimony of Mr. James Malloy and Mr. Mark O'Hagan. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Town of Westborough's Motion to Strike Witness Suzanne Abair's Testimony, filed.
- Event Resulted: Ongoing Trial scheduled on: 10/30/2024 09:30 AM Has been: Held - Second Day of Trial held via videoconference. Attorneys Devan Braun and Catherine Brown appeared on behalf of the plaintiff and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant. Court Reporter, Dawn Mack, sworn in and transcribed the proceedings. Trial was held, with defendant calling James Robbins who gave testimony via Zoom. The evidence was closed after Mr. Robbins testimony. The court confirmed the following schedule: By January 10, 2025, parties to file any post-trial briefs, and closing arguments scheduled for January 29, 2025, at 2:30 P.M., in person. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Town of Westborough's Motion to Strike Witness James Robbins' Testimony, filed.
- Transcript of October 29, 2024 October 30, 2024 before Hon. Diane R. Rubin. All briefs and/or memoranda should be submitted to the Court on or before 01/10/2025.
- Withdrawal of Catherine L Brown, Esq. for Town of Westborough, by and through its Select Board, filed
- Northland's Post-Trial Memorandum of Law, filed.
- Northland's Proposed Findings of Fact, filed.
- Northland's Memorandum in Opposition to Westborough's Motions to Strike Testimony of James Robbins and Suzanne Abair, filed.
- Town of Westborough Post-Trial Memorandum of Law, filed.
- Trial Ends.: Ongoing Trial scheduled on: 01/29/2025 02:00 PM Has been: Held - Trial Ends. Closing arguments and hearing on motions to strike held in person. Attorney Devan Braun appeared on behalf of the plaintiff, with Town Manager Kristi Williams present, and Attorneys Benjamin Tymann and Patrick Yerby appeared on behalf of the defendant, with general counsel Beth Kinsley present. Court is in receipt of Town of Westborough's Motion to Strike Witness James Robbins' Testimony, Northland's Post-Trial Memorandum of Law, Northland's Proposed Findings of Fact, Northland's Memorandum in Opposition to Westborough's Motions to Strike Testimony of James Robbins and Suzanne Abair, and Town of Westborough Post-Trial Memorandum of Law. Counsel presented their closing arguments, followed by their arguments on the plaintiff's motions to strike. Following argument, court encouraged the parties to consider the possibility of settlement and took the matter under advisement, with a decision to issue. Hon. Diane R. Rubin, Presiding
- Case taken under advisement.
- Decision issued. (Copies emailed to Attorneys George Pucci, Devan Braun, Benjamin Tymann, Michael Duffy, Meghan Huggan, and J. Yerby) Judge: Rubin, Hon. Diane R.
- Judgment after trial entered. (Copies emailed to Attorneys George Pucci, Devan Braun, Benjamin Tymann, Michael Duffy, Meghan Huggan, and J. Yerby) Judge: Rubin, Hon. Diane R.
- Notice of Appeal by Northland TPLP LLC to the Appeals Court filed.
- Notice of Service of Notice of Appeal sent to George X Pucci, Esq., Devan C Braun, Esq.
- Notice of Assembly of Record on Appeal sent to the Clerk of the Appeals Court.
- Notice of Assembly of Record on Appeal sent to all counsel of record.
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