Carroll v. Select Board of Norwell

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SJC-13410

BRIAN CARROLL & another1 vs. SELECT BOARD OF NORWELL & others.2

Suffolk. September 11, 2023. - January 5, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.

Public Land. Municipal Corporations, Acquisition of real
estate, Use of municipal property. Housing. Practice,
Civil, Summary judgment, Continuance, Discovery.

Civil action commenced in the Land Court Department on
December 22, 2021.

The case was heard by Kevin T. Smith, J., on motions for
summary judgment.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Brian Carroll, pro se.
Robert W. Galvin (Anthony J. Riley also present) for the
defendants.
Tim Wall, pro se, was present but did not argue.
Joseph N. Schneiderman, for Massachusetts Association of
Realtors, amicus curiae, submitted a brief.

1 Tim Wall.

2 Three members of the select board of Norwell.
 2

GEORGES, J. Under G. L. c. 40, § 15A, if town-owned land

is "held . . . for a specific purpose," that land cannot be

diverted to another, inconsistent use until it has been

determined by the "board or officer having charge of [the] land"

that the land is no longer needed for that purpose. In this

case, several residents of the town of Norwell (town) brought a

complaint in the Land Court to compel the town's select board

(board) to transfer municipal land to the town's conservation

commission. A Land Court judge granted the board's motion for

summary judgment, concluding that the municipal land had been

designated for a specific purpose -- the development of

affordable housing -- and therefore, pursuant to G. L. c. 40,

§ 15A, the parcels could not be transferred without a

determination by the board that the land was no longer needed

for this purpose.

The issue on appeal is whether the totality of the

circumstances test articulated in Smith v. Westfield, 478 Mass.

49, 63-64 (2017), applies to the determination whether land is

"held by a city or town . . . for a specific purpose" under

G. L. c. 40, § 15A. We answer that question affirmatively and

conclude that town-owned land is held for a specific municipal

purpose under G. L. c. 40, § 15A, where the totality of the

circumstances indicates a clear and unequivocal intent by the

town to hold the land for such purpose.
 3

Applying the totality of the circumstances test to the

summary judgment record presented here, we conclude that there

is no material dispute of fact regarding the town's intent to

dedicate the municipal land at issue for the purpose of

affordable housing. Accordingly, we further conclude that the

allowance of summary judgment for the board was correct.3

1. Background. a. Facts. We recite the material,

undisputed facts from the record. See Arias-Villano v. Chang &

Sons Enters., Inc., 481 Mass. 625, 626 (2019). We reserve

further recitation of the facts for our discussion infra.

The subject of this appeal is a two-parcel property on

Wildcat Lane in, and owned by, the town (Wildcat land). The

town acquired the land in 1989 through tax foreclosures and

thereafter foreclosed all rights of redemption for each parcel.

The subject parcels total approximately 6.3 acres.

On May 11, 2004, town meeting unanimously voted to

authorize the board to make the Wildcat land "available . . .

for affordable housing." Subsequently, around 2005, the town's

master plan committee discussed the idea of granting a private

developer permission to construct a roadway over a portion of

the Wildcat land in exchange for the developer constructing

3 We acknowledge the amicus brief submitted by the
Massachusetts Association of Realtors in support of affirming
the Land Court's decision.
 4

affordable housing units on that land. However, the board was

not interested in such an arrangement.

In 2007, to support the development of affordable housing

in the town, residents voted at town meeting to adopt an

affordable housing trust bylaw, which authorized the creation of

a community housing trust (trust).4 The trust then hired

consultants in 2013 and 2019 to delineate the wetlands located

on the Wildcat land and to perform a "site assessment" on it for

the purpose of advising the town on what type of affordable

housing would be appropriate for the land.

In 2009, a private developer who owned vacant land abutting

the Wildcat land obtained a permit to construct a residential

subdivision known as Wildcat Hill Open Space Residential

Development (Wildcat Hill). The plaintiffs, Brian Carroll and

Tim Wall, are residents of Wildcat Hill. That same year, the

board granted a revocable license to the private developer to

construct and maintain an unpaved, rustic path for pedestrians

and bicycles across a portion of the Wildcat land close to the

boundary line with Wildcat Hill.

4 The 2007 town meeting vote that created the trust did not
authorize it to hold or control undeveloped land. Although the
trust was granted expanded authority to hold property in 2012,
the board has not transferred the wildcat land to the trust or
any other body.
 5

In September 2019, the trust published an update to the

town's "Housing Production Plan" that identified the Wildcat

land as being "in the planning or predevelopment phases." The

same document noted that the Wildcat land was "designated for

developing affordable housing" by town meeting. In early 2021,

the trust met with the board to discuss the development of

affordable housing on the Wildcat land.

Shortly thereafter, Carroll drafted a citizens' petition

seeking to authorize and direct the board to transfer the

Wildcat land to the conservation commission to be reserved for,

among other things, conservation purposes. After amassing the

requisite number of signatures, the petition was added to the

2021 town meeting warrant as article 26. Specifically, article

26 called for a vote "to authorize and direct the Board of

Selectmen to transfer care, custody, maintenance and control of

[the Wildcat land] to the Conservation Commission, to be held

for conservation, passive recreation and historic preservation

purposes in perpetuity." At the 2021 town meeting, article 26

received the required two-thirds majority vote.

In October 2021, at one of its regular meetings, the board

discussed transferring the Wildcat land to the conservation

commission as authorized and directed by article 26. Several

board members expressed their belief that, before the board

could vote on a measure directing town counsel to draft
 6

documents for the transfer of the Wildcat land, the board first

was required to determine that the land was no longer needed for

affordable housing purposes. The board then held a vote on a

motion to declare that the Wildcat land was no longer needed for

affordable housing purposes. The vote did not pass; thus, the

board did not direct town counsel to draft documents to transfer

the land to the conservation commission. Two months later, this

suit followed.

b. Procedural history. Carroll, Wall, and eight other

residents of the town5 filed a complaint in the Land Court

against the board and three individual members in their

representative capacity, seeking equitable relief in the nature

of mandamus under G. L. c. 249, § 5. Specifically, the

plaintiffs requested an order from the Land Court compelling the

board to transfer the Wildcat land to the conservation

commission as directed by article 26. Shortly thereafter, the

parties filed cross motions for summary judgment.

A Land Court judge granted the board's motion for summary

judgment, explaining that the Wildcat land had been designated

for a specific purpose within the meaning of G. L. c. 40, § 15A,

because it was the intent of the board to designate the land for

5 Of the ten plaintiffs, only Carroll and Wall appealed from
the Land Court judgment. In reference to the appeal,
"plaintiffs" refers to Carroll and Wall.
 7

affordable housing, as reflected by the 2004 town meeting vote

and the town's subsequent steps to explore the development of

affordable housing on the land. Accordingly, the Land Court

judge held that the Wildcat land could not be transferred to

another public use without the board first determining that the

land was no longer needed for affordable housing -- a

determination the board had not made.

The plaintiffs appealed, arguing that the land was not set

aside for a specific municipal purpose within the meaning of

G. L. c. 40, § 15A, because any such restriction must be

recorded through an official instrument under this court's

decision in Selectmen of Hanson v. Lindsay, 444 Mass. 502

(2005). The board cross-appealed, challenging the plaintiffs'

standing to bring a mandamus action under G. L. c. 249, § 5, and

arguing that the outcome in this case should be controlled by

our decision in Harris v. Wayland, 392 Mass. 237 (1984), which

held that undeveloped land, purchased for school purposes, could

not be sold to the town housing authority for construction of

elderly and low-income housing absent the school committee's

determination that the land was no longer needed for school

purposes.6 We transferred this case sua sponte from the Appeals

6 Because we conclude that summary judgment for the board
was proper on the merits, we decline to resolve the question of
standing. See Trigones v. Attorney Gen., 420 Mass. 859, 860
 8

Court to clarify the standard for assessing specific-use

designations within the meaning of G. L. c. 40, § 15A.

2. Discussion. a. Standard of review. "We review a

grant of summary judgment de novo." Regis College v. Weston,

462 Mass. 280, 284 (2012). "Summary judgment is appropriate

where there is no material issue of fact in dispute and the

moving party is entitled to judgment as a matter of law"

(citation omitted). Adams v. Schneider Electric USA, 492 Mass.

271, 280 (2023). "Where both parties have moved for summary

judgment, 'the evidence is viewed in the light most favorable to

the party against whom judgment' has been entered," in this

case, the plaintiffs (citation omitted). Smiley First, LLC v.

Department of Transp., 492 Mass. 103, 108 (2023).

b. Statutory framework. Under Massachusetts law, there

are several ways a municipality can hold real estate. See

Harris, 392 Mass. at 240. General Laws c. 40, § 3, allows

municipalities to hold real estate "for the public use of the

inhabitants." The property is placed under the charge of a

town's select board as part of the town's general corporate

inventory. See G. L. c. 40, § 3 ("All real estate . . . of the

town, not by law or by vote of the town placed in the charge of

(1995) ("Assuming, without deciding, that the plaintiff has
standing to challenge the statute's constitutionality, we
address his claim").
 9

any particular board, officer or department, shall be under the

control of the selectmen . . ."). Alternatively, a municipality

may hold real estate for a specific municipal purpose. Unlike a

municipality's general corporate inventory, such property can be

placed in the charge of either a particular board or the select

board for a specific municipal purpose. See G. L. c. 40, § 15A.

If land is held for a specific municipal purpose within the

meaning of § 15A, that land cannot be diverted to another use

until the "board or officer having charge of [the] land"

determines that the land is no longer needed for that purpose.

Id. See Harris, 392 Mass. at 240.

Accordingly, if the town "held" the Wildcat land for the

"specific purpose" of affordable housing, transferring the

Wildcat land to the conversation commission would entail a two-

step process: first, the board, which has control of the land,

must make a determination that the land is no longer needed for

affordable housing, and second, the town by a two-thirds vote

must authorize transferring the custody of the land to the

conservation commission. See G. L. c. 40, § 15A; Harris, 392

Mass. at 243. Alternatively, if the Wildcat land is not held

for a specific purpose, the land could be transferred to the

conservation commission without a separate vote by the board to

determine that it is no longer needed for affordable housing.

See G. L. c. 40, § 3.
 10

c. Specific purpose designations under G. L. c. 40, § 15A.

Before turning to the question whether the Wildcat land was held

for affordable housing on these facts, we must first discuss the

appropriate legal standard to determine whether land is held for

a specific purpose under § 15A.

The parties disagree as to the proper standard. The board

asks this court to consider all attendant circumstances in

analyzing whether the town intended to dedicate the Wildcat land

to affordable housing. The plaintiffs, by contrast, assert that

to designate land for a specific municipal purpose under § 15A,

a town must either transfer public land from the control of the

select board to another board or impose a deed restriction on

the land. We conclude that the totality of the circumstances

test articulated in Smith, 478 Mass. at 63-64, should be applied

to determine whether a town has designated land for a specific

use under § 15A.

In support of our conclusion, we draw upon the common-law

doctrine of prior public use. Under that doctrine, land devoted

to one public use cannot be diverted to another, inconsistent

public use without plain and explicit legislation authorizing

the diversion. See Sudbury v. Massachusetts Bay Transp. Auth.,

485 Mass. 774, 783 (2020) ("The doctrine of prior public use is

a firmly established creation of the common law, dating back to

the Nineteenth Century. Under this doctrine, public lands
 11

devoted to one public use cannot be diverted to another

inconsistent public use . . ." [quotation and citation

omitted]).7

Article 97 of the Amendments to the Massachusetts

Constitution, adopted in 1972, is a constitutional codification

of the common-law prior public use doctrine that affords

protections to public lands held for conservation. Under art.

97, "[l]ands and easements taken or acquired for [conservation]

purposes shall not be used for other purposes or otherwise

disposed of except by laws enacted by a two-thirds vote, taken

by yeas and nays, of each branch of the general court."

First enacted in 1951,8 G. L. c. 40, § 15A, embodies the

same legal principle -- land designated for one use may not be

diverted for an inconsistent use absent explicit determination

7 The prior public use doctrine protects all public land,
resolving potential disputes over intergovernmental transfers.
See, e.g., Selectmen of Braintree v. County Comm'rs of Norfolk,
399 Mass. 507, 511 (1987) (use of hospital grounds for prison
improper where land was obtained for purpose of constructing
hospital); Bauer v. Mitchell, 247 Mass. 522, 528 (1924) ("The
appropriation by the county commissioners as trustees of the
hospital of land bought for and dedicated to the uses of the
school . . . [for use as a leaching field for the hospital] was
without legal right"); Higginson v. Treasurer & Sch. House
Comm'rs of Boston, 212 Mass. 583, 591 (1912) (land devoted to
parkland could not be used to construct schoolhouse); Old Colony
R.R. v. Framingham Water Co., 153 Mass 561, 563 (1891) (where
land was previously appropriated for specific public use,
municipal corporation could not take land for another use
without explicit legislative authorization).
8 See St. 1951, c. 798, § 4.
 12

that the land is no longer needed for such use by the relevant

municipal board in charge of the land and a two-thirds vote by

the town authorizing the diversion. Indeed, much like art. 97,

§ 15A, in pertinent part, provides that "[w]henever a board

. . . having charge of land . . . constituting the whole or any

part of an estate held by a city or town for a specific purpose

. . . [determines] that such land is no longer needed for such

purpose . . . the town by a two thirds vote . . . may transfer

. . . such land . . . for another specific municipal purpose."

As such, the plain language of § 15A makes clear that if the

Wildcat land is held for the specific municipal purpose of

affordable housing, it cannot be diverted to an inconsistent use

of conservation until a diversion has been approved pursuant to

§ 15A.

While the case law establishing the standard for assessing

specific-use designations under § 15A is scarce, this court has

addressed the corresponding standard under art. 97 on several

occasions. Because art. 97 imposes similar restrictions to

those in § 15A on land that has been designated for conservation

purposes, our decisions in cases involving art. 97 provide a

useful framework for determining specific municipal use

designations under § 15A.

Accordingly, this case requires us to reconcile our

reasoning in three cases -- Harris, Selectmen of Hanson, and
 13

Smith -- that touch upon these standards. In Harris, 392 Mass.

at 243, we clarified the relationship between G. L. c. 40,

§ 15A, and G. L. c. 40, § 3. However, because the issue in

Harris was whether land taken by eminent domain for school

purposes was in the charge of the school committee absent a

separate vote placing the land in the committee's control, the

Harris decision is silent on what test should be applied to

determine whether a town has designated the land for a specific

use under § 15A, where, as here, the land was originally

acquired for general municipal purposes. The Selectmen of

Hanson and Smith decisions, on the other hand, articulate a

totality of the circumstances test for specific-use designations

but do so in the context of municipal land held for conservation

under art. 97. However, this distinction is without

consequence. Both G. L. c. 40, § 15A, and art. 97 are

codifications of the prior public use doctrine, developed in our

common law as a means to resolve potential conflicts over the

use of public lands between various governmental entities. See

Sudbury, 485 Mass. at 787.

Indeed, in Selectmen of Hanson, we did not differentiate

between G. L. c. 40, § 15A, and art. 97 in our analysis of

whether the land at issue had been designated for a specific

use. See Selectmen of Hanson, 444 Mass. at 509 ("Because the

[land] was not held for a specific purpose, namely conservation,
 14

compliance with the provisions of art. 97 and G. L. c. 40,

§ 15A, was not required" [emphasis added]). Thus, our

interpretation of what it means to "designate" land for

conservation purposes in a manner sufficient to invoke art. 97

protection is helpful in clarifying what it means to "hold" land

for a specific municipal purpose within the meaning of § 15A.

In Selectmen of Hanson, 444 Mass. at 504, the town of

Hanson acquired title to a parcel by tax taking. Fourteen years

later, the Hanson town meeting voted unanimously "'to accept for

conservation purposes, a deed, or deeds, to' the locus, [but] no

further action was taken by the town in connection with this

vote." Id. Although the town vote authorized the select board

to transfer the land to the conservation commission or execute a

deed imposing a conservation restriction, the select board

retained control of the property, which was never used for

conservation. Id. Some twenty-seven years after the town

meeting vote, the tax custodian circulated a list of properties

to be auctioned, and subsequently sold the land to a third-party

purchaser. See id. The town sued the third-party purchaser,

arguing that the sale of the land was invalid because the town

had not complied with the two-step process set forth in G. L.

c. 40, § 15A, to determine that the land was no longer needed

for conservation purposes. See id. at 503-504. However, we

held that the town meeting vote only "evidenced an intent by the
 15

town to impose a conservation restriction on the locus, and that

an instrument creating such a property restriction had to be

filed with the registry of deeds in order for the town's

interest to prevail over that of any subsequent bona fide

purchaser for value." Id. at 505.

To be clear, the court in Selectmen of Hanson did not

adopt, as the plaintiffs argue, a bright-line rule requiring

towns to file deed restrictions or transfer control of property

to specific entities in order to hold it for a specific purpose

under G. L. c. 40, § 15A. See Selectmen of Hanson, 444 Mass. at

505 ("We agree with the town that the 1971 vote did not have to

be filed with the registry of deeds"). See also Mahajan v.

Department of Envtl. Protection, 464 Mass. 604, 615 (2013),

citing Selectmen of Hanson, supra at 508-509 ("The critical

question . . . [is] whether the land was taken for those

purposes [identified in art. 97], or subsequent to the taking

was designated for those purposes in a manner sufficient to

invoke the protection of art. 97").

Indeed, since the Selectmen of Hanson case was decided, we

have clarified the standard for specific-use designations under

art. 97. In Smith, 478 Mass. at 50, the issue on appeal was

whether a parcel of land owned by the city of Westfield had been

dedicated as parkland within the meaning of art. 97, and thus

required a two-thirds vote of the Legislature to divert the land
 16

to an inconsistent use. There was no restriction recorded in

the registry of deeds that limited the parcel's use to

conservation or recreation purposes. Id. We, nonetheless,

explicitly declined to interpret Selectmen of Hanson to require

recorded deed restrictions to invoke art. 97 protections in all

cases. See id. at 58. We ultimately concluded that in

assessing whether the land was sufficiently designated as

parkland to invoke art. 97 protections, courts should apply the

following standard:

"Under our common law, land is dedicated to the public as a
public park when the landowner's intent to do so is clear
and unequivocal, and when the public accepts such use by
actually using the land as a public park. There are
various ways to manifest a clear and unequivocal intent.
The recording of a deed or a conservation restriction is
one way of manifesting such intent but it is not the only
way. . . .

"The clear and unequivocal intent to dedicate public land
as a public park must be more than simply an intent to use
public land as a park temporarily or until a better use has
emerged or ripened. Rather, the intent must be to use the
land permanently as a public park, because the consequence
of a dedication is that the general public for whose
benefit a use in the land was established . . . obtains an
interest in the land in the nature of easement, and upon
completion of the dedication it becomes irrevocable."
(Quotations and citations omitted.)9

9 The question in Smith, 478 Mass. at 63, whether the public
had accepted the dedicated land "by actually using the land as a
public park," is inapplicable in this context. Unlike G. L.
c. 40, § 15A, under art. 97, once a city or town offers land it
owns for use as a public park, and the public accepts it, the
"general public," rather than residents of the particular town,
obtains an interest in the land in the nature of an easement.
See Smith, supra at 59-60. Under G. L. c. 40, § 15A, even
 17

Id. at 63.

Given the similarities in the statutory language and the

identical common-law roots of art. 97 and G. L. c. 40, § 15A, we

hold that the totality of the circumstances test articulated in

Smith should likewise be applied in assessing specific-use

designations within the meaning of G. L. c. 40, § 15A. That is,

in assessing whether land has been designated for a specific

municipal use within the meaning of § 15A, courts should

consider whether the totality of the circumstances indicate a

clear and unequivocal intent to dedicate the land to that

purpose.

d. Application. "An order granting . . . summary judgment

will be upheld if the trial judge ruled on undisputed material

facts and [the] ruling was correct as a matter of law."

Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534,

536 (1992). To succeed on a motion for summary judgment, a

moving party "may satisfy [its] burden of demonstrating the

absence of triable issue either by submitting evidence that

negates an essential element of the opposing party's case or by

demonstrating that the opposing party has no reasonable

where a town dedicates land for a particular municipal purpose,
it retains full proprietary interest in the land. Thus, the
sole inquiry for the purpose of § 15A designations should be the
town's intent to "hold" land for a specific municipal purpose.
 18

expectation of proving an essential element of [his] case at

trial" (citation omitted). Hill-Junious v. UTP Realty, LLC, 492

Mass. 667, 672 (2023). "The burden on the moving party may be

discharged by showing that there is an absence of evidence to

support the non-moving party's case." Kourouvacilis v. General

Motors Corp., 410 Mass. 706, 711 (1991).

To prevail at the summary judgment stage, the board had the

burden to show that there was no genuine dispute of material

fact regarding whether the Wildcat land was dedicated for

affordable housing under G. L. c. 40, § 15A, and that it was

entitled to summary judgment as a matter of law. As discussed

supra, this entails showing the town's clear and unequivocal

intent to set aside the property for that specific use. We

conclude that the board met its burden, as there are no genuine

disputes of material fact concerning the town's intent, even

when viewing the evidence in the light most favorable to the

plaintiffs, as we must on summary judgment.

The board put forth undisputed evidence showing that the

town dedicated the Wildcat land for affordable housing. To

begin with, town meeting unanimously voted in 2004 to "make

available [the Wildcat land] for affordable housing." While it

is true that the 2004 town meeting vote is not, on its own,

sufficient to establish a clear and unequivocal intent to set

aside the land for affordable housing, it is nonetheless
 19

indicative of such an intent. See Harris, 392 Mass. at 241

("The warrant for the special town meeting . . . shows

that . . . it was commonly understood that the property remained

in the charge of the school committee in the twenty-five years

that it had been held by the town").

In addition, the town took several other steps that shed

further light on its intent to set aside the Wildcat land for

affordable housing. In 2007, town meeting voted to adopt an

affordable housing trust bylaw establishing the trust, a

municipal entity whose sole purpose is the development of

affordable housing in the town. In furtherance of its purpose,

the trust hired several outside engineering consultants in 2013

and 2019 to delineate the wetlands on the Wildcat land and

perform a site assessment of the property for a multiunit

affordable housing development. These consultants prepared a

concept plan in 2013 for an affordable housing project on the

Wildcat land, which included ten "cottage-style" single-family

units. That same year, the trust ordered a feasibility study on

the Wildcat land to assess the site's ability to handle

stormwater and wastewater.

In 2019, an outside architectural firm prepared yet another

conceptual housing development plan, in which it proposed a

potential twenty-six unit affordable housing development. Later

that year, the trust published an update to the town's housing
 20

production plan, which identified the Wildcat land as being

"designated for developing affordable housing" and referenced

the twenty-six unit 2019 conceptual project design prepared by

the architectural firm. Finally, in 2021, the trust met with

the board to discuss the development of the Wildcat land. Thus,

it is undisputed that, consistent with the 2004 town meeting

authorization, the board, primarily through the trust, explored

the development of the Wildcat land for affordable housing in

several different ways.

Other information presented by town officials corroborates

these efforts. For example, the town administrator stated in an

affidavit that the town expended considerable public funds to

assess the feasibility of affordable housing on the Wildcat land

by identifying wetland resource areas, conducting site

assessments, and engaging experts to advise the town on what

type of affordable housing would be appropriate for the

property. The town administrator also stated that, in 2021,

before Carroll drafted and submitted the 2021 town meeting

article, the trust recommended that the town request proposals

from developers to develop affordable housing on the Wildcat

land.

Notably, an affidavit from the trust chair provides context

concerning the length of time that the board controlled the

Wildcat land for affordable housing. Specifically, the trust
 21

chair stated that, although the initial feasibility studies on

the Wildcat land were prepared in 2013, the trust decided to

place the development of the Wildcat land on hold while it

developed an affordable housing project at a different location.

The 2019 update to the housing production plan further

elucidates why the development of the Wildcat land was

temporarily put on hold -- "[t]he property's slope and

infrastructure demands in the project design drove up projected

costs considerably," thereby informing the trust's decision to

develop another property first. However, that is not to say

that the town was abandoning the development of affordable

housing on the Wildcat land; instead, consistent with the town

administrator, the trust chair asserted that when the other

affordable housing project was near completion in 2018, the

trust moved forward with preparing a conceptual development

design plan for the Wildcat land in 2019.

Moreover, the chair stated that, after the 2021 town

meeting vote, the board asked the trust to consider whether the

Wildcat land was still needed for affordable housing. The trust

then voted unanimously that the Wildcat land was still needed

for that purpose, since the town's affordable housing inventory

was far below ten percent, a threshold requirement under G. L.

c. 40B, § 20, and the Wildcat land was the only town-owned

property not designated for other purposes.
 22

Taken together, this evidence shows that following the 2004

town meeting vote, the board, acting primarily through the

trust, took several steps to explore the use of the Wildcat land

for affordable housing. This evidence also indicates that,

since the 2004 town meeting vote, the board considered the

Wildcat land to be set aside for a specific municipal use,

affordable housing, to the exclusion of all other uses.

Because the board produced undisputed evidence showing that

the town intended to designate the Wildcat land for affordable

housing, the crucial question is whether the plaintiffs have

produced any evidence to create a material dispute of fact

regarding the town's intent. See Barbetti v. Stempniewicz, 490

Mass. 98, 116 (2022) ("If the moving party establishes the

absence of a triable issue, the party opposing the motion must

respond and allege specific facts which would establish the

existence of a genuine issue of material fact in order to defeat

a motion for summary judgment" [citation omitted]). While it is

certainly true that courts do not usually reach the factual

question of intent at the summary judgment stage, the plaintiffs

did not produce any evidence to create a material dispute of

fact as to whether the board intended to hold the Wildcat land

for affordable housing. See e.g., National Assn'n of Gov't

Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220,

231 (1979) (party against whom summary judgment is sought not
 23

entitled to trial simply because cause of action has state of

mind as material element; there must be some indication that

opposing party can produce requisite quantum of evidence to

support its claim).

Indeed, instead of pointing to specific evidence in the

record, the plaintiffs relied on mere allegations and conclusory

denials, which cannot defeat summary judgment. For example, in

its statement of material facts, the board asserted that the

trust placed the development of the Wildcat land on hold while

it developed an affordable housing project on another property.

In responding to this statement, the plaintiffs merely asserted

that this material fact was disputed, as "information regarding

this assertion [was] solely within the possession, custody, and

control of [the defendants], and discovery [was] ongoing."

A fact is not disputed merely because it has been denied by

a nonmoving party. See Adams, 492 Mass. at 287. See also

Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham

Group, 469 Mass. 800, 804 (2014) ("Bare assertions made in the

nonmoving party's opposition will not defeat a motion for

summary judgment"). Rather, an affirmative response by an

opposing party is crucial to its ability to survive a motion for

summary judgment. Indeed, the requirement of an affirmative

response, supported by specific facts, by the party opposing
 24

summary judgment is spelled out in the rule itself. Under Mass.

R. Civ. P. 56 (e), 365 Mass. 824 (1974):

"When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there
is a genuine issue for trial" (emphasis added).

Mere denials coupled with a nonmoving party's hope that

something will materialize in discovery will not prevent a court

from ordering summary judgment. As such, the plaintiffs' vague

and general statements are wholly inadequate. See LaLonde v.

Eissner, 405 Mass. 207, 209 (1989) (party cannot rest on mere

assertions of disputed facts to defeat motion for summary

judgment).

Despite their inadequate responses to the board's statement

of material facts, the plaintiffs now point to evidence in the

summary judgment record to support their position that the

Wildcat land was held as part of the town's general corporate

property under G. L. c. 40, § 3. Specifically, they point to

the following evidence: (1) an affidavit by one board member

stating that, in 2005, the board rejected a private developer's

proposal to construct affordable housing on the Wildcat land;

(2) meeting minutes of the board showing that, in 2009, the

board granted a revocable license to a private developer to

construct a walking path across a portion of the Wildcat land
 25

close to the boundary of Wildcat Hill; and (3) the length of

time that has passed since the board initially made the Wildcat

land available for affordable housing in 2004, without the board

actually developing the land for that purpose or transferring

the Wildcat land to the trust's custody. None of this

evidence, even when viewed in the light most favorable to the

plaintiffs, creates a genuine issue of material fact for

purposes of the board's motion for summary judgment.

According to the board member's affidavit, a member of the

town's master plan committee met with a private developer in

2005 and discussed the idea of granting the developer permission

to construct a roadway over the town-owned property in exchange

for the developer constructing affordable housing units on the

Wildcat land. However, after this proposal was brought to the

board, the board was "not interested in such an arrangement."

Because the board rejected this single proposal, the plaintiffs

ask us to infer that the board was not interested in

constructing affordable housing on the Wildcat land. Such an

inference is a bridge too far.

In evaluating a motion for summary judgment, a court makes

"all logically permissible inferences" in favor of a nonmoving

party. See Willitts v. Roman Catholic Archbishop of Boston, 411

Mass. 202, 203 (1991). Thus, a court should not indulge a

nonmoving party's inferences if they do not "flow rationally
 26

from the underlying facts" (citation omitted). Rubinovitz v.

Rogato, 60 F.3d 906, 911 (1st Cir. 1995). The inference that

the plaintiffs ask us to make -- that the board was not

interested in any proposal to build affordable housing -- is not

logically permissible where the board was merely declining a

single proposal that was contingent on a condition unrelated to

any intent to develop affordable housing (i.e., the construction

of a roadway). This inference is even more tenuous considering

that the board's rejection of this proposal predates subsequent

actions by the town that show a continued interest in using the

Wildcat land for affordable housing -- such as conducting

studies to determine whether it was feasible to use the property

for affordable housing.

The plaintiffs also contend that granting a revocable

license to construct a walking path over a small portion of the

Wildcat land shows that the board intended to hold the entire

parcel for another purpose -- public recreation -- rather than

intending to hold the land exclusively for affordable housing.

However, "[a] license merely excuses acts done by one on land in

possession of another that without the license would be

trespasses, conveys no interest in land, and may be contracted

for or given orally." Baseball Publ. Co. v. Bruton, 302 Mass.

54, 55 (1938). Further, a license is freely revocable at the

will of the promisor. See Spencer v. Rabidou, 340 Mass. 91, 93
 27

(1959). Therefore, an inference that granting a revocable

license to build a trail on a small portion of the Wildcat land

indicates that the board intended to hold the entire six-acre

parcel for the purpose of recreation is unreasonable because the

board was free to revoke the license at any time. Further, this

inference is even less rational considering the town

administrator's affidavit, which states that the trail was

approved next to the boundary line so that it would not

interfere with the development of the rest of the Wildcat land.

Lastly, the mere fact that the Wildcat land remained

undeveloped and under the control of the board, as opposed to

the trust, for approximately thirty years does not create a

material dispute of fact as to the town's intent. First, as

discussed in Harris, 392 Mass. at 243, the two-step procedure

required by G. L. c. 40, § 15A, applies even if "the land [held

for a specific municipal purpose] was in the charge of the

selectmen rather that another board or officer." Thus, the

plain language of § 15A does not require the board to transfer

the custody of the land held for a specific municipal purpose to

another board or officer. See id. Stated differently, the

dispositive question is not which municipal entity retained

custody of the Wildcat land, but whether, under the totality of

the circumstances, the town intended to hold the land for the

specific municipal purpose of affordable housing.
 28

Further, the delay in the development of the Wildcat land

does not indicate the town's intent to hold it as a part of the

town's general corporate inventory. Indeed, the record evidence

suggests that the delay was caused by factors other than the

town's lack of interest in using the Wildcat land for affordable

housing. In particular, the trust's 2019 update to the town's

housing production plan indicates that the Wildcat land's "slope

and infrastructure demands" drove up the projected costs of the

development, prompting the town to set the development of the

Wildcat land on hold. The update further states that the town

was only then, in 2019, revisiting the wildcat property project

after finishing a similar development elsewhere. This evidence

suggests that the practical, topographic difficulties associated

with developing the Wildcat land informed the trust's decision

to develop another town-owned property first and revisit the

Wildcat land development plans later. Thus, the mere fact that

the property remained undeveloped does not support the

plaintiffs' suggested inference. See Harris, 392 Mass. at 242

("To require town boards in control of land to [develop the

land] would encourage unnecessary and premature development and

preclude careful planning for future needs").

Even taken together, (i) the town's rejection of a

developer proposal for affordable housing, (ii) the grant of a

revocable license for a walking path, and (iii) the length of
 29

time it has taken to develop affordable housing on the Wildcat

land do not support a rational inference that the board did not

intend to hold the Wildcat land exclusively for affordable

housing purposes. As we explained supra, the inferences that

the plaintiffs have asked us to make in response to these facts,

individually, are improbable. Given that each separate

inference is on its own improbable, combining them together

cannot defeat summary judgment. See e.g., Grant's Dairy-Me.,

LLC v. Commissioner of Me. Dep't of Agric., Food & Rural

Resources, 232 F.3d 8, 23 (1st Cir. 2000) ("Despite the

generosity of [the summary judgment] standard, conclusory

allegations, improbable inferences, and unsupported speculation

are entitled to no weight" [quotation and citation omitted]);

Barwick v. Celotex Corp., 736 F.2d 946, 962 (4th Cir. 1984)

(rejecting plaintiff's "attempt[] to build one vague inference

upon another vague inference to produce a factual issue").10

10We note that because the Massachusetts rules of civil
procedure were patterned on the Federal rules of civil
procedure, it is well established that we may take guidance from
the relevant Federal jurisprudence in construing rule 56 (e).
See Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass.
174, 179-180 (1975) ("This court having adopted comprehensive
rules of civil procedure in substantially the same form as the
earlier Federal Rules of Civil Procedure, the adjudged
construction theretofore given to the Federal rules is to be
given to our rules, absent compelling reasons to the contrary or
significant differences in content").
 30

e. Continuance to obtain further discovery. In the

alternative, the plaintiffs contend that the motion judge abused

his discretion in granting the board's cross motion for summary

judgment without permitting them an opportunity to first engage

in discovery. We are not persuaded.

"A continuance is appropriate if the party opposing a

summary judgment motion shows that it cannot, without further

discovery, 'present by affidavits facts essential to justify

[its] opposition.'" Commonwealth v. Fall River Motor Sales,

Inc., 409 Mass. 302, 307 (1991), quoting Mass. R. Civ. P.

56 (f). Rule 56 (f) requires a nonmoving party to file an

affidavit explaining the reasons why he or she cannot present

facts to justify his or her opposition and requesting a

continuance to obtain further discovery. See Herbert A.

Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 400-401

(2003) ("Had [the party opposing summary judgment] filed such an

affidavit and obtained a continuance of the summary judgment

proceedings, it could have gone forward with discovery and

secured necessary evidence to support its . . . claim"); First

Nat'l Bank v. Slade, 379 Mass. 243, 244-245 (1979) (failure to

file rule 56 [f] affidavit or to explain failure was "fatal" to

argument for opportunity to obtain discovery). See also Coastal

Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. 55, 61
 31

n.8 (2004) (informal request asking for additional discovery is

nullity absent affidavit requesting continuance).

The plaintiffs did not file an affidavit requesting a

continuance as required by rule 56 (f). They, nevertheless,

assert that their "repeated and consistent objections in this

case are more than sufficient to invoke [r]ule 56(f)." The

plaintiffs overstate these objections. While they did respond

to some of the board's statements of material facts suggesting

that the town was in the possession of the relevant information

and that discovery was "ongoing," a request for continuance to

obtain additional discovery in accordance with rule 56 (f) must

be presented explicitly; it is not on the motion judge to infer

whether the plaintiffs' vague objections to the board's

statement of undisputed facts functioned as a request for more

discovery. Moreover, in February 2022, at a case management

conference before the Land Court, "[t]he parties agreed that

fact discovery [was] not required in this case because there

[were] no disputes of material fact."

A request made pursuant to rule 56 (f), together with the

supporting affidavit, must point to the issues of material fact,

and set forth both (i) the additional discovery an opposing

party needs and (ii) how much time the party needs to develop

the facts essential to its opposition. See Slater v. Traynor

Mgt., Inc., 101 Mass. App. Ct. 705, 709-710 (2022). Here, the
 32

plaintiffs' responses did not specify what additional discovery

they needed, nor how much time they needed to complete it.

For these reasons, the plaintiffs' right to further

discovery was waived. See Herbert A. Sullivan, Inc., 439 Mass.

at 401 ("By failing to invoke rule 56 [f], [the party opposing

summary judgment] waived its right to further discovery before

the judge issued his decision on [the] motion for summary

judgment"). Accordingly, the motion judge did not abuse his

discretion in granting the board's motion for summary judgment

without ordering further discovery. See Alake v. Boston, 40

Mass. App. Ct. 610, 612 (1996) (plaintiff failed to present

materials to motion judge demonstrating that there was genuine

issue for trial or, alternatively, invoke rule 56 [f] to seek

additional discovery).

3. Conclusion. Based on the undisputed facts, the Wildcat

land was held exclusively for a specific municipal purpose --

the development of affordable housing -- within the meaning of

G. L. c. 40, § 15A. Accordingly, we affirm the Land Court's

decision on the parties' cross motions for summary judgment.

Judgment affirmed.