Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

320 FALL RIVER, LLC, and *

H.CHARLES TAPALIAN, *

*

Plaintiffs, *

*

v. *

*

TOWN OF SEEKONK, by and through its *

Civil Action No. 1:25-cv-10171-IT

Board of Selectmen; MICHELLE A. HINES, *

in her capacity as Chairperson of the *

Board of Selectmen; DAVID ANDRADE; *

JOHN DOES 1-10; and XYZ *

CORPORATIONS 1-10, *

*

Defendants. *

*

MEMORANDUM & ORDER

April 7, 2026, corrected April 9, 2026

TALWANI, D.J.

Pending before the court is Defendants The Town of Seekonk (the “Town”), Michelle A.

Hines, and David Andrade’s Motion for Summary Judgment [Doc. No. 34] on all claims set forth

in Plaintiffs 320 Fall River, LLC (“320 Fall River”) and H. Charles Tapalian’s Complaint [Doc.

No. 1]. For the reasons set forth herein, Defendants’ Motion [Doc. No. 34] is GRANTED.

I. Factual Background

A. The Parties and the Disputed Property

Plaintiff Tapalian owns Plaintiff 320 Fall River. Until completion of the underlying

transaction in this case on April 30, 2025, 320 Fall River owned real property consisting of a

multiacre parcel of land and two single family lots (the “Property”). Defs.’ Statement of Facts

(“DSUMF”) Ex. 1-B, at ECF 12 (“Chap. 61B Agreement”) [Doc. No. 36-1].

Defendant Town of Seekonk, Massachusetts (the “Town”), is the municipality in which

the Property is located. Defendant Hines is Chairperson of the Board of Selectmen (the “Board”)

for the Town. Defendant Andrade is a former member of the Board.1

B. Prior Classification of the Property

The Property, which was formerly the site of a golf course, was classified as “recreational

land” under Mass. Gen. Laws ch. 61B (“Chapter 61B”) “until the end of 2023.” Pursuant to that

classification, the Property was taxed at a lower rate applicable to designated “open space.” See

Mass. Gen. Laws ch. 61B, § 2A; Chap. 61B Agreement at ECF 12 [Doc. No. 36-1].

When a property is designated as recreational land by the city or town in which it is

located, the property “shall not be sold for, or converted to, residential, industrial or commercial

use” while it is taxed as recreational land “or within 1 year after that time unless the city or town

in which the land is located has been notified of the intent to sell for, or to convert to, that other

use.” Mass. Gen. Laws ch. 61B, § 9. The property owner must provide notice to the city or town

if the owner intends to sell the land or convert it to “residential, industrial or commercial use.”

Id.

“In the case of intended or determined conversion not involving sale, the municipality

shall have an option to purchase the land at full and fair market value to be determined by an

impartial appraisal performed by a certified appraiser” at the city or town’s expense. Id. The

property owner retains the right to “revoke the intent to convert at any time and with no recourse

to either party” during the appraisal process. Id. Should the city or town elect to exercise its

1 In their Complaint [Doc. No. 1], Plaintiffs also list “John Does 1–10” and “XYZ Corporation(s)

1–10” as Defendants. Id. ¶ 6. According to Plaintiffs, these Defendants “are a person or persons

whose identit(ies) is/are currently unknown to Plaintiffs yet who, upon information and belief,

have aided, assisted, and/or conspired with the other above-named Defendant(s) with respect [to]

the Constitutionality and/or legally violative conduct described in this Complaint.” Id.

purchase option post-appraisal, it may do so “only after a public hearing followed by written

notice signed by the mayor or board of selectmen[.]” Id.

C. February 6, 2024 Notice of Intent to Convert and July 24, 2024 Agreement

Concerning the Administration of a Chapter 61B Option to Purchase the Property

In or around the fall of 2022, the Town’s Administrator and Andrade met with Tapalian

regarding the purchase of the Property and another property owned by Tapalian. Compl. ¶ 22

[Doc. No. 1]; Answer ¶ 22 [Doc. No. 15]. During that meeting, the Administrator and Andrade

discussed purchasing the Property using “Community Preservation Committee funds[,]” Compl.

¶ 21 [Doc. No. 1]; Answer ¶ 21 [Doc. No. 15], but the parties ultimately did not reach an

agreement at that time.

In January 2023, Plaintiffs submitted a Comprehensive Permit Site Approval Application

to MassHousing, setting forth a plan under Mass. Gen. Laws ch. 40B to redevelop the Property

with 280 residential units, including seventy affordable housing units. Opp’n Ex. 2, at 4–5 [Doc.

No. 43-2]. 320 Fall River notified the Town of the pending application and, on February 9, 2023,

participated in a site visit to the Property with Town officials and MassHousing representatives.

Compl. ¶¶ 13–14 [Doc. No. 1]; Answer ¶¶ 13–14 [Doc. No. 15]. Plaintiffs thereafter submitted a

“full application” to MassHousing, which sent 320 Fall River a site approval letter dated May 23,

2023. Compl. ¶¶ 15–16 [Doc. No. 1]; Answer ¶¶ 15–16 [Doc. No. 15].

In a letter dated February 6, 2024, Plaintiffs’ counsel notified the Town that Plaintiffs

intended to convert the property from recreational use to residential use. See Opp’n Ex. A, at 1–2

[Doc. No. 43-1] (“Notice of Intent to Convert Recreational Land Pursuant to M.G.L. c. 61B

§ 9[,]” the “Notice of Intent[,] or the “Notice”).

Plaintiffs and the Town subsequently disagreed as to (1) whether Plaintiffs’ Notice of

Intent [Doc. No. 43-1] was defective under the requirements of Chapter 61B; and (2) whether the

Town waived its statutory option to purchase the Property, which it then sought to pursue. See

Chap. 61B Agreement at ECF 12 [Doc. No. 36-1]. To “avoid litigation[,]” on July 24, 2024, the

parties entered into an agreement regarding the Town’s Chapter 61B option (the “Chapter 61B

Agreement” or the “Agreement”). Id.

Per the terms of that Agreement, the Town “forever waive[d] and relinquishe[d] its

objections to the Notice, as well as any and all claims that the Notice is improper or untimely in

any[] way[.]” Id. at 3 ¶ 2(vii). 320 Fall River likewise “forever waive[d] and relinquish[ed] its

objections to the Town’s actions, as well as any and all claims that the Town has waived its right

of first refusal/option to purchase the [Property] as of the date of [the] Agreement.” Id. at 3

¶ 2(viii). The Agreement also included a “Finality” clause, in which the parties averred that the

Agreement was “intended to be final and binding among all Parties[,]” and an acknowledgment

that the Agreement “contain[ed] the full and complete agreement by and among them[.]” Id. at 3

¶¶ 6–7.

To facilitate the Town’s exercise of the Chapter 61B option, the parties agreed to “jointly

engage” an appraiser, Peter M. Scotti & Associates, Inc. (“Scotti”), “to prepare an appraisal

reflecting the fair market value of the [Property], which appraised amount shall be in an amount

that reflects their highest and best use as required by [Mass. Gen. Laws ch.] 61B § 9.” Id. at 2

¶ 2(i). Each party would pay fifty percent of the cost of the appraisal and consented to be bound

by Scotti’s finalized appraisal “for the purposes of the Town’s option to purchase under Chapter

61B § 9, with neither Party having any right to seek further appraisal(s) under said Chapter.” Id.

at 2 ¶ 2(i), (v).

Upon completion of the appraisal, the Town would determine whether it would exercise

or decline its option to purchase the Property “[w]ithin thirty (30) days[.]” Id. at 2 ¶ 2(vi). If the

Town elected to purchase the Property, it agreed to provide a purchase and sales agreement to

320 Fall River “for review and comment” within another thirty-day period and close on the

purchase within 120 days from the execution of the purchase and sales agreement, with “typical

title and inspection contingencies” and a contingency for “Town Meeting approval, a debt

exclusion or a Proposition 2 ½ override.” Id. If the Town did not fulfill such contingencies and

close on the Property within the 120-day period, “its option to purchase (or right of first refusal)

under [Chapter 61B would] be deemed waived, with it having no further recourse and/or rights

under said Chapter pertaining to the [Property].” Id.

D. The Appraisal, Subsequent Public Hearing, and Notice of Intent to Convert

Scotti provided the Town and Plaintiffs with an appraisal of the Property on September

27, 2024. DSUMF Ex. 2, at 3 (“Appraisal Rep.”) [Doc. No. 36-2]. Per that appraisal, the

estimated market value of the fee simple interest of the Property was $6,970,000. Id. at 6.

On October 16, 2024, the Town’s Board of Selectmen held a public hearing, in which it

voted to exercise the Town’s right under Chapter 61B to purchase the Property. DSUMF Ex. 1,

at ECF 2 [Doc. No. 36-1]. The Town proceeded to record a “Notice of Intent to Exercise Option

Pursuant to G.L. c. 61B, § 9 [as to the Property]” in the Bristol County North Registry of Deeds

on October 24, 2024. Id. at ECF 4–6.

E. November 2024: Purchase and Sale Agreement and Town Meeting

On November 4, 2024, the Town entered into a Purchase and Sale Agreement with 320

Fall River for the Property, at the $6,970,000 appraisal price. Opp’n Ex. E, at 1–2 [Doc. No. 43-

5] (“Purchase and Sale Agreement”). The Town would receive a quitclaim deed for the Property.

See id. at 2. Both parties were represented by counsel. See id. at 1 (identifying the “Seller’s

Attorney” and the “Buyer’s Attorney”).

At the Town’s Fall Town Meeting on November 18, 2024, residents voted to appropriate

the requisite $6,970,000 to purchase the Property “for general municipal purposes.” DSUMF

Ex. 4, at ECF 3 [Doc. No. 36-4] (“Certified Town Meeting Vote”). Both Defendant Hines, as

Chairperson of the Town’s Board of Selectmen, and Defendant Andrade, who was no longer a

member of the Board,2 spoke in favor of the appropriation. See DSUMF ¶¶ 13–14 [Doc. No. 36].

F. Closing on the Property

The parties scheduled the closing on the Property for March 4, 2025, at 11:00 a.m., but

Plaintiffs did not appear as scheduled. DSUMF ¶ 15 [Doc. No. 36]; see Pls. Resp. SUMF ¶ 15

[Doc. No. 42] (disagreeing with Defendants’ characterization of Plaintiffs’ non-appearance but

not denying that Plaintiffs did not, in fact, appear for the closing).

The closing on the Property ultimately occurred on April 30, 2025, at which point

Defendants accepted and recorded a quitclaim deed for the Property in exchange for the

$6,970,000 agreed-upon purchase price. See DSUMF Ex. 6, at ECF 2–5 [Doc. No. 36-6]

(“Quitclaim Deed”).

II. Procedural Background

Plaintiffs commenced this action on January 24, 2025, asserting five claims: (1) violation

of 42 U.S.C. § 1983, insofar as Defendants effected an “unlawful taking” of Plaintiffs’ property

in violation of the Fifth Amendment to the United States Constitution (Count I); (2) “targeted

and selective enforcement activity” that deprived Plaintiffs of their civil rights, also in violation

of 42 U.S.C. § 1983 (Count II); (3) “First Amendment [r]etaliation[,]” also in violation of

2 The record is unclear as to Andrade’s specific date of departure from the Board, but there is no

dispute that Andrade was no longer a member of the Board by April 2023. See Compl. ¶ 5 [Doc.

No. 1] (alleging that Andrade was a member of the Board from 2016 to 2022); Answer ¶ 5 [Doc.

No. 15] (responding that Andrade was a member from April 2014 to April 2023).

42 U.S.C. § 1983 (Count III); (4) entitlement to declaratory or injunctive relief pursuant to

28 U.S.C. § 2201 and Mass. Gen. Laws ch. 231A, § 1 et seq, that the “[Purchase and Sale

Agreement] is void as a matter of law and the Defendants actions violate the United States

Constitution and Constitution of the Commonwealth of Massachusetts.” (Count IV); and (5)

“statutory rescission” pursuant to Mass. Gen. Laws ch. 30B, § 17 (Count V). Compl. ¶¶ 43–71

[Doc. No. 1] (cleaned up).

On February 26, 2025, Plaintiffs sought a temporary restraining order (“TRO”) and

preliminary injunction, in which they requested that the court enjoin Defendants from

“possessing, owning, [] maintaining[,] . . . selling, conveying, transferring, gifting, or

developing” the Property and enter an order “rescinding, voiding, and/or blocking the

Agreement.” Pls.’ Emergency Ex Parte Mot. for TRO & Prelim. Inj. 1–2 [Doc. No. 11].

Defendants opposed interlocutory review and, in Defendants’ Answer [Doc. No. 15] to

Plaintiffs’ Complaint [Doc. No. 1], the Town asserted counterclaims against Plaintiffs for breach

of contract and specific performance. See Answer 12 ¶ 1–13 ¶ 11 [Doc. No. 15]. The court

ultimately declined to grant either a TRO or a preliminary injunction. See generally Mem. &

Order [Doc. No. 26]; Elec. Order [Doc. No. 12].

Defendants subsequently moved for summary judgment on all of Plaintiffs’ claims. See

Mot. for Summ. J. 1–3 [Doc. No. 34]. In response, Plaintiffs moved to defer the motion under

Federal Rule of Civil Procedure 56(d) to permit discovery on “disputed factual assertions that

remain entirely undeveloped.” See Mot. to Defer Defs.’ Mot. for Summ. J. Pursuant to R. 56(d) 1

(“Rule 56(d) Motion”) [Doc. No. 37]. The court denied the Rule 56(d) Motion [Doc. No. 37]

where Plaintiffs failed to identify “any facts asserted in Defendants’ Local Rule 56.1 Statement

of Facts that [were] disputed or that require[d] discovery to contest” and therefore did not show

“how discovery [would] influence the outcome of Defendants’ Motion for Summary Judgment

[Doc. No. 34][.]” Elec. Order [Doc. No. 40]. Plaintiffs opposed Defendants’ motion thereafter.

See Opp’n [Doc. No. 43]. In light of the denial of Plaintiffs’ Rule 56(d) Motion [Doc. No. 37],

on September 30, 2025, the court stayed, inter alia, depositions and the filing of motions to

compel until the court rendered a decision on Defendants’ fully briefed summary judgment

motion. See Elec. Clerk’s Notes [Doc. No. 45].3

The parties jointly stipulated to dismissal of the Town’s counterclaims on October 21,

2025. Joint Stipulation 1 [Doc. No. 60]. On November 4, 2025, Plaintiffs filed an Emergency

Motion for Temporary Restraining Order [Doc. No. 61], in which they sought a court order

enjoining Defendants, approximately six months after the Town closed on the Property, “from

selling, conveying, transferring, encumbering, or otherwise disposing of the [Property] pending

further order of the Court.” See id. at 1–2. The court ordered Plaintiffs to supplement the motion

with an “expla[nation of] the basis in law or equity for the requested emergency relief,” see Elec.

Order [Doc. No. 63], and denied the Motion [Doc. No. 61] when Plaintiffs failed to respond, see

Elec. Order [Doc. No. 64].

3 On October 10, 2025, Plaintiffs nonetheless filed four motions to compel Defendants to provide

more documents and more complete answers to interrogatories. See Pls.’ Mot. to Compel Def[s.]

[The Town of Seekonk and Michelle A. Hines] to Provide More Complete Answers to Their

First Req. for Produc. of Docs. [Doc. No. 46]; Pls.’ Mot. to Compel Def[s.] [The Town of

Seekonk and Michelle A. Hines] to Provide Further and More Complete Answers to Interrogs.

[Doc. No. 48]; Pls.’ Mot. to Compel Def. David Andrade to Provide More Complete Answers to

Interrogs. [Doc. No. 50]; and Pls.’ Mot. to Compel Def. David Andrade to Provide More

Complete Answers to Their First Req. for Produc. of Docs. [Doc. No. 52]. Where Plaintiffs filed

these motions despite the partial stay, see Elec. Clerk’s Notes [Doc. No. 45], and without leave

of court, the four motions to compel are DENIED.

III. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

when “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when, under

the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 125

(1st Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the non-

moving party. Anderson, 477 U.S. at 248.

The moving party bears the initial burden of establishing the absence of a genuine dispute

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be satisfied

in two ways: (1) by submitting affirmative evidence that negates an essential element of the non-

moving party’s claim or (2) by demonstrating that the non-moving party failed to establish an

essential element of its claim. Id. at 331.

Once the moving party establishes the absence of a genuine dispute of material fact, the

burden shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of

material fact remains. Id. at 321. The non-moving party cannot oppose a properly supported

summary judgment motion by “rest[ing] on mere allegations or denials of [the] pleadings.”

Anderson, 477 U.S. at 248. Rather, the non-moving party must “go beyond the pleadings and by

[his or] her own affidavits, or by the depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at

324 (quotations omitted). Disputes over facts “that are irrelevant or unnecessary” will not

preclude summary judgment. Anderson, 477 U.S. at 248.

Generally, such a motion is brought after the parties have completed discovery. See

Celotex Corp, 477 U.S. at 322 (“In our view, the plain language of Rule 56(c) mandates the entry

of summary judgment, after adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at trial”). Nonetheless, unless a local

rule or court order provides otherwise, the movant may file a summary judgment motion before

discovery is complete or before it has even commenced. See Fed. R. Civ. P. 56(b) (“[A] party

may file a motion for summary judgment at any time until 30 days after the close of all

discovery.”). However, “the party opposing the motion for summary judgment bears the burden

of responding only after the moving party has met its burden of coming forward with proof of

the absence of any genuine issues of material fact.” Celotex Corp, 477 U.S. at 322.

Moreover, even if the movant meets its burden, to prevent a court from “swinging the

summary judgment axe too hastily,” Rule 56(d) (formerly Rule 56(f)) provides “a method of

“buying time for a party who . . . can demonstrate an authentic need for, and an entitlement to, an

additional interval in which to marshal facts essential to mount an opposition.” Resol. Tr. Corp.

v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). Under this method, the court may

deny or defer consideration of the summary judgment motion “[i]f a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its

opposition[.]” Fed. R. Civ. P. 56(d). “A basic tenet of [Rule 56(d)] practice is that the party

seeking discovery must explain how the facts, if collected, will ‘suffice to defeat the pending

summary judgment motion.’” Asociacion de Periodistas de P.R. v. Mueller, 680 F.3d 70, 77 (1st

Cir. 2012) (citation omitted). The filing party must supply the court with a statement (1)

explaining her inability to adduce facts essential to filing an opposition to the summary judgment

motion; (2) providing a plausible basis for believing that the sought-after facts can be assembled

with a reasonable time; and (3) indicating how these facts would influence the outcome of the

pending summary judgment motions. Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir.

2004). The court may refuse such a request if it concludes that the party opposing summary

judgment is unlikely to garner useful evidence from the discovery sought. Hicks v. Johnson, 755

F.3d 738, 743 (1st Cir. 2014).

When reviewing a motion for summary judgment, the court must take all properly

supported evidence in the light most favorable to the non-movant and draw all reasonable

inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge . . . ruling on a motion for summary

judgment[.]” Anderson, 477 U.S. at 255.

IV. Discussion

A. Waiver of Claims Under the July 24, 2024 Agreement

Defendants first contend that, based on undisputed material facts, Plaintiffs waived any

claims against the Town associated with the Town’s exercise of its Chapter 61B statutory right

of first refusal to purchase the Property. In doing so, they direct the court to the Chapter 61B

Agreement.

“[W]hen the language of a contract is clear, it alone determines the contract’s

meaning[,]” and the contract’s language is “construed according to its plain meaning.” Balles v.

Babcock Power Inc., 476 Mass. 565, 571, 70 N.E.3d 905, 911 (2017). If the contract language is

“ambiguous[,]” however, a court may “consider extrinsic evidence” to interpret the contract’s

meaning. Id. The Massachusetts Supreme Judicial Court finds ambiguity in contractual language

when such language “can support a reasonable difference of opinion as to the meaning of the

words employed and the obligations undertaken.’” Bank v. Thermo Elemental Inc., 451 Mass.

638, 648, 888 N.E. 2d 897, 907 (2008). An ambiguity “is not created simply because a

controversy exists between the parties, each favoring an interpretation contrary to the other.”

Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466, 645 N.E.2d 1165,

1168 (1995) (citation omitted); see Tenants’ Dev. Corp. v. AMTAX Holdings 227, LLC, 495

Mass. 207, 218–19, 248 N.E.3d 647, 659 (2025).

A party may contract to waive federal constitutional claims. See, e.g., D. H. Overmyer

Co., Inc. of Ohio v. Frick Co., 405 U.S. 174, 185 (1972) [hereinafter Overmyer] (parties able to

waive right to notice and hearing prior to civil judgment); Higgins v. Town of Concord, 322 F.

Supp. 3d 218, 225 (D. Mass. 2018) (employee validly waived right to pursue constitutional

claims so long as waiver was knowing and voluntary). A waiver of such rights, however, is not

effective unless it is undertaken knowingly and voluntarily. See Am. Airlines, Inc. v. Cardoza-

Rodriguez, 133 F.3d 111, 117 (1st Cir. 1998).

In assessing whether a party has agreed to a waiver knowingly and voluntarily, “no single

factor or circumstance is entitled to talismanic significance[,]” and a court must evaluate “the

totality of the circumstances[.]” Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173,

181 (1995). To aid in this determination, courts may look to six non-exhaustive factors:

(1) the plaintiff’s education, business experience, and sophistication; (2) the parties’

respective roles in deciding the final terms of the arrangement; (3) the agreement’s

clarity; (4) the amount of time available to the plaintiff to study the agreement

before acting on it; (5) whether the plaintiff had independent advice––such as the

advice of counsel––when [the plaintiff] signed the agreement; and (6) the nature of

consideration tendered in exchange for the waiver.

Id. at 181 & n.3 (first citing Finz v. Schlesinger, 957 F.2d 78, 82 (2d Cir. 1992); and then citing

Lanioke v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360, 1368 (2d Cir.

1991)). It is “not necessary” that each of these factors be satisfied before the waiver may be

enforced. Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272, 276 (1st Cir. 2002).

The court first finds that the language of the Chapter 61B Agreement is unambiguous as

to the disputed waiver provisions. Plaintiffs contend that the Agreement is ambiguous as to

waiver of constitutional claims where its “text it silent on constitutional claims, and its language

is framed exclusively in terms of waiving objections to the mechanics of the Town’s exercise of

its purchase option under G.L. c. 61B, § 9.” Opp’n 10 [Doc. No. 41]. Plaintiffs’ reading,

however, ignores the plain language of the waiver provision, which states that 320 Fall River

“forever waives and relinquishes its objections to the Town’s actions, as well as any and all

claims that the Town has waived its right of first refusal/option to purchase the [Property].”

Chapter 61B Agreement at ECF 14 ¶ 2(viii) [Doc. No. 36-1]. The contract thus contemplated two

categories of waiver: (1) waiver of Plaintiffs’ claims that the Town waived its option under

Chapter 61B to purchase the Property, which Plaintiffs do not dispute; and (2) waiver of any

other objections to the Town’s actions regarding its Chapter 61B, without limitation as to the

nature of such objections.

Accompanying language in the Chapter 61B Agreement lends further support to the

unambiguous nature of Agreement’s waiver provisions. The Agreement, for example, specifies

that its existence was precipitated by the parties’ interest in “avoid[ing] litigation and the

attendant risks and costs related thereto[,]” such that the parties were “desirous of resolving any

issues and disputes as to one another[.]” Chap. 61B Agreement at ECF 12 [Doc. No. 36-1].

Accordingly, the parties “determined to resolve the issues and this Dispute among them upon the

terms, conditions and provisions of this Agreement[.]” Id. (emphasis added). “Dispute” here

refers to the parties’ differing views on the sufficiency of the Notice and whether the Chapter

61B option was waived. See id. (“[A]s a result of the foregoing, there exists a dispute between

the Parties regarding the Town’s option to purchase the [Property] under M.G.L. c. 61B

(hereinafter the ‘Dispute’)[.]”). The Agreement’s reference to the parties’ determination to

resolve “the issues and this Dispute” therefore encapsulates more than the specific “Dispute”

alone and speaks to the broader nature of Plaintiffs’ waiver of claims. That the Agreement also

sets forth a very detailed process through which the parties would engage with an appraiser for

the Property and ultimately close on the sale of the Property to the Town further indicates that

the parties, without reservation, intended to move forward with the transaction. See id. at ECF 13

¶ 2(i)–(vi).

As to whether Plaintiffs’ waiver was effective, Plaintiffs argue that (1) although “it has

not been expressly held” to apply in civil cases, the “voluntary, knowing, and intelligent”

standard for waiver in the criminal context “has been applied by the Supreme Court to the

evaluation of a waiver of constitutional rights in civil cases” and appears to ask this court to do

the same; and (2) although it “has not been settled in the First Circuit whether there is an

additional consideration beyond the ‘voluntary, knowing, and intelligent’ standard[,]” “at least

one circuit has held that even where this standard is satisfied, the waiver is ‘unenforceable if the

interest in its enforcement is outweighed in the circumstances by a public policy harmed by

enforcement of the agreement.’” Opp’n 7–8 [Doc. No. 41].

As to the latter, the court will not add the public policy requirement to the waiver analysis

where Plaintiffs acknowledge that the First Circuit has not adopted it. See id. at 8. As to the

former, Plaintiffs appear to rely on the following statement in Overmyer:

Even if, for present purposes, we assume that the standard for waiver in a criminal

proceeding, that is, that it be voluntary, knowing, and intelligently made, or an

intentional relinquishment or abandonment of a known right or privilege, and even

if, as the Court has said in the civil area, we do not presume acquiescence in the

loss of fundamental rights, that standard was fully satisfied here.

405 U.S. at 185–86 (quotations and citations omitted) (emphasis added). In light of the text of

the Supreme Court’s opinion in Overmyer, the court finds no reason to apply the criminal

standard here where Plaintiffs urge the court to do so based on an apparent overreading of the

case.

Applying the standard for knowing and voluntary waiver in the civil context, see Am.

Airlines, Inc., 133 F.3d at 117, the court finds that, based on the summary judgment record, there

is no genuine issue as to whether Plaintiffs sufficiently waived any claims against the Town

pursuant to the Chapter 61B Agreement. Critically, Plaintiffs averred in the Agreement that:

Each Party has read this agreement, understands the effect and scope of this

Agreement and has had the assistance of separate and independent legal counsel of

its choice in carefully reviewing, discussing and considering all terms of this

Agreement or has elected to enter into this Agreement without consulting legal

counsel.

Chap. 61B Agreement at ECF 15 ¶ 11(i) [Doc. No. 36-1]. Plaintiff Tapalian, who signed the

Agreement as the owner of 320 Fall River, now asserts that he did not agree to waive

constitutional claims and did not believe he was doing so, but he does not offer any evidence as

to what this belief was based on or how the Agreement would work if Plaintiffs were still

retaining rights to dispute any real estate transaction. He also does not claim an inadequate

opportunity to review the agreement, deny that he had an opportunity to consult legal counsel, or

point to any untoward circumstances in the negotiation of the agreement. See Smart, 70 F.3d 181

& n.3 (listing factors helpful to the court in determining validity of waiver).

Accordingly, the court finds that there is no genuine issue of material fact as to whether

Plaintiffs validly waived any claims regarding the Town’s exercise of its Chapter 61B option.

But, even if Plaintiffs had not effectively waived their claims via the Chapter 61B Agreement,

Defendants are entitled to summary judgment on the merits, as described infra.

B. Unconstitutional Taking Claim

In their Complaint [Doc. No. 1], Plaintiffs assert that the Property was unlawfully “taken”

by the Town, in violation of the Fifth Amendment to the United States Constitution and Article

X of the Massachusetts Constitution. Id. ¶¶ 43–49. In Plaintiffs’ view, the Property was “taken”

in “retaliation” for Plaintiffs’ attempt to develop the Property into affordable housing units under

Mass. Gen. Laws ch. 40B. Id. ¶¶ 46–47. In support of their Motion for Summary Judgment [Doc.

No. 34], Defendants argue that the Town’s exercise of its statutory right of first refusal to

purchase the Property does not constitute a “taking.” See Mem. ISO Mot. for Summ. J. 5 [Doc.

No. 35].

Under the Fifth Amendment, as applied to the states through the Fourteenth Amendment,

private property shall not “be taken for public use, without just compensation.” U.S. Const.

amend. V; see also Mass. Const. Pt. 1, art. X (“[W]henever the public exigencies require that the

property of any individual should be appropriated to public uses, he shall receive a reasonable

compensation therefor.”). The Fifth Amendment does not prohibit the government from

appropriating private property, so long as just compensation is paid. See U.S. ex rel. Tenn.

Valley Auth. v. Welch, 327 U.S. 546, 554–55 (1946); Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 536–37 (2005).

The Supreme Court has articulated that a government “commits a physical taking when it

uses its power of eminent domain to formally condemn property[,]” “physically takes possession

of property without acquiring title to it[,]” or “when it occupies property––say, by recurring

flooding as a result of building a dam.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 147–48

(2021). When a physical taking occurs, “the Takings Clause imposes a clear and categorical

obligation to provide the owner with just compensation.” Id. at 147.

The Takings Clause also does not permit “one person’s property [to be] taken for the

benefit of another private person without a justifying public purpose, even though compensation

be paid.” Fideicomiso De La Tierra Del Cano Martin Pena v. Fortuno, 604 F.3d 7, 17 (1st Cir.

2020) (quoting Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 80 (1937)). But when

property is taken for “public use,” the court reviews such takings deferentially. See Haw.

Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984) (“When the legislature’s purpose is

legitimate and its means are not irrational . . . empirical debates over the wisdom of takings––no

less than debates over the wisdom of other kinds of socioeconomic legislation––are not to be

carried out in the federal courts.”).

In the first instance, Plaintiffs’ position that the sale of the Property to the Town

constituted a taking is contradicted by the summary judgment record. Plaintiffs long reaped the

benefit of favorable tax treatment under Mass. Gen. Laws ch. 61B, a condition of which was

acceptance of the Town’s statutory right of first refusal to purchase the Property if Plaintiffs

sought to convert it to non-recreational use. See Mass. Gen. Laws ch. 61B, § 9. Plaintiffs were

clearly aware of this requirement, given that they adhered to the statute’s requirement that they

notify the Town of their intent to convert the property prior to doing so. See Notice at 1–2 [Doc.

No. 43-1] (“In accordance with M.G.L. c. 61B, § 9, please accept this correspondence as [o]ur

[c]lients’ Notice of Intent to Convert the Property from recreational to residential use.”). It was

when Plaintiffs gave this required notice that the Town sought to pursue its statutory right to

purchase the Property––and the exercise of such a statutory right is not a “taking” in the

constitutional sense. See Cedar Point Nursery, 594 U.S. at 147–48 (listing several ways in which

a physical taking may be effected, none of which involve the government’s exercise of a

statutory right of first refusal); accord Greenfield Country Ests. Tenants Ass’n., Inc. v. Deep, 423

Mass. 81, 87, 666 N.E.2d 988, 992 (1996) (stating that “mere conditioning [of] the sale of the

property to a right of first refusal does not amount to a taking” in a case concerning a

Massachusetts statute granting a right of first refusal to resident associations when the owner of a

manufactured housing community seeks to sell the community).

Even assuming, arguendo, that the Town’s actions regarding the Property could be

considered a taking, the summary judgment record would not permit a reasonable jury to find

that the Town violated either the public purpose or the just compensation requirements of the

Takings Clause. As to the just compensation requirement, the record is clear that the Town paid

Plaintiffs the dollar amount value of the Property at which the third-party assessor arrived. There

is nothing in the record to suggest that the $6,970,000 purchase price was somehow deficient or

unjust relative to the Property’s actual value, particularly where the assessor was jointly assented

to and retained by the Town and Plaintiffs.

As to the public purpose requirement, Plaintiffs assert that Defendants engaged in a

“purely obstructive taking, bereft of any contemporaneous public purpose" when the Town

exercised its Chapter 61B right to purchase the property. This position reflects neither the law

nor the facts before the court. Although it is true that the Town would not be permitted to take

one person’s private property “for the benefit of another private person without a justifying

public purpose,” see Fideicomiso, 604 F.3d at 17, the Town took no such action with respect to

the Property. Plaintiffs have not pointed to any specific evidence suggesting that the Property

was purchased with the intention of transferring it to a private party––and even if the Town did

so, Chapter 61B permits a municipality to transfer its right of first refusal option to private actors

in limited circumstances. See Certified Town Meeting Vote at ECF 3 [Doc. No. 36-4] (motion

passed concerning the property would permit the Town to appropriate funds to “acquire,

pursuant to G.L. c. 61B, § 9 . . . the Property . . . for general municipal purposes” (emphasis

added)); Mass. Gen. Laws ch. 61B, § 9 (subject to a public hearing, “the city or town may assign

its option to a nonprofit conservation organization . . . or any of [the commonwealth’s] political

subdivisions” (emphasis added)).

Accordingly, Defendants’ motion for summary judgment is GRANTED as to Count I.

C. Selective Enforcement and First Amendment Retaliation Claims

In Count II of their Complaint [Doc. No. 1], Plaintiffs contend that, “[b]y undertaking a

retaliatory scheme against Plaintiffs, Defendants have unlawfully and substantially deprived

Plaintiffs of rights secured by the First and Fourteenth Amendments to the United States

Constitution[.]” Id. ¶ 51. Similarly, in Count III, Plaintiffs assert that Defendants “retaliat[ed]”

against Plaintiffs for “filing applications with MassHousing and the Town to develop the

Property under G. L. c. 40B, [which are] activities consistent with and protected by their right

secured by the First Amendment” under the federal and state constitutions. Id. ¶¶ 56–58. As to

this count, Plaintiffs further assert that “Defendants . . . in making various public accusations of

Plaintiffs’ project and in taking other calculated actions designed to interfere with Mr. Tapalian’s

other developments, together with the Property, acted under color of state law.” Id. ¶ 57.

In the First Circuit, a First Amendment retaliation claim requires that a party “(1)

engaged in constitutionally protected conduct, (2) was subjected to an adverse action by the

defendant, and (3) the protected conduct was a substantial or motivating factor in the adverse

action.” Gattineri v. Town of Lynnfield, Mass., 58 F.4th 512, 514 (1st Cir. 2023) (quotation

omitted) (cleaned up). An adverse action “is an action that would deter a reasonably hardy

person from exercising his or her constitutional rights.” D. B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 43 n.11 (1st Cir. 2012) (citing Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011)).

Setting aside whether the submission of an application for a real estate development

constitutes protected conduct under the First Amendment, Plaintiffs have not offered sufficient

evidence to demonstrate that they were subjected to an “adverse action.”

As to adverse action, Plaintiffs center their argument on the Chapter 61B sale of the

Property itself, alleging, inter alia, that “Defendants––particularly Andrade and Hines––

leveraged the statutory mechanism of G.L. c. 61B, § 9 not for any legitimate municipal purpose,

but as a punitive and selective measure to obstruct a lawfully approved affordable housing

project and retaliate against Plaintiffs for protected petitioning and political speech”; Andrade

“publicly advocated for the acquisition of Plaintiffs’ property over their objections[,]” at least

partially in response to Plaintiffs refusal to engage in a $365,000 private contract with Andrade

in an unrelated project; and Hines “used her public platform to disparage Plaintiffs’

developments, sow unfounded fears about fiscal impacts, and press for acquisition of the

property without any articulated public-use plan.” Opp’n 17–18 [Doc. No. 41].

Far from suggesting a conspiracy of sorts, however, the summary judgment record

demonstrates that (1) the purchase of the property was undertaken pursuant to the Town’s

statutory right of first refusal under Chapter 61B, of which Plaintiffs were aware; and (2) the

appropriation of funds necessary to complete the purchase was approved by the Town’s residents

in an open meeting, with 271 votes in favor of the appropriation, eighteen votes against it, and

zero votes abstaining. That Plaintiffs applied for, and received, approval from MassHousing for

their desired real estate development in no way vitiated the Town’s right to pursue its Chapter

61B right of first refusal, regardless of what Plaintiffs viewed as the better path forward for the

Property.

Defendants’ motion for summary judgment as to Counts II and III is GRANTED.

D. Statutory Rescission

As to Plaintiffs’ claim that they are entitled to “statutory rescission” of the Purchase and

Sale Agreement of the Property, see Compl. ¶¶ 67–71 [Doc. No. 1], Defendants argue that

Plaintiffs rely on an inapplicable statute.

Plaintiffs assert that Defendants “acted in bad faith and infringed upon Plaintiffs’

property rights, particularly regarding the development of G. L. c. 40B housing[,]” id. ¶ 69, and

that, “[t]hrough their retaliatory actions, Defendants conspired to induce Plaintiffs into entering

the [Purchase and Sale Agreement] with the sole intent of obstructing Plaintiffs’ project on the

Property, despite having no immediate plan to develop the land[,]” id. ¶ 68. Based on these

allegations, Plaintiffs allege that they are entitled to rescission pursuant to a provision of the

Commonwealth’s Uniform Procurement Act (“UPA”), Mass. Gen. Laws ch. 30B, § 17. Id. ¶ 71.

Section 17 of the UPA provides:

(a) All contracts in the amount of $10,000 or more shall be in writing, and the

governmental body shall make no payment for a supply or service rendered prior

to the execution of such contract.

(b) Subject to the provisions of section three A of chapter forty, a contract made in

violation of this chapter shall not be valid, and the governmental body shall make

no payment under such contract. Minor informalities shall not require invalidation

of a contract.

(c) A person who causes or conspires with another to cause a contract to be solicited

or awarded in violation of a provision of this chapter shall forfeit and pay to the

appropriate governmental body a sum of not more than two thousand dollars for

each violation. In addition, the person shall pay double the amount of damages

sustained by the governmental body by reason of the violation, together with the

costs of any action. If more than one person participates in the violation, the

damages and costs may be apportioned among them.

(d) The inspector general shall have authority to institute a civil action to enforce

paragraph (c) if authorized by the attorney general.

Mass. Gen. Laws ch. 30B, § 17.

Accepting, arguendo, Plaintiffs’ assertion that municipalities acting pursuant to Mass.

Gen. Laws ch. 61B are “not exempt . . . from compliance with the [UPA] when entering into

contracts involving the expenditure of public funds[,]” Opp’n 26 [Doc. No. 41], the court finds

no connection between the purported wrongful action and the statutory provision.

In any event, even if Defendants’ actions somehow violated this statute, Mass. Gen. Laws

ch. 30B, § 17, provides Plaintiffs no avenue for relief. First, Plaintiffs’ position relies on a

fundamental misunderstanding of the remedy available under § 17. Pursuant to § 17(c), a party in

violation of the UPA must “forfeit and pay” up to $2,000 for each violation, plus damages and

any costs of the associated legal action. Mass. Gen. Laws ch. 30B, § 17(c). The statute therefore

provides no authority under which the court may “rescind” the Purchase and Sale Agreement for

the Property. Second, § 17(d) provides for a statutory right of action for the “inspector general”

to seek damages sustained by a governmental body but no such right for a private actor. See

Mass. Gen. Laws ch. 30B, § 17(d) (“The inspector general shall have authority to institute a civil

action to enforce paragraph (c) if authorized by the attorney general.”).

Thus, where Mass. Gen. Laws ch. 30B, § 17 provides neither the remedy Plaintiffs seek

nor a private right of action through which they could pursue it, Defendants’ motion for

summary judgment as to Count V is GRANTED.

E. Declaratory or Injunctive Relief

Insofar as Plaintiffs seek declaratory or injunctive relief (Count IV), where Defendants

are entitled to summary judgment on Plaintiffs’ claims for the reasons described supra, Plaintiffs

are not entitled to such relief.

V. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment [Doc. No. 34] is

GRANTED.

IT IS SO ORDERED.

April 7, 2026, corrected April 9, 2026 /s/ Indira Talwani

United States District Judge