MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a remand, the plaintiffs appeal from an order allowing the towns motion for relief from certain provisions of a consent judgment requiring the town to implement traffic mitigation measures on Glezen Lane. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]). Because we agree that the plaintiffs were not afforded the opportunity to litigate the towns motion for relief in the manner contemplated by the remand order, we vacate the order allowing the motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2) of the consent judgment, and remand the matter for further proceedings consistent with this memorandum and order.
Background. 1. Consent judgment. In 2008 the parties resolved the plaintiffs’ challenge under G. L. c. 40A, § 17, to a town-issued special permit for a mixed-use development in Waylands town center (town center project) through an agreement for judgment with the town.
5
See Bernstein vs. Planning Bd. of Wayland, Mass. App. Ct., No. 17-P-1567, slip op. at 1 (Dec. 21, 2018). In keeping with the terms of the parties’ agreement, a consent judgment entered in the Superior Court, the terms of which required the town to implement certain baseline traffic mitigation measures at the intersection of Glezen Lane and Route 27 (intersection), including restrictions on weekend turns into and out of Glezen Lane at the intersection (limited or signed turn restrictions).
6
See id. Based on measured increases in traffic volume on Glezen Lane, and to mitigate those increases, the consent agreement called for deployment of graduated steps, including expansion of the times and days on which turns at the intersection were restricted. The ultimate mitigation measure, if defined traffic maxima were reached, called for a total ban on certain turns at the intersection and a reconfiguration of the intersection that would create physical restrictions limiting turns there (final measures).
2. Towns motion for relief from judgment. The town center project was completed and the parties continued to abide by the terms of the consent judgment until, in 2016, the maxima established in the consent judgment for imposition of the final measures under § I.(G)(4) were met. See Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 2-3. At that point, the town was granted temporary relief from judgment to allow it to remove all signs and turning restrictions at the intersection for a period of sixty days in order to perform a traffic study and complete the required the physical changes. See id.
The town then brought a series of motions in the Superior Court including, as relevant to this appeal, a motion for permanent relief from judgment under rule 60 (b), arguing, inter alia, that the project did not result in increased traffic over Glezen Lane, and that the final measures raised public safety concerns related to emergency event response times. The sole basis for the towns emergency response concerns, as articulated in the affidavits supporting the towns motion,
7
was the towns claim that fire apparatus would be unable to access Glezen Lane using the intersection if the intersection were reconfigured to include the physical turn restrictions required under § I.(G)(4).
The judge held an evidentiary hearing limited to determining “whether to grant the [t]owns [m]otion for [r]elief from [j]udgment as to [§] I.(G)(4) of the [c]onsent [j]udgment ONLY.” At the hearing, the town indicated its intention to support its motion for relief from judgment with evidence of the towns safety concerns, including both the physical turn restrictions and (for the first time on this record) the signed turn restrictions.
8
The evidence that the town presented was true to that representation; although the town focused on the safety impacts of the physical turn restrictions, it also introduced evidence concerning the safety risks presented by the signed turn restrictions.
9
,
10
The towns evidence of whether and when the town became aware of the claimed risks related to the signed turn restrictions (as opposed to the physical turn restrictions) was limited to the testimony of the town police and fire chiefs to the effect that neither departments chief was part of the negotiation of the consent agreements terms. Plaintiff David Bernstein testified to his involvement in the negotiations, and to the towns communication of at least one selectpersons concern about the risks of impeding emergency vehicles’ access to Glezen Lane.
11
Following that hearing, the judge found that implementation of the mitigation measures in § I.(G)(4), including both the proposed physical changes to the intersection and the signs restricting turns at the intersection at all times, would create significant safety risks not anticipated at the time the consent judgment entered, and those safety risks constituted “exceptional circumstances” warranting relief. Accordingly, the judge allowed relief from judgment “as to [§] I.(G)(4).”
The plaintiffs did not appeal from this ruling,
12
but later moved to enforce the limited turn restrictions of §§ I.(F)(7) and I.(G)(2), and the enforcement patrols of § I.(F)(8). See Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 2. The town filed a cross motion for “clarification,” claiming that those provisions had been eliminated when the judge allowed the towns motion for relief from the permanent restrictions contained in § I.(G)(4). See id. The judge denied the plaintiffs’ motion without further evidentiary hearing, explaining that she considered the relief she ordered to have encompassed all of the turn restrictions under the consent judgment, and not only those of § I.(G)(4). See id. The judge allowed the towns motion granting relief from §§ I.(F)(7) & (8) and I.(G)(2) & (4). The plaintiffs appealed.
3. Plaintiffs’ first appeal. In an unpublished memorandum of decision pursuant to our former rule 1:28, a panel of this court vacated the order granting the town relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2), noting that in litigating the towns entitlement to relief from § I.(G)(4) of the consent judgment, the town had not argued “that the [other] provisions ․ were duplicative and were also at issue.” Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 3. Concluding that “the plaintiffs were not put on notice that any [other] section ․ was before the court,” the panel remanded the case “to reopen the evidentiary hearing as to the towns request for relief as to §§ I.(F)(7) & (8) and I.(G)(2) of the consent judgment” to give the plaintiffs an opportunity to litigate “those issues.”
13
Id.
4. Proceedings on remand. On remand, the judge framed the issue as “whether the [t]own has met its burden of establishing that there are exceptional circumstances warranting relief from the Limited Turn Restrictions [included in §§ I.(F)(7) & I.(G)(2)]. In other words, is there anything different about the safety considerations previously addressed when the same turn restrictions are only in place [during the limited times established under §§ I.(F)(7) and I.(G)(2)].” The judge conducted three days of evidentiary hearing, during which the parties presented additional evidence.
14
Although the judge permitted plaintiffs’ counsel to impeach the towns witnesses with evidence of their safety concerns at the time the terms of the consent judgment were negotiated, consistent with her interpretation of the scope of the remand, the judge repeatedly sustained the towns objections to the plaintiffs’ efforts to elicit substantive evidence of the towns prejudgment appreciation of such risks, and which of those risks, if any, the town agreed to accept as a cost of obtaining the consent judgment.
15
In doing so, the judge emphasized (1) that in allowing the motion for relief from § I.(G)(4), she had already decided that there were unanticipated safety risks associated with the signed turning restrictions; and (2) her understanding that the remand order did not require her to reconsider that determination in ruling on the motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2).
16
Ultimately, the judge credited the witnesses’ testimony to the effect that the limited turn restrictions “caused motorists, including school busses, to engage in unsafe turning, and ․ could cause delays in public safety response times,” and noted that, given the evidence that the projected traffic increases the consent judgment was intended to mitigate had not materialized, the safety concerns outweighed any need for the additional traffic mitigation measures.
17
The judge found that although the town had “thought about safety generally in 2008,” it did not “appreciate[ ] the actual impact the Limited Turn Restrictions would have on the safety of the community” when it entered into the consent judgment. Accordingly, the judge allowed the towns motion for relief from judgment as to §§ I.(F)(7), I.(F)(8), and I.(G)(2). The plaintiffs appealed.
Discussion. 1. Standard of review. Under rule 60 (b), “the court may relieve a party or his legal representative from a final judgment ․ for ․ any ․ reason [not otherwise provided for in the rule] justifying relief from the operation of the judgment.” Mass. R. Civ. P. 60 (b) (6). The rule, applied only where the movant demonstrates the existence of “compelling or extraordinary circumstances,” Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990), is applied with particular stringency to consent judgments. See Thibbitts v. Crowley, 405 Mass. 222, 227 (1989), quoting United States Steel Corp. v. Fraternal Assn of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir. 1979) (“And when, as in this case, the [litigant] made a free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment, [his] burden under Rule 60 (b) is perhaps even more formidable than had [he] litigated and lost”). Indeed, “[a] court is powerless to enlarge or contract the dimensions of a true consent decree except upon (i) the parties’ further agreement or (ii) litigation of newly-emergent issues.” Thibbitts, supra, quoting Pearson v. Fair, 808 F.2d 163, 166 (1st Cir. 1986). See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992). Where a party seeks relief based on “newly-emergent issues,” it bears the burden of showing “a significant change either in factual conditions or in law,” and that the changes on which the party relies were not “actually ․ anticipated” at the time judgment entered. Rufo, supra at 384-385 (interpreting Federal rule).
In all cases, however, whether to authorize relief from a final judgment under rule 60 (b) is a question “addressed to the discretion of the judge,” and we review for an abuse of that discretion. Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting Parrell v. Keenan, 389 Mass. 809, 814 (1983).
2. Towns entitlement to relief. The plaintiffs argue that the judge erred in the framing of the issue on remand, shifting the burden of proof from the town to the plaintiffs, and in her conclusion that the safety concerns justified relieving the town of the judgment as to §§ I.(F)(7) & (8) and I.(G)(2). Because we agree, as noted supra, that the plaintiffs were not afforded the opportunity to litigate the towns motion in the manner contemplated by the remand order, we vacate the order allowing the motion for relief and remand without reaching the plaintiffs’ other arguments on appeal.
The judge framed the scope of the remand as limited to litigating whether there was “anything different about the safety considerations previously addressed” when the turn restrictions were imposed during only specified hours, rather than at all times. In remanding, however, the panel used different, broader language -- “to reopen the evidentiary hearing as to the towns request for relief as to §§ I.(F)(7) & (8) and I.(G)(2) of the consent judgment.” Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 2. We appreciate that the scope of the remand, read as we read it, may call for the “relitigation” of certain portions of the towns motion. In light of the prior panels emphasis that “the burden on a party seeking relief from a consent judgment is ․ onerous,” and its recognition of the towns responsibility under the terms of the consent judgment to “act in good faith to achieve [its] terms,” id. at 3, however, we conclude that the remand order required the judge to provide the plaintiffs the opportunity to litigate the towns entitlement to relief from §§ I.(F)(7) & (8) and I.(G)(2) on their own merits, and not by comparison to the judges finding as to § I.(G)(4). The order did not require the judge or the parties to relitigate the motion from scratch; to the contrary, by ordering the hearing “reopened,” the panel appears to have expected the parties and the judge to have considered the evidence presented in the towns challenge to § I.(G)(4). The order did, however, give the town the ability to introduce additional evidence and the plaintiffs the opportunity to test and rebut the towns evidence in toto.
18
See id.
Accordingly, we vacate the order allowing the towns motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2) of the consent judgment, and remand the matter to the Superior Court to reopen the evidentiary hearing as to the towns motion for relief from those sections of the consent judgment.
19
3. Attorneys fees. Because we vacate the order allowing the towns motion for relief from judgment based on our determination that the judge erred in her interpretation of the remand order, and not on the merits of the case, we decline to order the town to pay the plaintiffs’ attorneys fees and costs.
4. Conclusion. The order allowing the towns motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2) of the consent judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
vacated and remanded
FOOTNOTES
5
. Glezen Lane intersects Route 27. See Bernstein vs. Planning Bd. of Wayland, Mass. App. Ct., No. 17-P-1567 (2018). The purpose of the agreement, from the plaintiffs’ perspective, was the mitigation of traffic on Glezen Lane caused by the town center project.
6
. This included signed turning restrictions limiting turns onto Glezen Lane from Route 27 and onto Route 27 from Glezen Lane, during certain weekend hours, and the imposition of police patrols four times per month to enforce the restrictions.
7
. By stipulation, these affidavits were admitted into evidence as “pre-filed direct testimony.”
8
. The plaintiffs did not object to the inclusion of the signed turn restrictions as a basis for the towns safety concerns.
9
. Specifically, evidence that, in light of fire and police policies requiring emergency vehicles to abide by traffic rules and signage, the signed restrictions created a risk of delayed emergency responses; motorists employed improper turning methods to avoid inconvenience occasioned by the turn restrictions; and school buses were required to turn or back up in dangerous ways.
10
. The plaintiffs did not object to the evidence related to risks presented by the signed turn restrictions, instead taking the position that any concerns occasioned by the police and fire policies requiring emergency vehicles to comply with traffic rules could be eliminated by exempting emergency vehicles from the turning limitations.
11
. It is not clear from the transcript which aspects of the turning restrictions formed the basis of those concerns.
12
. The plaintiffs represented that they did not do so at least partly because they believed that the judges ruling left the mitigation measures in §§ I.(F)(1-8) and I.(G)(1-3) in place.
13
. In other words, to litigate the plaintiffs’ entitlement to relief from judgment from §§ I.(F)(7) & (8) and I.(G)(2) on the grounds that the project did not result in any increased traffic over Glezen Lane, that the town lacked a legal basis to enter into the agreement, and that the permanent turn restrictions raised public safety concerns related to emergency event response times. See Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 3.
14
. This included testimony about the towns current safety concerns stemming from the limited turn restrictions and evidence about traffic considerations as measured after the entry of the consent judgment.
15
. We note that although the town objected to the plaintiffs’ efforts to obtain this information, counsel for the town elicited favorable testimony from the towns engineer that before the consent judgment entered, neither he nor the town anticipated the safety issues that the town argued had arisen from the limited turn restrictions.
16
. In light of our conclusion, we do not decide whether this amounted to improper burden shifting. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992).
17
. We do not understand the judge to have found that the triggering maxima set out in the judgment had not been met as the plaintiffs reported them, only that the actual increase in traffic was less significant than the parties had expected when they negotiated the terms of the settlement.
18
. “Because the plaintiffs were not put on notice that any section other than the provisions of § I.(G)(4) was before the court, the case must be remanded to reopen the evidentiary hearing as to the towns request for relief as to §§ I.(F)(7) & (8) and I.(G)(2) of the consent judgment. It may well be that the town has no further evidence to present as to those sections, but the plaintiffs must have the opportunity to litigate those issues and to appeal from any relief granted as a result of the reopened hearing.” Bernstein, Mass. App. Ct., No. 17-P-1567, slip op. at 3.
19
. Our conclusion should not be read to suggest that we are unsympathetic to the judges frustration with the resources expended on this litigation, or that we are not mindful of the plaintiffs’ emphasis on the towns obligation under the terms of the consent judgment to defend the consent judgment against challenges, and to “render [the] terms [of the judgment] enforceable.”In hopes that additional guidance will be helpful, we clarify that on remand, the town continues to bear the burden of proving the existence of “compelling or extraordinary circumstances,” Winthrop Corp., 29 Mass. App. Ct. at 188, presented by a “significant change ․ in [the] factual conditions” involved in implementing §§ I.(F)(7), I.(F)(8), and I.(G)(2), that were not “actually ․ anticipated” at the time the consent judgment issued. Rufo, 502 U.S. at 383-384.We do not intend to limit the judges ability to consider any evidence she deems helpful to her decision-making in this case, but do intend that at the reopened hearing, the parties be permitted to introduce competent evidence of whether and to what extent the town was aware of the safety concerns that underpin the towns motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2) at the time the terms of the consent agreement were negotiated. They should also be permitted an opportunity to test any opposing evidence. The judge retains, of course, her broad discretion in determining the admissibility of any such evidence, including the ability to preclude duplicative evidence.In deciding the motion for relief from §§ I.(F)(7), I.(F)(8), and I.(G)(2), the judge should consider all of the evidence introduced at the reopened hearing and make findings and form conclusions on the motion for relief from these sections without reference to the findings or conclusions made in ruling on the towns motion for relief from § I.(G)(4) of the judgment.