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Amos v. Town of Westford

Superior Court of Massachusetts, Middlesex

November 29, 2016

David H. Amos et al. [1]
v.
Town of Westford et al. [2] No. 135840

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

          John T. Lu, Justice

         This case involves a long-running dispute concerning the proposed development of an asphalt manufacturing facility on industrial property at 540 Groton Road located near the northeast corner of Westford, Massachusetts (the " Project"). Plaintiffs, four registered voters (the " Voters") in the town of Westford, filed this action pursuant to G.L.c. 30A, § 23(f)[3] alleging that the Municipal Defendants, the Town of Westford (the " Town"), members of the Board of Selectmen of the Town of Westford (the " Board"), members of the Planning Board of the Town of Westford (the " Planning Board, " and together with the Board " Town Boards") (collectively, the " Municipal Defendants"), along with Newport Materials, LLC (" Newport"), and 540 Groton Rd., LLC (" Groton"), violated the Open Meeting Law, G.L.c. 30A, § § 18-25. The Voters now move for a preliminary injunction. The Voters' Motion for a Preliminary Injunction is DENIED .

         PROCEDURAL HISTORY

         At all relevant times, 540 Groton Road (the " Site") was owned by Groton and leased by Newport. On April 9, 2009, Newport applied to the Planning Board for Site Plan Review for the Project, as well as a Special Permit for storage of #2 fuel in the Water Resource Protection Overlay District (" WRPOD"), and a Special Permit for a Major Construction Permit (" MCP").[4] Between May 4, 2009, and April 20, 2010, the Planning Board held twenty-one public hearings with respect to the Project. On April 20, 2010, the Planning Board voted 4-1 to deny all three applications. The Planning Board issued three separate decisions, the Site Plan Review Decision, the WRPOD Decision, and the MCP Decision. The Planning Board's decisions to deny these applications were based primarily on its " finding that the [Project] [was] not light manufacturing as defined in the [Town of Westford Bylaws] and the application therefore ha[d] no standing" (the " Planning Board Decisions").[5]

         On May 18, 2010, Newport and Groton filed an action in Land Court pursuant to G.L.c. 40A, § 17, appealing the Planning Board Decisions (" Case 1"), [6], [7] Following a trial, the Land Court (Sands, J.) instructed Newport and Groton to resubmit to the Planning Board modified applications consistent with its written opinion issued on December 8, 2014, and remanded the case to the Planning Board for further proceedings.[8]

         Newport filed modified Project applications with the Planning Board. While it was successful in obtaining certain permits, the modified MCP Special Permit application, as well as an application filed with the Town of Westford Zoning Board of Appeals (the " Zoning Board") for a variance were denied. Thereafter, Newport and Groton filed two separate actions in Land Court (" Case 2" and " Case 3") challenging the Planning Board's denial of the MCP Special Permit application and the Zoning Board's denial of the variance.

         Although the Zoning Board denied Newport's application for a variance, Newport applied for and obtained from the Zoning Board a variance from the term " quiet" as applied to the Site's western boundary. Various abutters then filed an action on June 4, 2015, challenging the Zoning Board's decision to grant that variance (" Case 4").

         In relation to Cases 2 and 3, the Board met in executive session to discuss litigation issues on a number of occasions. Following the receipt of several " adverse" pre-trial orders, the Town Boards, believing their likelihood of success at trial to be " less than ideal, " decided it would be beneficial to participate in settlement negotiations. The Town Boards later agreed to participate in these negotiations through mediation, each designating one member to attend, but reserving for itself the authority to vote to approve or deny any final settlement agreement.

         On June 20, 2016, one member of the Board, along with members of the Town Counsel, the Town's Director of Land Use Management, and counsel for the Town attended settlement negotiations mediated by the Honorable Leon Lombardi (Land Court, ret.).[9] Thereafter, the Planning Board met in executive session on June 24, 2016, July 18, 2016, September 6, 2016, September 19, 2016, and September 27, 2016, to discuss the terms proposed during mediation. Likewise, the Board met in executive session on June 28, 2016, August 23, 2016, and September 27, 2016 for the same purpose. The public notice for each session listed the time, date and location of each meeting, and provided further that the Town Boards would be entering into executive session to " [r]ecieve an update on litigation for Newport Materials, LLC et al. v. Westford Zoning Board of Appeals et al. and v. Planning Board of Westford et al., as an open session may have a detrimental effect on the litigating position of the public body." [10] Before each executive session, the Planning Board convened in open session, repeated the information contained in the notice as to why it was entering executive session (to discuss litigation strategy relative to the Newport matter), after which it voted to enter executive session.

         On or around September 27, 2016, the Town Boards met and voted to approve a number of terms which contemplated the issuance of the MCP Special Permit, subject to a number of operating limitations and conditions.[11] On October 3, 2016, the Case 4 Abutters filed a motion to intervene. The next day, the Town issued a public statement relating to the settlement.

         On October 5, 2016, the parties jointly filed a request for approval of a proposed Agreement of Judgment (" Agreement of Judgment"). On October 6, 2016, the Case 4 Abutters filed an objection to the Agreement of Judgment, citing Open Meeting Law violations. The Land Court (Sands, J.) held status conferences on October 13, 2016, and October 19, 2016, to address several potential issues identified by the Land Count. A primary issue noted was the need to preserve for anyone who objected to the issuance of the MCP Special Permit, the opportunity to appeal.

         The Town Boards published notice of a public meeting scheduled to take place on October 12, 2016, to discuss the terms of the Agreement of Judgment. Due to the significant public attendance, however, the Deputy Fire Chief determined the meeting room was over capacity and the public meeting was rescheduled for October 25, 2016.[12]

         On October 24, 2016, the Land Court issued an Order (the " Order") allowing the Agreement for Judgment to enter, subject to a number of conditions. On November 3, 2016, the Municipal Defendants filed a motion to vacate the Agreement for Judgment pursuant to Mass.R.Civ.P. 60(b)(6), in relation to two paragraphs stricken from the Order: Paragraphs 3 and 4.[13] By order dated November 9, 2016, the Land Court issued a Revised Order (the " Revised Order"), to reflect the Agreement of Judgment originally filed by the parties, denying the motion to vacate as moot, and ordering the MCP Special Permit to issue by November 14, 2016.

         To comply with the Revised Order, the Municipal Defendants issued the MCP Special Permit on November 14, 2016. That same day, however, the Voters sought and obtained from the court (Kern, J.), a Temporary Restraining Order (" TRO") enjoining the Municipal Defendants from issuing the MCP Special Permit. The MCP ...


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