David H. Amos et al. 
Town of Westford et al.  No. 135840
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR A PRELIMINARY INJUNCTION
T. Lu, Justice
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) 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 .
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"). 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
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"), ,  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.
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.
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
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.
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.). 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."  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
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. 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
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.
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.
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. 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,
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 ...