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Amos v. Town of Westford

Superior Court of Massachusetts, Middlesex

October 6, 2017

David H. Amos et al. [1]
v.
Town of Westford et al. [2]

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          John T. Lu, Justice

         The Defendants, 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, and 540 Groton Rd., LLC (together with Newport Materials, LLC, " Newport" ), move to dismiss this case brought by four registered voters (the " Voters" ) alleging violations of the open meeting law, G.L.c. 30A, § § 18-25. After hearing, and upon review and consideration, Defendants' motions to dismiss are ALLOWED.

         BACKGROUND

         This case involves a long-running dispute regarding a Special Permit for a Major Construction Project (" MCP" ) for a proposed development of an asphalt manufacturing facility at 540 Groton Road. Newport filed two actions against the Board in Land Court after the Board denied its MCP special permit application. The Town Boards met in executive session to discuss the ongoing litigation and agreed to send one member to mediation proceedings with Newport, reserving the right to approve or disapprove a final settlement agreement. At mediation, the Municipal Defendants and Newport reached a compromise. On September 27, 2016, the Town Boards held an executive session and voted to approve a number of terms which included issuing the MCP special permit to Newport. The Land Court, after several revisions, entered an Order in which the Municipal Defendants had to issue the MCP special permit to Newport by November 14, 2016.

         On November 14, 2016, Voters filed a two-count complaint, alleging the Town Boards violated the open meeting law, G.L.c. 30A, § § 18-25. The Voters sought and obtained from this court (Kern, J.), a Temporary Restraining Order that enjoined the Municipal Defendants from issuing the MCP special permit to Newport. On November 29, 2016, this court denied the Voters' motion for a preliminary injunction [34 Mass. L. Rptr. 10].[3]

         DISCUSSION

         To withstand a motion to dismiss under Mass.R.Civ.P. 12(b)(6), the complaint must allege facts plausibly suggesting entitlement to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). When considering each claim, the court accepts as true the allegations set forth in the complaint and draws any reasonable inferences in the plaintiff's favor. Sisson v. Lhowe, 460 Mass. 705, 707 (2011); Eyal v. Helen Broad. Corp., 411 Mass. 426, 429 (1991). The court may consider " the allegations in the complaint . . . orders, items appearing in the record of the case, and exhibits attached to the complaint . . ." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000) (citations omitted).

         The open meeting law " reflects a general policy that all meetings of a governmental body should be open to the public unless exempted by the statute." (Citations omitted.) Dist. Attorney for N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 563 (2009); See G.L.c. 30A, § § 20(a), (b). But the Legislature recognized that " not everything done by public officials and employees can or should occur in a public meeting" and enumerated ten distinct exceptions under which public officials may conduct closed, executive sessions (citations omitted). G.L.c. 30A, § 21(a); McCrea v. Flaherty, 71 Mass.App.Ct. 637, 640 (2008). Relevant to this case are G.L.c. 30A, § § 21(a)(9), and (a)(3).[4]

         The Voters contend that the Town Boards held a " meeting" within the scope of G.L.c. 30A, § 21(a)(9), because the Board member who participated in the mediation relayed those dealings to the rest of the Town Boards. The Town Boards then deliberated and voted to settle the case with Newport. The Voters argue that the mediator was speaking to the Board member as a party representative, thereby allowing the mediator to " confer" with the Town Boards without opening the meeting to the public. However, contrary to the Voters' argument, the court finds that G.L.c. 30A, § 21(a)(9) is inapplicable to this case. A plain reading of the open meeting law and supporting case law do not support the Voters' proposition. See e.g., Pearson v. Bd. of Selectmen of Longmeadow, 49 Mass.App.Ct. 119, 124 (2000) (explaining neither prior case law " nor the statute provides support for the proposition that a single member of a governmental body who attends a meeting with others who are not members of the same governmental body . . . is a subcommittee within the meaning of the open meeting law" ). As a result, the Voters have not alleged facts plausibly suggesting an entitlement to relief based on G.L.c. 30A, § 21(a)(9). Iannacchino, 451 Mass. at 623.

         In finding that G.L.c. 30A, § 21(a)(9) is inapplicable, this court now looks to G.L.c. 30A, § 21(a)(3), which requires a public body to post a public notice prior to meeting. G.L.c. 30A, § 20(b); 940 Code Mass. Regs. § 29.03(1)(b). The notice must include the meeting's date, time, location, and a " listing of topics that the chair reasonably anticipates will be discussed at the meeting." 940 Code Mass. Regs. § 29.03(1)(b).

         The Voters concede that the notices stated the time, date and location of the executive sessions; however they allege that the description, which stated that the Board was meeting in executive session to discuss litigation strategy in the Newport matter, was insufficient and violated the open meeting law. Contrary to the Voters' argument, the open meeting law does not require the level of specificity that the Voters urge. See OML 2016-152; OML 2016-21; OML 2015-15; see also Amos No. 16881-CV03254, No. 19, at *10. The court finds that the Town Boards complied with G.L.c. 30A, § 21(a)(3) when they noticed their executive sessions.

         The Voters also allege that the Town Boards violated the open meeting law when it held an executive session to discuss the mediation with Newport and refused to release the executive session minutes. The Defendants assert that Town Boards are entitled to hold an executive session if the meeting's purpose is to discuss litigation strategy. However, the Voters contend that this meeting had nothing to do with litigation strategy because the mediation had already occurred. The Town's litigation with Newport, however, was still active. As such, the Town Boards had a " need for a closed session" as public discussion of their position relative to settlement could have been detrimental to their negotiating position. See District Attorney for N.W. Dist. v. Selectmen of Sunderland, 11 Mass.App.Ct. 663, 666 (1981). The open meeting law affords the Town Boards discretion to withhold the minutes of those executive sessions. G.L.c. 30A, § 22(f). To the extent the Voters allege that the Town Boards met in executive session for an improper purpose, such allegations are conclusory and unsubstantiated by facts plausibly suggesting entitlement to relief. Iannacchino, 451 Mass. at 623 .

         The Voters also contend that the Town Boards violated the open meeting law by meeting outside a duly posted meeting because " illogically, there had to have been discussions and deliberations among various members of the [Town Boards]" regarding the settlement that was reached, which is " akin to serial deliberations." The Voters do not offer any additional facts to support this assertion. While Rule 12 imposes a relatively low standard to survive a motion to dismiss, the Complaint must allege facts plausibly ...


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