David H. Amos et al. 
Town of Westford et al. 
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO DISMISS
T. Lu, Justice
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.
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.
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].
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).
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).
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.
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).
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.
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 .
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