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Counsel; Joel Bard, KP Law, PC, Deborah Ecker, KP Law PC
Planning Board Members present: Greg Bittner, Chair; David Prokowiew, Tanner Cole
Mr. Toale called the meeting to order at 6:07 p.m.
Motion: D. MeQuaid
2nd: P. Luck
To enter Executive Session, pursuant to M.G.L. c. 30 §21, Reason #3: To discuss strategy with respect to
litigation, where an open meeting may have a detrimental effect on the government's litigating position,
and the Chair so declares, namely O'Brien Homes v. Emerick R. Bakaysa et al. Planning Board of the
Town of Lunenburg and Town of Lunenburg, Land Court Docket Nos. 13 MISC 477878 through 13
MISC 477887 and
To enter Executive Session M.G.L. c. 30 §21, Reason #3: To discuss strategy with respect to litigation,
where an open meeting may have a detrimental effect on the government's litigating position, and the
Chair so declares, namely Town of Lunenburg v. Alleva, Worcester Housing Court Docket No
16H85CV000812 and
To enter Executive Session M.G.L. c. 30 §21, Reason #3: To discuss strategy with respect to litigation,
where an open meeting may have a detrimental effect on the government's litigating position, and the
Chair so declares, namely Cronin, et al. v. Town of Lunenburg Zoning Board of Appeals, Appeals Court
Docket No. 2017-P-0099 and
To enter Executive Session M.G.L. c. 30 §21, Reason #3: To discuss strategy with respect to potential and
demonstrably likely litigation, where an open meeting may have a detrimental effect on the
government's litigating position, and the Chair so declares, namely the Town's participation in potential
MultiDistrict Litigation against opiod manufacturers and to adjourn and not return to open session
Vote: Ms. Adams-aye, Ms. Luck-aye, Mr. McQuaid-aye, Mr. Toale-aye
Planning Board Chair Gregory Bittner requested a Motion to enter Executive Session pursuant to M.
G.L. C. SUA, § 2., to discuss strategy with respect to litigation, namely O' Brien Homes Inc. v. Emerick R
Bakaysa, et al, (Planning Board of the Town of Lunenburg and Town of Lunenburg), Land Court No. 13-
MISC-477878 to 13-MISC-477887-KCL, where an open meeting may have a detrimental effect on the
litigating position of the Town, not to enter back into Regular Session.
D. Prokowiew made the Motion to enter Executive Session, Seconded by T. Cole, Roll Call Vote, D.
Prokowiew-aye; T. Cole-aye; G. Bittner -aye
Mr. Ebersole entered the meeting.
Attorney Bard reported the Land Court judge ruled in favor of the plaintiff;, O'Brien Homes, that the ten
subdivision plans filed by O'Brien Homes were not subject to Section 5.6 of the Town's zoning bylaws. The
section requires subdivisions of land containing more than 25 acres must either set aside 50% of the land as
open space or develop the land with five acre lots. The court applied the right to create separate subdivisions
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with the same plan.
In addition, O'Brien had claimed the Town had acted in bad faith by denying the plans. The court had asked
that a status conference be scheduled to discuss whether the plaintiff will decide to pursue the bad faith claim.
Plaintiff's counsel did not wait for the status conference and emailed the court clerk that they intend to pursue
the bad faith claim. Attorney Ecker reported the judge in the decision wrote "while I make no finding at the
present time as to whether the Board acted in bad faith, the evidence suggests that at the very least, the Board
and other Town officials did not reciprocate O'Brien's efforts to progress the approval process and that this
delayed O'Brien's submissions. " Unfortunately in land court, you get the same judge. Mr. O'Brien had
submitted several alternate plans and all were rejected by the Planning Board. She believed the judge has taken
exception to that and he will find some bad faith on behalf of the town. The question now is how much money
did these delays cost the developer. It is hard to say as this has evolved over two and a half years. In a bad faith
claim, costs could include filing depositions, expert work, attorney fees, etc.
She moved on to the Motion for Sanction (O'Brien 3). Typically in Planning Board cases, there is not discovery
as to what the Planning Board members were thinking When this was ongoing email was not new, but the
discovery of individual emails was relatively new and what individual Planning Board members had to do to
retrieve those emails was fairly new. The attorney had requested emails; not all emails were produced. There
was a public records request; some emails were produced in the response to the public records request that
weren't produced in discovery. One in particular was not good for the Town, making it seem as if the decision
was predetermined. Their attorney not only wanted the own emails, he wanted individual accounts of PB
members. There was some pushback from individuals to produce their private email and this caused delays. He
had about four motions to compel, there were a number of court orders. Eventually he retained an expert who
made several individuals on the Board come in with their computer and he took all the emails personal or not
and sorted through them and put them on a software program called Relativity. Attorney Bornstein (plaintiff's
legal counsel has filed a motion for sanctions and attorneys fees. He has indicated to the court that he wants the
sanction motions to continue. Attorney Ecker opined that if the Town does not appeal, the sanctions and bad
faith would go away. If the Town appeals, she believed the judge will not be pleased. Attorney Ecker
recommended the Board find out what O'Brien Homes is looking for compensation regarding bad faith and
sanctions; then either negotiate a settlement or take the sanctions that the court decides at trial. The bad faith
would require a trial.
Mr. Burney explained to the Board that it would have to approve the subdivision plan under the Rules and
Regulations Governing the Subdivision of Land that was in place at the time of filing. A status conference will
be scheduled. Ms. Ecker recommended that prior to that conference; the Boards decide whether they plan to
appeal so she can represent that to the judge. She will also attempt to get the demands of O'Brien Homes prior
to the conference. This will assist the Board in making its decision whether or not to appeal.
Attorney Costa noted to the Board that it needs to consider the enforceability of the bylaw and the strength of
arguments of an appeal, and compare it to what can be achieved for Lunenburg through a potential resolution.
Motion: R.Ebersole
2nd: P. Luck
To request information regarding settlement demands
Vote: Ms. Adams-aye, Ms. Luck- aye, Mr. McQuaid-aye, Mr. Ebersole -aye, Mr. Toale-aye
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Respectfully submitted,
Elaiie m. Peterson
Elaine M. Peterson
Executive Assistant to the Town Manager