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Counsel (via telephone)
Mr. Toale called the meeting to order at 6:30 p.m.
Motion: D. McQuaid
2nd: P. Luck
To enter Executive Session per 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, Inc., et al. v. Town of Lunenburg, et al., Land Court
Docket Nos. 13 MISC 477878 through 13 MISC 477887, and O'Brien Homes, Inc. v. Town of Lunenburg
Planning Board, et al., Appeals Court Docket No. 2018-P-1520
Vote: Mr. McQuaid-aye, Ms. Luck-aye, Ms. Adams- aye, Mr. Toale-aye
Attorney Costa reported he met with the Planning Board members last night and the settlement agreement has
been signed by Mr. O'Brien and the Planning Board members. We are waiting for the Aro's and your vote to
approve and for your subsequent signatures. The agreement mirrors the outline of settlement terms that the
Board and Planning Board had voted on a week and a half ago. It is a lengthy document; the first page consists
of "whereas" clauses, setting the stage for the context and background of the agreement. The next section is
Paragraph one which begins with Dismissals. Subparagraph (a) refers to the pending bad faith claim case in
Land Court. This claim will be dropped by O' Brien.
Subparagraph (b) deals with the case that is pending in the Appeals Court. The Town will drop this case.
Subparagraph (c) requires a brief discussion. There was an additional lawsuit that involved certain actions that
were undertaken on the property. KP Law had litigated this for you and gone to trial in September 2017, just
alter Mead Talerman and Costa was appointed as own Counsel, but all the pretrial work had been completed
already. The judge took it under advisement and here we are a year and a half later and we still do not have a
decision from him. The Town issued an enforcement order to O'Brien on the basis that what he was doing was
really not testing soil but clearing portions of the site where roadways and other infrastructures would go
without subdivision approval. It was brought to court and resolved on Summary Judgment in favor of O'Brien
but then went on to Appeals Court. The Town wanted to appeal because the court said it shouldn't have been
resolved on Summary Judgment because there were too many facts in dispute relative specifically to Mr.
'Bren's intent. It was sent back to Land Court so a short trial was conducted in September of 2017.
When we spoke to the judge last week he informed both parties that he had drafted the other case decision but
he hadn't issued it yet and preferred to not do so if there is a resolution. He did not want to issue a decision that
would put the settlement at risk. So I have it in here as a case that will be dismissed. Attorney Borenstein
(O'Brien's lawyer) does not seem concerned as he thinks it is a moot point.
Paragraph 2 deals with the subdivision approvals and the logistics of how this is all going to happen. The way
this reads is that the Separate and Final Judgments will become Final Subject to a remand by the Planning
Board. The Planning Board shall reconsider, at a duly-noticed public hearing, its prior definitive subdivision
denials to be consistent with the Land Court's Separate and Final Judgments, but to further include the
modifications and commitments by O'Brien Homes specified in paragraphs 3 and 4 below. The hearing will
commence no later than 30 days and final action will be taken no later than 90 days following submittal by
O'Brien Homes of complete revised and/or supplemental subdivision application materials required by the
terms of the agreement. The Land Court will retain jurisdiction in the interim. The parties will agree to
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Paragraph 4 lists the conditions of approval of the subdivision plans. These are all the other terms that we
agreed to at the last Executive Session with all the edits in some form covering age restrictions, public access to
the Town Forest and a potential future trailhead to be constructed by the Town on the Town's land; as well as
land identified in paragraphs 3(a)(b) and in part 3(c) that shall not comprise subdivision lots, roadways or other
components of the subdivision, shall be conveyed to the Town. 4(d) states there shall also be a phasing plan for
the subdivisions so as not to extend residential growth and to avoid overburdening the Town's public facilities
and services all at once. 4(e) is a standard provision relative to Surety.
The paragraph at the end of paragraph 4 gives the Planning Board while proceeding in good faith to insert other
standard provisions necessary to bring the subdivision plans into compliance with regulations.
Paragraph 5 provides a deadline for action. This is a new provision drafted by O'Brien's attorney. He wants to
make sure the Planning Board takes action in a timely manner.
Paragraph 6 is an alternate proposal clause for proposed modifications to the subdivision plans for consideration
by the Town.
Paragraph 7 and on are standard provisions of a settlement agreement covering mutual releases of liability;
Costs, Further Cooperation, Joint Drafting of the Agreement, Informed Decision, Entire Agreement,
Counterparts, Severability, that this agreement is in accordance with Massachusetts law, and gives Authority to
the person(s) executing the agreement, and Successors and Assigns.
Mr. Toale asked if the Planning Board went through the agreement last night. Attorney Costa stated they
discussed it in detail and were comfortable with the timelines. They do believe they can act within the 90 days.
They were concerned about peer review of the ten subdivision plans. Mr. Costa stated he read in the court
documents that there was a peer review and there was a letter from the consultant determining the applications
were complete. The Board thanked Mr. Costa for all his work.
Motion: K. Adams
To accept and sign the settlement agreement as presented
Vote: Ms. Adams-aye; Ms. Luck-aye; Mr. Toale-aye, Mr. McQuaid-aye
2nd: D. McQuaid
Motion: D. McQuaid
To adjourn from Executive Session to return to Open Session
Vote: Ms. Adams-aye; Ms. Luck-aye; Mr. Toale-aye, Mr. McQuaid-aye
2nd: P. Luck
The meeting adjourned at 7:06 p.m.
Respectfully submitted, c
Elaiie m Peterson
Elaine M. Peterson
Executive Assistant to the Town Manager