CAROLINE YOUNG & Others v. TOWN OF LEE & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-607

CAROLINE YOUNG & others1

vs.

TOWN OF LEE & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, residents and registered voters of the

defendant town of Lee, appeal from a Superior Court judgment

dismissing, for failure to state a claim on which relief could

be granted, their complaint against the town and the members of

its selectboard.3 The complaint challenged the selectboard's

approval, without town meeting's consent, of a settlement

agreement with the General Electric Company (GE) allowing the

siting of a disposal facility in the town to accept waste from

1 Andrea Wadsworth, James Castegnaro, and Clare Lahey.
2 Selectboard members Patricia Carlino, David Consolati, and
Thomas Wickham.
3 The operative pleading was the second amended complaint, which

for convenience we refer to herein as the complaint. We further
note that three of the plaintiffs were also members of the
town's representative town meeting.
GE's cleanup of parts of the Housatonic River it had polluted

with polychlorinated biphenyls (PCBs).

Our role is not to determine whether the process the

selectboard followed in entering the settlement was a good one,

or whether entering the settlement was wise as a policy matter.

Those are issues for the town's voters and elected officials,

not for the courts. Our role is to review whether the

plaintiffs have a plausible claim that the selectboard acted

illegally. We conclude that a town bylaw authorized the

selectboard to approve the settlement agreement and that the

plaintiffs' claim that the selectboard abused its discretion was

not properly before the court. We therefore affirm the

judgment.4

Background. The complaint alleged that the town is part of

the Rest of River Committee (committee), a group of

municipalities affected by GE's pollution of the Housatonic

River. In January 2020, after mediation, GE entered into a

settlement agreement with the United States Environmental

Protection Administration (EPA), the members of the committee,

and various other interested parties. The agreement, as most

relevant here, allowed the siting of a PCB waste disposal

4 We acknowledge the amicus brief filed by the town of Lenox,
another party to the settlement agreement, in support of the
defendants.

2
facility in the town. The agreement further bound the town not

to challenge the terms of a certain cleanup-related permit to be

issued by the EPA, provided those terms were consistent with the

agreement. The town would receive $25 million in compensation

from GE.5 The agreement required approval from the town. The

selectboard, meeting in executive session and without having

obtained the consent of town meeting, approved the agreement,

and the selectboard's chair signed it.

The plaintiffs then commenced this action against the town

and the selectboard, claiming that the approval (1) violated the

open meeting law (OML); (2) violated town bylaw section 43-2

governing settlement of claims and suits; (3) violated G. L.

c. 40, § 4, governing the towns' power to enter contracts; and

(4) was an abuse of the selectboard's discretion. On the

defendants' motion to dismiss for failure to state a claim, a

judge issued a thoughtful memorandum of decision concluding

that, even taking all of the complaint's factual allegations as

true, the selectboard's actions did not violate the OML; were

authorized by section 43-2; were consistent with G. L. c. 40,

§ 4, and related statutes; and were not an abuse of discretion.

5 The $25 million amount is alleged in the complaint. The
agreement attached to the complaint appears to require GE to pay
a total of $55 million for the town and four other towns to
"distribute among themselves."

3
Judgment entered dismissing the complaint, and the plaintiffs

appealed.

Discussion. We review the sufficiency of the plaintiffs'

complaint de novo, taking as true its factual allegations and

drawing all reasonable inferences in their favor. See Curtis v.

Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look

beyond the conclusory allegations in the complaint and focus on

whether the factual allegations plausibly suggest an entitlement

to relief." Id., citing Iannacchino v. Ford Motor Co., 451

Mass. 623, 635-636 (2008). On appeal, the plaintiffs have not

pressed their OML claim, and so we do not consider it. Nor have

they made any independent argument regarding G. L. c. 40, § 4,

instead merely quoting it in a footnote in connection with their

claim under section 43-2.6 We therefore focus on the section 43-

2 and abuse of discretion claims.7

6 General Laws c. 40, § 4, provides in pertinent part that a
"town may make contracts for the exercise of its corporate
powers, on such terms and conditions as are authorized by the
town meeting." The judge ruled that the town's power to enter
settlement agreements is governed instead by G. L. c. 40, § 2,
and the plaintiffs do not argue that the judge erred in so
ruling.
7 At oral argument, there was discussion of whether the town has

any obligations left to perform under the agreement, or whether
instead the case might be moot. At a minimum, the agreement
requires the town to mediate and then arbitrate any disputes
regarding GE's responsibility to repair any roads or other
infrastructure damaged during remediation activities. We
conclude that the case is not moot.

4
1. Section 43-2. Section 43-2 of the town bylaws, adopted

by town meeting in 1971 and entitled "Settlement of claims,"

provides as follows:

"The Selectmen may, at their discretion, compromise or
settle any claim or suit to which the Town is a party which
does not require payment by the Town of an amount in excess
of $1,000. No settlement of a claim or suit obligating the
Town in an amount in excess of $1,000 shall be made, except
as authorized by law, without consent of the Town Meeting."8

As the parties recognize, section 43-2 must be read together

with section 43-1, adopted by town meeting at the same time as

section 43-2 and entitled "Selectmen to be legal agents of

Town," which provides as follows:

"The Selectmen shall be agents of the Town to institute,
prosecute and defend any and all claims, actions and
proceedings to which the Town is a party or in which the
interests of the Town are or may be involved."

"We determine the meaning of a bylaw by the ordinary principles

of statutory construction" (quotation and citation omitted).

Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,

461 Mass. 469, 477 (2012).

a. Town as plaintiff. The plaintiffs argue that section

43-2 applies only to a claim or suit in which the Town is a

8 Although section 43-2 and the other bylaws discussed infra were
not introduced in evidence in the Superior Court, the defendants
acknowledged at oral argument that the text of the bylaws
reproduced in an addendum to the plaintiffs' brief is accurate.
We need not address whether the bylaws are judicially
noticeable. Cf. Lee v. Cai, 102 Mass. App. Ct. 491, 498 n.8
(2023); Doe v. Cambridge Pub. Sch., 101 Mass. App. Ct. 482, 486
n.3 (2022).

5
defendant or may be liable to another party, not to claims in

which the town is or may be a plaintiff. Because the agreement

at issue here did not settle any claim of liability against the

town, the plaintiffs assert that section 43-2 conferred no

authority on the selectboard to enter the agreement.

The plain language of section 43-2, however, contains no

such limitation to claims or suits against the town. Rather,

its first sentence authorizes the selectboard to settle "any

claim or suit to which the Town is a party which does not

require payment by the Town of an amount in excess of $1,000"

(emphasis added). "The word 'any' is generally used in the

sense of 'all' or 'every' and its meaning is most comprehensive"

(citation omitted). Hollum v. Contributory Retirement Appeal

Bd., 53 Mass. App. Ct. 220, 223 (2001). See Bank of New York

Mellon v. King, 485 Mass. 37, 46 (2020). The plaintiffs do not

dispute that the settlement agreement involves a claim or suit

to which the town is a party,9 nor do they dispute that the

agreement "does not require payment by the Town of an amount in

excess of $1,000." The plain language of the first sentence of

9 The plaintiffs' brief argues that in the mediation with GE and
others, the town "was a plaintiff, not a defendant." That
aside, the town could have been a party to an appeal of the
permit to be issued by the EPA; under the agreement, however,
the town gave up any claim it could bring to invalidate that
permit, unless it was inconsistent with the agreement.

6
section 43-2 thus authorized the selectboard to enter the

agreement.

The plaintiffs nevertheless argue that a comparison to

section 43-1 demonstrates that section 43-2 does not authorize

the selectboard to settle claims in which the town is a

plaintiff or that the town is prosecuting. Section 43-1

designates the selectboard's members as "agents of the Town to

institute, prosecute and defend any and all claims, actions and

proceedings to which the Town is a party or in which the

interests of the Town are or may be involved" (emphasis added).

The plaintiffs suggest that the omission of the words

"prosecute" or "plaintiff" from section 43-2 shows that that

latter section applies only where the town is a defendant or

potentially liable party.

This reads too much into the different language of the two

sections. If town meeting in 1971 had intended to limit section

43-2 in the manner the plaintiffs now argue, town meeting could

easily have used a phrase such as, "any claim or suit in which

the Town is a defendant or potentially liable." Instead, the

first sentence of section 43-2 says, "any claim or suit to which

the Town is a party" (emphasis added), without limitation as to

the type of party.

b. "Main objective" of section 43-2. Continuing their

effort to limit section 43-2's first sentence to matters in

7
which the town is a defendant, the plaintiffs argue that section

43-2's "main objective" is set forth in its second sentence, to

which the first sentence is merely a limited exception. The

second sentence prohibits the selectboard from entering a

settlement "obligating the Town in an amount in excess of $1,000

. . . except as authorized by law, without consent of the Town

Meeting." The plaintiffs view section 43-2 as directed solely

to the settlement of small claims. They thus view section 43-

2's first sentence, discussed above, as allowing the selectboard

to settle only those claims that require payments by the town of

up to $1,000.

That is not what the first sentence says, and we see no

basis for giving either sentence of section 43-2 dominance over

the other. Construing the bylaw in the same manner as a

statute, we "look first and foremost to the language of the

[bylaw] as a whole" (emphasis added), In re Grand Jury Subpoena,

447 Mass. 88, 90 (2006), without assuming that one sentence is

to be given more weight than another. Moreover, section 43-2 is

entitled "Settlement of claims," not "Settlement of small

claims." The most natural reading of the section as a whole is

that the first sentence allows the selectboard to settle any

claim or suit if the settlement does not require payment by the

town of an amount in excess of $1,000, and the second sentence

prohibits the selectboard from settling a claim by obligating

8
the town in an amount in excess of $1,000, except as authorized

by law or with the consent of town meeting.10

c. Town's "obligation" under agreement. The plaintiffs

nevertheless insist that even if section 43-2 applies to

proceedings in which the town could be a plaintiff, the second

sentence of section 43-2 barred the selectboard from entering

the agreement. The plaintiffs' theory is that by agreeing not

to appeal the issuance of a permit for a PCB disposal facility

in the town, the selectboard "obligat[ed] the [t]own in an

amount in excess of $1,000," without legal authority or town

meeting's consent. The plaintiffs argue that the siting of the

facility will cause the town "significant and long-lasting

socioeconomic damages," creating "an obligation . . . by the

[t]own in excess of $1,000."

We are not persuaded. Even if the agreement caused the

town or its residents to incur socioeconomic or other damages in

an amount in excess of $1,000, the plaintiffs point to nothing

in the agreement that obligates, requires, or commits the town

to spend public funds or provide public services to compensate

for or repair the damages. Nor do we see anything in the

10We reach this conclusion without any need to give deference to
the selectboard's interpretation of the bylaw. Thus we need not
address the plaintiffs' argument that the selectboard's
interpretation is so absurd and unworkable that no such
deference is due.

9
agreement that releases any claims the town or its residents

might otherwise have against GE, or any other party, for damages

resulting from the siting, construction, or operation of the

facility.11

d. Legislative history of section 43-2. The plaintiffs

argue that what they see as the legislative history of section

43-2 supports their interpretation that it was intended solely

to authorize the settlement of small claims. Assuming without

deciding that consideration of such history is appropriate

here -- and that, although the plaintiffs did not raise the

argument in Superior Court, it is not waived -- the argument is

nevertheless unpersuasive.

Citing the minutes of selectboard meetings from the months

just before the 1971 adoption of section 43-2, the plaintiffs

assert that the selectboard discussed three minor claims against

the town, but that there was no existing mechanism to settle

such claims without town meeting approval. From this the

plaintiffs infer that section 43-2 was adopted solely to

authorize the selectboard to settle small claims against the

11At oral argument, counsel for the defendants stated that he
was unaware of any language in the agreement constituting such a
release. Of course we do not reach any conclusive
interpretation of the agreement in that regard; the point for
present purposes is that the plaintiffs have nothing to support
their claim that the settlement obligates the town in excess of
$1,000.

10
town without town meeting approval, rather than to govern

settlements more generally.

Although the plaintiffs' diligence in searching out these

records is commendable, the records do not support their

position. Only one of the three small claims mentioned in the

minutes, from February 1971, was clearly asserted against the

town. The two matters mentioned at the May 1971 meeting

concerned claims that, while they may have arisen on town

property, could as easily have been asserted against private

parties -- evidently a town contractor and a restaurant owner.

In any event, nothing in the minutes supports the plaintiffs'

assertion that the selectboard lacked authority at that time to

settle such claims without town meeting consent. Nor do the

meetings show that section 43-2 was drafted in response to the

particular claims discussed in the meeting minutes.12 And even

if that type of claim was part of the reason for the adoption of

section 43-2, its plain language, as we have discussed above, is

not limited to such claims.

12The May 17, 1971 minutes in which two small claims were
mentioned also referred to specific articles on the warrant for
an upcoming special town meeting. At first blush it seems
reasonable to conclude that this was the special town meeting of
May 26, 1971, at which the addendum to the plaintiffs' brief
shows section 43-2 to have been adopted. If the warrant for
that meeting was already set as of May 17, 1971, it is not
immediately evident how small claims discussed at the meeting on
that date could have been the impetus for consideration of
section 43-2 only nine days later.

11
The plaintiffs also rely on another town bylaw, section 12-

5, which was adopted at the same time as section 43-2. Under

section 12-5, "No board or officer shall make any contract on

behalf of the Town the execution of which shall necessarily

extend beyond one year from the date thereof, except as

otherwise provided by law, unless specific authority to do so

has been given by vote of the Town." The plaintiffs assert that

this language both (1) supports their conclusion that section

43-2 authorizes the selectboard itself to settle only relatively

insignificant claims,13 and (2) provides an independent ground

for invalidating the selectboard's action here.

The plaintiffs did not make any argument based on section

12-5 in their complaint or in their presentation to the judge,

and therefore the argument is waived and we need not consider it

on appeal. See Albert v. Municipal Court of Boston, 388 Mass.

491, 493-494 (1983). In any event, as the Supreme Judicial

Court said of a similar if not identical bylaw adopted by

another town,

"[t]he draft[ers] of the by-law apparently intended to
express and adopt the settled construction of the statute
of frauds, G.L. . . . c. 259, § 1, Fifth, by which the
words 'an agreement that is not to be performed within one
year' have been held to apply only to an agreement that

13The plaintiffs make a similar argument based on § 12-4, which
requires a bond in the case of a "contract exceeding $1,000."
Sections 12-4 and 12-5 have little bearing on the interpretation
of section 43-2, which governs a more specific type of contract,
i.e., a settlement agreement.

12
necessarily must require more than a year for performance"
(emphasis added).

Marble v. Clinton, 298 Mass. 87, 89 (1937).14 "The Statute of

Frauds applies only to contracts which by their terms cannot be

performed within the year. It does not apply to contracts which

may be performed within, although they may also extend beyond,

that period" (quotation and citation omitted). Boothby v.

Texon, Inc., 414 Mass. 468, 479 (1993). Here, although the

settlement agreement's subject matter suggests that its full

implementation by GE may as a practical matter take more than

one year, the plaintiffs point to no provision of the agreement

that by its terms requires performance -- particularly of

obligations running between GE and the town -- to extend beyond

one year. The plaintiffs thus have not shown that section 12-5

barred the selectboard from entering the agreement.

2. Abuse of discretion. Finally, the plaintiffs argue

that even if section 43-2 authorized the selectboard to enter

into this type of agreement, the selectboard abused its

discretion in entering into this particular agreement. The

judge reached the merits of this argument and ruled that the

plaintiffs had not alleged any facts that, if proven, would

14The court in Marble did not quote the entirety of the Clinton
bylaw at issue but described it as "requiring a vote of the town
before a board makes a contract 'the execution of which shall
necessarily extend beyond one year from the date thereof.'"
Marble, 298 Mass. at 89.

13
amount to an abuse of discretion. Although we could affirm the

judgment on this ground, the plaintiffs' abuse of discretion

claim also suffers from a more fundamental defect: no statute

authorized review for abuse of discretion in these

circumstances. See Rasheed v. Commissioner of Correction, 446

Mass. 463, 478 (2006) (appellate court may affirm correct

judgment on any ground supported by record, even if not relied

on by motion judge).

The plaintiffs argue that review for abuse of discretion is

authorized by G. L. c. 30A, § 14 (7) (g). That statute,

however, provides for judicial review of certain decisions of

State agencies; it does not authorize review of decisions of

town boards. See Robinson v. Board of Health of Chatham, 58

Mass. App. Ct. 394, 395 n.4 (2003).

The plaintiffs might have tried to obtain review under the

certiorari statute, G. L. c. 249, § 4. See Frawley v. Police

Comm'r of Cambridge, 473 Mass. 716, 725, 728 (2016). Among the

other obstacles to such review, however, the plaintiffs did not

commence this action within sixty days of the selectboard

decision they wished to challenge, as G. L. c. 249, § 4,

requires. The selectboard is alleged to have made its decision

in February 2020, yet the plaintiffs did not file their

complaint until March 2021. The late filing of a certiorari

action requires its dismissal. See McLellan v. Commissioner of

14
Correction, 29 Mass. App. Ct. 933, 934 (1990). The plaintiffs'

claim that the selectboard abused its discretion therefore was

properly dismissed.

Conclusion. The judge was correct in ruling that the

plaintiffs' complaint must be dismissed for failure to state a

claim on which relief could be granted.

Judgment affirmed.

By the Court (Sacks,
Brennan & D'Angelo, JJ.15),

Assistant Clerk

Entered: February 29, 2024.

15 The panelists are listed in order of seniority.

15