COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C.A. N0 lav WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton Plaintiffs, VI NEWTON COMMUNITY PRESERVATION COMMITTEE, Defendant. VERIFIED COMPLAINT FOR VIOLATION OF THE OPEN MEETING LAW. DECLARATORY AND INJUNCTIVE RELIEF NATURE OF ACTION 1. Plaintiffs William P. Leahy, S.J., Joseph Quinn, and Linda Reilly, three registered voters of the City of Newton (collectively, the ?Plaintiffs?), bring this action pursuant to G. L. 0. 30A, 23(f), seeking declaratory and injunctive relief to redress violations by the Newton Community Preservation Committee (?Defendant? or ?Newton of the Open Meeting Law, G. L. 0. 30A 18-25 and to prevent future violations. In chief, Plaintiffs complain that on October 10, 2019, Newton CPC unlawfully entered into executive session to discuss whether to fund the Newton Mayor?s $15.74 Million controversial plan to take by eminent domain a portion of a property owned by Boston College (?1331? or the ?University?), known and numbered as 300 Hammond Pond Parkway Property?), and referred to as Webster Woods. Future executive sessions are scheduled for the same purpose. ACTIVE 46831528v7 2. A Community Preservation Committee?s statutory mandate is pursuant to the Community Preservation Act G. L. 0. 44B. CPCs are authorized to use a specially created fund of public money for the acquisition of conservation land. A CPC has no statutory authority in effectuating an eminent domain taking under G. L. c. 79. It does not decide whether or what to take; it has no role in determining how much money is to be awarded in the event of a taking. If the Newton City Council votes to take and the Mayor approves, Newton only role is to decide whether to use CPA funds to pay all or a portion of the eminent domain award, if requested to do so. A CPC discussion for that purpose should not, and cannot lawfully, be held in a secret executive session. 3. Presented with a request for funding, as happened here, a CPC convenes duly noticed public meetings to consider the merits of funding one project over another in queue within the limits of the CPA monies available. It is intended to be a transparent, public process without executive session which Newton CPC has in fact followed over the years except in this case. A review of Newton meetings? agenda and minutes reveals that in the last 5 years, the Newton CPC entered into executive session only when it concerned HPP Property. This elusive practice must come to an end. 4. Time is of the essence. On November 12, 2019, Newton CPC will hold another executive session and at its conclusion, vote whether to use CPA funds for this project rather than other projects seeking CPA funding. The public would be irreparably harmed if Newton CPC votes to fund this purportedly CPA compliant project to the detriment of other projects without full, public disclosure of what was discussed in past executive sessions and all information considered, including all documents reviewed (?Executive Session Materials?). ACTIVE 46831528117 5. Plaintiffs seek a declaration that Newton CPC violated the OML when it entered executive session on October 10, 2019 to discuss whether to fund the Mayor?s proposed taking of HPP Property over other projects (?October 10 Meeting?), and seek a preliminary and a permanent injunction enjoining and restraining the Newton CPC from convening any future executive sessions regarding funding of a proposed taking of property, and (ii) holding any future public hearings and deliberations until the minutes. of, and all Executive Session Materials considered during the October 10 Meetings executive session are made public. PARTIES 6. Plaintiff, William P. Leahy, S.J., resides in the City of Newton, County of Middlesex, Massachusetts, and is a registered voter. 7. Plaintiff, Joseph Quinn, resides in the City of Newton, County of Middlesex, Massachusetts, and is a registered voter. 8. Plaintiff, Linda Reilly, resides in the City of Newton, County of Middlesex, Massachusetts, and is a registered voter. 9. Defendant, Newton CPC, is a municipal public bodyestablished under the CPA with a principal place of business and operation at Newton City Hall, 1000 Commonwealth Avenue, City of Newton, County of Middlesex, Massachusetts. . JURISDICTION AND VENUE 10. This Court has jurisdiction pursuant to G. L. c. 30A, 23(i), G. L. c. 214231A, 2. Pursuant to G. L. c. 30A, 23(f) and G. L. c. 214, 5, venue is proper in this Court because Newton principal place of business is at Newton City Hall, Newton, Middlesex County, and where it meets, as it did on October 10, 2019. ACTIVE 46831528v7 BACKGROUND I. The Community Preservation Act and The Newton CPC. 11. The CPA came into law in 2000 and allows municipalities to levy a surcharge on property taxes and receive state matching funds to achieve the goals and objectives of the CPA namely, affordable housing, historic resources, open space, and recreation land. Among other functions, local CPCs are responsible for studying the needs, possibilities and resources of a city or town regarding community preservation and making recommendations to the legislative body for the acquisition, creation, and preservation of property for the purposes under the CPA. In turn, public of?cials may request that a CPC fund such acquisitions. G. L. 0. 44B, 5. 12. The City of Newton adopted the CPA by ordinance in 2001 and formed the Newton CPC. See Newton City 0rd. 7?80 - 7-89, Exhibit 1 hereto. The Newton Community Preservation Fund is funded by a 1% surcharge on the City?s total property tax levy. The surcharge, certain state matching funds, plus any unused funds from prior years carried forward, create the available money for CPA projects in a given year. Eligible CPA projects compete for limited funds. Newton CPC decides which of the many desirable projects ?ts within the annual budget of available funds and earmarks those for funding. Projects that are not funded remain on the Community Preservation Plan list for future consideration. 13. The Fiscal Year 2020 surcharge netted $3,568,921 in CPA funds and available funds for all projects in FY20 is $14,838,009. Exhibit 10 hereto, p. 3. According to the Community Preservation Plan adopted on April 3, 2018, updated October 23, 2019, there are 28 projects, not including Webster Woods, seeking CPC funding, with an estimated cost of $41,296,500 ($57,051,500 less $15,755,000). Newton Community Preservation Plan, Exhibit 2 hereto, pp. 3?4. ACTIVE 46831528v7 II. City of Newton?s Plans to Take Part of the HPP Property. 14. BC, a non-pro?t, private Jesuit, Catholic university, with a principal place of business in the Chestnut Hill area of Newton, currently owns the HPP Property which consists of 25 acres, of which the front 8i acres are developed. The HPP Property is bordered by conservation land to the north and the Chestnut Hill Mall to the south. Since the time of its purchase in 2016, the University has invested $6.5 Million to upgrade the property, renovating parts of buildings, replacing a sewer line and making other infrastructure repairs. A landscaping materials storage facility was built by the University in 2019 with signi?cantly improved drainage infrastructure to better protect the undeveloped rear portion. The portion of the HPP Property targeted for acquisition by the City is the rear portion. The University has plans in progress and anticipates future development of the entire HPP Property. 1 15. The City has shown some interest in acquiring all or portions of the HPP Property for years, threatening but never acting. The City could have, but did not, buy the HPP Property in 2016 when it was sold to BC. 16. In July 2017, then City Councilor (Alderman) and mayoral candidate, now Newton Mayor Ruthanne Fuller, published a campaign position urging the taking by eminent domain of the undeveloped portion of land to stop BC from developing it as part of its campus. Fuller July 2017 Letter, Exhibit 3 hereto. Fuller became the City?s mayor in January 2018 (?Mam or WM) 17. Between January 2018 and the summer of 2019, the Mayor?s Webster Woods advisory group and citizen organizations advocated for acquisition of the HPP Property. The Mayor met with BC. The Newton CPC held meetings, and when the matter concerned the HPP Property, went into executive session. ACTIVE 46831528v7 18. By September 2019, the public remained in the dark. At the September 10, 2019 meeting of Newton CPC, a citizen observer from the League of Women Voters of Newton asked for more information about the Webster Woods project, ?[s]he knew this project would be expensive and was concerned that no information had yet been shared with the public about it.? September 10, 2019 Minutes, Exhibit 4 hereto, p. 3. Newton Chair Mark admitted that shared this concern.? Id. In response to the Chair?s acknowledged lack of public information, Newton CPC went into executive session. Id. 19. Emerging from the cloak of its September 10 executive session, Newton CPC announced that it discussed FY20 priorities with the Newton Planning and Development Board and with Newton Conservation Commission for funding of affordable housing and trails on conservation land. Nothing ?about the HPP Property or Webster Woods was mentioned in public. See September 10, 2019 Minutes, Exhibit 4 hereto, p. 4. 20. Just a few days later, the Mayor publicly announced that she intended to move forward with a taking. Mayor?s September 18, 2019 Letter, Exhibit 5 hereto. On October 3, 2019, the Mayor submitted a funding request to Newton CPC for $15.74 Million for the taking in fee of a 17.4 acre portion of property, plus certain related soft-cost expenses. In its funding request, the amount of money to be paid BC in the event of a taking is publicly announced to be $15.2 Million. Mayor Fuller Funding Request, Exhibit 6 hereto (?Mayor?s Funding Request?). 21. Newton City Ordinance provides: The Newton is hereby established to carry out the functions and duties of such a community preservation committee as provided in General Laws chapter 44B, including, (3) It is the intent of this ordinance that, to the extent possible, projects using CPA funds seek to leverage other funding sources. CPA funds shall not replace existing operating funds only augment them (emphasis added). Newton City Ord. 7-80 Exhibit 1 hereto. 6 ACTIVE 46831528v7 22. The Mayor?s Funding Request to use only CPA funds to pay the costs of taking the Webster Woods portion of the HPP Property violates Newton City Ordinance. Newton City Ord. 7-80 Exhibit 1 hereto. 23. No other public money is to be used to pay for the proposed taking of the Webster Woods portion of the HPP Property from BC. 24. On or about October 4, 2019, Newton CPC posted its agenda package for the October 10 Meeting to consider the Mayor?s Funding Request. October 10, 2019 Agenda Package, Exhibit 7 hereto (?October 10 Agenda?). The October 10 Agenda gave notice that it would enter into executive session ?for the purposes of considering the purchase, exchange, lease or value of Webster Woods and strategy regarding litigation.? Id, p. l. 25. The Newton CPC is only being requested to. approve CPA funding. It is not ?considering the purchase, exchange, lease? of Webster Woods; that authority lies with the City Council and Mayor. The Newton CPC has no responsibility or authority in a taking by eminent domain; that authority also lies with the City Council and the Mayor under G. L. c. 79. The value of Webster Woods has been determined by third parties, not by the Newton CPC. The amount of money to be paid in just compensation in the event of a taking also lies with the City Council and the Mayor under G. L. c. 79. Newton CPC has no role in litigation. 26. Newton CPC convened the October 10 Meeting. The Mayor made a presentation and then Newton CPC went into executive session. October 10 Meeting Draft Minutes, Exhibit 8 hereto. 27. On October 21, 2019, Joseph Herlihy, Esq, General Counsel, ?led and served on the Newton CPC an OML complaint pursuant G. L. c. 30A 23 Complaint?). An ACTIVE 46831528v7 Answer or response to the OML Complaint was due on November 8, 2019. OML Complaint, Exhibit 9 hereto. 28. The next scheduled meeting of the Newton CPC has been noticed for November 6, 2019. The only item on the agenda is a public hearing to discuss the Mayor?s Funding Request. November 6, 2019 Agenda Package, Exhibit 10 hereto. 29. Newton CPC has also given notice that it will hold a public meeting on November 12, 2019, and scheduled a vote on the Mayor?s Funding Request to follow, but only after another executive session. See November 12, 2019 Agenda, Exhibit 11 hereto. 30. If the Newton CPC votes to fund the taking of the 17.4 acre Webster Woods portion of the HPP Property from BC on November 12, 2019 while the October 10 Meeting executive session, and the anticipated executive session preceding the vote on November 12, remain shrouded in secrecy, then the public will have been irreparably harmed by being deprived of the bene?ts of public, open meetings and the opportunity to be heard before the Newton CPC chooses to fund one project over others. 31. Regarding Newton Answer to the OML Complaint originally due on November 8, 2019, without informing or even copying General Counsel, Newton CPC requested from the Attorney General an extension of time by and through the City Solicitor?s Of?ce on October 29, 2019. The AG granted the extension to November 19, 2019 by letter dated October 31, 2019. General Counsel would have been left in the dark by the Newton CPC had he not been sent a courtesy copy by the AG. AG Extension Letter, Exhibit 12. COUNT I (Newton Violation of Open Meeting Law, G. L. c. 30A) 32. Plaintiffs hereby incorporate by reference, as if fully set forth herein, the allegations contained in the preceding paragraphs. ACTIVE 468315281? 33. Under Massachusetts law, with few exceptions, all meetings of a public body must be open to the public. G. L. c. 30A 20 (?all meetings of a public body shall be open to the public?). Public bodies may enter a closed, or executive, session only for the limited purposes enumerated in the G. L. c. 21. 34. Newton CPC purported to enter into executive session ?for the purposes of considering the purchase, exchange, lease or value of Webster Woods and strategy regarding litigation.? Exhibit 7. Thisiwas pretextual. 35. The City is not considering the purchase, exchange or lease of Webster Woods. Newton CPC has no decision-making role in determining whether to take by eminent domain, no role in the legal procedure required to make a taking, no role in the determination of value of the property taken. 36. Newton CPC is not involved in litigation strategy. 37. Newton sole responsibility is to decide whether to honor the Mayor?s Funding Request to use 100% CPA funds to pay for the taking by eminent domain of property. 38. The amount of money to be paid to BC, $15.2 Million, in the event of a taking has been publicly announced. It is in the Mayor?s Funding Request. Exhibit 6 hereto, p. 16. The basis for the Mayor?s request the appraisal summary circulated to the Newton CPC on October 3, 2019 is publicly known. Id. 39. Newton deliberations, and consideration of Executive Session Materials provided to the Newton CPC members in executive session, out of public view, concerning whether to take and how much to pay are outside the scope of the Newton statutory responsibilities under the CPA, were unlawful. and must be made public before a vote on the matter. ACTIVE 46831528v? 40. Therefore, Defendant violated the OML when it entered into executive session on October 10, 2019 for an improper purpose. COUNT II (Declaratory Judgment) 41. Plaintiffs hereby incorporate by reference, as if fully set forth herein, the allegations contained in the preceding paragraphs. 42. An actual controversy exists between Plaintiffs, on the one hand, and Newton CPC, on the other hand, as to Newton right to enter into executive session at the October 10 Meeting and ultimately the right of Newton CPC to vote to fund with those matters considered in secret, including all Executive Session Materials. 43. Plaintiffs seek a declaration of rights by this Court pursuant to G. L. Ch. 231A, 1 that Newton CPC: deliberated in executive session at the October 10 Meeting concerning the Mayor?s Funding Request proposal; had no right under the OLM to conduct those deliberations in secret; has no right to proceed with a vote on whether to commit CPA funds, as requested by the Mayor, without revealing to the public the content of all secret deliberations in executive session on the subject; is obligated under the OML to reveal and make public all Executive Session Materials, including the minutes and other documents evidencing the October 10 Meeting executive session before proceeding to a vote on funding, and must refrain from conducting business in secret before such vote. COUNT (Injunctive Relief) 44. Plaintiffs hereby incorporate by reference, as if fully set forth herein, the allegations contained in the preceding paragraphs. 10 ACTIVE 46831528v7 45. Newton CPC intends to vote to fund the proposed taking on November 12, 2019 at a scheduled Newton CPC public meeting. 46. Plaintiffs have a reasonable likelihood of success on the merits of the claim that the Newton CPC violated the OLM by deliberating in executive session at the October 10 Meeting. 47. Unless this Court issues a temporary restraining order and preliminary injunction ordering that Newton CPC postpone the November 12, 2019 meeting until Newton CPC reveals all Executive Session Materials before proceeding to a vote on CPA funding, Plaintiffs and other members of the public will be irreparably harmed. Among other things, if the vote is taken and CPA funds, or does not fund, the Plaintiffs and other members of the public will have been deprived of an informed opportunity to in?uence the Newton CPC and the outcome of the vote. 48. Plaintiffs have no adequate remedy at law. 49. The balance of harms strongly favors Plaintiffs. RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully requests that this Court: (1) As to Count enter judgment in favor of Plaintiffs that Newton CPC violated the Open Meeting Law, and: Order that Newton CPC, its members and agents make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding concerning the HPP Property taking; Order that Newton CPC, its members and agents postpone the November 12, 2019 public meeting and the related vote on committing CPA funding concerning the HPP Property taking, and not reconvene it until the Executive Session Materials have been made public; and- 1 1 46831528v7 (0) Order that Newton CPC, its members and agents are enjoined from convening an executive session to deliberate on committing CPA funding concerning the HPP Preperty taking; Levy such ?nes as this Court deems appropriate; and Award the Plaintiffs their costs, and reasonable attorney?s fees. (2) As to Count II, in accordance with G. L.c. 231A, 1, determine the rights of the parties and enter declaratory judgment in favor of Plaintiffs and against CPC declaring and adjudging that Newton CPC: deliberated in executive session at the October 10 Meeting concerning the Mayor?s proposal that the City take a de?ned portion of the HPP Property ?using CPA funds; had no right under the OLM to conduct those deliberations in secret; has no right to proceed with a vote on whether to commit CPA funds, as requested by the Mayor, without revealing to the public the content of all secret deliberations in executive session on the subject; and is obligated under the OML to reveal all Executive Session Materials before proceeding to a vote on funding and must restrain from conducting business in secret before such vote. (3) As to Count? in accordance with Mass. R. Civ. 65, enter a preliminary and permanent injunction ordering: That Newton CPC, its members and agents make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding concerning the HPP Property taking; 1 2 ACTIVE 46831528v7 That Newton CPC, its members and agents postpone the November 12, 2019 public meeting and the related vote on committing CPA funding concerning the Property taking, and not reconvene it until the Executive Session Materials have been made public; and That Newton CP C, its members and agents are enjoined from convening an executive session to deliberate on committing CPA funding concerning the HPP Property taking. (4) For recovery of Plaintiffs? cost of suit, including its attorney?s fees; and (5) For such other and further relief as the Court deems just. Dated: November 6, 2019 ACTIVE 46831528v7 Respectfully submitted, WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, three registered voters in the City of Newton By their attorneys, 01 WW I esID. Mast man 326000 mes P. Pon tto BBO 556144 ustavo Ri iro BBO 698854 GREENBERG TRAURIG, LLP One International Place Boston, MA 02110 Tel.: (617) 310-6000 ponsettoj@gtlaw.com 13 VERIFICATION I, William P. Leahy, SJ, a plaintiff in the above?captioned matter, hereby verify under oath that have read this Veri?ed Complaint for Violation of the Open Meeting Law, Declaratory Judgment and lnjunctive Relief and further verify that the allegations of fact stated therein are true to the best of my knowledge. Signed under the pains and penalties of perjury this Elia); of November of2019. ?45% i? ail/3E7 William P. Leahy, SI. 14 ACTIVE 4683152316 CIVIL ACTION COVER SHEET DOCKET Trial Court of Massachusetts The Superior Court 9 iolgl CV 3354a PLAINTIFHS): Wrillam P. Leahy. so at al. COUNTY Middlesex ADDRESS: 140 Commonwealth Avenue Chestnut Hill. MA 02467 Newton Community Preservation Committee ATTORNEY: James D. Masterman it 326000 ADDRESS: GREENBERG TRAURIG, LLP ADDRESS: Newton City Hall. 1000 Commonwealth Avenue, One International Piace Newton. Massachusetts Boston. MA 02110 BBO: ill 325000 TYPE OF ACTION AND TRACK DESIGNATION (see reverse side) CODE NO. TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN r303 Injunction YES no *lf "Other" please describe: and declaratory relief Is there a claim under G.L. 0. Is this a class action under Mass. R. CivSTATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, 3A The following is a full. itemized and detailed statement of the facts on which the undersigned plaintiff or plaintiff's counsel relies to determine money damages. For this form. disregard double or treble damage claims; indicate single damages only. TORT CLAIMS (attach additional sheets as necessary) A. Documented medical expenses to date' 1. Total hospital expenses 2. Total doctor expenses 3. Total chiropractic eXpenses 4. Total physical therapy expenses 5. Total other expenses (describe below) Subtotal (A): B. Documented lost wages and compensation to date C. Documented property damages to date. Reasonably anticipated future medical and hospital expenses 3 E. Reasonably anticipated Iostwages? 35 F. Other documented items ofdamages (describe below) 3 (3. Brie?y describe plaintiff's injury. including the nature and extent of injury: TOTAL CONTRACT CLAIMS (attach additional sheets as necessary) This action includes a claim involving collection of a debt incurred pursuant to a revolving credit agreement. Mass. R. Civ. P. Provide a detailed description of claim(s): TOTAL: Signature of Attorney! Unrepresented Plaintiff: yaw Date I RELATED ACTIONS. Please provide the case numb/e ,case name yd county of any related actions pending In the Superidr Co Wit. CERTIFICATION PURSUANT TO SJC RULE 1:18 I hereby certify that have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients wi information ab ut urt-connected dispute resolution services and discuss with them the Signature of Attorney of Record: advantages and disadvantages of the variou thod of i Date: I CIVIL ACTION COVER SHEET INSTRUCTIONS SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE AC Agti i in he StateiMunic' EB Remedies 3E Beat Prope?y AA1 Contract Action involving Commonwealth, D01 Specific Performance of a Contract (A) CO1 Land Taking (F) Municipality, MBTA, etc. (A) D02 Reach and Apply (F) 002 Zoning Appeal, G.L. c. 40A (F) Tortious Action involving Commonwealth, D03 Injunction (F) COS Dispute Concerning Title (F) Municipality, MBTA, etc. (A) D04 Reform! Cancet instrument (F) CO4 Foreclosure of a Mortgage (X) AC1 Real Property Action involving D05 Equitable Replevin (F) 005 Condominium Lien Charges (X) Commonwealth, Municipality, META etc. (A) D06 Contribution or tndemni?catton (F) 099 Other Real Property Action (F) Equity Action involving Commonwealth, D07 Imposition of a Trust (A) Municipality. MBTA, etc. (A) D08 Minority Shareholders Suit (A) MC i 1: Civil A i AE1 Administrative Action involving [309 interference in Contractual Relationship (F) Commonwealth, Municipality, (A) D10 Accounting (A) E18 Foreign Discovery Proceeding (X) D11 Enforcement of Restrictive Covenant (F) E97 Pn?soner Habeas Corpus (X) CN E112 Dissoiution of a Partnership (F) 522 Lottery Assignment, CL. C. 10. 28 (X) D13 Declaratory Judgment, G.L. c. 231A (A) A01 Services, Labor, and Materiats (F) 914 Dissolution of a Corporation (F) as AbusetHarassmegt Prevention A02 Goods Sold and Delivered (F) 099 Other Equity Action (F) A03 Commercial Paper (F) E15 Abuse Prevention Petition. G.L. c. 209A (X) A04 Employment Contract (F) PA cm" Actigns inventing IncarceratEd Pam! 1* E21 Protection from Harassment, G.L. c. A05 Consumer Revolving Credit - M.R.C.P. 5.1 (F) A06 insurance Contract (F . . . AA iv Civil Actio A08 Sale or Lease of Real Estate (F) PM Adm? 3? (A) Incarcerated Party (A) A12 Construction Dispute E02 Appeal from Administrative Agency, A14 interpleader (F) Tortlous Act?on involving an 6.1.. c_ 30A (X) BA1 Governance, Conduct, internal P01 rt Inigo? invotvin E03 Certiorari Action, c. 249, 4 (X) Affairs of Entities (A) lncarcef?a?edigan 9 a" (F) E05 Con?rmation of Arbitration Awards (X) BA3 Liability of Shareholders, DirectorsE06 Mass Antitrust Act, (3.1.. c. 93, 9 (A) Officers, Partners, etc. (A) qut Ion lnvo an E07 Mass Antitrust Act, G.L. o. 93, 8 (X) BB1 Shareholder Derivative (A) Incafcf?rate? Pa?? . . E08 Appointment of a Receiver (X) BB2 Securities Transactions (A) PEI Administrative Adm? thOIthg an E09 Construction Surety Bond, G.L. c. 149, BC1 Mergers, Consolidations, Sales of incarce?a?ed (F) 29. 29A (A) Assets, Issuance of Debt. Equity, etc. (A) E10 Summary Process Appeal (X) BD1 Inteltectuai Property (A) 13.19115 E11 Workers Compensation (X) BD2 Proprietary information or Trade . . E16 Auto Surcharge Appeal (X) Secrets (A) 303 $323313: Persona' E17 Civil Rights Act, G.L. c.12. 11H (A) 881 Financial Institutionleunds (A) 304 Otlh 9 I E24 Appeal from District Court BH1 Violation of Antitrust or Trade . er eg tgence ersona Commitment, G.L. c123, 9(b) (X) Reguiation Laws (A) InjuryiProperty Damage (F) E25 Pteural Registry (Asbestos cases) A99 Other ContracUBusiness Action - Specify (F) 305 Products Liab'my . (A) E94 Forfeiture, GL. c. 265, 56 (X) BOG ?3'9?de ?ed'ca' 595 Forfeiture, G.L. c. 940. 47 (F) 307 Other . (A) 599 Other Administrative Action (X) Choose this case type it ANY party is the 808 Wrongful Death - Non-medical (A) 201 Media) Malpractice T?bunal only Commonwealth, a municipality, the META, or any E315 Defamation (A) 231 6013 (F) other governmentai entity UNLESS your case is a 319 ASBESIOS (A) 202 Appeat Bond Deniat (X) case type listed under Administrative Civit Actions [320 Personal injury - Slip Fall (F) AA . B21 Environmental (F) ?g 822 Employment Discrimination (F) Sex ?and? R9 at 1 Choose this case type if ANY party is an BE1 Fraud, Business Torts, etc. (A) E12 30p Commitment 123A 12 (X) incarcerated party, UNLESS your case is a case 899 Other TOPIIOUS Action (F) E14 30p petmon (Q3), 9(5) (X) type listed under Administrative Civil Actions (AA) or is a Prisoner Habeas Corpus case (E97). RP Summ Pr 5 Real 3Q Restricted Civil Actiggs summary Pmess Regiden?ia' E19 Sex Offender Registry 6 178M (X) Summary ?03.953 Minor Seeking Consent. G.L. c.tt?2. Non-realdentlal (F) TRANSFER YOUR SELECTION TO THE FACE SHEET EXAMPLE: CODE NO. TYPE OF (specify) TRACK HAS A JURY CLAIM BEEN YES NO 803 Motor Vehicle Negligence-Personal Injury STATEMENT OF DAMAGES PURSUANT TO c. 212, 3A DUTY OF THE PLAINTIFF - The plaintiff shall set forth, on the face of the civit action cover sheet (or attach additional sheets as necessary), a statement specifying the facts on which the plaintiff ratios to determine money damages. A copy of such civil action cover sheet, including the statement as to the damages, shatl be served with the complaint. A clerk-magistrate shall not accept for filing a complaint, except as otherwise provided by law, unless it is accompanied by such a statement signed by the attorney or self-represented litigant. DUTY OF THE DEFENDANT - If the defendant believes that the statement of damages ?led by the plaintiff is inadequate, the defendant may ?le with hislher answer a statement specifying the potential damages which may result if the plaintiff prevaiis. A CIVIL. COVER SHEET MUST BE FILED WITH EACH COMPLAINT. FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY MAY RESULT IN DISMISSAL OF THIS ACTION. COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C.A. N0 WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, Plaintiffs, v. NEWTON COMMUNITY PRESERVATION COMMITTEE, Defendant. MOTION FOR INJUNCTIVE RELIEF Pursuant to Rule 65 of the Massachusetts Rules of Civil Procedure and G.L. 0. 30A, Sec. 23(f), plaintiffs William P. Leahy, S.J., Joseph Quinn, and Linda Reilly, each a registered voter in the City of Newton (?Plaintiffs?), move, after hearing convened on short order, for a preliminary injunction against defendant, the Newton Community Preservation Committee (?Defendant? or ?Newton In support hereof, Plaintiffs rely on their Veri?ed Complaint and Memorandum of Law, each filed herewith and incorporated by reference. WHEREFORE, Plaintiffs pray that the Court allow this Motion and enter an Order providing relief, as follows (capitalized terms not defined herein shall have the meanings assigned in the Veri?ed Complaint and Memorandum of Law): That Newton CPC, its members and agents make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding concerning the HPP Property taking; ACTIVE 46831938v1 That Newton CPC, its members and agents postpone the November 12, 2019 public meeting and the related vote on committing CPA funding concerning the HPP Property taking, and not reconvene it until the Executive Session Materials have been made public; and That Newton CPC, its members and agents are enjoined from convening an executive session to deliberate on committing CPA funding concerning the HPP Pr0pe1ty taking. If the Court has a question, Plaintiffs pray that the Court review, in camera, the Executive Session Materials before Newton CPC can proceed to a vote on committing CPA funding. Dated: November 6, 2019 ACTIVE 46831938v1 WILLIAM P. LEAHY, JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, By their attorneys, A mam Ja 3 1?5. Ma??ter an 326000 Ja es P. Ponse BBO 556144 stavo Ribei REENBERG TRAURIG, LLP One International Place Boston, MA 02110 (617) 310-6000 mastermanj @gtlaw. corn p01msettoi@gtlaw.com ribeirog@gtlaw.com COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL copRT C.A. N0 l?jgl 0513a 590, WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, Plaintiffs, v. NEWTON COMMUNITY PRESERVATION COMMITTEE, Defendant. PRELIMINARY INJUNCTION ORDER This matter having come before the Court on November 2019 on Plaintiffs? Motion for Injunctive Relief in the above-captioned matter, and the Court having reviewed the Veri?ed Complaint, the Motion, Plaintiffs supporting Memorandum, and related exhibits, and having heard argument of counsel for all parties, it is ORDERED AND ADJUDGED as follows:1 1. Plaintiffs have demonstrated that they are substantially likely to succeed on the merits of their claims; 2. Plaintiffs have demonstrated that there is a signi?cant risk that they will suffer irreparable harm if immediate injunctive relief is denied; 3. Plaintiffs have demonstrated that the balance of hardships as between the parties weighs in Plaintiffs? favor; and Ail capitalized terms in this Order shall have the meanings set forth in the Veri?ed Complaint, unless otherwise noted herein. ACTIVE 46898551v2 4. Plaintiffs have demonstrated that immediate injunctive relief will promote the public interest. THEREFORE, IT IS ORDERED THAT, Plaintiffs? Motion is granted pursuant to Rule 65 of the Massachusetts Rules of Civil Procedure, and a preliminary injunction is hereby granted, providing: A. That Newton CPC, its members and agents are ordered to make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding concerning the I-IPP Property taking; B. That Newton CPC, its members and agents are ordered to postpone the November 12, 2019 public meeting and the related vote on committing CPA funding concerning the HPP PrOperty taking, and not reconvene it until the Executive Session Materials have been made public; C. That Newton CPC, its members and agents are otherwise enjoined from convening an executive session to deliberate on committing CPA funding concerning the HPP Property taking; and D. That Plaintiffs are not required to post a bond or other surety. SO ORDERED, MIDDLESEX COUNTY SUPERIOR COURT JUDGE Date: November 2019 2 ACTIVE 46898551v2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C.A. NO WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, Plaintiffs, v. NEWTON COMMUNITY PRESERVATION COMMITTEE, Defendant. MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR INJUNCTIVE RELIEF Plaintiffs William P. Leahy, S.J., Joseph Quinn and Linda Reilly, three registered voters in the City of Newton (?Plaintiffs?), respectfully submit this Memorandum of Law in support of their Motion for Injunctive Relief in the form of a preliminary, and ultimately, a permanent injunction. Plaintiffs incorporate by reference as its statement of facts the veri?ed facts set forth in the contemporaneously filed Veri?ed Complaint for Violation of the Open Meeting Law, Declaratory and Injunctive Relief (?Verified Complaint?) against the defendant, Newton Community Preservation Committee (?Defendant? or ?Newton INTRODUCTION This case concerns Violations of the Open Meeting Law, G. L. c. 30A 18?25, by Newton CPC. The OML was enacted ?to eliminate much of the secrecy surrounding deliberations and I All capitalized terms used in this memorandum oflaw shall have the meanings set forth in the Veri?ed Compiaint, unless otherwise de?ned herein. ACTIVE 46859857v8 decisions on which public policy is based,? Ghz'glz'one v. School Committee ofSou??ibridge, 376 Mass. 70, 72 (1978), and requires that, with a few Specific exceptions, all meetings of a public body shall be properly noticed and open to the public. See G. L.c. 30A, 20(a), That was not the case when Newton CPC considered land owned by Boston College, referred to as Webster Woods, now targeted by Newton Mayor Fuller for a taking by eminent domain. Veri?ed Complaint, 20, 24, 26, and Exhibits 6 7 8. In fact, over the last five years, Newton CPC has voted to fund numerous property acquisitions for conservations purposes and has only entered executive session when it concerned the taking of this property from Boston College. Veri?ed Complaint, ?l 3. This dispute came to a head on October 10, 2019 when Newton CPC entered executive session to discuss whether to fund all the costs associated with the Newton Mayor?s controversial proposal. Veri?ed Complaint, 1] 26. A statutory mandate is pursuant to the Community Preservation Act G. L. c. 44B. A CPC may approve expenditures of revenues from a fund of public dollars created by a surcharge on the total prOperty tax levy. G. L. 0. 44B, 7. If the City proceeds with a taking, Newton only role is to decide whether to fund the Mayor?s Funding Request to use CPA funds to pay 100% of the costs, a funding request that violates the Newton City Ordinance establishing the Newton CPC.2 It has no role in effectuating an eminent domain taking under G. L. c. 79, or in negotiations with BC or in any litigation which may possibly result. Even if this Court were to construe broadly the exceptions to the OML as extending to the City?s negotiating and litigation positions, the City suffers no ?detrimental effect? because the amount of money the 2?It is the intent of this ordinance that, to the extent possible, projects using CPA funds seek to leverage other funding sources. CPA funds ska/I no! replace existing operating funds only augment them.? (emphasis added). Newton City 0rd. ?7~80 Verified Complaint, 1] 21, and Exhibit 1. 2 ACTIVE 46859357v8 City will award BC in just compensation has already been announced publicly as $152 Million. Verified Complaint, ?ll 20 and Exhibit 5 6. Immediate injunctive relief is necessary. Newton CPC is scheduled to vote on the Mayor?s Funding Request on November 12, 2019, after another planned executive session. Plaintiffs and the public would be irreparably harmed if the Newton CPC votes on CPA funding having been denied the transparency intended and required by the OML. Verified Complaint, 28?30 and Exhibits 10 ll. These issues have been raised with Newton CPC directly. General Counsel filed an OML complaint pursuant G. L. c. 30A 23. Veri?ed Complaint, ?11 27 and Exhibit 9. Rather than addressing the matter on its merits, Newton CPC obtained an extension from the Attorney General to November 19, 2019, after the scheduled vote. General Counsel was informed of the requested extension by the AG. Veri?ed Complaint, 31 and Exhibit 12. Newton CPC cannot meet its burden that it was entitled to secrecy. Therefore, Plaintiffs respectfully request that the Court grant its request for a preliminary injunction, and ultimately a permanent injunction, ordering that: Newton CPC make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding concerning the HPP Property taking; (ii) Newton CPC postpone the November 12, 2019 public meeting and the related vote on committing CPA funding concerning the HPP Property taking, and not reconvene it until the Executive Session Materials have been made public; and Newton CPC is enjoined from convening an executive session to consider the Mayor?s Funding Request. LEGAL STANDARD The injunctive relief standard is well settled. The Court may grant injunctive relief when (1) there is a likelihood of success on the merits; (2) irreparable harm will result from denial of the ACTIVE 46859352v8 injunction; and (3) in light of the plaintiff likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction. Tri-Nel Mgt., Inc. v. 863. ofHeaZth ofBamsz?abZe, 433 Mass. 217, 219 (2001) (citing Packaging Indus. Group, Inc. v. Cheney, 3 80 Mass. 609, 617 (1980)). When, as here, a party seeks to enjoin governmental action, the court must also consider whether the relief sought will adversely affect the public. See Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). Under G.L. ch. 30A, 23(f), there is a burden shifting. Newton CPC, not Plaintiffs, has the burden to demonstrate that its decision to enter executive session in connection with the October 10 Meeting was authorized by the OML. Boeli?er v. Bd. ofSelectmen ofWayland, 479 Mass. 233, 237 11.3 (2018). Plaintiffs are likely to succeed on the merits. Newton CPC cannot meet its burden. The asserted reasons for entering into executive session are at best, unsupportable, and in actuality, specious. Plaintiffs face an imminent and irreparable injury, which it shares in common with the public?s interests. If Newton CPC proceeds with a vote to use CPA funds at the November 12 Meeting, after discussions of the merits and consideration of materials in secret, the Plaintiffs and the public at large would have only select, incomplete knowledge about, or participation in, the considerations underlying governmental action. Therefore, injunctive relief should enter. ARGUMENT I. Plaintiffs Have a Substantial Likelihood of Success on the Merits. Newton CPC gave notice that it would enter into executive session ?for the purposes of considering the purchase, exchange, lease or value of Webster Woods and strategy regarding litigation,? and did so for those purposes on October 10, 2019. Veri?ed Complaint, 24, 26, and Exhibits 7 8. On its face, that would appear to fall under an exception to the OML. A public body may ?discuss strategy with respect to collective bargaining or litigation if an open meeting ACTIVE $6859857v8 may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares,? and ?to consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body.? G. L. 0. 30A, 21(a)(3) (6). Exceptions to the OML, however, are to be interpreted narrowly to prevent the purposes of the statute from being rendered ineffective. See District/lttomey 12. Bd. ofSeZectmen ofMiddZeborongh, 395 Mass. 629 (1985). Newton CPC cannot meet its burden to show that its executive session on October 10, 2019 was authorized by an exception under the Open Meeting Law. a. Newton CPC Has No Role In A Taking By Eminent Domain Under G. L. c. 79. Newton CPC lacks authority to effectuate an eminent domain taking under G. L. c. 79. Newton CPC does not decide whether or what to take. In Newton, that authority rests with the City Council and the Mayor. G. L. c. 79 2. When a taking is made, it is the same ?board of of?cers by whom an order of taking has been adopted,? namely the City Council with the Mayor?s approval, who are charged with recording the order within thirty days in the registry of deeds vesting title in the City. G.L. c. 79 3. Furthermore, Newton CPC has no statutory role in awarding or determining how much money is to be paid to the landowner in the event of a taking; again, that is the role of the City Council and the Mayor. G. L. c. 79 6. Nowhere in the Chapter 79 statutory framework is there any role of Newton CPC, or any CPC. Newton CPC is only a funding source. b. Newton CPC Is Not Considering the Purchase, Exchange or Lease of the Webster Woods Portion of Property and Has No Role in Considering, Determining or Approving Its Value in 3 Taking. The difference between a taking by eminent domain and a voluntary, non-compulsory ?purchase, exchange or lease? between willing parties, needs little further ampli?cation. Cf. G. L. ACTIVE 46859857v3 0. 79A, 1 (contrasting eminent domain and negotiated sale as two distinct forms of property acquisition by the government). Regardless, in this case, Newton CPC has neither a substantive nor procedural responsibility in the ?purchase, exchange or lease? or a taking of the Webster Woods portion of the HPP Property. Even if there could ever be good faith negotiations between a private owner and a taking authority, Newton CPC would not, nor is it, involved in negotiations concerning the threatened taking. It, therefore, has no negotiating position to protect. 2016 Mass. Op. Atty. Gen. No. 47 (Apr. 5, 2016) (?nding public body entered executive session improperly under OML 20(a)(6) where it was not engaged in negotiations with property owner and did not discuss terms that were subject to any negotiations; see Opinion attached to this Memorandum). Because the taking of property is a matter for the City Council and Mayor, what Newton CPC is ?considering? is limited to whether to honor the Mayor?s Funding Request. The Mayor announced that the taking of the Webster Woods portion of the HPP Property is to cost $15.74 Million, exceeding Newton available funds in FY20. Veri?ed Complaint, 13, 20 and Exhibit 6 7 10. That requires Newton CPC to reset its priorities, make budgetary choices and subordinate other meritorious projects to this one disappointing their proponents. Veri?ed Complaint, 13, 20, and Exhibits 4 6 - 8. When a government authority is deciding how to use millions of dollars in taxpayer money, it is a public process. Those decisions, and the reasons for them, and the documents reviewed informing those decisions must be considered in the sunshine, not in a back room, precisely the reason the OML exists. Newton CPC may argue that its executive session is to protect against a ?detrimental effect? to the negotiation position of the City, in an overly broad extension of the exceptions to the OML. First, in order there to be a detrimental effect on negotiations, the negotiations themselves ACTIVE 4683985W8 must be between equally motivated parties, both free to walk away. In eminent domain, that is not the case. The City is going to take, not enter into a voluntary purchase agreement with BC. Second, even if a taking were somehow analogous to a voluntary ?purchase, exchange or lease,? for OML purposes, the intent to take, the amount of the Mayor?s request for funding, and the amount to be paid to Boston College were publicly announced, widely known and disseminated throughout the city of Newton and beyond, as of the October 10 Meeting. Verified Complaint, ill 20, and Exhibit 5 6. Where the purchase price has already been disclosed, there is no longer any detrimental effect to the City?s negotiating position and the executive session is not justi?ed. 2012 Mass. Op. Atty. Gen. No. 52 (Jun. 25, 2012). See Opinion attached to this Memorandum. c. There is Currently No Pending or Imminent Litigation that Could Justify Newton CPC Entering Executive Session. The narrow exception in G. L. c. 30A 21(a)(3) permits an executive session in order to discuss strategy with respect to litigation that is pending, clearly and imminently threatened or otherwise demonstrably likely. There is no litigation pending or threatened, other than in connection with this Open Meeting issue. Even if there is possible litigation arising out of a taking, Newton CPC will not be a party. Any potential future litigation regarding taking of part of the HPP Property would be between the City, the taking authority, and BC, the property owner. Newton CPC has no role in any future litigation strategy. Newton CPC may argue that its executive session extends to protect against a ?detrimental effect? to a litigation position of the City of Newton. Once again, there is no litigation pending or threatened; the prospect of litigation is pure speculation. Regardless, the issue is not whether there is the possibility of future litigation, it is whether revealing the matters discussed in executive session and the Executive Session Materials would have a ?detrimental effect.? G. L. c. 30A Where the purchase price has already been disclosed, there is no longer any detrimental ACTIVE 46859857v8 effect to the City?s negotiating position and the executive session is not justi?ed. 2012 Mass. Op. Atty. Gen. No. 52 (Jun. 25, 2012). II. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief. Plaintiffs, registered voters in the City of Newton, whose interests are aligned with the general public, will suffer irreparable harm if Newton CPC is allowed to proceed with their scheduled vote on November 12, 2019 on the Mayor?s Funding Request without a process that is fully transparent and open to the public. In?eparable harm exists where ?money damages would not adequately redress any harm the [voters] might suffer prior to a ?nal judgment should they prevail on the merits Packaging Indus. Group, Inc, 380 Mass. at 621. Absent the injunctive relief sought, Plaintiffs will be denied participation in a matter of local governance and of holding local of?cials accountable for their decision making. This is not a harm that can be remedied purely by monetary compensation. Cf. Kileoyne v. Wayland Land?ll Review Panel, 18 Mass. L. Rep. 410 (2004) (?Violations of the open meeting law cause irreparable harm to the public?). 111. Public Interest Strongly Favors Granting Injunctive Relief. Finally, under the circumstances present in this case, the entry of preliminary injunctive relief will promote the public interest by ensuring that publicity and transparency in government is preserved. It is in the public interest to ensure that all of the City?s constituents have access to the decision?making process of their local government. See Boelter v. Bd. of Selectmen of Wayland, 479 Mass. 233, 238 (2018); see also DA. for N. Dist. 12. Sch. Comm. of Wayland, 455 Mass. 561, 5 70 (2009) (?It is essential to a democratic form of government that the public have broad access to the decisions made by its elected of?cials and to the way in which the decisions are reached?) (citing Fundy v. Regional Sch. Comm, 402 Mass. 179, 184 (1988)). The public has a strong interest in fulsome, public deliberations concerning the merits of funding the proposed ACTIVE 4685985?v8 taking to the detriment of other eligible projects. All information that the CPC considers in making this decision must be made public. The necessity of immediate injunctive relief to protect the public interest is further evidenced by the fact that Newton CPC has evaded addressing this issue on the merits until after it votes and the harm a fair accompli. On October 21, 2019, General Counsel ?led an OML complaint pursuant G. L. 0. 30A 23. Veri?ed Complaint, 11 27 and Exhibit 9. On October 29, 2019, Newton CPC, without informing or even copying BC, requested that the Attorney General allow an extension of time to answer. Veri?ed Complaint, 11 31 and Exhibit 12. The Attorney General granted Newton request which now has until November 19, 2019 to answer, one week after the Newton CPC vote whether to use CPA funds for the taking of the Webster Woods portion of HPP Property owned by BC. CONCLUSION WHEREFORE, based on the foregoing, Plaintiffs respectfully requests that the Court enter the relief set forth in the Motion for Injunctive Relief, ?led herewith. ReSpectfully submitted, WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, Ja es D. Master an Enoa 326000 mes P. Ponset BBO 556144 ustavo Ribeiro BBO 698854 GREENBERG TRAURIG, LLP One International Place Boston, MA 02110 Tel.: (617) 310-6284 E?mai1:mastermani @gtlawcom ponsettoi@gtlaw.com Dated: November 6, 2019 ACTIVE 46859857v8 THE Connecmwes?rr OF OFFICE, or THE ATTORNEY GENERAL ONE Ashe-march: PLACE Besrcm, 02108 TEL: (617} 727-2200 THOR NE ENE RA 1: g0 VI $1ng April. 5, 2016 OML 2016?? 47 Alice Counsel. Soldiers? Home in Holyoke l_ 0- Cherry? Street Holyoke?, MA 01040 RE: Open Meeting Law Complaint Dear- Attorney Fizz-i: This. of?ce received, a complaint from-David Bartley, dated November 2015, alleging; that the Beard of Trustee's- .of- the Soldiers" Home in Holyoke (the ?Board"? violated the Open Meeting. Law, ?18?'25. Speci?cally, the complaint alleges. that: the-Board ?lled to follow- proper procedures for entering executive session doting its June 2' and June 23, 201-5 meetingsgandthat (ii) during those-two. meetings the Board conducted business in executive seesicn that was-not appropriate for executive session. The complaint Was originally filed with the-Board on June 30, 2015. The BOatd responded. by letter- dated August 27, 2015, followi?ngan extension. oftime granted by our of?ce. review, we ?nd that the Beard, violated the: Open Meeting Law in the ways alleged. In reaching. this, Clement?nation, we. reviewed the complaint ?led. with the Board, the Board?s response,- end, the complaint ?led with-our- of?ce. Addition-ally, we: reviewed the executive session" of the Board?s June 2 and June 23, 2015 meetings. Finally, ?we spoke with the complain-ant by? telephone on January 5, 20116, and with Beard Chair SteVen Como by telephone .oananutiry- 5, 2016. FACTS We ?nd the ?tctses follows. A structure on property located at 193 St. in Holyok?e eneroached on land belonging to. the Soldiers" Phone. In 20.14, the Legislatu?re passed. legis?la?tiOn authorizing the Commissiener of'thc Division of Capital Asset Management to convey the small parcel of? land belonging to theSo-ldiets.? Home to the owner of'the' property at 193 Fairmont? St. SE St. 2014, c. 238. Division of Capital Asset Management subsequently requested that the Board complete a. form and declare the parcel surplus so that the Division could transfer the land. The Bot-11d held a meeting on June 2, 2015, at which it enteitained public comment legaiding the status of the land adjacent to the pioperty at 193 Fahmont St. Following some discussion, the Road voted by roll. call to. ente1 executive session at the end of the. meeting to fu1the1 dismissthe issue. The Chai1 did not state. or identify an executive session. p111 pose to justify the discossioii, 1101? did he state. that an open session. diScus?sion would have a detrimental effect on the Boatd?s negotiating positioe While 1'11 executive session, the Boaid discussed whethe1 to declaze the lend1 at issue as surplus land so that it could be Conveycd to the pi opeity owns-1 of 193 Fairmom St. Bo'aid members sha1ed- theii coocems about thefaii matket value of the pa1eel,.and wanted more information about the encroachment before making- a ?nal decision. discussion, the Board considered emotion to declare the parcel sorplus, which failed by a'VOte-of 3:3, The. Board. hold another meeting 011 June 23, 2015 and again?vmed to enter into s'ession'to discuss. the-property adjacentto 193 The Chair did not? State or identify an executive session purpose. to justify- the discussion, 1101' did he state that an open. session diseussion would have a: detrimental effect 011. the Board?s negotiating 'Dui'i mg the executive session, Board members. shared their concern that declaring the entire parcel surplus was more. than-what was necessary to iremov'e'the encroachment. The Board considered another - motion to declare the. parCel surplus, which again failed by? a vote of 3,3, The Board Voted one more time "On the motion,- and this time it'ftiiled by a vote of2-?4. Immediately following the executive session, the. Board inizbrmed the owner- 01?193 Fairmom St. ofits decisibn not to declare the land 3111131113. DISCUSSION 1. The Board Failed to FOIlow? the Procter Procedure for Entering into Executive Session. during its. one 2 and June 23, 2015. Meetings?. A public body may meet in executive?01 1701 any of ten enumeiated purposes. One such p111 pose allows a public body to meet in executive session to ?conSidei the. p111 chase exchange, lease 01 value. of1e-al ptope'ity 1f the deola1es that an open meetihg may have a detlimental effect 011 the negotiating position of the public body.? GL. c. 30A, (_?PurpoSe Prior to entering into exeCutive session, the Chair must state the puipos?e? for the executive session, Stating all Subjects that may be revealed without comormn'ising the purpose for which. the executive session Was called. G.L. c. 30A, The chair must also publicly announce whether the open Session will reconvene at. the conclusion ofthe executive session. GAL. 0. 30A, Here, the Board Chair failed to state the purpose for the executive sessions prior to the Board entering", into the executive sessions. On. both occasions, it appears that the Board intended I The Board has publicly released the minutes of its June 2 and June 23, 2015 executive sessions, and provided copies to the complainant on July 23, 2015. to consider the vai?ue of-real property. "Thus, we infer that the Board intended to enter into executive session under Purpose 6. However, the Chair also failed to state that ?an Open meeting may have a? detrimental. effeCt on the negotiating position of the [Board]? asrequiredhy Purpose GL. c. 30A, failure-sviolated the Open MeetingLaw. In its response to the complaint, the Board acknowledged: that the Chair failed to make these declarations prior to entering into executive session. 2. The Board?s Jane 2 "and June 23'. 2015 EXecutiv-e Session Discussions were Not Appropriate for Executive Session. Purpose 6 permits a public body to meet. inexecutive session to. ?consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental. effect on the negotiating position of the public body.? c. 30A, While in executive session. the: Board discussed the. value of a parcel of land and. Whether or not to declare it; Surplus for; the purpose selling- the land to. the owner of '1 93 Fairmont St. The Board contends thatiit had a negotiating position. to protect because it needed to survey the'propeity lines, censider whether a smaller lot could? be designated as surpius, and determine whether" alternatives were available to the property- owner 01193 Fairmont St, such as a local variance 0r transfer of less than the full parcel. The; Board certainly ennsidered the value of property during the two executive sessions at issue, but did not have a clear negotiating position. to protect. ?gs G.L. c. 30A, The Board was not. engaged in negotiation with the owner of 193 Fairm?ont St. ovzer'the parcel. Rather, the Board was. considering a request. by the Division of Capital Asset Management to declare the parsel suiplu?s. During the. meetings. the Board discussed. the. matter w?i the property'- owner in open Session, entered 'into- executive session. to consider designating the parcel assurpiusi and then ii'nmediately communicate-d its vote to??the owner after making its ?nal decision. The Board did not discuss terms that were subject to any negotiation.2 It discussed the needrto Survey the boundaries of the parcel at issue and voted whether-to designate it. as surplus.- ll?his. discussion and vote should have occurred in open. session, as doing so: would. not have harmed the Board?s negotiating position. Because the executive sessions were. not; proper under. Purpose 6-, we: find that the Board violated the Open Meeting Law. CON CLUSTON We find that the Board violated the Open Meeting Law by failing to follow the pl?Oper? procedures for entering-"into executive session during its June 2 and Jone 2.3, 2015 meetings. and discussed topics that were not; appi-epriate for executive session during those meetings. We order the Board?s. immediate and fatnre compliance with the Law, and caution the Board that-a similar, future violation may be considered evidence of an intentional violation of the Law. Because the Board has already publicly released the minutes of its executive Sessions, we order no additional remedial: action- 2 While it is our understanding that the Soidiers? Home would receive fair market value for the land, this issue was not diS'cu-ssed dining eithEr meeting at issue. We now consider this matter closed. Please be advised that this letter does not resolve any other complaints that may be pending with this of?ce or with. the Board. Please feel free" to contact. our office at 617063?2540 if you have any questions regarding this letter. Sincerely, :7 Kevin W. Manganaro Assistant Attorney General Division of Open Government- ec: Dav-id Bartley, Esq. This determination was] issued pursuant to GEL. 0. 30A, 23(0). A public body 'or-any Member of a body aggrieved by a ?final order of the Attorney" Genera-11ml}? obtain judicial; review through an action. filed in Superior Court pursuant to G.L. 0. 30A, The complaint must be filed in Superior Court within twentyuone day's ofrecei'pt of a final. order. THE OF MASSACHUSETTS OFFICE 0F 11?11% ATTORNEY GENERAL ONE AS1111 L: 1111.111 1? LAC 13: 130511.121, 02 1.08 1111111111111 Comm. 1 {61111272201} A- June 25, 2012. OML 2012 52 3 3mm Barry Hubbard'sten Parks Commissim 7 Main Street, Unit 3 01452 Re: "Open Meetin2=Law Complaint Dear Ms. Barry: Our of?ee received complaints from Danielle Arakelian, dated 111116.26, 20111311111 Thomas Bratke, dated June 24, 20-1 that the Hubbardsten Parks 'CemmiSSien (she ?00113111133106? violated theOpe?n MeetijngLaw, Glaxo, 30A, 18-25, Speci?cally, the Complaints. allege that the-Commission violated the} Open Meeting Law by failing 10' list agenda topics. with Suf?cient speci?city 111 its. March 14,2011Merel1 28, 2011; April 1.1 2011 Apiil 2S, 2011,64331 9, 2011; and May 16, 2011 meeting notices he complaints furll1e1 allege that the (30111615331011. unlawfully entered executive session durmg its May 16,201 1 meeting he 00111131311113 were originally submitted to the?. Coziunissien on June 2, 2011 and June 6, 2.0.1.1 We received-the Commission?s reSponse to the complaints 011'. June 22, 201 1.. The Open Meeting Law requires that ?the complainant shall ?le a mitten complaint. with. the. public body, setting 111111112111: circumstances which constitute the alleged. violation and giving the body an eppertunity to Iemedy the alleged. Violation; provided, hOWeve?r, that Such 00111131211111. shall be ?led within 30 days of thegallegecl violation,? (1L. 30A, Here, with regard to alleged 1111312111035 011 March 14,2011 11421101128; 2011; April 11, 2011; and April 25, 2'01 1, the Complaints Were?ledmore than 30-11333 after the alleged 1116121110113. Because the alleged violations.- beeun?edlduring Open.'s'essi011 meetings, wefind that the e0mp1ai'11ant could reasonably have known. about the Commission?s 30110113 011111053 meeting dates, thus the co 111pleints regm?dihg the March 1-4, March 28, April 1 and A p111 25 meetings are untimely. We decline. to review these complaints. The remaining Complaints- are addressed below, FACTS Th1 oughout the spring oF 2011,1116: Commission explored the possibility of porcheSin'g land p111 31121111 to the Commimity 'Preseivation Act. to construct new Sports Courts at the C111 he Recreation Field (?Rec Field?). The Cozmn-issioners discussed a; founaere plot of land located Ell'48 High Sheet, adjacent to the Rec Field which had beeohie' aVailable for purchase. The Cwmmissiooers discusised the purchase pii'ee' i11- open session and di-Soussed the pesitiVe and negative aspects of, purchasing that property. The Commission. heldao open 9, l. The meeting- n'otice- included a topic listed as to the Community Preservation Act. The land proposal being considered by the Commissioners included purchasing "land, with funding-through the Community Preservation Act. ThreeCoinmiSsioners and salinidenti?edl number of?I-?ligh Street residc?i?? were present at. {he meeting. No substantive discussion regarding the projeci took place, however, become Geminissioner Chrisiopher Norcross, who possessed necessary documents; was in. another meeting: The next Commission. meeting occurred on May 16 20l i lhe meeting notice included a topic lis'ied as ?Executive Session: Purpose to cthider the purchase of real property. Flier to that evening 3 executive session, it was established that ,the'purchase price of the-land to: expand the Rec Field was $60,000. The minutes do not re?ect when or-how-negotiations resulted in the. $60 000 figure, 1111119011: the Arekelian complaint and the. minutes'from that evening? 's executive session confirm that agreement had been. reached 0112a poicha'sei prise of $60 000 113 open session prior to the executive sessio'ii.2 During the public portion of this meeting, the Commissioner's Opened {he ?1001- for. comments prior to voting toent'e'r executix're session. The minutes re?ect that. High Street residents in attendance questioned the necessity and the legality of the executive seesion Commisszonei responded that decision to move Foiwaid to purchase the land needs to. be made tonight .Fhe minutes show tha't at least one. commissioner expressed. some irritation, stating that cemmunity members- [were]; continosll-y intemptiog diiscossi'on and. these interruptions are delaying and extending meetings beyond what is reasonable.? The commissioner added that the Commission heard the input of the High Street residents multiple- times and fools-that all Opinions have been heard. and consideration will. be made.? Another commissioner stated zhat the execuiive session was in compliance with Open Meeting Law. i The Community Reservation, Act allows'eomnmnities to czeate a local Community Preservation Fund to raise money through a surcharge. of up to 3% or the real estate tax levy on real pioperfy tor open Space protection historic preservation and the provision of affordable housing. he set. also creates a signi?cant state matching, fund which serves as an incentive to communities to pass the (X3141 2 Because the executive session minutes for the May '16, 201 2 meeting have not-yet been publicly released, to the best of our knowledge. we do notreeoun't their full detail here. 2 During the executive session, the Commissioners discussed the purchase? of the land 011 High Sheet, but. at no time d111' mg the exec'utit session did they engage in discussion that could be characterized as affecting their negotiating position The minutes of the executive session 1101161111 that the pttrohsse piiee of $60, 00.0 had a head). been decided bef?ote the executive session. The Commission. discussed whether to go ahead with the purchase and the-project, and discussed the potential use of the land. In. the executive session, the Co.n1m1ssioi1 voted ?to move fom'ard the appliestioe to CPC3 for funds 'to? purchase a lot of land to develop for the expansion oi the Curtis Resteatiional midis.? DISCUSSION The Commissiott Violated the 0111211 MeetingLaw by Failing. to List Topics with Suf?cient 'Soeei'?eitsr in its Meeting Notices. Public bodies ate teqoited to list topics in a meeting notice with ?sufficieht- specificity Ito reasonably advise the poblic of the issues to be discussed at the meeting.? 940 CMR 29. 03 When planning to discuss 11' specific piece .oF propetty, 11th 10 bodies should include suf?cient 1ntom1atioo 1111.111: meeting notice to identify the property A spee1?c address 13 always preferable; h-howeveii', if the Commission IS unable to list a speci?c address, list bordering or- 011161 identifying infozmation. See OML 2010 2 Here the Commission could have reasonably anticipated that at the May 9 201.1 and May 16-, 20.11 meetings it would discuss the proposed purohase of [and either Mspeci?cally 11148 High Street or land located 011 High Street and adjacent to the Rec 1e1d The Commission had discussed this Specific property thioughout the spring of 2011 Despite that, the Commission 3 May 9, 201. ll and May 16 4201] meeting notices did 1101 provide sittifficient iofomation Both- specifio property to be discussed either by address or by identifying 1116111211113. The Commission, therefore, tailed to fully Comp] .y with the Open. Meeting 1ega1'ding pesting' its notices. 5 CPC reters to the Community Piesewation Committee. '1 Open Meeting 1. aw determinations may be found 11111112 Attorney General? 5 website, mass aoviseo/ooemneetme ?the Town Clerk sent the Commission co chairs an email on Ms: ch 20, 2012 informing them of the Open Meetitig Law 8 notice requirements. it 13 not clear whether the co? ?ohairs received or reviewed this email, Therefore, We do not this to be an intentional violation of the Law. 3 II. The Commission Violated the Open Meeting Law by Enteuoe Executive Session for an. lmptoper Purpose. Public bodies may enter a closed, or executive, session only for onto:- or thereof teo purposes enumerated in the Open Meeting 1 ow BOA 21. One purpose is consider the purchase exchange, lease or' value of: teal property it the chair "declares that an open meeting may have a detrimental effect. on the negotiating position of the. public body.? Ld.a1' Prior to enteting executive session ?the chair ls1oll state the pu1p'ose ?for the. executive. session stating all subjects that may he levealed. without oompmmising the potpose for which the eXeootive session was called.? it; H111 e, the Commission listed 111 the notice to: its May 1-6201} meeting ?Executive 811831011: Purpose to considei the ptuclto'se of real prope1ty..? Aeeotdit1gto the minutes, the Commission ?rst. opened. the floor for cements prior to voting to enter executive session. High Street oesidents 111 attendance. qttestioned. the necessity and the legality of the EXeeutive Session The Commissionms responded with 1111 ee reasons foi entering executive session: because a decision needed to he made that night regarding the CPA apphedhon to pot chose the land; (2) because community membets weie' too often int'enupting Open meeting discussion-s delaying meetings beyond what was reasonable; and because ?the low 016111 13/ allows it): an executive session. in the instance of a poiohose of real estate? None of. the Commissioners stated lessons accorded with Open Meeting Law, however. The Cemmissioners- did not specify that entering executive sesSion would have a detrimental effect on their .11egotiatirig position With 1egerdI to the purchase of property Here the Cemmissioners could. not make such a claim because no negotiation remained to be done at the time of this meeting The oomplat 1113 and the minutes from the executive session make clear that: the purchase priceww $60 GOO?wheat already been decided before the Commissioners enteied executive sessiooi The Commission did not any other matters with respeet to negotiating the purchase of land rather they discussed. the pros ?and eons? of going ahead with the project They discussed the potential use of the land and ultimately voted to go lorwerd with the Jprojeet This discussion and. vote should have. been conducted 111 an open meeting in its response to the complaints, the Commission. stated that it needed to enter executive session because the Commissioners felt that open discussion would have detrimentolly affeeted of the pobiie body as the body was 1133 ?whole. not of one ?mind on theporcla'asef? Whe11-_the-te11ns of- a land purehese have been negotiated and the onlyremoining discussion. relates to. whether ornot to enter into the deaL Purpose 6 may no longer be used to justify an. executive session. The .11egotiation has concluded .at that point, he Commission. should therefore have held this discussion in an open session meeting. CONCLUSION We ?nd that the Comn?xissim violated the Open Meeting Law by failing to list tOp'ics will} su?icient speci?city in its meeting notices and by unpropel 1y discussing matters behind cl Nosed doors that were net 1?61? Executive session We ordm immediate 311d future compliance with the Open Maeting . and caution that futt'n'e similar conduct may b6 considered evidence. of intent to violate the Open Meeting Law. BeCause the minutes of the May 16, 201 1 executive sessian re?ect that'the. actual pumose for entering executive mission was to avoid open discussibn 6f mailers required to be Conducmd an open; mt:eting,' we Older the Commissio? to publicly xelease the May 16, 201 1' executive session minutes, if it has not done so already. The Commission may redact' or Wilhhold portions of the? minuteS if one or. mom of the Exemptions. to the Public Law, 4 7 or the attorney/client privilege applies, SE G, L. 9. 30A, 226-). We decline to take the action regues'ted by c?ompl-ainam "Mr. Bratko, namely mulli?fying the revised CPA applicatimL We 130W consider this matter closed. If you have any quastions Icgarding this letter, please do not hesitate to 0011:216th at the number below. Sincerely?, Jonathan SCJaIs'ic Assistant-Niamey General- Division of Open GoVemm?ent Ph: (617) 963-2045 cc: Danielle Arakelian Jassy Bralko Thomas Bratko. COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C.A. N0 193 WILLIAM P. LEAHY, S.J., JOSEPH QUINN, and LINDA REILLY, Three Registered Voters in the City of Newton, Plaintiffs, NEWTON COMMUNITY PRESERVATION COMMITTEE, Defendant. MOTION FOR SHORT ORDER OF NOTICE CONCERNING MOTION FOR INJUNCTIVE RELIEF Now come plaintiffs, William P. Leahy, 8.1., Joseph Quinn and Linda Reilly, each a registered voter in the City of Newton (?Plaintiffs?), and move for a short order of notice, returnable on November 12, 2019, concerning Plaintiffs? Motion for Injunctive Relief njunction that seeks to enjoin defendant, the Newton Community Preservation Committee (?Defendant? or ?Newton after violations of the Opening Meeting Law, G.L. 0. 30A at a public meeting on October 10, 2019 (?October 10 Meeting?). Without a short order, Newton CPC will vote on the evening of November 12, 2019 concerning a Community Preservation Act funding request despite having held unlawful executive sessions in violation of the OML. In support hereof, Plaintiffs rely on their Veri?ed Complaint for Violation of the Open Meeting Law, Declaratory and Injunctive Relief and Memorandum of Law in support ACTIVE 46855019V1 of the Injunction Motion, each ?led herewith and incorporated by reference, and further state as follows: 1. Defendant violated the OML at the October 10 Meeting by conducting discussions in executive session, excluding the public, when considering a CPA funding request by the Newton Mayor concerning a potential eminent domain taking by the City of Newton. 2. There is a scheduled Newton CPC public hearing concerning the proposed funding on November 12, 2019 at 7:00 p.m. (?November 12 Hearing?) at which Newton CPC is expected to vote on the funding request, after another unlawful executive session. 3. Newton CPC had an opportunity to address concerns about its executive sessions had they responded timely by November 8, 2019 to a' complaint served under the OML Complaint?). Instead, the Newton city solicitor?s office secured an extension to respond to the OML Complaint from the Attorney General until November 19, 2019. 4. By the Veri?ed Complaint and Injunction Motion, Plaintiffs seek a preliminary and a permanent injunction postponing the November 12 Meeting, and enjoining and restraining the Newton CPC from convening any future executive sessions regarding funding of a proposed taking of property, and holding any future public hearings and deliberations until the minutes of, and documents considered during, the October 10 Meeting?s executive session are made public. 5. Absent a short order, Plaintiffs will effectively be denied the relief sought by the Veri?ed Complaint and Injunction Motion because Newton CPC will have voted at the November 12 Meeting on CPA funding without the minutes of, and documents considered during, the October 10 Meeting?s executive session having been made public. Allowing a short order is consistent with the goals of the OML. See G.L 0. 30A, Sec. 23(f) (?the court shall ?x [the return], having regard to the speediest possible determination of the cause consistent with the rights of the parties?). ACTIVE 46855019v1 VVHEREFORE, Plaintiffs pray that the Court allow this Motion and enter an Order providing that a hearing on the Injunction Motion shall go forward on November 12, 2019 at 2:00 pm, prior to the November 12 Hearing. A proposed Order is ?led herewith. Dated: November 6, 2019 A CTWE 468550191? WILLIAM P. LEAHY, S.J., JOSEPH QUINN, AND LINDA REILLY, Three Registered Voters in the City of Newton, By their attorneys, CWM Jam . Masterman 326000 Ja" es P. Ponsetto BBO 556144 Gustavo Ribeiro BBO 698854 GREENBERG TRAURIG, LLP One International Place Boston, MA 02110 (617) 31066000 mastermanj @gtlaw.oom ponnsettoi??gtlawoom ribeirog@gtlaw.com COMMONWEALTH MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRI URT A. Lot-leg more; 5.: FOR THE and LINDA REILLY, Three Registeled Voters . . in the City of Newton, . . Plaintiffs, Wm?gg?ww v. a NEWTON COMMUNITY PRESERVATION i COMMITTEE, Defendant. MOTION FOR ORDER OF NOTICE CONCERNING MOTION FOR INJUNCTIVE RELIEF Now come plaintiffs, William P. Leahy, S.J., Joseph Quinn and Linda Reilly, each a registered voter in the City of Newton (?Plaintiffs?), and move for a short order of notice, returnable on November 12, 2019, concerning Piaintiffs? Motion for Injunctive Relief (?Iniunction Motion?) that seeks to enjoin defendant, the Newton Community Preservation Committee (?Defendant? or ?Newton after violations of the Opening Meeting Law, G.L. 0. 30A . ?with . . - at a public meeting on October 10, 2019 (?October 10 Meeting?). Without a short order, Newton will vote on the evening of November 12, 2019 concerning a Community Preservation Act funding request despite having held unlawful executive sessions in violation of the OML. In support hereof, Plaintiffs rely on their Veri?ed Complaint for Violation of the Open Meeting Law, Declaratory and Injunctive Relief and Memorandum of Law in support 0? ACTIVE 4685501QV1WW - 8am). it? 0 ??iar?mam COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT GOA-O N0 FILED THE OFFICE OF THE CLERK OF COURTS FOR COUNTY OF MIDDLEBEX WILLIAM P. LEAHY, S.J., JOSEPH QUINN, a . and LINDA REILLY, Three Registered Voters NOV 0 6 2019 in the City of Newton, .. Plaintiffs, i Middleman, as Superior . . Thdwithin matter is set down for hearing ?01? NEWTON COMMUNITY PRESERVATION Maw; it? 201?i in mm" 00'? COMMITTEE, i Defendant. MOTION FOR RELIEF Pursuant to Rule 65 of the Massachusetts Rules of Civil Procedure and G.L. c. 30A, Sec. 23 plaintiffs William P. Leahy, 3.1., Joseph Quinn, and Linda Reilly, each a registered voter in the City of Newton move, after hearing convened on short order, for a preliminary injunction against defendant, the Newton Community Preservation Committee (?Defendant? or ?Newton In support hereof, Plaintiffs rely on their Verified Complaint and Memorandum of Law, each ?ih?d herewith and incorporated by reference. I WHEREFORE, Plaintiffs pray that the Court allow this Motion and enter an Order providing relief, as follows (capitalized terms not de?ned herein shall have the meanings assigned in the Veri?ed Complaint and Memorandum of Law): That Newton CPC, its members and agents make public forthwith the Executive Session Materials before proceeding to a vote on committing CPA funding conceining the Property taking; ACTIVE 46831938v1