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.
2

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. 
3

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."
4

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.
5

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).
6

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.
7

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 
8

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 
9

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 

10 We 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.
10

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 

11 At 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.
11

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.

12 The 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.
12

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 

13 The 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.
13

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 

14 The 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.
14

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 
15

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.