David K. McCay

Dave is a partner and Chair of the firm’s Litigation Department where he specializes in the resolution of complex environmental, real estate, zoning and business disputes. He represents property owners, real estate developers, commercial landlords and tenants, municipalities, and businesses and business owners in environmental cases involving contaminated properties and related enforcement matters, real estate and zoning disputes, and in cases involving commercial contracts, shareholder disputes, insurance coverage disputes and the enforcement of noncompetition agreements. Dave also represents property owners, developers and municipalities in local land use permitting matters.

Dave appears regularly in the state and federal courts in Massachusetts and in arbitration proceedings before the American Arbitration Association and JAMS. Dave has been named a "Rising Star" by Boston magazine and Law & Politics. In 2005, he was selected by the Worcester Business Journal as one of "40 Under Forty" professionals honored for their professional excellence and community service.
 
Dave is Editor and a frequent contributor to “On Solid Ground: The Mirick Real Estate Law Blog,” which provides news and commentary on real estate development, environmental and construction law. Dave is active in the MetroWest and Boroughs+ community. He currently serves on the Board of Directors of the 495/MetroWest Partnership and as Co-Chair of its Housing (Development) Committee. He is also a member of the Board of Directors of the Marlborough Economic Development Corporation. Dave is Past-Chair of the Southborough Economic Development Committee, the Marlborough Regional Chamber of Commerce, and a former member of the Advisory Board for the MetroWest Economic Research Center at Framingham State University. Dave lives with his wife and two sons in Southborough.

Bar & Court Admissions

  • Massachusetts
  • U.S. District Court for Massachusetts
  • U.S. District Court for Connecticut
  • U.S. Court of Appeals for the First Circuit
  • Boston College Law School JD (2000)
  • Mount St. Mary's University BA, magna cum laude (1995)
  • Successfully represented the municipal owner of the then-largest solid waste landfill in Massachusetts in federal and state groundwater contamination claims involving 1-4 dioxane and other contaminants. The claims were brought by two non-profit environmental groups and over 30 families under the federal Clean Water Act, the Resource Conservation & Recovery Act and Massachusetts General Laws, Chapter 21E
  • Represented a Massachusetts manufacturer against dioxin and PCB contamination-related claims at a Superfund drum recycling site involving projected response costs in excess of $150 million
  • Obtained a judgment and award of attorney’s fees under Massachusetts General Laws, Chapter 21E, and successfully defended judgment on appeal, against a municipality requiring it to remediate environmental contamination of our client’s 14-acre property. The remediation was estimated to cost up to $25 million
  • Successfully obtained the rescission of our client’s purchase of a 78-acre property based on the seller’s failure to disclose known PCB contamination
  • Obtained a multi-million dollar arbitration award and judgment for claims for breach of contract and unfair business practices on behalf of a designer and builder of pollution control systems for power plants
  • Successfully represented a bank resolving MassDEP enforcement actions and private tort claims related to TCE contamination at a formerly-bank owned property
  • Resolved an asbestos-related MassDEP enforcement action against two construction contractors resulting in a favorable Consent Order with a modest penalty
  • Resolved a MassDEP enforcement action on behalf of an automotive service and inspection station resulting in a favorable Consent Order
  • Regularly represented property owners, developers and municipalities in zoning and wetlands appeals involving special permits, variances, orders of conditions and subdivision approvals and denials in Massachusetts Land Court and Superior Court
  • Obtained a dismissal of zoning-related claims for a commercial property owner concerning the non-conforming use of the property
  • Obtained summary judgment against a former company controller who embezzled over $1.4 million from his former employer
  • Successfully defended a large commercial tenant in lease claims related to the term of the lease and building repairs
  • Successfully prosecuted claims on behalf of a real estate investment company against an insurance carrier for failure to provide coverage and benefits under a commercial property insurance policy
  • Successfully represented an international teleconferencing company in the enforcement of a non-competition agreement arising out of the sale of a business
  • Enforced a non-competition and non-solicitation agreement on behalf of a high-tech sales and distribution company against its former sales affiliate

Publications/Presentations

  • "On Solid Ground: The Mirick O'Connell Real Estate Law Blog," editor and author of over three dozen articles on various real estate development, environmental and construction issues, 2012 to present
  • Quoted in “Zoning lawyers see Baker bill as move in right direction,” Massachusetts Lawyers Weekly, October 17, 2019
  • Quoted in “In Massachusetts environmental law, PFAS coming to the fore,” Massachusetts Lawyers Weekly, July 3, 2019
  • Quoted in “Fight to protect drinking water from ‘forever chemicals’ begins to boil,” Worcester Telegram & Gazette, June 11, 2019
  • Quoted in “Clean Water Act: Groundwater policy still muddled until Supreme Court rules,” Bloomberg E&E News, April 23, 2019
  • “Municipal Landfill Defeats Groundwater Pollution Claim,” Massachusetts Lawyers Weekly, November 1, 2018
  • Quoted in “Trial date looms for Southbridge vs. Casella,” Worcester Telegram & Gazette, September 18, 2018
  • Cited in “Southbridge’s lawsuit vs. Casella is moved out of federal court,” Worcester Telegram & Gazette, May 24, 2018
  • Quoted in “Southbridge takes Casella to court over trash pickup termination,” Worcester Telegram & Gazette, April 29, 2018
  • Quoted in “Benchmark to improve traffic as part of Marlborough assisted living facility,” MetroWest Daily News, August 15, 2017
  • Quoted in “Marlborough: Developer plans 104-bed assisted living facility,” MetroWest Daily News, September 13, 2016
  • Quoted in “Making it that ‘final mile’ to work in suburbia,” Boston Globe, January 21, 2016
  • “Building the Boroughs+: Building and Keeping a Great Downtown,” Mirick O’Connell Seminar Series (May 7, 2015)
  • Quoted in “Marlborough: Developer, committee clash over Dunkin' sign,” MetroWest Daily News, April 28, 2015
  • Quoted in “Southborough considers hiring economic development coordinator,” MetroWest Daily News, February 5, 2015
  • Quoted in “Southborough’s Economic Development Committee sets vision for town’s future,” Community Advocate, January 29, 2015
  • Quoted in “Former Bruins great shares stories at chamber luncheon,” Community Advocate, November 25, 2014
  • Quoted in “Southborough economic development suggestions begin to take shape,” MetroWest Daily News, November 13, 2014
  • Quoted in “Southborough looks ahead 25 years as leaders weigh development strategy,” Worcester Business Journal, November 6, 2014
  • Quoted in “Riding a wave,” Worcester Business Journal, October 19, 2014
  • Quoted in “Southborough gets good news on the economy,” MetroWest Daily News, July 25, 2014
  • Quoted in “Southborough steps up economic development effort,” Community Advocate, July 17, 2014
  • Quoted in “Setting sights higher in Framingham,” Worcester Business Journal, June 17, 2014
  • "Employment Litigation Update," Mirick O'Connell Labor, Employment and Employee Benefits Seminar (2009)
  • "Superior Court Standing Order 1:09: New Rules Promote Transparency in Written Discovery," Massachusetts Bar Association Section Review, 11, no.1, 2009
  • "The Application of the Massachusetts Psychotherapist-Patient Privilege in Employment Cases," Massachusetts Bar Association Section Review, 8, no. 2, 2006
  • "Covenants Not to Compete After Boulanger," Massachusetts Bar Association Section Review, 7, no. 1, 2005
  • "Managing Risks in Private Companies," Mirick O'Connell Seminar Series (2005)
  • "A Matter of Trust: The Impact of Fiduciary Duty on Private Companies," Worcester Business Journal, May 2, 2005 (with James C. Donnelly, Jr.)
  • "Many Businesses Face New Requirements for Protecting Customers' Privacy," The Mirick O'Connell Report, Winter 2002
  • "Hit the Books: Statutory Defenses to Contract," in Legal Ways to Get Out of a Contract, MCLE, 2001 (with Joan O. Vorster)

Professional / Community Affiliations

  • 495/MetroWest Partnership, Board of Directors
  • Marlborough Economic Development Corporation, Board of Directors
  • Marlborough Regional Chamber of Commerce, Board of Directors, past chair
  • Town of Southborough, Economic Development Committee, past chair
  • Boston College Alumni Association
  • Mount St. Mary's College Alumni Association
  • American Bar Association, Environmental Law Section
  • Boston Bar Association, Environmental Law Section
  • Massachusetts Bar Association
  • Worcester County Bar Association
  • The Boston Sportscar Company, LLC, owner and counsel

Municipal Permitting Timelines Resume on December 1

Effective December 1, municipal boards must follow the usual permitting deadlines following a COVID-19 statute enacted last week. Towns and cities had been operating under Section 17 of Chapter 53 of the Acts of 2020, which tolled the deadlines for commencing …

[ load webpage to read more ]

Important Update – The Impact of Coronavirus on the Construction Industry

Since our post on March 18, a lot has happened from both a health and regulatory standpoint as far as the impact from the outbreak of COVID-19 (“coronavirus”) on local and state construction practice.  Here is an update, as of …

[ load webpage to read more ]

The Impact of Coronavirus on the Construction Industry

The outbreak of COVID-19 (“coronavirus”) has impacted all industries, including construction.  First and foremost, we are in the midst of a public health crisis, and the safety and well-being of all project participants should be top of mind.  We are …

[ load webpage to read more ]

Executive Order Loosens Open Meeting Law Requirements During Coronavirus Emergency

Governor Baker signed an Executive Order relieving government boards and committees from compliance with certain Open Meeting Law requirements during the novel Coronavirus (COVID-19) emergency. The Order gives public bodies greater leeway to hold closed-door and remote meetings, so that government agencies …

[ load webpage to read more ]

SJC Reverses Appeals Court on Standing Requirements Under the Zoning Act – With Record Speed

All zoning conformities are alike, to rephrase Tolstoy’s famous opening line, but each zoning-related injury is injurious in its own way. Such has been the time-honored tenant of Massachusetts law for abutter standing under the Zoning Act.  To successfully challenge …

[ load webpage to read more ]

PFAS Concerns Mounting for Cities and Towns as MassDEP Proposes Maximum Contaminant Level in Drinking Water

Many of our readers will be aware that on December 27, 2019, the Massachusetts Department of Environmental Protection (MassDEP) proposed a Maximum Contaminant Level (MCL) for PFAS in drinking water of 20 parts per trillion (0.02 ug/L or ppt) for six PFAS …

[ load webpage to read more ]

Building the Boroughs: A Year in Review

In 2019, Mirick O’Connell’s permitting attorneys were proud to help our clients, large and small, with local approvals in Marlborough for 6 great projects. Thank you to our clients and the City of Marlborough for a wonderful year! Click here …

[ load webpage to read more ]

Building on Lands Formerly Used as Railroad Right-of-Ways- An Amendment That May Simplify the Permitting Process

For the last forty-five (45) years, obtaining a permit to build any type of structure on any former railroad right-of-way in the Commonwealth of Massachusetts has been far from seamless. Massachusetts General Law c.40 §54A, enacted by the legislature in …

[ load webpage to read more ]

MassDEP Working on a Drinking Water MCL for PFAS

Several weeks ago, I posted that the Massachusetts Department of Environmental Protection (MassDEP) proposed a new groundwater standard for PFAS contamination under the Massachusetts Contingency Plan regulations (310 CMR 40.0000).  Public comment on the proposed regulations remains open through July …

[ load webpage to read more ]

Appearance of Bias Not Enough to Invalidate Appraisal – Unless the Contract Says Otherwise

When parties enter a contract involving an appraised value of real estate, they need eventual finality with respect to that appraised value, but they also want fairness in the appraisal process. In Buffalo-Water 1, LLC v. Fidelity Real Estate Company, …

[ load webpage to read more ]

BREAKING: MassDEP Announces Proposed Revisions to the Massachusetts Contingency Plan, Including a Reportable Concentration for PFAS at 20 ppt

The Massachusetts Department of Environmental Protection (MassDEP) announced proposed revisions to the Massachusetts Contingency Plan (310 CMR 40.0000).  This begins a 3-month public comment period that will end July 19, 2019, and will include four public hearings. According to MassDEP, …

[ load webpage to read more ]

EPA Issues Interpretive Statement: Groundwater Discharges are Not Subject to the Clean Water Act

In a not-so-stunning development, the EPA on Monday issued an Interpretive Statement putting to rest speculation on EPA’s position as to whether groundwater discharges are subject to federal jurisdiction under the Clean Water Act (CWA).  The answer:  “No.”  EPA’s 57-page …

[ load webpage to read more ]