David K. McCay

Dave specializes in the resolution of complex real estate, environmental and business disputes.  He represents property owners, real estate developers and contractors, commercial landlords and tenants, and businesses and business owners in real estate, zoning and environmental disputes, and in cases involving commercial contracts, shareholder disputes, and the enforcement of noncompetition agreements.  He also represents property owners and developers 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 also active in the MetroWest community.  He is the Chair of the Southborough Economic Development Committee, and Past-Chair of the Marlborough Regional Chamber of Commerce.  Dave is also a member of the Board of Directors of the 495/MetroWest Partnership, and 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)
  • Obtained a judgment and award of attorney’s fees under G.L. c. 21E, and successfully defended the appeal, against a Massachusetts municipality requiring it to assess and remediate contamination of our client’s 14-acre property. Remediation estimates exceeded $20 million
  • Lead counsel to a Massachusetts municipality on matters involving alleged contamination from the Town-owned landfill operated by a publicly-traded waste management company
  • 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. Successful prosecution of the client's claims against its contractor required obtaining testimony and documents from numerous witnesses in nine states
  • Represented owners, developers and municipalities in a variety of zoning, wetlands, Chapter 40B and wireless communication tower cases
  • Successfully defended a large commercial tenant in lease claims related to the termination of the lease and building repairs
  • Obtained a dismissal of zoning-related claims for a commercial property owner concerning the non-conforming use of the property
  • 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 policy
  • Resolved an asbestos-related MassDEP enforcement action against two construction businesses resulting in a favorable Consent Order with a modest penalty
  • Resolved a MassDEP enforcement action against an automotive facility resulting in a favorable Consent Order with a modest penalty
  • Successfully represented an international teleconferencing company in the enforcement of a non-competition agreement arising out of the sale of a business
  • Successfully 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 40 articles on various real estate development, environmental and construction issues, 2012 to present
  • Quoted in “New 104-bed assisted living facility coming to Marlborough,” MetroWest Daily News, September 14, 2017
  • Quoted in “Benchmark to improve traffic as part of Marlborough assisted living project,” 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
  • Presented at “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 looks ahead 25 years as leaders weigh development strategy,” Worcester Business Journal, November 6, 2014
  • Quoted in “Southborough economic development suggestions begin to take shape,” MetroWest Daily News, November 13, 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

  • Marlborough Regional Chamber of Commerce, Board of Directors, chair-elect
  • 495/MetroWest Partnership, Board of Directors
  • MetroWest Economic Research Center at Framingham State University, Advisory Board
  • American Bar Association
  • Massachusetts Bar Association
  • Worcester County Bar Association
  • The Boston Sportscar Company, LLC, owner and counsel
  • Town of Southborough, Economic Development Committee, board

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 …

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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 …

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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, …

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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, …

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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 …

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Third Party Beneficiary Rights in Construction Contracts

Last week the United States District Court in Massachusetts issued an important decision concerning third party beneficiary rights in construction contracts.  In Arco Ingenieros, S.A. de C.V. v. CDM International Inc., Civil Action No. 18-12348-PBS, a design-builder incurred damages due …

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Title Defect? Here’s How to Keep Your Deal on Track

You are under contract to sell a commercial or residential property and your attorney tells you two weeks prior to closing that the buyer’s title search has revealed a title defect. While there is a large array of issues that …

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Short-Term Rental Law Takes Effect July 1st

Governor Baker recently signed “An Act Regulating and Insuring Short-Term Rentals”, imposing new taxes, registration and inspection requirements, and other rules governing the short-term rental of homes and residential units through Airbnb, VRBO, and similar platforms. Overview: The new law …

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Recovery of Attorney’s Fees and Costs in Construction Disputes

When construction projects become construction disputes, contractors and suppliers start thinking about how to recover their attorney’s fees and other legal costs.  Massachusetts follows the “American Rule” for recovery of legal expenses that states each party must pay their own …

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Construction Insurance: Game of Risk

Construction work is risky by nature.  Common risks include natural disasters, inclement weather, flood or fire, accidents t hat cause property damage or bodily injury, and the failure of one or more parties to perform their designated responsibilities, resulting in …

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A Landfill Is Not a “Point Source” Under the Clean Water Act, So Says the 4th Circuit and D.Mass.

Two recent rulings address the issue of whether a landfill is a “point source” under the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA), Sierra Club v. Virginia Electric et al and Toxics Action Center et al v. …

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The New Massachusetts Clean Energy Bill: Solar Advocates Left Waiting for the Next Installment

On July 31, 2018, the final day of its formal session, the Massachusetts legislature passed H. 4857, An Act to Advance Clean Energy, which Governor Baker signed into law on August 9. The bill represents several important steps forward in …

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