Land Use and Environmental Litigation

Our attorneys regularly handle all types of real estate and environmental conflicts. We understand that land is unique and that real estate disputes create challenging legal, financial and sometimes even emotional issues. Our litigators have the ability, resources and trial experience necessary to resolve these challenging issues in a creative and cost-effective manner.

We have successfully resolved cases on behalf of developers, contractors, buyers, sellers, landlords, commercial tenants, municipalities and utilities. We regularly handle zoning and subdivision disputes and appeals before local permitting boards, the Housing Appeals Committee for affordable housing projects under Chapter 40B, and in court. We have litigated numerous disputes arising out of the purchase and sale of real estate, including claims for breach of contract, misrepresentation and unpaid commissions. We have also litigated a variety of matters involving title, adverse possession, boundary disputes, title insurance, tax abatement and eminent domain matters.

Our Firm has a vibrant environmental litigation practice where we represent clients in all aspects of environmental litigation, enforcement, regulatory appeals and permitting. These cases include cleanup disputes, cost recovery actions and related environmental insurance claims, as well as enforcement and permitting matters involving air, water, wetlands and endangered species. From cutting-edge issues involving emerging contaminants like PFAS and 1,4 dioxane at landfills and manufacturing facilities, to more common releases involving chlorinated solvents, oil and gasoline at dry cleaners and gasoline stations, our team has the knowledge, experience, network and contacts to navigate the evolving landscape of federal, state and local regulation of our environment.

If a conflict concerns real estate, chances are good that a member of our litigation team has had experience handling similar matters. In all land use disputes, we provide practical, creative and cost-effective solutions informed by the perspective that sophisticated trial experience provides.
 

Practice Chair

David K. McCay

David K. McCay
Partner

Brian Falk quoted in Telegram, "Central Mass. draws interest as hub of marijuana business"

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Representative Matters


REAL ESTATE LITIGATION

  • Represented owners, developers and municipalities in a variety of zoning, wetlands, Chapter 40B and wireless communication tower cases.

  • 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.

  • Represented a seller of real estate in obtaining an Appeals Court decision awarding our client damages for a buyer's failure to complete the purchase of commercial property.

  • Successfully defended a large commercial tenant in lease claims related to the termination of the lease and building repairs.

  • Successfully defended beneficiaries of a trust sued by a family member who sought ownership of trust real estate. Legal issues raised at trial included judicial estoppel, laches, the statute of frauds, the statute of wills, the canons of ethics, adverse possession and constructive trust.

  • • Negotiated a resolution to a long-term dispute by forcing the sale of real estate through a petition to partition and by filing suit against an escrow agent.

  • • Represented a land owner in Land Court and the Appeals Court in an adverse possession case in which our client obtained title to upland and tidal flats.

  • Derailed an abutter's challenge to a special permit granted to a client for the construction and use of property as a continuing care retirement facility.

  • • Represented a municipality before the Appeals Court, which upheld a zoning board's decision to deny modifications to a comprehensive permit under Chapter 40B for an affordable housing development.

ENVIRONMENTAL LITIGATION

  • Obtained a judgment and award of attorney’s fees after trial for a property owner under M.G.L. c. 21E (the Massachusetts Superfund statute), and successfully defended the judgment on appeal, against a municipality requiring it to conduct a multi-million dollar assessment and remediation of an historic landfill.

  • Represented a municipality in the defense of a citizen suit claims alleging 1,4 dioxane contamination from a municipal landfill under the federal Clean Water Act, the Resource Conservation and Recovery Act, and state claims under M.G.L. c. 21E and various tort theories.

  • Represented a customer of a barrel recycling facility in federal litigation under CERCLA involving a Rhode Island site contaminated with dioxin.

  • Represented an international bank in a dispute involving TCE contamination of a distressed property briefly owned by our client after a foreclosure.

  • 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.

  • Represented a municipality in litigation and drafting regulations related to the potential siting of a soil reclamation facility.

  • Obtained a multi-million dollar arbitration award and judgment for breach of contract and unfair business practices claim on behalf of a leading designer of pollution control systems for power plants.

  • Represented a regional school committee in the defense of various constitutional and tort claims involving the alleged lead contamination of drinking water.

  • Represented property owners, operators and municipalities in various wetland enforcement actions under the Massachusetts Wetlands Act and state and local wetlands regulations.

  • Represented a Massachusetts municipality before the Massachusetts Supreme Judicial Court in a case of first impression regarding regulatory takings.

  • Represented numerous clients in a variety of industries (including technology, manufacturing, automotive and construction) defending and resolving environmental compliance actions brought by State and federal regulators.

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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