There are two types of municipalities in Massachusetts: cities and towns. They have primary responsibility for zoning, subdivision control, and other land use controls within their borders. Zoning and subdivision controls provide the basic framework of land use limitations with which developers, industries, and landowners must deal.
Many municipalities also have enacted their own environmental ordinances (cities) and bylaws (towns) administered by local boards and officials. This type of local legislation can cover a wide variety of environmental controls. Essentially, Massachusetts has local environmental law.
The reason is that Massachusetts, like a few other states, is a Home Rule jurisdiction. By virtue of a Home Rule Amendment to the Constitution of Massachusetts, and the implementing Home Rule Act, cities and town have the power to enact their own legislation on many subjects (if they do not conflict with federal or state law) without the need to wait for legislative authorization.
The Home Rule Amendment confers broad authority to municipalities to protect the public health and safety. In addition, it has been interpreted to confer broad authority to protect the environment.
We have served as Special Counsel or legal consultants over the decades to a score of Massachusetts’ municipalities. This work covers the range of drafting local bylaw and ordinances, legal advice to municipal officers, land use planning and development, hazardous waste contamination and cost-recovery, real estate transactions including takings, zoning and subdivision control, enforcement and investigations, and litigating and defending lawsuits of every kind. We also work on emergency management, disaster response, insurance claims, land conservation, energy facility siting, water-electric-sewer utilities, landfills and transfer stations, Brownfields redevelopment, and infrastructure projects.
All our municipal work is done at a considerable discount from rates for commercial clients.
We sue on behalf of municipalities to enforce environmental, land use, zoning, trespass, nuisance, and public health laws, and we assist their criminal prosecutions as well. In litigation we usually work directly with the City Solicitor or Town Counsel. Occasionally we work directly for the board or agency.
We defend municipal decisions as well as the underlying bylaws and regulations when challenged in state and federal environmental agencies, in Superior Court, Land Court, District Court, and Massachusetts Appeals Court and Supreme Judicial Court.
We advise on Comprehensive Plans, Open Space and Recreation Plans, Harbor Plans, projects being reviewed under the Massachusetts Environmental Policy Act (ENFs and EIRs), federal projects under NEPA, FEMA, and FAA review, and pending bills in the state Legislature or Congress.
Our first municipal client was the Town of Dennis on Cape Cod. Mr. McGregor was Special Counsel for the Town, in trial in the Superior Court and then appeal in the Supreme Judicial Court, upholding the Dennis wetlands protection bylaw against Home Rule and Regulatory Taking challenges, . This is the seminal case establishing the legality of local environmental legislation stricter than state statutes. Lovequist v. Conservation Commission of the Town of Dennis.
Lately, we have been advising and representing municipalities on tactics and strategies in state siting of energy facilities and solid or hazardous waste facilities and the customary appeals and lawsuits.
For example, we were Special Counsel to the City of New Bedford in multi-million dollar cost-recovery claims under the state Superfund statute, G.L. c.21E, on account of PCB contamination of a railroad yard known as the North Terminal. This involved railroad liabilities, successor corporations, contamination causes, tabulating response costs, establishing their reasonableness, compiling documentation, serving claims notices, negotiating and mediating damages, and settling litigation for $3 million including associated contracts and deeds. The state Superfund statute provides a private right of action for response action cost recovery, real property damages, and related expert and legal fees.
We represent the City of Brockton as Special Counsel in the Superior Court, Appeals Court, Supreme Judicial Court, Energy Facilities Siting Board (EFSB), and DEP challenging a proposed gas-fired power plant to be located near Environmental Justice communities. A coalition of Brockton with municipalities and Environmental Justice organizations presented expert testimony on air quality under the state and federal Clean Air Acts and participate in state permit processes invoking water supply, wetlands protection, air permits, and energy laws.
Over the years we have worked for cities and towns on some of the most complex infrastructure disputes, and even as Special Counsel to enforce the laws.
We were Special Counsel to the Town of Westwood regarding the Massachusetts Bay Transportation Authority (MBTA) parking structure and improvements to the MBTA-Amtrak rail station at Route 128, with advice on wetland protection laws, environmental impact reports, and political strategy carried out in a series of public hearings and successful negotiations to protect and enhance the gateway to the Town’s commercial area.
We represented the Town of Easton as Special Counsel to the Conservation Commission, over a period of years, to defend successfully several Superior Court and DEP administrative appeals by applicants of wetland permit decisions, to draft enforcement orders and gather evidence against wetland violators, to advise the Commission on revisions and interpretation of its Home Rule wetlands protection bylaw, and to sue a landowner who cleared trees on Town conservation land.
As Special Counsel to the Town of Acton, we represented the Zoning Board of Appeals (ZBA) in public hearings and decisions on a 350-unit Affordable Housing project under the state Affordable Housing Statute, G.L c. 40B. This project presented novel legal issues from the housing units in the Town of Concord with sole access over an Acton, an historic easement the developer chose not to utilize, and the entrance at the confluence of public ways in three towns. For the Board of Selectmen, through the Town Manager, we negotiated, drafted and executed a $1 million Development Agreement between the Town and national developer contribution to the municipal affordable housing fund plus road and sidewalk improvements.
Some municipalities hire us to advise or represent them in hazardous waste cleanup disputes, especially cost recovery for remediation or for replacement utilities.
We assisted the City of Springfield’s Legal and Planning Departments to document the history of pollution and remediation on a publically-acquired Brownfield site to be used for a public school where foundation construction discovered industrial oil contamination. This involved a thorough investigation of EPA and DEP files on the site, synthesis of environmental consultants’ reports, tracking of financial records associated with clean-up costs, and research into corporate history in preparation for a cost-recovery suit against the site’s former owners. We researched and drafted for the City Law Department a complaint in Federal District Court under the federal Superfund, advised on discovery, and helped win a motion for summary judgment. The case settled for $2.5 million.
We represented the Town of Charlton as Special Counsel in claims and negotiations under the federal and state Superfunds culminating in a $500,000 settlement with Exxon Corporation over water mains installed and replacement water supply obtained from a neighboring community, all in response to historic gasoline contamination of neighborhoods along Route 20, once known as “gasoline alley.”
Several of our city and town clients use our services on disputes involving uses of land, especially real estate restricted as parkland or conservation.
We successfully defended the City of Marlborough against a lawsuit challenging its development of a senior center and other improvements to Ward Park allegedly in non-compliance with Article 97. The City’s aggressive defense, based on the original Ward Park deed of gift for a recreation, and the statutes giving municipalities flexibility in dealing with playground decisions, was rewarded when we won on a Motion for Judgment on the Pleadings after the Superior Court ruled that the plaintiffs’ claims under Article 97 of the Massachusetts Constitution failed as a matter of law.
As Special Environmental Counsel to the City of Waltham, we helped obtain the several land use permissions needed for the City’s new high school on Lexington Street. We opined on the inapplicability of the Total Maximum Daily Load (TMDL) for phosphorus to convince the Waltham Conservation Commission to issue an Order of Conditions under the Wetlands Protection Act. We also helped obtain necessary approvals under the state Wetlands Protection Act and the Massachusetts Environmental Policy Act (MEPA).
We served as Special Counsel for the Town of Wellfleet for a year-long negotiation and preparation of multi-year contract with a private country club for the Herring River Restoration Project, including use of part of club property for restoration and mitigation, as part of a multi-decade project to reverse the 900 acres of ecosystem damage done over 100 years by the Herring River Dam. This project aims to restore degraded salt marsh and other estuarine habitats, improving water quality, fisheries habitat, shellfish harvesting, wildlife populations, and climate resiliency.
We would be pleased to be considered for Special Counsel for your municipal law needs.