Mr. Stevens’ court cases, administrative hearings, enforcement matters, and negotiated settlements reflect his mastery of Massachusetts and related federal and municipal environmental law, procedures, and the principles by which important disputes are decided in agencies and courts.
APPELLATE LITIGATION
City of Brockton v. Energy Facilities Siting Board, 469 Mass. 196 (2014); Brockton Power Company LLC v. Energy Facilities Siting Board, 469 Mass. 215 (2014) - Represented the City of Brockton as Special Counsel in challenges to two decisions of the Massachusetts Energy Facilities Siting Board (EFSB) approving a proposed Brockton Power gas-fired electrical generating plant to be located in Brockton near Environmental Justice communities. The Supreme Judicial Court, having original and exclusive jurisdiction to review EFSB decisions, upheld the EFSB while considering for the first time the Commonwealth’s Environmental Justice Policy. After the SJC upheld the EFSB in all respects, the City settled on favorable terms all claims with the company.
Conservation Comm’n of Brockton v. Dep’t of Environmental Protection, 81 Mass. App. Ct. 601 (2012) - Represented the Conservation Commission in Superior Court and the Appeals Court challenging the MassDEP’s reversal of the Commission’s denial of a wetland permit for a proposed Brockton Power gas-fired electrical generating plant that would divert effluent from the City’s wastewater treatment to cool the plant. The Appeals Court upheld MassDEP’s interpretation of when a Notice of Intent must be filed if the power plant was to use the effluent and seek a zoning exemption under state law.
Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222 (2010) – also known as the “Hoosac Wind Farm” case – Represented the developer of the largest Massachusetts land-based wind farm (28.5 MW) in citizen-group’s administrative agency, Superior Court, and Supreme Judicial Court appeals lasting seven years, upholding environmental permits for project roadway’s 15 stream and wetland crossings. Hoosac Wind utilized innovative open-bottom culverts to span each stream for access roads on Berkshire mountainsides needed to construct and maintain 19 turbines on two ridgelines. The SJC upheld MassDEP’s interpretation that these innovative culverts involved no work “on” the Resource Area known as bank under MassDEP’s wetlands regulations.
Hogan v. Conservation Commission of Falmouth and Edward Gordon, Trustee, 120 Racing Beach Trust, Massachusetts Appeals Court, 09-P-2042 (January 31, 2011) (Rule 1:28) – Represented Falmouth landowner whose neighbor appealed to court and to MassDEP wetlands permits for client’s home addition and landscaping project. Superior Court and Appeals Court determined neighbor lacked standing for failing to show harm different from what might be experienced by the general public.
Matheson v. Town of Falmouth Conservation Commission, Massachusetts Appeals Court, 2009-P-1666 (August 17, 2010) (Rule 1:28) – Represented Falmouth residential property owner whose backyard landscaping and pool project was halted when Conservation Commission refused to extend wetlands permit and issue another to allow project completion. Client won a remand order from Superior Court which Commission did not obey. Appeals Court upheld Superior Judge’s further order after remand that Commission acted arbitrarily and capriciously by failing to make findings as to why it rejected for a second time client’s request for a permit.
TRIALS AND ADJUDICATORY HEARINGS
Gormally v. Barnstable Conservation Commission, Barnstable County Massachusetts Superior Court, No. 1572CV00367 (January 19, 2017) - Won Court annulment of wetlands permit for abutting property owner’s proposed Cape Cod house project located in eastern box turtle habitat. Court remanded matter back to commission because it had unlawfully adopted the Endangered Species Program’s recommendations before receiving them.
Nancy Evans, Trustee, NWW Trust v. Jackpot Trust, Barnstable Land Court 13 Misc.478683 (June 15, 2016) - Following a full trial without jury, the Land Court rejected an abutter’s claim to the portion of client Falmouth family’s lot where they plan to build an addition to their seasonal cottage. The Court found that the presumption of landownership to low water derived by the Colonial Ordinances did not apply and by invoking the doctrine of adverse possession by color of title. The area in dispute was once part of a tidal pond filled in the late 1920’s as part of a dredging project in West Falmouth Harbor.
Michael Sheehan v. Sandwich Conservation Commission, Barnstable Superior Court 1772CV00152 (2017) - Successfully challenged three objectionable conditions in an order of conditions by filing suit in Superior Court and then reaching settlement with the conservation commission to have the objectionable conditions removed from the wetlands permit.
Matter of Brockton Power Co., LLC, EFSB 07-7A/DPU 07-58/59 (20110), Matter of Brockton Power Co., LLC (MassDEP Docket No. 2011-025) – Represented the City of Brockton as Special Counsel as an intervener and as a party in several years of environmental reviews, public hearings, public comment periods, and adjudicatory hearings with expert witnesses, at the Energy Facilities Siting Board (EFSB) and at the MassDEP for state permit processes under the state Clean Air Act and Energy Facilities Siting Act. The EFSB decision was upheld by the Supreme Judicial Court and the City later withdrew its challenge to the air permit as part of settlement with the company.
Matter of Hoosac Wind Project (Fin. Dec. June 20, 2007) - Represented the developer of the largest Massachusetts land-based wind farm (28.5 MW) in citizen-group’s administrative challenges to wetlands permits issued by MassDEP for wetlands permits required for construction of access roads on Berkshire mountainsides needed to build and maintain 19 turbines along two ridgelines. A multi-day adjudicatory hearing before administrative law judge at the Division of Administrative Law Appeals culminated in a Recommended Final Decision that was partially accepted and partially reversed by MassDEP Commissioner to uphold project permits.
Andrews v. Town of Amherst, Massachusetts Appeals Court, 2009-P-1666 (March 5, 2007) (Rule 1:28) and Land Court (2007) – Represented commercial developer whose property was mostly rezoned from Light Industrial to Floodplain Conservancy, severely limiting development potential. Spot Zoning and due process/uniformity of zoning challenges won after full trial in Land Court, which invalidated the rezoning, later reversed by the Appeals Court.
Colvin v. Town of Lynnfield, 68 Mass. App. Ct. 1108 (Rescript) and Essex Superior Court 2000-1322B (October 22, 2004) – Represented seven owners of mill pond severely damaged and contaminated by Town’s failed, unpermitted dredging project upstream. Jury verdict awarded monetary damages to owners for nuisance, negligence, and trespass. Parallel contempt action resulted in Superior Court finding Town disobeyed earlier injunction in consent order to remedy damage. Order issued order requiring Town to pay pond owners their attorneys’ fees and costs, establish an escrow account, and complete clean-up and multi-year restoration of mill pond. Awards amounted to $500,000 with interest.
Olsson v. Town of Falmouth Conservation Commission, Barnstable County Massachusetts Superior Court, No. 99-225 (February 9, 2001 ) –Obtained reversal of the Falmouth Conservation Commission’s denial of client’s wetland permit application for a mono-pile residential dock. On the merits of this certiorari claim on the Commission’s record, Superior Court found Commission’s claims of damage to shellfish and eelgrass and lack of depth were arbitrary and capricious and contrary to the evidence submitted by the client.
Matter of Vincent Palmieri/Fox Realty Trust – Successfully overturned wetlands permit for single-family house project on lot next to client.
Matter of Dolores and Steven Bachand – Successfully defended wetland permit issued to client for construction of upland cranberry bogs, with groundwater supply, challenged by neighbor.
Matter of Town of Hanson – Represented Town of Hanson in appeal to MassDEP of its Water Management Act permit for a new water source to serve as supplemental public water supply.
Matter of Seagate Realty Trust – Defeated abutters’ MassDEP appeal claiming violation of land use restrictions and noncompliance with wetland and waterways laws. Secured final permits for client’s proposed pier.
Matter of Town of Easton (Ames Free Library) – Represented Library Trustees in challenge to wetlands permit for proposed expansion and modernization of historic library structure.
PERMITS AND TRANSACTIONS
John and Jennifer Chisholm - Obtained Special Permit from Zoning Board and Variance from Board of Health to renovate and add an apartment to a garage on a lot on Cape Cod.
Ridgeley Farm v. West End Pond Committee – Obtained more favorable permit terms and conditions for landowner adjacent to town project to dredge inlet to coastal pond.
Matter of Lucini – Prepared and obtained approval for property owner of Conservation Restriction for riverfront property while satisfying concerns of Natural Heritage and Endangered Species Program (NHESP) and local land trust.
Pondlet Place Homeowners – Resolved on-going friction between homeowners and local Conservation Commission for on-going work to enhance views to nearby salt pond using innovative vegetation management techniques.
Mantrose-Haeuser Co., Inc. - Prepared and obtained approval of an Activity and Use Limitation (“AUL”) for client’s industrial property.
NEGOTIATIONS AND SETTLEMENTS
Kay J. Luedeke, Trustee of Pine Point Trust, et al. vs. Christopher C. Gahagan, Trustee of Christopher C. Gahagan Revocable Trust – Helped client settle Land Court litigation over common boundary dispute with neighbor of lakefront property resulting in agreed-to boundary location.
James Alvarez et al. v. Gloucester Zoning Board of Appeals and Tina Snider – Settled court appeal by neighbors of special permit obtained for an accessory structure and use.
Small Property Owner v. Large Petroleum Company – Helped client reach settlement over 30+ year dispute over property contamination with a major petroleum company which ensured property cleanup and made property more marketable.
Town of Charlton v. Exxon Mobile Corp. – Assisted town to achieve a $500,000 settlement for alleged contamination of town water supply by former Exxon service station.
Town of Easton Conservation Commission – Resolved court challenges to Conservation Commission’s permit decisions for several residential subdivision projects.
Town of Charlton v. Estate of Jarosz – Represented town in its Superior Court claims for breach of contract, misrepresentation, and costs and damages under G.L. c. 21E, over estate’s sale of contaminated property to town, negotiated to a favorable out of court resolution.
Oceanfront Property Owner v. Sandwich Conservation Commission – Obtained removal of onerous conditions conservation commission placed on client’s wetlands permit to move home away from eroding ocean bank after filing appeal in Superior Court of commission’s decision.
ENFORCEMENT AND DEFENSE
MassDEP v. Westfield Paper Land, LLC – Negotiated settlement of enforcement action by MassDEP for multiple alleged violations of Solid Waste Management regulations at client’s commercial property in western MA; obtained a significant reduction in proposed administrative penalties.
MassDEP v. Zuckerman – Obtained settlement of enforcement action by MassDEP for multiple alleged violations of Wetlands Protection Act at client’s equestrian facility in western MA.
MassDOT v. Town of West Springfield – Advised Conservation Commission in its enforcement action against MassDOT, and related litigation, over bridge reconstruction work done without obtaining a permit under Wetlands Protection Act, and ancillary state-local legal issues.
Town of Newbury – Assisted town with permitting and enforcement issues related to its operation and proposed closure of municipal landfill operated by contractor.
MassDEP v. Jordan – Negotiated settlement for homeowner on wetlands and waterways enforcement action by MassDEP for pier construction allegedly not in accordance with original permits.
MassDEP v. Entwhistle’s Garage – Obtained settlement of MassDEP enforcement action against auto repair business for alleged waste handling violations, including significant reduction of penalty.
Matter of Flagg Mountain, LLC – Enabled property owner to continue development of multi-lot residential project by settling MassDEP claims over Wetlands Protection Act permit and Water Quality Certification.
Commonwealth v. Northeast Harvester, LLC – Defended against MA Attorney General’s enforcement against client forester for work at three sites allegedly in violation of Wetlands Protection Act and Forest Cutting Practices Act.
SELECTED PUBLICATIONS
Chapter 20, “Zoning, Subdivision, and Nonzoning Land Use Controls” in Massachusetts Environmental Law, Gregor I. McGregor, Ed. (Massachusetts Continuing Legal Education, Inc.; 4th ed. 2016, 2019 & 2021 Supplements)
“REBA Blog (December 2, 2022) REBA: Expiring Permits, Licenses and Other Approvals Issued Before or During the Covid Emergency: 462 Extra Days?”, REBA Blog (January 27, 2022) https://rebama.blogspot.com/2022/01/expiring-permits-licenses-and-other.html (Real Estate Bar Association for Massachusetts)
“Massachusetts Announces Waste Site Clean Up as well as Drinking Water Standards for Six PFAS ‘Forever’ Chemical Compounds”, REBA blog (March 17, 2020, 10:15 AM) https://rebama.blogspot.com/2020/03/massachusetts-announces-waste-site.html (Real Estate Bar Association for Massachusetts)
“Boston Enacts Wetlands Protection Ordinance to Address Climate Change”, Environmental Law Network blog (December 29, 2020, 9:23 AM), https://elnonline.com/eln-updates
“Cities and Towns Build Climate Change Resilience Using Local Regulations”, Massachusetts Planning, Massachusetts Chapter of American Planning Association, Summer 2019
“Does E-Mailing Your Fellow Conservation Commissioners Violate the Open Meeting Law?” MACC Conservation Quarterly, Spring 2018 (Massachusetts Association of Conservation Commissions)
“Neighbor’s claim to shoreline of filled tidal pond rejected” REBA News, September 2017
“Appeals Court Sets Limit on Wetlands Enforcement and Cautions on Imposing Fines”, MACC Conservation Quarterly, Summer 2017
“Appeals Court reaffirms Conservation Commissions’ dual authority”, REBA News, March-April 2016
“We’ve Lost Our Voting Quorum – What Do We Do?” MACCQuarterly, Fall 2014
“Legislature Makes Three Changes to Wetlands Protection Act”, ACEC Insights, Winter 2013 (American Council of Engineering Companies of Massachusetts)
“Permit Extension Act Extends Permit Life – Again!” ACECInsights, Spring 2013
“MassHighway Not Immune from Local Wetland Regulation”, MACC Newsletter, Spring 2011
“Canada and The United States—Dealing With The Hydro Power Paradox: Evaluating The Environmental Effects Of A Natural Energy Source”, 19 Suffolk Transnat'l L. Rev. 273(Winter 1995)
