Here are some examples of our workaday litigation and other services, illustrating the variety of clients, issues and perspectives we have to master across the range of environmental law, as well as the depth and breadth of our experience. These are some of our precedent-setting cases, court victories, controversial disputes, negotiated settlements, permitting and licensing activities, and real estate or business transactions:

NEW BEDFORD CLEANUP COST RECOVERY

We represent the City of New Bedford as Special Counsel in cleanup cost recovery claims against the railroads for PCB contamination at the New Bedford rail yard known as North Terminal (settled) and against the local manufacturers who received and offloaded the PCBs (negotiations pending). These claims utilize the Massachusetts Superfund statute, G.L.c.21E, which provides a private right of action for response action cost recovery, real property damages, and related expert and legal fees.

In the railroad claims, City of New Bedford v. Consolidated Rail Corporation, et.al, secured in Alternative Dispute Resolution a $3 million settlement. This involved consulting on railroad liabilities, tracking successor corporations, assessing contamination causes, tabulating response costs, utilizing principles of contribution, allocating costs, serving claims notices, filing suit, and negotiating a final settlement including money damages and transfers of railroad properties to the City.

POWER PLANT SITING LITIGATION

We represented 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 Brockton Power gas-fired electrical generating plant to be located in Brockton near Environmental Justice communities. The City as a party and other municipalities and organizations as interveners participated in several years of environmental reviews, public hearings, public comment periods, adjudicatory hearings with expert witnesses, and reviews in court of the siting decisions as well as federal and state permit processes under the state Clean Air Act and laws regarding water supply, wetlands protection, and energy.

After the SJC upheld the EFSB in all respects, the City settled on favorable terms all claims with the company. 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); Conservation Comm’n of Brockton v. Dep’t of Environmental Protection, 81 Mass. App. Ct. 601 (2012).

SJC APPROVES WIND FARM AFTER 7 YEARS OF LITIGATION

We obtained for our client wind farm developer, after seven years of litigation, a decision from the Supreme Judicial Court, favorable in all respects, rejecting a citizen group appeal under the Wetland Protection Act and approving our client’s wind turbine project (known as the Hoosac Wind Farm) to be built on Crum Hill in Munroe, MA and Bakke Mountain in Florida, MA (in the Berkshires). Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222 (2010).

This ruling cleared the way for the largest land based wind farm in Massachusetts, with 19 turbines, now producing 28.5 MW for Iberdrola Renewables. We represented the client in the DEP hearings, Superior Court, and Supreme Judicial Court. Hoosac Wind utilized innovative open-bottom culverts to span streams for access roads needed to construct and maintain the project on two ridgelines. The SJC upheld DEP’s interpretation that these culverts involved no work “on” the Resource Area known as bank under state’s wetlands regulations.

STATE SUPERFUND TRIAL SETTLED IN REAL ESTATE AGREEMENT

We brought suit on behalf of a former manufacturing company, Bartley Machine and Mfg. Co., Inc., against National Grid on account of pollution from a former coal gasification plant, a DEP 21E Superfund site. There was extensive discovery, including historical research and expert testimony, over several years. Aspects of the litigation were before a court appointed Master.

The case eventually settled for a comprehensive agreement regarding National Grid site cleanup, land access, and releases of claims. Richard J. Bartley, Trustee, and Bartley Machine & Mfg. Co., Inc., Plaintiffs v. Boston Gas Company dba National Grid Company, Defendant, Essex Superior Court, Civil Action No. 12-422B.

LOCAL WIND TURBINE UPHELD OVER HEALTH CLAIMS

We won dismissal of a Superior Court suit against our client, Notus Clean Energy, LLC., operator of a wind turbine in Falmouth, MA, by nearby homeowners alleging that the wind turbine was a nuisance and caused them harmful health effects. We utilized extensive discovery testing plaintiffs’ claims, recruited experts for noise tests and evaluation, investigated claimed vibration and psychological effects. Hobart v. Notus Clean Energy, LLC and Town of Falmouth”, Barnstable Sup. Ct. Civ.A No. 2013-057.

We also obtained favorable rulings from the local Board of Health and Building Commissioner, denying complaints filed, based on our scientific studies and legal memos.

JURY VERDICT FOR DESTROYED WETLANDS IN BACKYARDS

We obtained a jury verdict of more than $600,000, for seven families against the Town of Lynnfield for causing a nuisance and trespass that destroyed Mill Pond by sludge from a dredging project gone awry. This was affirmed by the Appeals Court. We also obtained a Judgment of Contempt as the Town failed to comply with an earlier Consent Judgment to restore the pond under the Wetlands Protection Act.

The resulting five-year, court-supervised restoration made these cases the first time the Act and common law doctrines had been combined to secure money damages, legal fees and expert expense awards, and contempt remedies on behalf of private citizens enforcing their property rights and the Act. The Mill Pond restoration was successful. Colvin v. Town of Lynnfield, 68 Mass. App. Ct. 1108 (2007) (Rule 1:28 decision).

FINANCIAL SETTLEMENT WITH EXXON OVER WATER SUPPLY

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, known historically as Gasoline Alley.

APPEALS COURT LITIGATION COMPELS ISSUANCE OF TOWN PERMITS

We represented a Cape Cod homeowner whose state and local wetlands permits had expired before he had completed the historic renovation of his cottage and landscaping of his property with backyard pool and plantings.. The local conservation commission had refused to extend the wetland permits and yet denied – twice – the new permit it required for the owner to finish the project. We won a remand order from the Superior Court, which the commission did not obey.

The Appeals Court upheld the Superior Court’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. The board issued the needed permissions and the project was successfully completed without further municipal obstruction. Matheson v. Town of Falmouth Conservation Commission, Mass. App. Ct. 1116 (2010) (Rule 1:28).

SJC REJECTS REGULATORY TAKING CLAIM MADE AGAINST DCR

In the case of Blair v. Department of Conservation and Recreation, 457 Mass. 634 (2010) we submitted a friend of the court brief, pro bono, which successfully argued that the Massachusetts Department of Conservation and Recreation’s denial of a variance under the Watershed Protection Act to allow a proposed beach and lawn expansion did not constitute a compensable categorical or regulatory taking.

SUCCESSFUL TRIAL AFFIRMS RIGHT TO POLICE PRIVATE POND

We won a judgment after Superior Court trial establishing our client Brooks Pond Association, Inc. as owner of a180-acre pond in four towns near Worcester and the right to make and enforce regulations for use of pond. Trial involved enforcement of those rules against a non-compliant boat operator, who challenged pond ownership and invoked Great Pond status. The case turned on the canons of interpretation the courts use to deal with the classic problem of a missing, unrecorded deed in the chain of title. Our expert witness’ testimony won the day.

The Appeals Court affirmed the Superior Court decision in favor of our client and injunction against the violator. Brooks Pond remains pristine and protected.

PRECEDENT SET ON CLEAN WATER ACT CITIZEN SUIT NOTICES

In a case of first impression, we won for our clients Louis Paolino and Marie Issa in Cumberland, Rhode Island a decision from the United States Court of Appeals for the First Circuit, reversing a District Court dismissal and establishing the requirements for pre-suit notice for citizen suits under the federal Clean Water Act. The ruling made clear that the Act’s informational notification in the requisite notice of citizen suits need not specify the section of the Clean Water being violated. Paolino et al. v. JF Realty, LLC et al., 710 F.3d. 31 (1st Cir. 2013).

This means that a citizen suit notice need not meet the requirements of legal pleadings. The notice served by our clients was ruled compliant with the Clean Water Act and so their enforcement suit against a property owner of an auto salvage yard could proceed

SEMINAL SJC CASE ESTABLISHING HOME RULE WETLANDS POWER

We were Special Counsel for the Town of Dennis on Cape Cod, in the Superior Court and on appeal in the Supreme Judicial Court, upholding the Dennis Home Rule wetlands protection bylaw, one of the first in Massachusetts, against Home Rule and Regulatory Taking challenges brought by a developer whose subdivision road across a tidal creek to a marsh island had been disapproved by the Conservation Commission.

This is the seminal case establishing the legality of local environmental legislation, enacted by Town Meetings and City Councils, which are stricter than state statutes. It also advanced the law of Takings by ruling that diminishing a multi-home subdivision development to a single home does not establish a Taking. Lovequist v. Conservation Commission of the Town of Dennis, 379 Mass. 7 (1979).

SJC CASE UPHOLDING VALIDIITY OF CONSERVATION RESTRICTIONS

We represented 16 local, state, regional and national land trusts and conservation organizations as amici curiae in the leading Supreme Judicial Court case on the legality of Conservation Restrictions under the first Conservation Restriction Act in the nation, and on the related issue of the obligation of local real estate tax assessors to take the restrictions into account in taxation valuation. Parkinson v. Board of Assessors of Medfield.

SPRINGFIELD FEDERAL HAZARDOUS WASTE CLAIMS SUCCESSFUL

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 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 statute (CERCLA), advised on discovery tactics, and helped win a motion for summary judgment.

The case settled for $2.5 million to reimburse the City the expensive premium costs of school construction to deal with the historic hazardous waste.

AFFORDABLE HOUSING DEVELOPMENT AGREEMENT

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 for housing units in the Town of Concord but sole access over an Acton public way, an historic easement in Concord that the developer chose not to utilize, and the project 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 including a contribution to the municipal affordable housing fund plus road and sidewalk improvements.

LEGAL SERVICES ON ENFORCEMENT FOR TOWN OF EASTON

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.

SPECIAL COUNSEL FOR WESTWOOD ON MEPA SECURES MITIGATION

We were Special Counsel to the Town of Westwood regarding the Massachusetts Bay Transportation Authority (MBTA) proposed parking structure and improvements to the MBTA-Amtrak rail station at Route 128, with advice on applicability of wetland protection laws, environmental impact reports, and political strategy relative to this state, carried out in a series of public hearings and successful negotiations on completing this project the gateway to the Towns commercial area.

PRIVATE WATER SYSTEM COMPLIANCE STRATEGY SUCCESSFUL

For a private water system in Dover, MA., desiring to continue at low cost serving a few homes in a rural neighborhood, we advised how to deal with unexpected contaminant levels found in routine periodic wellhead testing, how the results should be validated and reported to DEP, and whom to recruit as a qualified water quality expert. We represented the homeowner association through successful resolution of threatened state enforcement and potential expensive connections to public water supplies. This was In the Matter of the Old Farm Road Water Trust.

FEDERAL COURT CASE PROTECTING GRAZING FIELDS FARM

Our client Grazing Fields Farm in Bourne, MA successfully challenged in the federal District Court and Court of Appeals for the First Circuit the federal Environmental Impact Statement (EIS) under NEPA and plans of the Massachusetts Highway Department to build Route 25 (I-495) through the center of this last, large working farm on Cape Cod. We won a court injunction requiring a new EIS. This resulted in forcing the state to move the highway around the historic Farm Center and reverse the eminent domain takings for Interstate 495 connecting the Cape via the Bourne Bridge. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1980).

In a separate state administrative case, after one of the longest adjudicatory hearings in DEP, we secured the first “no-salt order” against MassDOT and an innovative closed drainage system for two miles of I-495 so as to prevent pollution of the commercial cranberry bogs in the Town of Bourne.

CITIZEN GROUP REPRESENTATION IN DOCK CONTROVERSY

We represent a group of residents in a South Shore community opposing the proposed construction of a residential dock in a salt marsh thought to have been protected from development by real estate covenants and located in a national historic district.

For our client we have recruited expert consultants, evaluated technical issues, examined compliance with applicable statutes, bylaws and regulations, identified viable legal issues, presented testimony and reports as evidence, and participated in extensive administrative hearings over more than two years, building a record to support a Conservation Commission decision the clients request.

CAPE COD HOMEOWNER PROJECTS DEFENDED AGAINST ABUTTER

We successfully defended a Cape Cod coastal homeowner from challenges by his neighbor to his state and local wetlands permits for home expansion and landscape project on his waterfront lot, in the Town of Falmouth, which has a particularly comprehensive local Home Rule wetlands bylaw and Conservation Commission regulations, on a lot surrounded by wetland Resource Areas.

We successfully defended these permits through an adjudicatory hearing at DEP under the Wetlands Protection Act and in Superior Court and the Appeals Court under the bylaw, which upheld the Town, ruling that the plaintiff lacked standing for failing to show harm different from what might be experienced by the general public. Hogan v. Conservation Commission of Falmouth and Edward Gordon, Trustee, Massachusetts Appeals Court, 09-P-2042 (January 31, 2011) (Rule 1:28).

HOME RULE BYLAW DRAFTING FOR MUNICIPALITIES ON WETLANDS

We assisted the Conservation Commission in the Town of Holliston to update its existing Home Rule local wetlands bylaw with revisions for Town Meeting approval. This involved modernization in view of the current model bylaw published by the Massachusetts Association of Conservation Commissions (MACC), the Attorney Generals’ approvals of bylaws over recent years, and the decisions of the Massachusetts courts on the validity of specific wetland bylaw provisions and procedures, which we track for our many wetlands-related clients.

We have performed the same drafting and advisory services for West Tisbury, Wellesley and other cities and towns.

HISTORIC GASOLINE CONTAMINATION OF FAMILY LAND

We represented a Westborough landowner of family property abutting a service station on the Massachusetts Turnpike, where an underground storage tank leaked petroleum products and some reached a portion of our client’s property by surface or subsurface drainage. We successfully convinced DEP to consider this contamination to be part of the larger, nearby site rather than a separate spill for which our client would be solely responsible. Then we helped the client get the responsible party to acknowledge additional contamination and undertake a multi-year approach designed to result in a permanent rather than temporary cleanup to benefit the downgradient properties.

SETTLEMENT OF ENFORCEMENT OVER COASTAL DOCK

We successfully resolved enforcement actions taken by the local conservation commission as well as DEP under the Wetlands Protection Act and Chapter 91 against our client cottage owner in Southeastern Massachusetts for a pier allegedly constructed larger than permitted. We negotiated validation of the pier construction and associated grading, mitigation and restoration of the affected area, reduction in the proposed monetary penalties, and modifications to make the structure stronger to face coastal storms. The matter was successfully resolved.

CONSERVATION RESTRICTION AND WILDLIFE PROTECTION SECURED

We represented a landowner along the Taunton River in negotiations with the Massachusetts Natural Heritage and Endangered Species Program (NHESP) for permission to construct a residence near identified endangered species habitat. To this end we drafted and obtained local and state approval of a Conservation Restriction that NHESP required.

A few years later, we represented the client in opposing development of a nearby property, already begun, that was not protective of the habitat or compliant with codes. We obtained a negotiated settlement for the client that includes enforceable conditions assuring compliance with state and local laws as well as screening the new residence from view.

RESTORATION OF ORIGINAL WATER VIEWS FOR CAPE COD RESORT

We successfully represented the owner of an established Cape Cod resort before the local Conservation Commission and DEP for the necessary local and state permits to construct and maintain seasonal docks, where there had been none, for kayaking and swimming in a Great Pond, and to undertake a proper invasive plant removal and qualified vista pruning project in the buffer zone of the pond, restoring original views from the development. In the Matter of Ocean Edge Resort Ltd. Partnership (Fin. Dec. May 13, 2014).

SJC ALLOWS TRIAL ON CLAIMS OF MEPA SEGMENTATION

In the case of Ten Persons of the Commonwealth v. Fellsway Development, LLC, 460 Mass. 366 (2011) we submitted a friend of the court brief, pro bono, which successfully argued that a group of ten citizens had the right to a trial to determine whether a project’s proponents illegally segmented the project to avoid review under the Massachusetts Environmental Policy Act (MEPA).

DECADES OF STRATEGY ADVICE FOR ISLAND LANDOWNERS

For a family trust, one of the largest landowners on an island off the coast of Massachusetts, we have assisted over the years on a variety of environmental issues.

We got the town to close the old unlined landfill it had been operating on the client’s land. We secured changed plans for a dredging project, resulting in better protection and enhancement of our client’s property. We defended against a Wetlands Protection Act enforcement action for inadvertent trimming of wetlands vegetation to re-open a road on the property.

We have counseled the client over the years on development rights, access issues, prescriptive easements, permit requirements, real estate concerns, water rights, beach rights, and effective relations with a rural community.

LOCAL BOARD SATISFIED BY NEGOTIATED CONDITIONS

We reached agreement with the Falmouth Conservation Commission on revised permit language for a residential pier, following successful appeal to Superior Court of an Order of Conditions issued for a dock expansion in the Woods Hole area, in which the court had ruled the permit conditions were too onerous on the landowner.

CONTINUED REPRESENTATION OVER HANSCOM AIRFIELD

We represent Save Our Heritage (SOH) in Concord, Bedford, Lincoln and Lexington, MA against expansion of commercial aircraft operation at Logan Airport’s Hanscom Airfield, most recently opposing an application under the Wetlands Protection Act, claiming exemption from local wetlands bylaw for a commercial hanger and associated parking and roadway, that would allow substantial expansion of private jet facilities at this regional civilian airport, which otherwise would need to file an NOI with the Lincoln Conservation Commission under the Home Rule wetlands protection bylaw and comply with standards tighter than under the Act.

This appeal was settled during appeal at DEP. In the Matter of Jet Aviation of America, Inc.

SUCCESSFUL SUIT APPROVES PROPER PRIVATE POND RESTORATION

In the matter of Fox Pond Association v. Town of Chatham we overturned the Chatham Conservation Commission’s denial of a professional pond management plan proposed by our client, the Fox Run Property Owners, Inc. whose homes abut the privately owned pond suffering from advanced aquatic weed growth. We prevailed in two separate appeals, winning approval from the DEP under the state Wetlands Protection Act, and settling litigation in Superior Court calling for the Commission’s approval of the project under Chatham’s Wetlands Protection Bylaw.

Our evidence included state of the art studies and documentation of the pond’s condition, prior management attempts, alternative management techniques, and the chosen combination of mechanical removal, chemical treatment, and conditions for pond restoration. The pond restoration plan is now being implemented successfully.

SJC UPHOLDS CHARITABLE EXEMPTION FOR CONSERVATION LAND

In the case of New England Forestry Foundation v. Town of Hawley, 468 Mass. 138 (2014) we submitted a friend of the court brief, pro bono on behalf of the Massachusetts Association of Conservation Commissions (MACC) and Compact of Cape Cod Conservation Trusts (CCCCT or The Compact), which successfully argued that the state Appellate Tax Board wrongly concluded that conservation of forestland does not qualify for a municipal real estate tax exemption under state tax statutes. Specifically, we documented that conservation commissions and land trusts operate as public and private counterparts on local land conservation, conservation of forests and open space is a qualified charitable activity that benefits the public, and non-profit organizations created to preserve land in its natural state are entitled to a property tax exemption for their protected parcels.

This SJC decision, which announced how the qualified charitable purposes and occupancy of the property criteria are to be interpreted and applied, is remarkable for recognizing the scientific and environmental benefits of forests including mitigation of climate change impacts.

MUNICIPAL APPROVALS SECURED TO RESTORE COASTAL VIEWSHED

Working with creative and expert arborists and landscape architects, we helped a group of homeowners in a small subdivision adjacent to a Cape Cod salt pond to obtain wetlands permits for restoration and maintenance of historic view corridors from each property to the salt pond, documented in old photographs. This was in the face of modern landowner concerns, sensitive scientific issues, dramatic invasive growth over time, land management challenges, and stringent standards in the local wetland regulations about vegetation removal.

This approach employed state-of-the-art botany and biology supporting invasive vegetation removal and wildlife habitat restoration in tandem with recreation of the view corridors. The views were successfully restored, invasive plants removed, and coastal ecosystem professionally managed to be sustainable. In the Matter of Salt Pond Association.

LANDOWNER ASSISTED WITH SENSITIVE HISTORIC PROJECT

We helped a landowner obtain local permits for the tear-down and reconstruction of a single-family residence, from a variety of boards and officials in the Town of Concord, including the Natural Resources Commission (NRC) for wetlands, the Building Commissioner and ZBA for zoning, and the Historic District Commission, with support of the Minuteman National Park.

SJC RULES ON APPLICATION OF ARTICLE 97 TO PARKLAND

We represented the “North End Ten” in their appeal to the Supreme Judicial Court (SJC), Mahajan v. Dept. of Environmental Protection, 464 Mass. 604 (2013). This case challenged DEP’s issuance of a Chapter 91 license allowing the Boston Redevelopment Authority (BRA) to lease for up to 60 years part of Boston’s historic Long Wharf for use as a private restaurant.

Although the SJC ruled for the BRA, based on the particular urban renewal taking order in the 1960s involving Long Wharf, this is a seminal decision interpreting and applying Article 97 of the Constitutional Amendments, significant in recognizing the various ways a piece of property may come to be protected by Article 97. Clients regularly consult us on the Article 97 implications for their public and private properties, changing uses thereon, and contemplated transactions.

COURT RULES FOR MARLBOROUGH ON STATUS OF WARD PARK

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.

PERMANENT CONSERVATION ACHIEVED BY EVENTUAL PURCHASE

We tried an appeal by abutters and neighbors in Superior Court of a Special Permit issued by the Westwood Planning Board for a Senior Development on an environmentally and historically sensitive site in the Town of Westwood. Becker v. Town of Westwood et al., Norfolk Superior Court. This followed lengthy, hotly contested board hearings and appeals. The litigation and other dynamics resulted in the land being permanently preserved as open space and hiking trails, by our client’s outright purchase of the property and imposition of a conservation restriction.

In a related matter, Lombardi v. McFarland, successfully defended in the Superior Court’s Business Litigation Session a conservationist against tort claims arising from this proposed real estate development.

PROJECT DENIAL OBTAINED AFTER DEP ADJUDICATORY HEARING

We successfully challenged expansion of a proposed horse farm in Westwood’s Sandy Valley Road neighborhood, prevailing in a lengthy adjudicatory hearing at the Massachusetts Department of Environmental Protection, over a year, and successfully defending that victory in Land Court against the applicant’s further appeal. This was based on the merits, for failure to meet the performance standards for the Resource Areas protected by the state Wetlands Protection Act. This is In the Matter of Michael Newman and Polly Kornblith.

COMPLIANCE PLAN FOR VOC TECH SCHOOL SETTLED ENFORCMENT

We helped the Whittier Regional Vocational Technical School, a Regional High School in Haverhill which serves a district including eight towns and three cities in northern Massachusetts, achieve negotiated compliance with state wastewater regulations, against threatened DEP enforcement action which could have resulted in expensive abandonment of a functional onsite sewage disposal system for connection to public sewers over long distances. This was In the Matter of Whittier Regional Vocational Technical High School.

PRESERVATION OF DANIEL CHESTER FRENCH HOME AND LAND

We represented historic preservationists to prevent the destruction of the historic Concord, MA home of sculptor Daniel Chester French (1850-1931), creator in his early career of the famous Minuteman statue as well as at the height of his fame the statue of Lincoln in the Lincoln Memorial. A developer had purchased the property and was proposing removing the sculptor’s studio to accommodate a subdivision road for new houses behind the French home, slated to be extensively modernized or eventually razed, and jeopardizing the nearby historic Centennial Pines. We challenged the developer’s local permit applications, filed suit against the Planning Board’s subdivision approval, conducted discovery and filmed site conditions, and prepared for trial with computerized exhibits.

The case settled on the first day of trial for outright purchase of the property, leading to an historic preservation restriction (HPR) and historic restoration of the home and landscape.

SJC UPHOLDS VALIDITY OF COASTAL FLOOD HAZARD ZONING

In the case of Gove v. Zoning Board of Appeals of Chatham, 444 Mass. 754 (2005) we submitted a friend of the court brief, pro bono, which successfully argued that a Cape Cod town’s zoning bylaw banning new residential structures in a “coastal conservancy district” did not deny the owner of all economically beneficial uses so as to be a total regulatory taking.

FULL TRIAL AND APPEAL ON REVERSE SPOT ZONING SUIT

Andrews v. Town of Amherst, Massachusetts Appeals Court, 2009-P-1666 (August 17, 2010) (Rule 1:28). We represented commercial developers whose property was mostly rezoned from Light Industrial to Floodplain Conservancy, severely limiting its development potential. We won our “Reverse Spot Zoning” and due process/uniformity of zoning challenges after full trial in the Land Court, conducted in Northampton, which invalidated the rezoning. This was reversed by the Appeals Court in a decision refining the standards about spot zoning and the degree of discretion given the Town Meeting.

SUIT COMPELLED TOWN TO ISSUE RESIDENTIAL DOCK PERMIT

Olsson v. Town of Falmouth Conservation Commission, Massachusetts Superior Court, No. 99-225 (February 9, 2001). We obtained reversal of the Falmouth Conservation Commission’s denial of our client’s wetland permit for an innovative mono-pile residential dock. On the merits of this certiorari claim on the Commission’s record, the Superior Court found the 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.
The permit was issued and dock successfully constructed according to plans.

LITIGATION FORCED QUINCY TO ISSUE HOUSE PERMIT

We represent an individual suing City of Quincy officials for violations of federal and state civil rights statutes for blocking his attempts to build a single-family residence for more than ten years for alleged illegal and pretextual reasons. We won denial of their motion for summary judgment by all individual defendants. Case is scheduled for trial. Thyng et al. v. Thomas Kelly, et al., Norfolk Superior Court.

In a prior related matter, after Quincy failed to comply with a Superior Court judgment remanding the application to the Quincy Conservation Commission for further hearing under the Quincy Wetland Ordinance, we won a Judgment from Norfolk Superior Court finding that the Conservation Commission had no explanation for failing to hold a hearing other than animosity and ruling the application was approved. Thyng v. Quincy Conservation Commission, Norfolk Superior Court.

OIL SPILL DEFENSE OF HOMEOWNER AT INSURER’S EXPENSE

We successfully defended our clients against a Superior Court suit by adjacent property owners that oil had leaked onto their property from an underground storage tank when clients’ property was owned by a previous owner. We secured defense from the clients’ insurer and we defended the suit at the insurer’s expense. We won on summary judgment, arguing that a prior cleanup had reached a Permanent Solution and a Condition of No Significant Risk. O’Reilly et al. v. Syswerda et al., Middlesex Superior Court.

In a related case, we won a Preliminary Injunction from the Superior Court, enjoining the construction of a new house on the same adjacent property on the grounds that the new house did not comply with the zoning requirements for frontage. Syswerda et al v. O’Reilly et al., Middlesex Superior Court.

CONDOMINIUMS DEFENDED AGAINST CONTAMINATION CLAIMS

Our firm successfully represented the owners of a condominium in Marblehead with respect to contamination from an historic landfill. After performing historic research, we negotiated a favorable settlement with the Town, requiring the Town to pay our clients a substantial monetary settlement, remediate the contamination, and release our clients from all liability.

In a related case, we defended a Superior Court suit by purchasers of two of the condominium units alleging our clients’ misrepresentation for failure to disclose contamination. After depositions of the plaintiffs and other discovery, we negotiated a favorable settlement dismissing the lawsuit. Ryan et al. v. Martin, Trustee, et al. Essex Superior Court.

CLAIMS AGAINST CLIENT DISMISSED USING ANTI-SLAPP MOTION

We won a Special Motion to Dismiss in Superior Court under the Anti-SLAPP Suit Statute, G.L. c. 231, sec. 59H, against an unsuccessful developer who sued our clients based on their having appealed a special permit for development of a senior housing project for the ultimate purpose of land conservation. The statute provides for dismissal and recovery of attorneys’ fees if the defendant can show the suit is based on the defendant’s exercise of his constitutional rights of petition. Northwood Properties, LLC v. Tyler et al., Middlesex Superior Court.

40B AFFORDABLE HOUSING DEFEATED AT SUPERIOR COURT TRIAL

Our firm won a Judgment in Superior Court on behalf of abutters vacating the municipal grant of a comprehensive permit under G.L. c. 40B, the Massachusetts affordable housing statute, for a multi-unit housing development in Topsfield. This is one of the very rare cases reversing the grant of a comprehensive permit. Larson et al. v. Border et. al., Essex Superior Court.

LITIGATION FOR THE FREETOWN CAPE VERDEAN COMMUNITY

For more than a decade the firm has represented Concerned Citizens of Freetown, Inc. (CCF), a local non-profit organization, on a variety of legal claims, court appeals, land use hearings, and resulting litigation in East Freetown, MA. This work has been pro bono through the firm’s involvement in the Environmental Justice Network (EJN). These matters included opposition to a proposed asphalt plant, industrial subdivision, unlicensed wetland filling, inadequate water supply, illegal tire dump, zoning enforcement, assistance with federal and state environmental regulators, presentations to Town Meeting, and assistance in a successful civil rights claim.

For this volunteer work, Mr. McGregor and Mr. O’Neill were recipients of the Founders’ Award presented by Alternatives for Community and Environment, Inc. (ACE) as well as the Community Merit Award presented by CCF.