Real estate / land use — Cases of Note
Zoning and Regulatory Permitting
Represented developer of landfill and recycling facility in multiple permitting lawsuits. Obtained decisions dismissing zoning challenges to facility, upholding its site assignment, and mandating issuance of state permits to construct facility. After state took property by eminent domain for $1.5 million, obtained Supreme Judicial Court decision that property should be valued as landfill, which resulted in $35 million settlement with Commonwealth. See Douglas Environmental Associates, Inc. v. Department of Environmental Protection, 429 Mass. 71 (1999).
Representing citizen group of town residents in two lawsuits concerning a town’s right of first refusal to acquire forestland protected under M.G.L c. 61. Issues include application and procedure of c. 61 and public rights to protect against unauthorized municipal spending. Obtained judgment successfully and permanently enjoining town from consummating a settlement agreement to acquire a smaller portion of the forestland in exchange for waiving the town’s c. 61 rights, rendering the settlement agreement ineffective. Successfully appealed the denial of the citizen group’s intervention in the land court to protect that judgment. See Reilly v. Town of Hopedale, No. 22-P-314, 2023 WL 2375559, at *1 (Mass. App. Ct. Mar. 7, 2023).
Representing land conservation trust and town residents in multiple lawsuits and administrative proceedings concerning 55,000 s.f. building proposed by major university to be constructed in Natural Resource District on scenic ocean headlands next to public park. Issues include protection under Article 97 of the Massachusetts Constitution of dedicated parkland, zoning restrictions under Dover Amendment, wetlands protection, building height restrictions, environmental review under the Massachusetts Environmental Policy Act, historic preservation, and municipal easements through site.
Represented company objecting to variance to allow residential condominium development in industrial Fort Port Channel district of Boston. After defeating developer’s motion to dismiss, negotiated settlement circumscribing scope and location of development.
Represented developer in two separate appeals of denials by local zoning board of applications for comprehensive permits for two condominium developments under M.G.L. c.40B. After motions were filed with Department of Housing and Community Development’s Housing Appeals Committee, obtained settlement allowing both developments to proceed.
Defended state highway agency in administrative appeal of tidelands determination under M.G.L. c. 91 for construction of Charles River Crossing portion of Central Artery/Tunnel project. Obtained ruling dismissing all objections to tidelands determination due to lack of standing. In another matter, obtained dismissal of litigation brought by commercial marina on Cape Cod against abutting marina regarding the licensing and use of pier located in public tidelands along riparian line separating the two properties.
Represented town in lawsuit alleging inadequate environmental permitting under Massachusetts Environmental Policy Act for cinema complex sited just over border in adjacent town. After extensive litigation and summary judgment briefing, negotiated settlement requiring extensive roadway modifications and traffic remediation.
Represented commercial property owner objecting to street access bylaw abutting town was adopting to interfere with use of property as senior living facility. After property owner’s submission, Massachusetts Attorney General’s office disapproved the proposed bylaw.
Represented coalition of residents in Seaport District of Boston concerned about proposed IndyCar street race that would cause major adverse environmental, public health and safety impacts. Appeared before Boston Public Works Commission, Boston City Council, and other agencies reviewing proposed race construction. After obtaining denial by Boston Conservation Commission of race promoter’s request for expedited wetlands approval, race was canceled.
Representing developer of cannabis retail operations in multiple municipalities with respect to zoning, tidelands, wetlands, parking, traffic, security, site plan approval, and other issues.
Eminent Domain & Regulatory Takings
See representation of developer of landfill and recycling facility cited above.
Represented owner of commercial urban property in obtaining listing of property on National and State Registers of Historic Places. Challenged taking of property by eminent domain by state in order to build new courthouse.
Represented owner of 77 acres of downtown buildings in opposing urban renewal plan that would have taken property by eminent domain for no payment. After filing lawsuit raising regulatory, civil rights and common law claims, obtained withdrawal of plan and payment of settlement by town to client.
Representing owner of property next to river regarding proposed taking by eminent domain for public water supply. Issues include archaeological deposits on site and valuation as a subdivision.
Commercial Leases
Have represented multiple commercial tenants in nonpayment of rent and eviction disputes in light of COVID.
Represented provider of Internet services whose landlord threatened to cut off power and access to data center, which would have caused loss of clients’ data and prevented servicing of customers. After obtaining injunction in Minnesota state court against threatened action, case settled.
Represented office building tenant in federal lawsuit by landlord for unpaid rent. Counterclaimed for operating expense overcharges and violation of M.G.L. c. 93A due to landlord’s charging tenant for costs of common area heating and cooling. After discovery and mediation by federal magistrate judge, case settled.
Represented lender to commercial landlord, who purchased property after foreclosure, in summary process eviction action against tenant. Tenant continued to occupy premises under purported lease extension that had never been consented to by lender, as required under Subordination, Non-Disturbance and Attornment Agreement. After discovery, obtained settlement under which tenant moved out at fixed date.
Represented office tenant in mixed office/retail/parking garage complex in suit brought by mall owner. Counterclaimed for two decades of overpaid real estate taxes and operating expenses due to improper allocation to office portion of the complex. After expert analysis and negotiations with owner, obtained settlement.
Representing former owners of fitness club franchise in lawsuit by landlord for breach of lease guaranty. Brought crossclaims against other former owners and investor who promised to substitute as guarantor.
Affordable Housing Partnership Disputes
Prevailed on summary judgment in representation of general partner and non-profit sponsor of affordable housing in dispute with limited partners over non-profit’s ability to exercise right of first refusal to obtain ownership of multi-million dollar low-income tax credit housing project. Successfully defended judgment before Supreme Judicial Court. Homeowner’s Rehab, Inc. v. Related Corp. V SLP, 479 Mass. 741, 743-46 (2018).
Representing limited partners in multiple litigations with general partners regarding price at which the general partners may exercise options to purchase limited partners’ interests in low-income housing tax credit projects, in light of limited partners’ forced-sale rights and positive capital accounts.
Represented limited partners in action against principal of general partner for breach of guaranty agreements on multiple affordable housing projects, and defended limited partners and affiliates in action claiming alleged improper removal of former general partners. After extensive discovery, obtained agreement for judgment against principal of general partner.
Defending former general partner of limited partnership that owned affordable housing complex against claims brought by former special limited partner for breach of contract, breach of fiduciary duty, fraud and unjust enrichment based on allegations that special limited partner did not receive fair market value for partnership interest. Obtained order dismissing breach of contract and covenant of good faith and fair dealing claims. Case is stayed pending appeal of related federal court action where all claims by former special limited partner were dismissed.
Other Land Use Disputes
Represented international operator of major new hotel in Boston in dispute with hotel owner regarding responsibility for payment of $800,000 in pre-opening expenses. After forensic analysis of monies spent opening hotel, matter was resolved.
Represented developer and manager of retail and other commercial space in Boston area, in dispute over on-going development, management and brokerage fees due under long-term contracts with property owners. Obtained a settlement after extensive litigation and mediation.
Represented residential condominium owners who objected to sale of first floor commercial unit to 24-hour convenience store. After negotiations, obtained settlement that addressed clients’ concerns about hours of use, security, cleanliness, and other operational issues.
Represented bank that financed purchase of commercial building in Boston. Commercial tenant sought to enforce purchase and sale agreement for condominium space to which bank had never consented. Federal court in Boston dismissed all claims against bank, and ruling was upheld on appeal.
Represented national franchisor of quick-serve restaurant/bakery in federal court cases in Massachusetts and California against franchisee of multiple locations for breach of area development agreement and franchise agreements. After successful motions to compel arbitration and deposition of franchisee’s principal, obtained favorable settlement.
Represented owners of real estate used by regional hardware chain for offices, warehouse and distribution facility, against claim by minority owners of hardware chain for misappropriation of real estate as corporate opportunity.After correspondence and presentations to independent directors of hardware chain, obtained decision that hardware chain would not pursue claim.