Land Use & Environmental Litigation

Massachusetts Land Court Dismisses Attempt to Halt Subdivision Development: 
In an effort to halt a proposed 20 lot subdivision, a neighbor filed a three-count complaint seeking to annul the Seekonk Planning Board’s approval of our client’s plans. The case was tried and sent back (remanded) to the Planning Board for clarification of some minor questions. (See December 21, 2006 decision of Judge Piper, 2006 WL 3740615). Following the Board’s further review and approval, the Land Court in Boston entered judgment denying and dismissing the neighbor’s complaint. In doing so, the court declared that the road from which the subdivision is to be built is a public way, that our client’s incorporation of a small strip of land he owns in the subdivision access area did not “overburden” the complaining neighbor’s easement rights in that same area, and that the neighbor did not prove that the Planning Board failed to give proper consideration to the adequacy of the access roadway in making its decision. Sweet v. Town of Seekonk Planning Board, et al, Misc. No. 286204 (GHP).

Judge Orders Extraordinary Relief, Blasting Town for “Crazy Quilt of Unwritten Rules and Practices”: 
Our client wanted to construct an affordable housing project in Johnston, Rhode Island, but certain Town officials didn’t want to see that happen. So they contended that the application was incomplete and that our client didn’t appear for a hearing in any event. But the only evidence they could produce that they supposedly gave “notice” was a “post-it” notice from their own file. And Judge Fortunato of the Superior Court looked over the application and said he could not conceive of a more thorough plan than our client submitted. He found that these officials created a “perfect storm of abuse of discretion” and ruled that they must issue the permits for the project So he granted a Writ of Mandamus (something exceedingly rare in a case like this). The case has been appealed but we are hopeful that this well-reasoned decision of Judge Fortunato will be upheld. The Providence Journal has printed several interesting articles on this one. Charda Properties, LLC v. Town of Johnston.

Nominal Settlement When True Cause of “Contamination” Determined: 
In proceedings related to an action in a Rhode Island Superior Court, John Reilly and his experts (a hydrogeologist and a biologist) were able to demonstrate that the cause of perceived surface water “contamination” was more likely cause by an algae bloom than petroleum hydrocarbons.  This resulted in a very nominal settlement and dismissal of an action brought by landowners against our client which operated a nearby gasoline station that had evidence of soil contamination when its underground storage tanks were removed.

U.S. Court in Boston Rejects Extensive Adverse Possession Claims and Quiets Title to Land Owned By Our Client: 
In June, 1968, the defendants purchased a home at the end of a roadway in a rural area of the Town of Seekonk, Massachusetts. Since they had no neighbors, they freely passed over many acres of unfenced land around their property for years. Our client purchased much of the adjoining acerage and eventually made plans to begin developing it (against the wishes of defendants). In an effort to stop development, defendants asserted that they had obtained the property through “adverse possession” (i.e., that they had exercised quiet, uninterrupted, open, continuous, notorious possession of about 12 acres) for more than the minimum time (20 years) in Massachusetts. We filed suit to have the court declare that these claims (with the minor exception of a very small area within a horse corral) were false, contrived, improper, and that our client was the true owner. Defendants counterclaimed, requiring us to obtain and utilize historical aerial photography and the testimony of several witnesses at trial. Following lengthy hearings, United States District Judge Douglas Woodlock ruled in our client’s favor, affirming that our client held proper title to all but the small fenced in area in the defendant’s horse corral. Tapalian v. Sweet, United States District Court for the District of Massachusetts, C.A. number 99 CV 10888 DPW.

Confidential Yet Negligible Settlement For Our Client In Mixed Contaminant Case: 
In a heavily-contested Massachusetts environmental action our client’s gasoline station had emitted a petroleum contaminant plume that mixed with chlorinated solvent contamination from an upgradient dry cleaning establishment. The co-mingled contaminants entered the goundwater and endangered downgradient residential drinking water wells.  Our client’s quick and efficient response included bringing public water to the most affected neighborhood and all but one residence accepted that new supply.  The remaining homeowners refused to accept public water and sought a large settlement, eventually suing several defendants.  After years of detailed factual and scientific discovery, the matter was resolved at mediation with each of the defendants contributing equally to a confidential yet negligible settlement and the plaintiffs accepting the public water supply after all.

U.S. Court in Springfield Rejects Environmental Claims of Purchaser of Contaminated Property:
The plaintiff purchased real estate that had previously been a gasoline station. In 1997 he planned to sell the real estate and engaged an engineering company to perform an environmental assessment pursuant to chapter 21E of the Massachusetts General Laws. During the investigation, plaintiff became aware that portions of the property showed elevated concentrations of contaminants, requiring reports to the Massachusetts Department of Environmental Protection (“MADEP”). He brought a multi-count complaint against our client which had sublet the site to independent dealers for about 15 years. Another oil company that had subsequently been involved in about 4 years similar business dealings at the site was also sued, but had apparently gone bankrupt and ceased to exist before this case began. After much discovery of historical records, we were able to successfully demonstrate that there was no proof that our client had ever caused a release of petroleum hydrocarbons, when the contamination occurred, that our client breached any contractual or legal duties during its involvement with the site, or that our client had violated or would be potentially liable under any of the chapter 21E criteria. Judge Ponser of the United States District Court of Massachusetts (Western Division) agreed and granted summary judgment, dismissing all of plaintiff’s claims. There was no appeal from his well-reasoned decision. Buynicki v. Sunoco, Inc. (R&M), No. 01-30007-MAP.