Select Appellate Court Decisions

P.J. Keating Company v. Town of Acushnet, 104 Mass. App. Ct. 65 (2024): defended company against enforcement action by municipal Board of Health, which rose to the state Appeals Court after Town appealed Superior Court decision annulling cease and desist order.

Griffin v. Department of Conservation and Recreation, 86 Mass. App. Ct. 1107 (2014): represented a landowner in the Appeals Court, challenging a Massachusetts Department of Conservation and Recreation ruling under the Watershed Protection Act denying him from subdividing and building a residence on his property.

Mahajan v. Dept. of Envtl. Protection, 464 Mass. 604 (2013): represented Plaintiffs in a ten-citizens’ suit challenging a Chapter 91 license issued by MassDEP to allow conversion of a portion of Long Wharf in Boston for use as a private restaurant.

Select Trial Court and Adjudicatory Decisions

Walpole Preservation Alliance, Inc. v. County of Norfolk, Civil Action No. 2182-CV-00175 (Mass. Super. 2023) : on behalf of a local conservation organization, challenged County’s conversion of historic farmland to a large-scale solar array.

P.J. Keating Company v. Acushnet Conservation Commission, Civil Action No. 2073-CV-00603 (Mass. Super 2022): won a Superior Court appeal challenging four separate Enforcement Orders issued by a municipal conservation commission, resulting in annulment of all four Orders.

Taxpayers Concerned for Baldwin v. Town of Brookline, Civil Action No. 1882-CV-01517 (Mass. Super. 2020): defended the Town of Brookline in defeating alleged violations of Article 97 related to the proposed construction of an elementary school.

Neighbors of Baldwin v. Town of Brookline, Civil Action No. 1982-CV-00252 (Mass. Super. 2020): representing the Town of Brookline, defeated claims alleging unlawful expenditures related to the approval of two parking plans.

Rapczynski v. White, Civil Action No. MISC-000410-HPS (Mass. Land Ct. 2019): defended a Scituate landowner to defeat a neighbor’s attempt to restrict the use of a beach access easement.

Petition of NSTAR Electric Co. d/b/a Eversource Energy, EFSB 17-02 / D.P.U. 17-82 / D.P.U. 17-83 (December 18, 2019): represented the Town of Hudson in hearings before the Energy Facility Siting Board’s regarding an electrical transmission line.

Hancock Village I, LLC v. Town of Brookline, Civil Action No. 18-PS-000192-HPS (Mass. Land Ct. 2019): defended the Town of Brookline against a challenge to the legality of its Neighborhood Conservation District Bylaw.

In the Matter of David and Zoila Comeau, Final Decision, Docket No. WET-2015-011 (October 29, 2015): successfully defended private property owners against appeal of a state Wetlands Protection Act permit for improvements to private roadway.

In the Matter of David Fuhrmann, Final Decision, Docket No. 2013-037, 22 DEPR 31 (April 8, 2015): won an adjudicatory hearing in MassDEP on behalf of a waterfront landowner seeking a Chapter 91 license to install a water ski slalom course in a Great Pond.

Nickolas v. City of Marlborough, MICV2013-05608 (Mass. Super. 2014): representing the City of Marlborough, defeated claims that the City had not complied with Article 97 in building a senior center and making improvements to a park. 

Conservation Law Foundation v. Environmental Protection Agency, Cases 1:10-cv-11455-MLW; 1:11-cv-11657-MLW (D. Mass): defended a town and water supply against lawsuits filed by the Conservation Law Foundation challenging EPA’s implementation of the federal Clean Water Act.

O’Brien Homes, Inc. v. Town of Lunenburg, Civil Action No. WOCV2014-0631-D (Mass. Super. 2014): won appeals to Superior Court and MassDEP challenging a conservation commission’s refusal to issue wetlands permits for a residential subdivision.

Lombardi v. McFarland, Civil Action No. SUCV2013-00273-BLS1 (Mass. Super. 2015): in the Superior Court’s Business Litigation Session, successfully defended a conservationist against claims arising from a failed real estate development.

Fox Pond Association v. Town of Chatham, BACV2013-00149 (Mass. Super. 2013): won appeals in Superior Court and MassDEP on behalf of landowners challenging a conservation commission’s denial of wetlands permits for management of a privately-owned pond.

Attleboro Sand & Gravel Corp. v. City of Attleboro, BRCV2011-0705-C (Mass. Super. 2012): successfully challenged an enforcement order issued by the local conservation commission.

Wildstar Farm, LLC, et al v. Massachusetts Dept. of Environmental Protection, Norfolk Land Court, Civil Action No. 10-PS-443877 (July 8, 2011): successfully defended against an appeal to the Land Court challenging victory following an adjudicatory hearing at MassDEP.

Matter of Michael Newman and Polly Kornblith, Final Decision, Docket No. WET-2010-016, 17 DEPR 471 (November 16, 2010): prevailed in an adjudicatory hearing at MassDEP appealing the proposed expansion of a horse farm in a residential neighborhood.

Supreme Judicial Court Amici

Smith v. City of Westfield, 478 Mass. 49 (2017): argued in support of the prevailing party that land may be protected under Article 97 even in the absence of a deed, conservation restriction or other instrument recorded in the chain of title at the Registry of Deeds.

New England Forestry Foundation v. Town of Hawley, 468 Mass 138 (2014): argued in support of the prevailing party that the state Appellate Tax Board was wrong to determine that conservation of forestland does not qualify for a real estate tax exemption.

Ten Persons of the Commonwealth v. Fellsway Development, LLC, 460 Mass. 366 (2011): argued in support of the prevailing party that a ten-citizens group was entitled to a trial to determine whether a project was illegally “segmented” to evade Massachusetts Environmental Policy Act review.

Blair v. Department of Conservation and Recreation, 457 Mass. 634 (2010): argued in support of the prevailing party that the Massachusetts Department of Conservation and Recreation’s decision to deny a variance under the Watershed Protection Act was not a regulatory taking.

Gove v. Zoning Board of Appeals of Chatham, 444 Mass. 754 (2005): argued in support of the prevailing party that a zoning bylaw banning new residences in a “coastal conservancy district,” was not a regulatory taking.

Negotiations and Settlements

Gardener v. Westwood Zoning Board of Appeals, et. al., Civil Action No. 1782-CV-00854 (Mass. Super. 2019) and Civil Action No. 16-MISC-000426-HPS (Mass. Land Ct. 2017): defended a private landowner in two lawsuits appealing approval of an affordable housing project under M.G.L. c. 40B, which were dismissed following settlement between the parties.

City of New Bedford v. Consolidated Rail Corporation, et. al: obtained a $3 million settlement to reimburse the City of New Bedford for its costs in clean-up of hazardous waste.

Mahoney-Almenas v. Town of Westwood, Civil Action No. 15-MISC-000426-JCC (Mass. Land Ct. 2016): negotiated a successful settlement to resolve his client’s lawsuit challenging a decision by the Zoning Board of Appeals.

Matter of David J. McCahon, Final Decision, Docket No. WET-2014-007 (July 7, 2014): reached a mutually agreement settlement on behalf of a conservation commission in landowner’s appeal challenging the commission’s denial of work within Riverfront Area.

43 Church Street Nominee Trust v. Falmouth Conservation Commission, BACV2006-00732 (Mass. Super. 2010): negotiated mutually agreeable terms to settle an appeal challenging an Order of Conditions issued to his client by a local conservation commission.

In the Matter of O’Brien Homes, Inc.: represented real estate developer in reaching settlement to resolve a MassDEP enforcement action stemming from alleged wetland violations.

Publications

Appeals from Municipal Board Decisions, Appellate Procedure, Chapter 66 (Massachusetts Practice Series, 4th ed. 2025)

Water Pollution Control, Massachusetts Environmental Law, Chapter 15 (MCLE, Inc., 5th ed. 2024)

“Court Rules Clean Water Act Does Not Require NPDES Permit for Pollutant Discharges to Groundwater” MACC Quarterly, Winter 2020 (Massachusetts Association of Conservation Commissions)

“Federal District Court Rejects Argument that Discharges to Groundwater Require Permits Under the Clean Water Act” REBA News, January 2020 (Real Estate Bar Association)

“Court Decision Reminds Us Who Can Enforce the Public Trust Doctrine and Reserved Public Rights in Tidelands” MACC Quarterly, Winter 2019 (Massachusetts Association of Conservation Commissions)

“Appeals Court Reinforces Limits on Authority to Enforce the Public Trust Doctrine”, Massachusetts Planning Magazine, Summer 2018 (Americal Planning Association, Massachusetts Chapter)

“Standing for Environmental Appeals Within MassDEP and to Court” MACC Quarterly, Summer 2017 (Massachusetts Association of Conservation Commissions)

“Natural Gas Pipeline 101: The FERC Permitting Process, Federal Preemption, and Eminent Domain” MACC Quarterly, Spring 2015 (Massachusetts Association of Conservation Commissions)

“Supreme Judicial Court Upholds MESA Regulations for Delineating and Regulating Priority Habitat” REBA News, May 2014 (Real Estate Bar Association)

“Supreme Judicial Court Verifies Property Tax Exemption for Open Space held by Non-Profit Conservation Organizations” MACC Quarterly, Summer 2014

“SJC Rules that Open Space Protected by Non-Profit Conservation Organizations is Exempt from Property Tax” REBA News, July 2014

“SJC Article 97 Decision has Silver Lining”, with Gregor I. McGregor, MACC Quarterly, Spring 2013

“State Appeals Court Sets Trigger for Seeking Certiorari Review of a Local Board’s Decision” REBA News, January 2012

“State Appeals Court Calculates Deadline to File Certiorari Case Against Conservation Commission” MACC Quarterly, Spring 2012

“SJC Rejects ‘Partial’ Regulatory Taking Claim” MACC Newsletter, November/December 2010

“Without Clearly Defined Performance Standards, a Local Wetlands Ordinance or Bylaw May be Worthless” MACC Newsletter, May/June 2009

“Home Rule: Use it or Lose it” AMWS Newsletter, July 2009 (Association of Massachusetts Wetlands Scientists)