Real Estate &
Land Use Litigation
OF LURIE FRIEDMAN LLP
IN REPRESENTATIVE REAL ESTATE & LAND USE LITIGATION
The following are representative cases
we have handled in the areas of real estate and land use litigation:
Zoning & Regulatory Permitting
Recycling Facility Permit and Site Assignment»
We represented the developer of a landfill and recycling facility in
a lawsuit by citizens challenging the zoning of the facility. We
also defended the state’s issuance of a site assignment and
challenging the state’s denial of a permit to construct. We obtained
decisions by two judges of the Massachusetts Superior Court
affirming the site assignment and mandating issuance of a permit to
construct. After the state took the property by eminent domain for
$1.5 million, we obtained a Supreme Judicial Court decision that the
property should be valued as a landfill, ultimately agreeing to a
$35 million settlement with the Commonwealth. See Douglas
Environmental Associates, Inc. v. Department of Environmental
Protection, 429 Mass. 71 (1999).
We represented a company objecting to issuance of a variance to
allow residential condominium development in the industrial Fort
Port Channel district of Boston. After defeating the developer’s
motion to dismiss, we negotiated a settlement circumscribing the
scope and location of the development.
We represented a developer in two separate appeals of denials by a
local zoning board of its applications for comprehensive permits for
two condominium developments under Mass. Gen. Laws Chapter 40B.
After motions were filed with the Department of Housing and
Community Development’s Housing Appeals Committee, we obtained a
settlement which allowed both developments to go forward.
We represented a homeowner in a lawsuit against a town for denial of
a wetland permit for a new driveway, as well as in a companion
lawsuit against the town and the developers and builders of an
abutting subdivision for their failure to implement mitigation
measures designed to prevent surface water from draining from the
subdivision onto our client’s property. After defeating the
developers’ motion for summary judgment, we obtained a monetary
settlement from the developers and builders of the subdivision, and
an agreement by the town to approve our client’s driveway.
We defended a
state highway agency in an administrative appeal filed by a city of
a tidelands determination under Mass. Gen. Laws Chapter 91 for
construction of the Charles River Crossing portion of the Central
Artery/Tunnel project. We obtained a ruling dismissing all
objections to the tidelands determination due to lack of standing.
In another matter, we obtained dismissal of litigation brought by a
commercial marina on Cape Cod against our client, an abutting
marina, regarding the licensing and use of a pier located in public
tidelands along the riparian line separating the two properties.
We represented a town south of Boston in a lawsuit alleging
inadequate permitting under the Massachusetts Environmental Policy
Act for a cinema complex sited just over the border in the adjacent
town and which, we contended, would cause significant traffic delays
across the town line. After extensive litigation and summary
judgment briefing, we negotiated
roadway modifications and traffic remediation.
Street Access Bylaw»
We represented a commercial property owner with respect to a street access bylaw that an abutting town was proposing to adopt in order to interfere with the proposed use of the property as a senior living facility. After a submission by us, the Massachusetts Attorney General’s office disapproved the proposed bylaw
Domain & Regulatory Takings
See representation of developers of landfill
and recycling facility cited above.
We represented the owner of a commercial urban property in obtaining
listing of the property on the National and State Registers of
Historic Places. We also challenged the taking of the property by
eminent domain by the state in order to build a new courthouse.
We represented a fat rendering facility in defending an
environmental enforcement action alleging sewer discharges in excess
of permitted levels. After extensive discussions with the Attorney
General’s Office, we were able to obtain a settlement.
We represented an owner whose commercial and residential properties
were damaged by sewage overflows (and resulting oil spills) from
pipes owned by state and local authorities. After discovery and a
tripartite mediation with the governmental authorities and their
insurance companies, we obtained a settlement.
We represented a hazardous materials contractor in claims against
its subcontractor and insurance company for damages resulting from
an oil leak occurring at a power plant demolition and construction
project. After filing a lawsuit seeking an attachment of the
subcontractor’s bank accounts, we obtained a settlement.
We represented an asphalt batching facility in a suit by a town to
recover damages for groundwater contamination to its drinking water
supply, and in related compliance and abatement actions.
Contamination Of Land»
We currently represent a company in negotiating with a multi-national corporation for reimbursement of response and remediation costs incurred due to contamination of a parcel of land owned by our client and previously owned by the multi-national’s corporate predecessor.
of Communications Company»
We represented a tenant in an eviction action in which the
commercial landlord claimed that the tenant had failed to pay rent
and sought accelerated rent. After filing a counterclaim and
participating in mediation, we obtained a settlement.
Injunction Against Interrupted Operation of Data Center»
We represented a provider of Internet services whose landlord
threatened to cut off power and access to its data center, which
would have caused loss of its clients’ data and prevented it from
servicing its own customers. After we obtained an injunction in
Minnesota state court against the threatened action, the case
Interpretation of Lease as to Operating Expenses»
We represented the successor to an office building tenant in a
federal lawsuit by the landlord for unpaid rent. We counterclaimed
for operating expense overcharges and violation of Mass. Gen. Laws
Chapter 93A due to the landlord’s charging of common area heating
and cooling costs to the tenant. After discovery and mediation by a
federal magistrate judge, the case settled.
Subordination Agreement Dispute»
We represented the lender to a commercial landlord, who purchased
the commercial property after foreclosure, in a summary process
eviction action against a tenant. The tenant continued to occupy the
premises under a purported lease extension that had never been
consented to by the lender, as required under a Subordination,
Non-Disturbance and Attornment Agreement. After discovery, we
obtained a settlement under which the tenant moved out at a fixed
Estate Tax Dispute/Mixed Use Property»
We represented an office tenant in a mixed office/retail/parking
garage complex in a suit brought by the property owner. We
counterclaimed for two decades of overpaid real estate taxes due to
improper allocation of those taxes to the office portion of the
complex. After expert analysis and negotiations with the owner, we
obtained a settlement.
Land Use Disputes
Dispute Regarding Hotel Pre-Opening Expenses»
We represent an
international operator of a major new hotel in Boston in a dispute
with the hotel owner regarding responsibility for payment of
$800,000 in pre-opening expenses. Our client maintains that all
pre-opening expenses were necessary, appropriate and properly
accounted for. After forensic analysis of monies spent opening the
hotel, the parties are engaged in pre-litigation dispute resolution
efforts required by contract.
Development/Brokerage/Management Fee Dispute»
a developer of retail and other commercial space in the Boston area,
who also managed the commercial properties for a decade, in a
dispute over on-going development, management and brokerage fees due
to him under long-term contracts with the owners of the property. We
obtained a settlement after extensive litigation and mediation.
Residential Condominium Dispute»
We represented residential condominium owners who objected to sale
of the first floor commercial unit to a 24-hour convenience store.
After negotiations, we obtained a settlement that addressed our
clients’ concerns about hours of use, security, cleanliness, and
other operational issues.
Commercial Condominium Dispute»
a bank that financed the purchase of a commercial building in the
Back Bay section of Boston. A commercial tenant sought to enforce a
purchase and sale agreement for condominium space as to which the
bank had never consented. The federal district court in Boston
dismissed all claims against our client, and the ruling was upheld
Affordable Housing Partnership Dispute»
We currently represent the general partner and the non-profit sponsor/developer of a low-income housing tax credit project in a dispute with the limited partners regarding the right of the non-profit sponsor to exercise a statutorily mandated right of first refusal to acquire the property at the end of the tax compliance period.
IndyCar Street Race In Boston»
We represented a condominium association in the Seaport District of Boston which objected to a proposed IndyCar street race that would cause major adverse environmental, public health and safety impacts on its neighborhood. After receiving our fourteen-page analysis of legal issues regarding the race, the race promoter agreed to provide an extensive mitigation package to our client.