The Massachusetts Supreme Judicial Court (the court of last resort in the Commonwealth) issued a decision in a land use case today of potential concern for environmental practitioners. It raises the question whether a settlement by a regulated entity and the regulator protects the settling party from further claims by neighbor against the settling party or against the regulator on the same subject.

Stevens v. ZBA of Bourne, No. 19-P-248 (Mass. June 19, 2020), involved an estate used for weddings. Neighbors complained, the Building Inspector issued an order calling for the use to cease, and ultimately brought an enforcement action in the Land Court. The landowner settled that enforcement action, and the Building Inspector revised the cease and desist order to conform to the settlement. A neighbor then appealed that revised cease and desist order to the Zoning Appeal Board, which reinstated the original cease and desist order.

With some caveats about procedure and parties, the SJC held that the neighbor had properly appealed the post-settlement cease and desist order and that the ZBA had properly vacated it and reinstated the original, more stringent, order.

Land use enforcement is not the same as environmental enforcement, either procedurally or substantively. Public notice and rights of intervention under environmental statutes may bar this sort of after-the-fact attack on an enforcement settlement in the environmental context. But it serves as a reminder of risk.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights