Can Regulator Settlements Protect You in Massachusetts?

June 25, 2020

Volume X, Number 177

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Can a Settlement with the Regulator Protect You from Your Neighbors in Massachusetts?

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.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 174


About this

David G. Mandelbaum, Greenberg Traurig Law Firm, Philadelphia, Environmental Law Litigation Attorney

David G. Mandelbaum represents clients facing problems under the environmental laws and serves as Co-Chair of the firm's Environmental Practice. He regularly represents clients in lawsuits and has also helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. David teaches Superfund, and Oil and Gas Law in rotation at the Temple Law School. He has taught Environmental Law, Climate Change and Land Use Law and Administration in the past, and he is a regular writer and speaker on the subjects.