Lancaster v. Palladium Construction (2001)
Summary: Suit by demolition subcontractor against general contractor for non-payment. Following trial, judgment was entered in favor of sub-contractor for full value of work performed and general contractor's claim of substantial work and other back charges and defenses were rejected.
Montello v. Burlington Planning Board, Land Court (2005)
Summary: Planning Board refused to endorse a "Form A" plan, claiming prior 2-lot subdivision decision prohibited the re-division of the property into three residential lots. The property owner appealed. The Land Court ruled on summary judgment that the Board's refusal to endorse the 3-lot plan was legally untenable and beyond the Board's authority.
Neve v. Boxford Conservation Commission, Superior Court (2005)
Summary: Town Conservation Commission prohibited homeowner from cutting various trees on his property, allegedly under the Town's Wetland By-Law. Johnson & Borenstein represented the homeowner in his appeal of the Commission's decision. The Court held the Commission's action to have been "arbitrary and capricious" and allowed the homeowner to proceed with his tree thinning. Although the case only concerned the removal of trees, the Judge's decision set an important limit on the broad discretion claimed by the Commission.
Potter v. Ipswich Conservation Commission, MA Superior Court (1998)
Summary: Municipal Conservation Commission refused to approve construction of home and related improvements within 100' wetland buffer zone, under both the State Wetlands Protection Act and the Ipswich Wetlands By-Law. Land owner appealed and obtained approval under the State Act from the MA DEP. The Superior Court then ruled that the Town's By-Law was not more stringent than the State Act and entered judgment that the By-law was not enforceable.
Proulx v. D'Urso - Land Court Decision
Summary: Johnson & Borenstein represented a property owner affected by a driveway easement. The Land Court held that the property owner was entitled to relocate the driveway easement outside of the property's buildable area.
Proulx v. D'Urso, MA Appeals Court (2004)
Summary: Johnson & Borenstein represented land owner who sought to develop single-family lot. Abutting property owner claimed a driveway and utility easement though the heart of the lot’s buildable area. Following trial, Land Court ruled that the claimed easement had been abandoned by the abutter’s improvement and use of an alternative access driveway. Abutter appealed. The Massachusetts Appeals Court upheld the Land Court ruling and found the easement had been effectively relocated. Due to the majority of cases where the Court had found an easement to have been abandoned, Johnson & Borenstein was also invited to submit an article on the matter to the Massachusetts Bar Association. As discussed in that Article, shortly after the issuance of the Proulx decision, the Massachusetts Supreme Judicial Court overturned long-standing case law and adopted the position that owners of land affected by an easement have a right to relocate such easements in certain circumstances.
United Mortgage v. Long, et al., MA Superior Court (2004), MA Appeals Court (2005)
Summary: Johnson & Borenstein represented the holder of a first mortgage affecting land improved by an apartment building located in Boston. However, a deed conveying the property to the bank's borrower was inadvertently left unrecorded. At Foreclosure, the borrower's title (and thus the bank's mortgage) were contested by a prior co-owner on a variety of issues, including forgery and fraud, among others. Johnson & Borenstein initially prevailed by summary judgment on a count of equitable subrogation. The full facts of the case were later tried and the court entered judgment finding that the contested deed was valid and the bank's mortgage enforceable. The Defendant appealed, however, the trial judgment was upheld.
Watson v. YMCA and Greater Newburyport Five Cents Savings Bank, Land Court (2006)
Summary: Johnson & Borenstein represented the YMCA of Greater Boston, who sought to develop a new and more convenient access to its summer camp property in Boxford, MA. Various residential neighbors claimed the YMCA could not utilize the subdivision road on which their properties were located. The Land Court ruled on summary judgment that the YMCA had the unfettered right to utilize the road for access like any member of the public and to extend the road to is property boundary.
Westminster Zoning Board of Appeals/Castle Partners/MA Housing Appeals Committee, Superior Court (2006), Land Court (2006)
Summary: Johnson & Borenstein represented the developer of a residential condominium project proposed under the Massachusetts Comprehensive Permit Statute. The Municipal Zoning Board of Appeals sought to compel the developer to pay various expenses and to comply with other demands the developer believed to be onerous and unlawful. Johnson & Borenstein obtained a ruling on those issues from the Massachusetts Housing Appeals Committee. The Board successively appealed that ruling to the Massachusetts Superior Court and Land Court. Both Court's rejected the Board's position and dismissed the appeals in a summary fashion.
Woodridge Realty Trust v. Ipswich Board of Appeals
Summary: Johnson & Borenstein represented the developer of a comprehensive permit project in a successful appeal of the Town Zoning Board's denial to the Massachusetts Housing Appeals Committee.