Creating Thriving Communities Through Land Use And Real Estate Law

Johnson & Borenstein win subdivision appeal against Town of Lunenburg in Land Court

Johnson & Borenstein partner Donald F. Borenstein represented developer O’Brien Homes, Inc. in a long-running dispute between O’Brien and the Town of Lunenburg over the subdivision of a former egg farm and other adjacent property in Lunenburg, MA, totaling 135 acres.  The Lunenburg Planning Board rejected O’Brien’s original subdivision plan in 2009, and again rejected O’Brien’s revised plans in 2013.  Johnson & Borenstein appealed and undertook extensive discovery into the Board’s alleged reasons for twice denying O’Brien’s plans.  This included electronic discovery of e-mails exchanged among town staff and board members outside the public hearing process.  This effort revealed several damming communications, including a conservation commissioner’s message explaining that, “The town prompted an executive session to inquire . . . how (town boards) could find fault with O’Brien and act upon such . . .  I would assume if one of those boards had a way to stick it to him, they would support that.”

After a 3-day trial and extensive briefing by both parties, the Land Court ruled squarely in O’Brien’s favor, finding that the Planning Board had no basis to deny the subdivision plans; that the project was benefitted by a zoning freeze and protected from the town’s attempt to double the minimum lot area requirement; and that O’Brien had standing to pursue the appeal.  Having previously put O’Brien’s claims of bad faith on hold, the Court also invited Johnson & Borenstein to schedule further proceedings to address those claims and to consider the entry of sanctions against the Town.