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Development, Land Use and Permitting

Overview

Our Development, Land Use and Permitting team has the experience to anticipate and to identify the problems that often occur in real estate development projects and the creative ability to develop practical solutions. We understand the thinking of state and local officials, lenders, and other key players in the development process because we have represented each of these parties in different transactions.

While focused on achieving our clients' goals, we also focus on being collaborative with other parties in the development process as they often entrust us with important roles assisting in project management, coordination and strategic planning. This approach both expedites the development process and maintains good relations for future projects.

Our Team
Members of the Nutter real estate team have been asked to assist in the drafting of local and state laws regarding land use. Since we have written local zoning ordinances and by-laws for many municipalities, we know about the unique land use concerns that relate to wetlands, stormwater, solid waste, traffic and similar issues. Our land use, permitting and development team includes:

  • Six partners who have consistently been named to the peer-reviewed “Best Lawyers in America” list
  • A partner who was selected as the Best Lawyers 2017 Land Use and Zoning Law “Lawyer of the Year” for a second time in the metropolitan Boston region
  • Ten lawyers who were named as Massachusetts Super Lawyers
  • Seven lawyers who were listed as “leaders in their field” by Chambers USA 2017
  • Lawyers who have been chosen to serve as court-appointed receivers and special masters
  • A former Chief of Staff to the Massachusetts Speaker of the House

Nutter is also:

  • Ranked as a tier one Boston firm for real estate work by U.S. News and World Report; and
  • Listed among the top-ranked firms in real estate in Massachusetts by the highly-regarded Chambers USA

Who We Represent
Our team understands the unique needs of clients from all sectors of the economy. Our clients include:

  • Owners and developers
  • Companies in the biotech, life sciences and health care industries
  • Colleges, universities and other educational institutions
  • Energy and power companies
  • Financial services institutions, investors and pension funds
  • Retailers
  • Manufacturers
  • Nonprofit entities involved in health care, recreation, education, religion and the arts
  • Government entities
  • Public-private partnerships
  • Redevelopment authorities

What We Do 
Our clients look to us to act as their advocates, advisors, negotiators and drafters for every aspect of their land use and development needs. They also look to us for our permitting and licensing expertise, including assistance with project coordination and management.

Typical tasks we perform in connection with development projects include:

  • Performing due diligence to identify and to solve problems at an early stage that otherwise could jeopardize a project’s success
  • Negotiating relevant purchase and sale and other land control agreements
  • Negotiating and drafting relevant agreements with engineers, architects, and contractors
  • Obtaining all necessary permits and approvals from planning boards, zoning authorities, conservation commissions and other agencies or officials, including local, state and federal environmental authorities
  • Identifying and solving environmental issues related to regulations affecting wetlands, coastal preservation, wastewater, air and water quality and hazardous materials
  • Negotiating and drafting contract provisions pertinent to environmental exposure, worker health and safety, and related issues, including environmental insurance policies, indemnities and other risk-shifting agreements
  • Advocating for our clients before administrative agencies, such as the Massachusetts Department of Environmental Protection and the Boston Planning and Development Agency (formerly the Boston Development Authority)
  • Negotiating and drafting all documents related to bond or other types of project-related financing

Our clients also call on Nutter to assist them in connection with a wide array of specific types of development projects, including:

  • Mixed use development
  • Transit-oriented
  • Major redevelopment projects, including projects involving former military bases or abandoned industrial facilities
  • Multi-family residential
  • Specialized housing projects for seniors and others with special needs
  • Office
  • Retail, including major shopping centers and life style centers
  • Hospitals, nursing homes, and other health care facilities
  • Laboratories, research and development centers for biotech and life sciences work
  • Water and wastewater facility projects
  • Industrial projects
  • Power plant projects

Advocacy
When other means do not prove effective, Nutter attorneys are prepared to help our clients attain their objectives through administrative or judicial proceedings. We have had a great deal of success resolving such disputes.

Our team members have acted as effective advocates in proceedings conducted by:

  • Federal Environmental Protection Agency, Massachusetts Department of Environmental Protection and other federal and state agencies
  • Local planning and zoning boards, conservation commissions and other municipal boards
  • Various development and redevelopment authorities
  • Regional commissions
  • All levels of the judicial system, including the Massachusetts Land Court

View Practice Team

Representative Matters

Representative Matters

  • Related Beal

    Represented the full service real estate firm Related Beal on a range of complex issues involving Parcel 1B, a development project which includes the first large-scale 100 percent affordable and workforce housing development in downtown Boston in the past 25 years, as well as a 220-room hotel, ground floor retail space, and parking.  Work included air rights leasing, title, acquisition, zoning, and environmental matters, as well as state and City of Boston entitlements, real estate tax stabilization, and hotel financing.

  • Related Beal

    We represent an affiliate of Related Beal LLC in its redevelopment of a core asset of six existing, historically sensitive buildings in the urban core of the City of Boston to be known as Congress Square, which will result in a total of 530,800 SF of total development containing a mix of office, residential and hotel use.  One of the buildings has been nominated for designation as a City of Boston Landmark, which has required intensive efforts with the City and local historic constituents to enable redevelopment.

  • Boston Properties

    We represent Boston Properties (BP) in BP’s redevelopment of the existing Hancock Garage and the redevelopment and refurbishment of the adjacent Back Bay train station located in the Back Bay neighborhood of Boston, MA known as the Back Bay/South End Gateway Project.  Both of these properties are owned by the Massachusetts Department of Transportation (MassDOT) and are the subject of a long term ground and air rights lease to BP.  Currently, in addition to substantial upgrades to the Back Bay Station, the project is planned to be a mix of office, residential and retail.  As planned, there will be one office tower, two residential towers, with retail and parking on lower floors.  The feasibility of permitting and constructing the project in and over active rail, light rail and interstate highway in a historic and dense area of Boston adds an interesting level of complexity.  In total, the project could have a combined 1.3 million square feet of office, retail and residential space constructed.

  • National Development of New England (ND)

    We have represented ND in the acquisition, permitting, and financing of multiple projects in the Greater Boston and Eastern Massachusetts areas. These projects have included:

    Station Landing, Medford: Handled permitting and approvals for this mixed use transit-oriented project near Wellington Circle, just outside of Boston, as well as drafting significant amendments to the Medford Zoning Ordinance to allow the development. We also handled compliance with state environmental issues and completed a DCR (formerly Metropolitan District Commission) agreement for community benefits and project mitigation.

    Market Street, Lynnfield: Handled Chapter 40R rezoning, Development Agreement with the Town of Lynnfield, mitigation agreements with the Town of Wakefield and the Massachusetts Water Resources Authority, and related approvals.

    Other projects for this client over the years have included the Ink Block in Boston, the Bridges at Andover, Chapter 40B residential development of Arbor Point at Woodland Station in Newton, Forge Park in Franklin, Fort Point Channel in Boston, MetroNorth Business Center in Woburn, Lake Williams Corporate Center in Marlborough, Blueview Corporate Center in Canton, Mansfield Corporate Center in Mansfield and New England Business Center in Andover.

  • Phoenix Property Company/Lincoln Property Company

    Nutter represents a joint venture between Phoenix Property Company /Lincoln Property Company and an institutional investor in the permitting and transactional aspects of a large, complex, multi-party residential/hotel/retail mixed-use project with underground garage to be constructed on the land known as Parcel K, owned by the Massachusetts Port Authority, that is located in the Seaport District in Boston. The Project will consist of a 12-story apartment building with 304 apartments, a 12-story, 294-room hotel, office and retail space in both towers and a 1-level underground garage. Our work leading up to the initial closing involved the negotiation of:  the acquisition of the Project development rights from a prior developer; the joint venture between Phoenix Property Company/Lincoln Property Company and an institutional investor; the transfer of the hotel development rights to a joint venture between Hyatt Hotels Corporation and a hotel operator; multiple ground leases with Massport for the separate Project components; a construction loan with JPMorgan Chase, N.A. as lead lender; and a complex reciprocal easement agreement among the different Project components; as well as addressing complex permitting and title issues (including Chapter 91 licensing, agreements with the Boston Planning and Development agency and the creation of multiple air rights parcels). 

  • Federal Realty Investment Trust (FRIT)

    We represent FRIT in the permitting of several new phases of the large, transit-oriented, mixed-use project called Assembly Row in Somerville, Mass., including negotiation of a creative approach with the Planning Board to meet the City’s new inclusionary affordable housing requirements through a combination of on-site units and cash payments over time to a community-based non-profit organization which purchases and preserves existing affordable housing in established neighborhoods near schools, shopping, and transit.

  • Mark Development

    We represent an affiliate of Mark Development in its redevelopment of a city block in Newton, MA which will result in 4 and 5 story buildings with a total of 212,000 SF development containing a mix of residential, retail, restaurant and community space. This is a transit-oriented development located just .01 miles from a MBTA Commuter Rail Station. Approval for the project was obtained in June, 2017. Project required the locus to be rezoned and a special permit obtained to allow for density and height. Project required 14 hearings before the Newton City Council. The project approvals were appealed by adjacent neighbors.  We recently won this case in the Land Court.

  • Wood Partners

    We represent Wood Partners, a national multi-family housing developer, in the permitting and development of many multi-family residential developments consisting of over 1,700 units in the Boston area.

  • 1265 Main Street, LLC (formerly Polariod site in Waltham)

    We represent developer/owner 1265 Main Street, LLC on the redevelopment of the former Polaroid Office/RD Campus into a 1,280,000 sq. ft. mixed-use office and retail center, immediately adjacent to Route 128 in Waltham, Massachusetts.

  • The Brigham and Women's Hospital, Inc.

    We represented The Brigham and Women's Hospital, Inc. (BWH) in the completion of the zoning and land use permitting required to enable the redevelopment of a portion of the 2.61 acre former Massachusetts Mental Health Center (MMHC) site as a 383,250 square foot state-of-the-art research and clinical facility known as BWH's “Center for Transformative Medicine” (“CTM”), formerly known as the Brigham’s "Building for the Future".  Nutter assisted in the modification of the existing approvals for CTM for an additional story and increase in size of 24,580 square feet to be added mid-construction to assist BWH in responding to changing hospital needs. The construction of CTM has now been completed and is fully occupied.  We continue to assist the client in ongoing permit modifications and permit compliance issues related to this and other properties within the Longwood Medical Area.

  • Brighton Marine

    For over 30 years, Nutter has been proud to represent Brighton Marine, a non-profit corporation supporting uniformed service members, retirees, veterans and their families in the Allston-Brighton community. Nutter assisted its client with the development of The Residences at Brighton Marine, a $46 million project creating 102-units of affordable housing in Boston with a preference for veterans. 

    Nutter advised Brighton Marine on all aspects of this project, including the original strategic planning, the permitting, the formation of the joint venture with WinnCompanies, the ground lease to the joint venture and the financing.

  • Hilco Real Estate

    We represent Hilco Real Estate in the zoning and redevelopment of four industrial properties in Watertown, Waltham and Avon, Massachusetts.  We are also currently working on the redevelopment of two large former manufacturing projects in Waltham. We also assisted with the acquisition of a large power plant in Boston, MA that will be redevelopment into a mixed-use project.

  • Janco Development/Cordage Park

    We represent Janco Development, the owner and developer of a 75 acre waterfront mill complex in Plymouth, Massachusetts. The master plan calls for the redevelopment of over 1.5 million square feet of mill buildings and new construction that will overlook Cape Cod Bay. The site will feature a marina with a deep water channel and a 400 foot solid filled pier, 675 residential condos and apartments, retail shops and office space. The site hosts the southernmost MBTA train on the South Shore offering rail to Boston and is one of the largest transit-oriented mixed-use developments in the region. The site was the first and largest smart-growth district under MGL c 40R.

  • The First Church of Christ, Scientist

    We represent of The First Church of Christ, Scientist in the disposition via both deed and ground lease of multiple properties in Back Bay, Boston, and advice regarding permitting aspects of significant improvements to the Plaza and other Church-retained property.

  • Hebrew Senior Life (HSL) NewBridge on the Charles, Dedham, Massachusetts

    Drafting new zoning for overlay district, defending the new zoning against judicial challenge, and securing approvals from the local planning board, conservation commission, county commission, water district and environmental impact statement reviews for HSL’s 160 acre intergenerational campus in Dedham, Massachusetts with over 1,000,000 square feet of space.

  • Development of regional transportation facility within federal superfund site

    Land assembly, public entity formation and development of a regional commuter rail, bus and MassDOT facility within a federal superfund site, involving brownfield redevelopment agreements with state and federal agencies.

  • Development of transportation center for regional transportation agency

    Developed parking garage, commuter rail and regional bus transportation center with retail space for regional transportation agency and Fitchburg Redevelopment Authority.

  • Development of waterfront hotels, restaurants and marinas

    Obtained state and local approvals for several projects, including a waterfront hotel, waterfront restaurants, marina redevelopment and other commercial and water-dependent uses. These activities included adjudicatory proceedings and judicial review of state permits and licenses.

  • Drafted the governing agreements for the permitting of mixed-use development projects

    Drafted the governing agreements for the permitting of mixed-use development projects on public authority owned properties in South Boston and East Boston.

  • Convention Data Services

    Represented Convention Data Services (CDS), a Cape Cod-based SaaS company that provides event solutions and support services to over 250 tradeshows worldwide, in the development of its new corporate headquarters.

  • Obtained state permits and approvals for the mixed-use development on the South Boston Waterfront

    Obtained state permits and approvals for a mixed-use development on the South Boston Waterfront, containing restaurants, offices and transient boating slips.

  • Obtained permits and approvals for major marine and air freight terminal within a Designated Port Area in Boston

    Obtained permits and approvals for major marine and air freight terminal within a Designated Port Area in Boston. Representation included successful defense of administrative and judicial appeals.

  • Represented regional transit authority with major development

    Represented Regional Transit Authority in connection with the development of a parking garage serving MassDOT commuter rail station and housing development in downtown Haverhill.

  • Represented a local redevelopment authority in connection with redevelopment of the former South Weymouth Naval Air Station

    Represented a local redevelopment authority in connection with redevelopment of the former South Weymouth Naval Air Station, successfully handling the drafting of a revised Reuse Plan and zoning by-laws; the negotiation of a Disposition and Development Agreement with the master developer; the acquisition of roughly 550 acres of land for economic development purposes and 225 acres for recreational and open space purposes; the resolution of issues pertinent to CERCLA, M.G.L. Chapter 21E, the National Environmental Policy Act and the Massachusetts Environmental Policy Act; and the drafting and adoption of regulations necessary to implement the revised Reuse Plan and revised zoning by-laws.

  • Represented shorefront owners in litigation concerning easement rights on Cape Cod

    Defended several shorefront owners in litigation concerning access to the waters of Cape Cod Bay. The courts ruled that the original developers did not reserve beach rights for the inland owners and further confirmed that the shorefront owners owned their land out to the mean low water line.

  • Won appeal overturning a decision of the Department of Environmental Protection.

    The Department of Environmental Protection issued a summary decision determining that our client had made changes to their property without properly obtaining a license under the Waterfront Protection Act, chapter 91.  We successfully overturned that decision in a G.L. c. 30A appeal to the Superior Court, winning a remand to the Department for a trial.

  • Won judgment in accelerated special permit litigation after jury-waived trial.

    A group of neighbors appealed our client’s special permit and change of zone for a large development project. Knowing the value of time to a project, we successfully moved to accelerate the case to a trial within six months and strategically managed the case to keep to that schedule. We defended the special permit and after a three-day jury-waived trial, we obtained a judgment determining that none of the plaintiffs had standing, successfully upholding our client’s permits and doing so in an expedited manner.

  • Won summary judgment motion for one of the first decisions interpreting G.L. c. 40A, § 5.

    Our client sought a zoning map amendment for a large development project and a group of neighbors filed a protest petition under G.L. c. 40A, § 5.  After the municipality granted the amendment, the neighbors filed an appeal to the Land Court seeking a determination that their protest petition met the statutory criteria that would have required a higher vote threshold for the map change. We prevailed on cross motions for summary judgment and obtained a judgment upholding our client’s zone change.

  • Litigation over the sale of a multi-million dollar property in Chatham

    Nutter recently secured a victory in the Massachusetts Appeals Court in an opinion that upheld the granting of a special motion to dismiss a suit that sought to enforce an alleged contract for the sale of a multi-million dollar water-view property in Chatham.  The Appeals Court also ruled that the property owner was entitled to recover its appellate legal fees from the plaintiffs.  The plaintiffs’ complaint alleged that the defendants’ failure to countersign the plaintiffs’ written purchase offer breached a promise that had been made by the defendants’ local attorney and real estate broker, and that the defendants became legally obligated to sell the property when the plaintiffs submitted a signed written offer and tendered a deposit check.  On appeal, the plaintiffs changed their theory and claimed that an email from the defendants to their real estate broker discussing terms that the defendants wished to see in any deal could be combined with the plaintiffs’ later purchase offer to create a contract and satisfy the writing requirement of the statute of frauds.  The Appeals Court rejected the theory, affirmed the lower court decision granting the defendants’ special motion to dismiss the case, and ruled that the plaintiffs would have to pay the defendants’ legal fees on appeal.  The key holding was that, even though the unsigned form of the purchase offer came from the defendants’ attorney, it always remained an offer to purchase that the defendants were free to accept or reject, and that it was never an offer to sell. 

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