Product Description

Recent updates:

• Update: July 2024

  Dear Subscriber:

  Thank you for updating your reference library with the 2024 edition of Massachusetts Construction Law and Litigation. This version brings enhanced guidance within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this edition include

  • reaffirmation of the "single look" approach to liquidated damages, in which the reasonability of the damages provision depends on the circumstances at the time the contract was formed rather than the circumstances at the time of the breach;

  • an interpretation of the Prompt Pay Act setting forth the conditions under which payments may be rejected, including a certification that payments are being rejected in good faith, along with an explanation of the requirements for strict compliance with the statute;

  • a determination of whether an executed letter of intent was a written contract sufficient to preclude summary judgment;

  • the recordation of a notice of contract in the registry of deeds to establish a mechanic’s lien pursuant to G.L. c. 254, § 2;

  • the application of G.L. c. 260, § 2B—a statute of repose applicable to improvements of real property—to the painting of spaces on a parking lot;

  • the inability of limitation-of-liability clauses to shield developers and contractors from knowing and willful violations of G.L. c. 93A;

  • "substantial performance” of construction contracts in connection with claims for recovery in quantum meruit; and

  • factors considered in determining awards of attorney fees.

  With this latest supplement, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

• Update: May 2020

  Dear Subscriber:

  Thank you for updating your reference library with the 2020 Supplement to Massachusetts Construction Law and Litigation. This version brings the latest in guidance on this area of the law within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this supplement include

  • a Supreme Judicial Court opinion establishing that, aside from breaches specifically related to design and construction, ordinary contract principles would apply to contractors' quantum meruit claims;

  • increases in the threshold dollar amounts applicable to the Designer Selection Board's review procedures;

  • standards for determining whether workers are subject to the Independent Contractor Law;

  • updates to the Massachusetts Department of Transportation Standard Specifications for Highways and Bridges;

  • newly added discussions of the requirement that damages be quantifiable and standards for enforcing liquidated damages provisions;

  • an expanded discussion of the mode-of-operation approach applicable to slip-and-fall cases;

  • recording requirements applicable to mechanic's lien claimants; and •

  • construction litigation.

  With this latest supplement, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

• Update: May 2018

  Dear Subscriber:

  Thank you for updating your reference library with the 2018 edition of Massachusetts Construction Law and Litigation. This new edition brings the latest in guidance on this area of the law within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this edition include

  • passage of the Municipal Modernization Act, which established a more efficient process for procurement on smaller construction projects, changes in the dollar thresholds for vertical and horizontal projects, and provisions for the use of blanket vendor contracts or statewide contracts administered through the Operational Services Division;

  • updates to the discussion of the designer selection process and other procurement provisions for public construction contracts;

  • a recent Appeals Court decision barring the application of a general contractor's no-damages-for-delay clause when the subcontractor had been foreclosed from invoking contractual provisions for extensions of time;

  • amendments to standard American Institute of Architects (AIA) documents and discussion of their application to construction projects;

  • recent case law on the implied covenant of good faith and fair dealing; and

  • an expanded discussion of exceptions to the "pay if paid" provisions of the Massachusetts Prompt Payment Act.

  With this latest update, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

Table of Contents

Chapter 01 expand

Guide to Environmental Law

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Gregor I. McGregor, Esq., McGregor Legere & Stevens, PC

Chapter 02 expand

State Administration and Enforcement

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Olympia (Libby) Bowker, Esq., Anderson Kreiger LLP
Colin G. Van Dyke, Esq., Anderson Kreiger LLP

Checklist 2.1

- Checklist of Suggestions for Dealing with MassDEP Staff Buy Form

Chapter 03 expand

Governmental Enforcement Litigation

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Seth Schofield, Esq., Environmental Protection Division, Office of the Attorney General

Exhibit 3A

- Typical State Complaint Buy Form

Exhibit 3B

- Summary of Criminal and Civil Sanctions Authorized Under State Law Buy Form

Exhibit 3C

- Typical State Settlement Documents Buy Form

Chapter 04 expand

Public Interest Environmental and Energy Litigation

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Staci Rubin, Esq., MPH, MELP, Department of Public Utilities
Phelps Turner, Esq., Conservation Law Foundation

Checklist 4.1

- Checklist for Lawyers Pursuing Public Interest Environmental and Energy Litigation Buy Form

Exhibit 4A

- Sample Complaint: Deadline Suit Against Agency Buy Form

Exhibit 4B

- Sample Complaint: Injunctive Relief and Declaratory Judgment Suit Against Agency Buy Form

Exhibit 4C

- Sample Consent Decrees in Enforcement Suits Buy Form

Exhibit 4D

- Sample FOIA Request, Follow-up Letters, and FOIA Complaint Buy Form

Exhibit 4E

- Massachusetts Public Records Request Template Buy Form

Chapter 05 expand

Common Law Environmental Protection in Massachusetts

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Prof. R. Lisle Baker, Esq., Suffolk University Law School

Chapter 06 expand

Historic Preservation Law

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Kathleen M. O'Donnell, Esq., Law Office of Kathleen M. O'Donnell

Checklist 6.1

- Checklist of Adverse Effects Considered in Evaluating Projects Under Section 106 of the National Historic Preservation Act of 1966 Buy Form

Chapter 07 expand

Taxation Law and Conservation Gifts

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Nancy E. Dempze, Esq., Hemenway & Barnes LLP

Exhibit 7A

- Model Conservation Restriction Form (with DCS Comments) Buy Form

Exhibit 7B

- Conservation Restriction Submission Form Buy Form

Exhibit 7C

- Conservation Restriction Review Process General Outline (DCS Website) Buy Form

Exhibit 7D

- Plans, Policies, and Programs Helpful in Demonstrating State and Local Public Benefit (DCS Website) Buy Form

Exhibit 7E

- Conservation Land Tax Credit Program General Selection Criteria Buy Form

Exhibit 7F

- Massachusetts Conservation Land Tax Credit Application Buy Form

Chapter 08 expand

Massachusetts Fisheries and Wildlife Law

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Harlan M. Doliner, Esq., Mabbett & Associates Inc
Meghan L. Morgan, Esq.,

Chapter 09 expand

Massachusetts Forest and Farmland Law

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Francis A. Di Luna, Esq., Smolak & Vaughan LLP

Exhibit 9A

- Slash Disposal Setbacks Buy Form

Exhibit 9B

- Amendment Article 97 Buy Form

Exhibit 9C

- Executive Order # 193 Buy Form

Exhibit 9D

- Probable Statutory Intent of G.L. c. 40A, § 3 Buy Form

Exhibit 9E

- Sales Ratio Tests Buy Form

Exhibit 9F

- Current Use Taxation Table Buy Form

Exhibit 9G

- MDAR Agri-tourism Memo Buy Form

Chapter 10 expand

Wetlands and Floodplain Law

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Gregor I. McGregor, Esq., McGregor Legere & Stevens, PC

Chapter 11 expand

Tidelands and Waterways Law

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Olympia (Libby) Bowker, Esq., Anderson Kreiger LLP
Jessica A. Wall, Esq., Anderson Kreiger LLP

Exhibit 11A

- Criteria for a Chapter 168 Public Benefit Determination Buy Form

Exhibit 11B

- Diagram of Developed Shoreline Buy Form

Exhibit 11C

- Pier 4 Mixed-Use Development Consolidated Written Determination and Project License Buy Form

Chapter 12 expand

Coastal Zone Law

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Marissa Grenon Gutierrez, Esq., Anderson Kreiger LLP
Jessica A. Wall, Esq., Anderson Kreiger LLP

Checklist 12.1

- Checklist of Requirements for Obtaining a New or Modified Discharge Permit Under 301 C.M.R. § 27.07 Buy Form

Exhibit 12A

- MCZM Program Policies Buy Form

Exhibit 12B

- The Oceans Act of 2008 Buy Form

Exhibit 12C

- 2021 Ocean Management Plan, Management Areas Buy Form

Exhibit 12D

- 2021 Ocean Management Plan, Renewable Energy Lease Areas in Adjacent Federal Waters Buy Form

Exhibit 12E

- Massachusetts Beaches Within the Coastal Barrier Resources System Buy Form

Chapter 13 expand

Public Land Law

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Nancy Kaplan, Esq., Eversource/Legal Department

Chapter 14 expand

Massachusetts Clean Air Act

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Kathleen M. Brill, Esq., Foley Hoag LLP
Adam P. Kahn, Esq., Foley Hoag LLP

Chapter 15 expand

Water Pollution Control

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Luke H. Legere, Esq., McGregor Legere & Stevens, PC

Checklist 15.1

- Checklist of Exemptions from the Sewer System Extension and Connection Permit Program (314 C.M.R. § 7.00) Buy Form

Chapter 16 expand

Public Health Law and Environmental Law

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Susan A. Bernstein, Esq., Susan A Bernstein

Exhibit 16A

- Summary of Exceptions to Liability Under Section 10 of the Massachusetts Tort Claims Act Buy Form

Chapter 17 expand

Drinking Water Supply

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Karen L. Crocker, Esq., Department of Environmental Protection, Commonwealth of Massachusetts

Exhibit 17A

- Key Provisions: The 1996 Safe Drinking Water Act Amendments Buy Form

Chapter 18 expand

Solid Waste Regulation in Massachusetts

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Peter F. Durning, Esq., Verrill Dana LLP
Thomas A. Mackie, Esq., Verrill Dana LLP

Checklist 18.1

- Checklist of General Site-Suitability Standards Under 310 C.M.R. § 16.40(4)–(5) Buy Form

Exhibit 18A

- Criteria for Siting Buy Form

Chapter 19 expand

Land Use Planning

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Barbara Carboni, Truro Town Hall
Jonathan D. Witten, Esq., Law Office of Jonathan Witten, LLC

Chapter 20 expand

Zoning, Subdivision, and Nonzoning Land Use Controls

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Nathaniel Stevens, Esq., McGregor Legere & Stevens PC

Checklist 20.1

- Checklist for Special Permit Procedure Buy Form

Checklist 20.2

- Checklist for Variance Procedure Buy Form

Checklist 20.3

- Checklist for Zoning Enforcement Procedure Buy Form

Chapter 21 expand

Hazardous Materials Law

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Aladdine D. Joroff, Esq., Commonwealth of Massachusetts

Exhibit 21A

- Summary of Reporting Requirements Under EPCRA and Implementing Regulations Buy Form

Chapter 22 expand

Hazardous Waste Cleanup

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Peter F. Durning, Esq., Verrill Dana LLP
Gail E. Magenau Hire, Esq., Verrill Dana LLP
John F. Shea, Esq., Verrill Dana LLP

Exhibit 22A

- Emerging Contaminants Buy Form

Exhibit 22B

- Vapor Intrusion Conceptual Site Model and Charts Illustrating Evaluation Process and Critical Exposure Pathway Buy Form

Exhibit 22C

- Similar Soils Provision Guidance Buy Form

Exhibit 22D

- Evolution of the MCP Buy Form

Exhibit 22E

- Audit Fact Sheet Buy Form

Exhibit 22F

- Evolution of Chapter 21E Buy Form

Exhibit 22G

- MCP Timelines and Fees Buy Form

Exhibit 22H

- Downgradient Property Status Fact Sheet Buy Form

Exhibit 22I

- Model Notice of Demand Pursuant to G.L. c. 21E, § 4A Buy Form

Exhibit 22J

- Model Response to Section 4A Demand Notice Buy Form

Exhibit 22K

- MCP Cleanup Timeline Buy Form

Exhibit 22L

- MassDEP Fact Sheet on Brownfields and Waste Site Cleanup Programs Buy Form

Exhibit 22M

- Fact Sheet: The Massachusetts Waste Site Cleanup Program—The Basics Buy Form

Chapter 23 expand

Private Party Cost Recovery

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Michael J. O'Neill, Esq., McGregor Legere & Stevens PC

Checklist 23.1

- Checklist Regarding Claim Notice Under G.L. c. 21E, § 4A Buy Form

Checklist 23.2

- Checklist Regarding Claim Response Under G.L. c. 21E, § 4A Buy Form

Checklist 23.3

- Checklist of Key Witnesses Likely to Be Deposed in a Chapter 21E Case Buy Form

Exhibit 23A

- Sample Notification Letter Buy Form

Exhibit 23B

- Sample Complaint Buy Form

Exhibit 23C

- Sample Standstill and Tolling Agreement Buy Form

Chapter 24 expand

MEPA Review

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R.J. Lyman, Esq., Dain, Torpy, Le Ray, Wiest & Garner, PC

Chapter 25 expand

Environmental Engineering for Lawyers

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Ronald E. Myrick, Jr., Tetra Tech
Sean Reardon, Tetra Tech, Inc.

Checklist 25.1

- Hazardous Waste Site Assessment Initial Data Source Checklist Buy Form

Chapter 26 expand

Environmental Science for Lawyers

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David Biancavilla, BSC Group, Inc
Ingeborg E. Hegemann, BSC Group, Inc
Melissa Kaplan, BSC Group, Inc
Dominic Rinaldi, BSC Group, Inc

Exhibit 26A

- Bibliography Buy Form

Exhibit 26B

- List of Useful Websites Buy Form

Chapter 27 expand

Insurance Issues in Environmental Practice

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Harvey Nosowitz, Esq., Anderson Kreiger LLP
Steven L. Schreckinger, Esq.,

Chapter 28 expand

Environmental Issues in Real Estate Practice

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Robert D. Cox, Jr., Esq., Bowditch & Dewey LLP

Exhibit 28A

- Basic Conditions for Offer Buy Form

Exhibit 28B

- Intermediate Conditions for Offer to Purchase Premises with Known Contamination Buy Form

Exhibit 28C

- Basic Indemnification Clause for Purchase and Sale Agreement Buy Form

Exhibit 28D

- Intermediate Indemnification Agreement for Execution as a Separate Contract Buy Form

Exhibit 28E

- Advanced Indemnification Agreement Buy Form

Exhibit 28F

- Warranties and Representations for Leaking Underground Tank Cleanup Buy Form

Exhibit 28G

- Lease Provisions on Hazardous Materials Buy Form

Exhibit 28H

- Typical Financing Indemnity Provision Buy Form

Chapter 29 expand

The Police Power and Regulatory Takings

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Gregor I. McGregor, Esq., McGregor Legere & Stevens, PC

Chapter 30 expand

Environmental Justice

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Thomas A. Mackie, Esq., Verrill Dana LLP

Glossary expand

Glossary of Environmental Law Abbreviations

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Editor(s)

Author(s)