Robert A. Fasanella

Robert Fasanella provides counsel to various regulated industries and organizations including real estate developers, corporations, municipalities, individuals and citizen groups on numerous real estate development issues such as brownfields redevelopment, complex, commercial and residential land use and real estate transactions, subdivision and zoning control issues, comprehensive permitting and affordable housing developments. He practices in a broad range of federal, state and local environmental and land use areas, including CERCLA, RCRA, CWA, c.21E, c.91, c.93A, c.176D claims and various real estate permitting laws. His practice involves litigation, permitting and real estate transactions.

He represents both plaintiffs and defendants in all forums including federal and state courts, administrative appeals and local boards. He represents project proponents, buyers, sellers, and lenders in complex real estate transactions, many involving brownfields or suspected oil and hazardous waste sites. He regularly counsels regulated businesses and industries such as oil and gas companies, service stations, dry cleaners, manufacturers, and real estate developers. He also provides legal advice to banks, financial institutions, and other secured lenders in complex environmental transactions often involving hazardous materials, land use complications and permitting.

He performs permitting for affordable housing, brownfields and traditional real estate developments including residential subdivisions, special permits, 40 B permitting, commercial, retail, and mixed-use developments. Robert represents residential and commercial property owners, real estate trusts and REITS, and landlords and tenants in transactions and disputes.

Robert also works with, manages and leads project teams involving license site professionals, civil and environmental engineers, architects, and other land use and real estate professionals. He is dedicated to providing sound advice and practical solutions for all clients concerned with result-oriented performance.

Representative Experience

Litigation/Claims

• Represented owner of gas/service stations in State Superior Court and Federal court actions under c.21E and CERCLA against multi-national petroleum supplier defendants for releases of oil and hazardous materials (OHMs) and defense of claims brought by the MassDEP and down-gradient property owner. Recovered compensation and contribution for response costs, diminution in property value and attorney fees.
• Represented commercial real estate developer as lead counsel in Superior and Federal Court claims brought against former tenant for release of oil and hazardous material (OHM) causing claims made by down-gradient property owners. Brought action against former insurers to obtain defense and indemnity coverage to enable the client to purchase numerous properties, assess and partially remediate the properties.
• Represented a Boston based bus company in several actions brought against numerous defendants in Superior and Federal Court for the release of oil and hazardous materials (OHMs) and handled sale of its property to a large Boston real estate developer, which has developed a large multi-parcel campus and mixed-use development at the property.
• Served as lead defense counsel in Superior Court actions brought by the MassDEP and several down-gradient property owners against dry-cleaning corporation and landowner seeking assessment and remediation of a release of chlorinated solvents. Served as lead Plaintiff’s counsel for same corporate client against several insurers in Federal Court to secure defense and indemnify to provide necessary funding to assess and fully remediate the site.
• Represented as co-counsel for Town of Winthrop in an Intervention Action and representation in Federal Court CWA action. Represented one of 14 parties in multi-party Federal Court action involving Boston Harbor Clean-up resulting in Scheduling Order, mitigation package and Consent Decree to construct $6 Billion pollution wastewater treatment plant.
• Served as lead defense counsel for a city’s redevelopment authority in a Superior Court action brought by property owner challenging a pro-tanto award in an eminent domain and taking action-involving redevelopment of blighted area of a city. This action included a complex multi-party action against all current and past owners and operators of the Site for contribution and reimbursement involving CERCLA, 21E and nuisance.
• Served as lead counsel for Plaintiffs group that included a multi-national corporation and citizens group, which won a Land Court action against a sand and gravel operator for violation of zoning bylaws and nuisance.
• Represented a woman-owned, real estate development company which purchased an old brownfields factory building and converted it to mixed commercial and retail space. Brought successful claims against former fortunate 500 corporate owner and operator of the factory under a c.21E, §4A claim, resulting in cost recovery for remediation of the property and a Brownfields Tax credit.

Administrative Appeals

• Represented as lead counsel for landowner association in Oak Bluffs, Martha’s Vineyard challenging a MassDEP Administrative Enforcement Order demanding the upgrade and construction of the wastewater treatment systems of 315 cottage owners and multiple businesses, which required building a comprehensive waste water system to serve the community.
• Served as lead counsel for the Plaintiffs citizen’s group and the Lagoon Pond Association, a non-profit entity that appealed six proposed piers challenging the granting of Chapter 91 Waterways licenses. The complex multi-party formal administrative hearing lasting 36 days, involving 8 expert witnesses and 12 lay witnesses and numerous post-hearing motions and memoranda.
• Served as lead counsel for Plaintiff abutters who successfully appealed in a complex adjudicatory hearing the construction of a large residential dwelling on steep eroding coastal bank under the Massachusetts Wetlands Protection Act and Regulations. The hearing lasted 12 days, involving six expert witnesses and 10 lay witnesses. The action was resolved in favor of neighbors.
• Defended Brownfield developer against claims brought by MassDEP for releases of asbestos, oil and hazardous materials at former factory resulting in an Administrative Consent Order, which significantly decreased MassDEP proposed penalties. Negotiated a SEP, Covenant Not to Sue, and conservation easement for the public and town’s benefit.

Permitting/Transactions

• Served as lead permitting and litigation counsel to a real estate entity and Brownfields developer to obtain a Comprehensive Permit under c.40B to develop a 200 unit condominium project involving numerous hearings before the Holliston ZBA. Filed an appeal to the Housing Appeals Committee, which granted approval of the development with extensive conditions, defended an appeal taken by the Town of Holliston to the Land Court, which upheld the Comprehensive Permit in full, and an appeal to the Massachusetts Appeals Court, which also upheld the Comprehensive Permit. Represented client in MEPA, wetlands, water supply and wastewater permitting. Negotiated with state officials regarding a substantial reduction in hazardous waste monetary liens on the property for past response costs. Negotiated a Consent Order with the MassDEP and a Covenant Not to Sue with the AG’s Office. Served as transactional counsel for joint venture or sale of property and development.
• Represented commercial real estate developer in Brownfield real estate transactions, including purchasing down-gradient properties to assemble a parcel which was permitted and being developed to be a large mixed use, retail and residential development, including three buildings and 115 residential apartments in Belmont, MA.
• Represented as lead counsel to a residential Brownfield’s developer redevelopment of a 26 unit residential, 50 acre open space cluster development project in Wilmington, including issues dealing with prior wetlands alterations, soil and hazardous waste contamination issues, the Special Permit review and the permitting process for open space conservation easements with State agencies and Town boards, including the Planning Board, Board of Health and Conservation Commission. The subdivision is now under construction and several units have been sold.
• Served as lead counsel in the acquisition and redevelopment of property, including 2 million square feet of industrial buildings, 25 acres of upland and waterfront property acquired for the redevelopment of properties into a mixed use development. Represented the development team in the acquisition, sale and redevelopment of the industrial complex as well as negotiating with MassDEP and USEPA Covenants Not to Sue and comfort letters, and permitting processes involved with extensive waterfront redevelopment with a marina complex. The developer intends to go forward with a mixed use, retail, office, hotel and condominium development project of the waterfront parcel based on the redevelopment of the complex under a 40R approved development.
• Represented a real estate developer in a complex permitting, appeal and real estate transaction for a waterfront parcel in Scituate Harbor, which included hazardous waste, zoning and planning and flood plain issues for redevelopment into a high-end marina/clubhouse development. Eventually the Town acquired client developer’s property so that the Town could develop a Town owned marina complex. As such, the client was able to sell the property to the Town, which turned out to be a profitable venture for the client and excellent result for the Town of Scituate and public.

Professional and Community Involvement

• Associate General Counsel; Member Board of Directors; and Member of Executive Committee, Builders and Remodelers Association of Greater Boston (BRAGB), 2013-2023
• Member, Board of Directors, North East Fabricare Association (NEFA), 2014-2023
• Member and Chairman. Scituate Bylaw Review Committee, 1995–2004
• Member, American Bar Association, Environmental and Real Estate Law Sections
• Member, Boston Bar Association, Environmental and Real Estate Law Sections
• Member, Environmental Business Council
• Associate Member, Licensed Site Professional Association
• Member, South Shore Chamber of Commerce

Publications and Speaking Engagements

• Author, “Brownfields Tax Credits Incentives” (September 2014)
• Co-Author, “Insurance Claims in Environmental Proceedings: The Importance of Timely Claims vs. Late,” Notification of Insurers and the Effect on the Recovery of Pre-Notice Costs (November 2013)
• Author, “The Benefits of Insurance Defense, Indemnity Assessment, and Clean-Up Costs” (April 2013)
• Author, “The Various Types of Insurance available in Environmental, Property and Personal Injury Claims” (December 2012)
• “DEP’s New Interim Vapor Intrusion (VI) Guidance 2011–2012” (November 2011)
• Co-Author, “The Use of Experts in Environmental Matters: MCLE” (July 1995)
• Co-Author, “The Use of Experts: Proving the New Generation of Environmental Damage,” Post-Lanigan, Mass Lawyers Weekly (1995)