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Supreme Judicial Court Rules When and How to Require Plaintiffs to Post Bonds in Zoning and Comprehensive Permit Appeals Featured

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In January 2021, the Zoning Act, G.L. c. 40A, was amended to give the trial court judge discretion to require a plaintiff appealing a special permit, variance, or site plan decision to post a bond of up to $50,000 “to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs.”

In this assessment, a judge is to consider “the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.”  G.L. c. 40A, § 17.  

Potential zoning plaintiffs, project proponents, lawyers, land use professionals, and perhaps even some judges wondered what costs could be covered as well as what procedures must be followed. The Supreme Judicial Court in December 2022 has provided answers in a case challenging the grant of a comprehensive permit in Salisbury, MA. 

The case is Terrence Marengi, Jr. et al. v. 6 Forest Road LLC, et al. (SJC-13316, Dec. 14, 2022) (2022 WL 17658217). Two direct abutters and two non-direct abutters filed a complaint in Superior Court pursuant to G.L. c. 40A, § 17 and G.L. c. 40B, § 17 against the Salisbury Zoning Board of Appeals for granting a 40B permit to 6 Forest Road LLC, the developer of a 56-unit condominium project.

Plaintiffs’ complaint alleged that the ZBA erred in granting the permit when (1) the developer lacked a valid purchase and sale agreement to establish site control; (2) the developer lacked economic justification for seeking to construct sixteen units in addition to the forty specified in the purchase and sale agreement; (3) the town had already exceeded the statutory  minimum requirement to have 10 percent of its housing subsidized; and (4) the board failed to fully scrutinize the project’s impacts on plaintiffs’ abutting properties. 

In response to the Plaintiffs’ complaint, the defendant developer filed a motion for the plaintiffs to post a $50,000 surety or cash bond pursuant to the new provision in G.L. c. 40A, § 17 “to secure the payment of costs owing to the harm to the public interest” and to the developer “caused by the delays occasioned by this appeal”.  The developer said that the bond was needed to the public interest of additional affordable housing and counterbalance the costs of the appeal, estimated at $25,000. This figure included increased costs of lumber and framing materials; increased interest rates; estimated attorney’s fees; and costs of traffic, engineering, and environmental experts.   

Specifically, G.L. C 40A, § 17 provides:

The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. The court shall consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.

The Superior Court in part granted the developer’s motion by reducing the bond amount from $50,000 to 35,000, citing a November 9, 2021 Land Court decision [Anderson v. Community Housing Resources, Inc., 21 MISC 000324) that was one of the first cases to address this issue.  A single justice of the Appeals Court granted plaintiffs leave to file an interlocutory appeal and the SJC transferred the case to itself, primarily to address whether the bond provision in G.L. c. 40A, § 17 applied to an appeal of comprehensive permit under G.L. c. 40B, § 21. 

The SJC ruled that the bond provision applies to 40B permits, noting that Section 21 incorporates G.L. c. 40A, § 17 explicitly by reference as the procedure by which a comprehensive permit is appealed. The SJC also reasoned that because appeals of site plans are within the ambit of Section 17’s bond provision, and a comprehensive permit “invariably” include a site plan as a component of a comprehensive permit, a plaintiff appealing a comprehensive permit issued under 40B is subject to the bond provision.  

The SJC helpfully reviewed the legislative history to bolster its interpretation, finding that it is intended to protect developers from frivolous appeals to encourage construction of affordable housing throughout the state.  

The SJC next addressed the plaintiffs’ argument that the trial court erred in requiring the bond without a finding that their appeal was brought in bad faith or with malice.  The SJC agreed with plaintiffs on this point. The Court noted that the language in Section 17 that a judge must “consider the relative merits of the appeal” reflected a legislative intent to focus on the “relative merits” of the case rather than the specific intent of the plaintiffs, which is difficult to prove.  Even so, the SJC went on to establish a clear rule that incorporates the concepts of bad faith or malice: “Thus, the Court should not require a bond unless the appeal appears to be so devoid of merit as to allow the reasonable inference of bad faith or malice.” That is an important takeaway from this case.

Finally, the SJC determined which kinds of costs and expenses are to be secured by the bond. Considering the $50,000 maximum amount permitted, the SJC concluded that more than just “taxable costs” (filing fees, witness fees, and travel fees) were intended, as taxable costs “almost never come close to $50,000” and thus would render the cap superfluous.  Seeing the bond provision as one component of the Legislature’s goal to increase affordable housing, in part by deterring frivolous appeals and the delays they bring, the SJC felt the bond provision was an exception to the usual rule that “costs” mean just “taxable costs.”  

Even so, the SJC did not agree with the developer’s expansive idea of what “costs” should include. The SJC noted that the statute does not say “all costs” or authorize attorney’s fees or damages due to the delay caused by the appeal, like some other statutes do.  Relying on its interpretation of a similar provision in Chapter 93A, the Consumer Protection Act, the SJC ruled that “costs” under Section 17 are the “actual, reasonable costs” directly related to the litigation. Examples provided are expert witness fees (except jury consultants), but not attorney’s fees or carrying costs, or other delay damages. The SJC noted that such expansive costs could easily amount to or exceed $50,000. 

Procedurally, as the trial court had not had the benefit of its decision, the SJC remanded the matter back to the trial court to determine whether a bond should be posted, and, if so, in what amount. The SJC was not clear on what costs the judge even considered. 

Potential zoning plaintiffs and their counsel should consider the SJC’s decision in Terrence Marengi, Jr. et al. v. 6 Forest Road LLC. It may give them pause before filing suit. Developers and other permit holders now have a first level of protection against frivolous suits with the option of moving for the plaintiff to post the bond. In any event, everyone gets the benefit of the SJC’s clarity on application of the Zoning Act’s new bond provision.

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Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Partner of McGregor Legere & Stevens PC. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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