The Home Builders and Remodelers Association of Massachusetts recently joined with other housing and real estate groups in filing an amicus curiae (“friend of the court”) brief with the Supreme Judicial Court on the question of whether a provision in the Housing Choice Law intended to discourage meritless appeals of housing projects applies to comprehensive permits issued under Chapter 40B.
Section 25 of the Housing Choice Law (Chapter 358 of the Acts of 2020) amended the Zoning Act (G.L. c. 40A, § 17) to add a new provision to allow a court, in its discretion, to require a plaintiff appealing a decision of a local planning board, zoning board of appeals or city council approving a special permit, variance or site plan, to post a surety or case bond in an amount not exceeding $50,000 to secure 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 HBRAMA has long argued that land use appeals without merit are frequently used as a tactic to obstruct housing development. These appeals have delayed worthwhile housing development projects for a decade or longer. In some cases, developers have withdrawn permit applications because they cannot afford the cost and delay of litigation. In other cases, settlement of groundless abutter appeals has caused developers to needlessly downsize community-supported projects. And because they are often controversial, comprehensive permits to develop affordable rental housing under Chapter 40B are most frequently the victim of such appeals.
In the case of Terrence Marengi Jr. & others, v. 6 Forest Road, LLC & others, SJC-13316, the Salisbury Zoning Board of Appeals approved a comprehensive permit approved for the construction of a 56-unit condominium development. Six direct abutters to the property, together with two other property owners whose drinking water wells lie in close proximity to the site, filed a complaint appealing the decision of the board to approve the project.
The developer of the project, 6 Forest Road, LLC, sought the maximum bond ($50,000) allowed under the recent amendment to the Zoning Act. In support of the motion for bond, 6 Forest Road, LLC claimed the plaintiffs’ bond should indemnify him from rising “construction costs and carrying costs,” including “[c]osts for lumber”, “cost of framing materials”, as well as rising interest rates and attorney and consultant fees. The court granted 6 Forest Road, LLC’s motion for a bond, although it reduced the bond from $50,000 to $35,000.
The plaintiffs, Terrence Marengi Jr. and others, filed an appeal in the Appeals Court seeking to reverse the decision of the trial court to grant the bond. That appeal was then taken by the Supreme Judicia Court on its own initiative. The issues in this case are whether the provision of the Housing Choice Law adding a bond to secure payment of costs in appeals of “special permit, variance or site plan” decisions apply to appeals of comprehensive permits and whether, even if applicable, there has to be a finding of “bad faith or malice” required to award costs.
This case is will determine if one of the Legislature’s goals in enacting the Housing Choice Law–to encourage the construction of more affordable housing in the Commonwealth and to deter meritless challenges to permits to build that housing in accordance with Chapter 40A and Chapter 40B–will be realized.