On December 14, the Massachusetts Supreme Judicial Court in the case of Terrance Marengi, Jr., & others v. 6 Forest Road, LLC & another, SJC-13316, ruled in favor of the application of the bond provision included in the Housing Choice Law to appeals of comprehensive permits. Writing for the court, Associate Justice Scott Kafker wrote, “At issue is whether the bond provision set out in G. L. c. 40A, § 17, applies to comprehensive permits issued under G. L. c. 40B, § 21, to promote low- and moderate-income housing. We conclude that it does, as such permits are reviewed pursuant to G. L. c. 40A, § 17, and necessarily include, as in this case, site plans, which are referenced explicitly in the provision.”
The court’s decision in this case is an important victory for 40B developers. The Home Builders and Remodelers Association of Massachusetts had joined with other housing and real estate groups in filing an amicus curiae (“friend of the court”) brief with the Supreme Judicial Court arguing that 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 SJC decision clarifies what costs a court may consider when determining the amount of the bond a plaintiff would have to post. It held that the costs recoverable extend beyond “taxable costs” but do not include attorney’s fees or delay damages, as they are not ordinarily considered “costs” and are not expressly referenced in the statute. As for the standard for awarding costs, Justice Kafker held that unless a preliminary determination demonstrates that the appeal appears so devoid of merit as to support an ultimate determination of bad faith or malice, no bond should be imposed.
In this case, the Salisbury Zoning Board of Appeals approved a comprehensive permit approved for the construction of a 56-unit condominium development, including 14 affordable units. 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.
A copy of the court’s decision can be found [here].