In Marengi v. 6 Forest Road LLC, 491 Mass. 19 (2022), the Massachusetts Supreme Judicial Court (SJC) held that a recent amendment to the Zoning Act, Mass. General Laws chapter 40A, § 17, authorizing courts, in their discretion, to require plaintiffs to post a bond of up to $50,000 to secure payment of costs when appealing a zoning decision (1) applies to appeals of affordable housing projects under chapter 40B, (2) requires a finding that the appeal was brought in bad faith, and (3) empowers the courts to award expert or consultant fees in addition to usual “taxable costs.”

In Marengi, the plaintiffs appealed the approval of a Comprehensive Permit for a 56-unit affordable housing project. In response, the developer filed a motion requesting that the plaintiffs post a $50,000 bond under § 17. The Superior Court granted that motion, setting the bond at $35,000.

The Court first clarified the permit appeals to which the amendment applies. The statute provides that a bond may be required for appeals approving “a special permit, a variance, or a site plan.” Since Comprehensive Permits invariably include site plans, the Court concluded appeals of chapter 40B approvals fall within the ambit of this new bond provision, notwithstanding that the new law does not expressly list Comprehensive Permits.

Second, the Court held that the bond can only be required when the plaintiff’s appeal “appears so devoid of merit that it may reasonably be inferred to have been brought in bad faith.” Noting that § 17 already includes language allowing costs where an appeal is “in bad faith or with malice,” the Court found the new bond provision’s requirement that judges “consider the relative merits of the appeal and the relative financial means of the [parties]” must take bad faith or malice into account to prevent the new law from having a chilling effect on meritorious appeals.

Finally, the Court explained the type of “costs” that courts can award to parties. Specifically, parties may recover not only the usual “taxable costs” set by statute, which include filing fees, travel by the parties as the court may allow, and witness fees for trial, but also expert and consulting fees. The amendment’s wording does not support an award for either increased construction costs, carrying costs, or attorney’s fees.

The Court’s decision in Marengi provides important new guidance for project opponents to consider in initiating zoning appeals and for project developers to assess when seeking bonds and costs.

Beveridge & Diamond's Land Development, Real Estate, and Housing industry group represents owners, builders, and developers nationwide in matters involving land use, environmental law, and litigation. Our Massachusetts office provides land use, entitlement, and permitting and review services to businesses, utilities, governmental entities, colleges and universities, individual landowners, and other property development at the local, state, and federal levels. For more information, please contact the authors.