In Marengi v. 6 Forest Road, LLC, No. 2177CV00933, the Massachusetts Superior Court, on remand, interpreted and applied the Supreme Judicial Court’s (SJC) holding concerning the bond provision of chapter 40A, § 17, which authorizes 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. The decision provides helpful guidance in determining whether it is prudent to seek the imposition of a bond.

When initially before the Trial Court, 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 SJC heard the appeal of the bond and, as we previously wrote, the SJC held that the bond provision:

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.”

On remand, following the required analysis, the Superior Court:

1. determined whether the appeal “appears so devoid of merit that it may be reasonably inferred to have been brought in bad faith,”
2. considered the “relative financial means of the parties,” and
3. weighed “the harm to the defendant or to the public interest” against the “financial burden” of the bond on the plaintiffs.

The Superior Court first found meritless the plaintiffs’ argument that the defendants lacked site control due to the absence of a valid purchase and sale agreement. The Trial Court explained that site control is left to the state agency subsidizing the affordable housing project, not any municipal board. It also found groundless the plaintiffs’ contention that the Town had reached the statutory ten percent minimum affordable housing benchmark since achieving that threshold did not require denying the 40B permit. Finally, the Court ruled that there was no merit to the claim that the ZBA failed to “fully vet” the environmental and public health impacts of the project on the plaintiffs’ abutting land because the ZBA took comments from abutters on these topics and its decision explicitly addressed such impacts.

Weighing the appeal’s harm to the public and the defendant against the financial burden of the bond on the plaintiffs, the Court concluded that the circumstances did warrant the posting of a bond. The public would suffer from the delayed addition of 56 “much-needed” housing units, and the defendant would suffer from rising interest rates and increased materials and labor costs. Finding that all parties had adequate financial resources, the Superior Court gave this final factor minimal weight.

The Superior Court re-set the bond to $35,000, finding it a fair and reasonable amount under the circumstances to secure payment of the defendant’s “actual, reasonable costs,” including expert witness fees.

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.