Boston confirms bond requirement for zoning appeal

Boston confirms bond requirement for zoning appeal

Breaking News: Massachusetts Supreme Court Confirms That In Boston, Zoning Appeal Bond Can Be Required Without Bad Faith or Malice

In its decision this morning in Shoucair v. Board of Appeal of Boston, the Supreme Judicial Court (SJC) held that in judicial appeals under Section 11 of the Boston Zoning Enabling Act (Section 11), the trial judge may require the plaintiff to post an appeal bond. without a preliminary finding that the appeal was brought in bad faith or with malice. The Court affirmed that its 1971 decision in Damaskos v. Board of Appeal of Boston remains good law despite recent changes to the duty provisions in MGL v. Board of Appeal of Boston. 40A, § 17 (Section 17) – which applies to zoning appeals in all Massachusetts municipalities other than Boston – and the Supreme Court’s 2022 decision in Marengi v. 6 Forest Road, LLC, in which it interpreted the new wording of Section 17.

As the Supreme Court has now confirmed, the difference in wording in the two statutes is significant and dictates different results. In Boston, Section 11 authorizes the trial judge to require an appeal bond to “indemnify and protect (the licensee) against damages and “costs” (emphasis added), while elsewhere, section 17 permits security only for “costs” – a technical term that is narrowly defined. While section 11 requires a finding of bad faith or malice to support a potential award of “costs” against the licensee, it does not require such a finding for an award of “damages.” In this context, as the Court noted, “damages” does not mean that the licensee must have an independent claim or cause of action against the appellant for damages; rather, the purpose of the provision is to indemnify and protect the licensee against “the damages and costs that he or she may suffer if the decision (of the appeal board) is upheld.”

In footnote 8, the Court observed that some of the damages claimed by the licensee – namely property taxes, maintenance costs and snow removal – would have been incurred independently of the appeal and, therefore, “cannot properly be characterized as damages within the meaning of section 11.” The Court distinguished the licensee’s claim for an estimated $100,000 in lost profits resulting from the one-year delay caused by the appeal, which it characterized as “delay damages properly taken into account in establishing a section 11 bond.”

Even if it doesn’t innovate, Shoucair will be welcomed by Boston developers for putting to rest the argument advanced by some appellants’ counsel that the more restrictive approach to appeal requirements under Section 17 of Chapter 40A should be imported and applied to appeals under Section 11 of the Boston Zoning Enabling Act.