In a move to protect property owners from frivolous appeals of special permits, variances and site plan approvals, and to otherwise promote the development of housing in the Commonwealth, last year the Legislature enacted Section 12 of the Affordable Homes Act, which amended Section 17 of the Zoning Act. As a result, the third paragraph of G.L. c. 40A, § 17 now reads:

The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $250,000 to secure the payment of and to indemnify and reimburse damages and costs and expenses incurred in such an action 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 court shall consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant. Nothing in this section shall require bad faith or malice of a plaintiff for the court to issue a bond under this section. (amended language highlighted)

The changes, which became effective February 12, 2025: (i) increase the maximum amount of surety or a cash bond that a court may require from $50,000 to $250,000; (ii) allow a court to order a plaintiff to provide surety or a cash bond not only to secure the payment of costs, but also “to indemnify and reimburse damages and costs and expenses incurred”; and (iii) expressly state that the court is not required to make a finding of bad faith or malice on the part of the plaintiff before requiring such surety or cash bond.

Marengi established that a defendant’s demonstration that an appealing plaintiff has sufficient equity in their home to provide a bond or cash surety will support the allowance of a motion seeking such relief.

Limits Included in Prior Legislation

The recent amendment follows changes to the statute that were implemented five years ago, through the Housing Choice Act of 2020, which allowed courts to require plaintiffs to post a bond of up to $50,000 to “secure payment of costs” to a defendant property owner.

In Marengi v. 6 Forest Road, LLC, 491 Mass. 19 (2022), the Supreme Judicial Court determined, for the first time, what “costs” were recoverable under the prior, 2020 provision of the statute, concluding that the changes only allowed the recovery of “actual, reasonable costs directly incurred by litigating the appeal,” and not attorneys’ fees, carrying and delay costs or lost profits.

Expansion of the Statute to Allow Recovery of Delay-Related Damages

In an apparent repose to Marengi, the Legislature amended Section 17 to allow a property owner to recover “damages” and “expenses” incurred by having to defend against an appeal. The Land Court, in a decision issued in Kavanaugh v. Newton Zoning Bd. of Appeals, at al, No. 25 P.S. 000013 (KTS), made clear that these terms include delay-related damages, as well as costs, stating as follows: “The amended Section 17 expands the types of cost that the court may consider to include those that would ‘indemnify and reimburse’ the applicant from damages incurred because of the appeal. This would include legal costs.”

Elimination of the Bad Faith and Malice Standard

Not only have the amendments to Section 17 expanded a defendant’s potential recovery of damages, they have made it significantly less burdensome to obtain pre-trial security to ensure that there are resources available to satisfy a potential judgment against an appealing party.

Marengi held that a bond should only be imposed under the prior version of the statute if “the appeal appears so devoid of merit as to allow the reasonable inference of bad faith and malice.” That decision, of course, was issued in the midst of the housing crisis in the Commonwealth, at a time when most bond requests were being summarily denied for failing to meet this high standard.

The recent changes to Section 17 have eliminated the need to demonstrate “bad faith and malice,” removing what was once an almost insurmountable obstacle to obtaining an order requiring a plaintiff to post a surety or cash bond, and paving the way for courts to more regularly grant such orders.

The Legal Standard

The amendments to the statute did not change the standard to be applied by the courts. When reviewing a motion for surety or cash bond, the courts generally consider four factors: (1) the harm to the defendant or to the public interest resulting from any delays to a project; (2) the financial burden of the bond on the plaintiffs; (3) the relative merits of the appeal; and (4) the relative financial means of the plaintiff and the defendant.

Equity in a Plaintiff’s Property May be Considered

The equity in a plaintiff’s property can be considered when examining the financial burden that the plaintiff may face by having to post a surety or cash bond, as well as when assessing the financial means of the parties. In Marengi, the defendant developer provided the court with the values of the properties owned by the four plaintiffs. The court accepted that evidence, as well as an affidavit from one plaintiff concerning the equity in their home, noting that the other three plaintiffs provided no evidence regarding their financial means or the burden that posting surety or a cash bond would impose on them. Based on the record before it, the court held that “under the circumstances, [it would] exercise[] its discretion” and require the plaintiffs to post a bond.

In short, Marengi established that a defendant’s demonstration that an appealing plaintiff has sufficient equity in their home to provide a bond or cash surety will support the allowance of a motion seeking such relief.

It is important to note, however, that a plaintiff’s apparent lack of resources, alone, will not defeat a motion seeking surety or a cash bond. As the Appeals Court has pointed out, though a court may weigh the plaintiff’s resources against the potential harm of the property owner in these cases, “[t]his does not mean a person challenging a grant of a variance or exception need not put up a bond just because that person cannot afford one; the resources of the challenger are only one factor in the equation and the right of the property owner who obtained relief to be free from vexation and delay is equally important.” Feldman v. Board of Appeals of Boston, 29 Mass. App. Ct. 296, 298 (1990).

Our Firm Has Successfully Represented a Client Seeking Relief Under the Amended Statute

The attorneys at our firm have represented clients seeking relief under the newly enacted amendments to Section 17. With a number of motions pending in both the Land and Superior Courts, the firm recently secured a bond on behalf of a developer whose project has been challenged in the Land Court’s Permit Session. Moreover, the firm received the first decision issued by a Massachusetts court that determined that the amendments may be applied retroactively in cases filed prior to their effective date.

Please feel free to contact our office if you have a project that has been challenged by another property owner, or anticipate a challenge to your project. Our attorneys have the experience and expertise to advise you as to how to protect and preserve your rights under these new provisions of the Zoning Act.