Marengi v. 6 Forest Rd. LLC
| Decision Date | 14 December 2022 |
| Docket Number | SJC-13316 |
| Citation | 491 Mass. 19,198 N.E.3d 1215 |
| Parties | Terrence MARENGI, Jr., & others v. 6 FOREST ROAD LLC & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The following submitted briefs for amici curiae:
Dennis A. Murphy (Daniel C. Hill also present) for the plaintiffs.
Jonathan M. Silverstein, Boston, for 6 Forest Road LLC.
John Pagliaro, Boston & Daniel B. Winslow, for New England Legal Foundation.
Karla L. Chaffee & Jeffrey W. Sacks, Boston, for Citizens’ Housing and Planning Association & others.
Daniel P. Dain, Boston, Nicholas S. Dorf, & Ryan D. Grondahl, for Real Estate Bar Association for Massachusetts, Inc., & another.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
In a recent amendment to G. L. c. 40A, § 17, enacted through legislation designed to promote economic growth and the construction of housing in the Commonwealth, the Legislature provided that "[t]he 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 $50,000 to secure the payment of costs" (bond provision). St. 2020, c. 358, § 25.
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.
Also at issue are what costs are recoverable under the bond provision and the standard for awarding such costs. We conclude 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, it is defined, at least in part, by its purpose. As the bond provision exists "to secure the payment of costs," and costs ultimately cannot be awarded in the absence of bad faith or malice, the bond provision requires a preliminary determination regarding the "relative merits of the appeal." G. L. c. 40A, § 17, third par. Unless such preliminary determination demonstrates that the appeal appears so devoid of merit as to support an ultimate determination of bad faith or malice, no such bond should be imposed.
Finally, on the limited record before us, we are unable to determine whether the Superior Court judge in this case, who did not have the benefit of this opinion explicating the statutory requirements, abused his discretion in ordering the plaintiffs to post a $35,000 bond. We therefore vacate the order and remand for further proceedings consistent with this opinion.3
1. Background. a. Proposed project and comprehensive permit. On November 20, 2020, the developer, 6 Forest Road LLC, initially applied to the zoning board of appeals of Salisbury (board) for a comprehensive permit to build seventy-six condominium units at 6 Forest Road in Salisbury. The proposal included site plans, which were revised as the permitting process proceeded, with the final plan featuring fifty-six condominium units, including fourteen affordable units (project). After ten days of public hearings, on July 27, 2021, the board, in a twenty-eight page decision, approved the application and granted the developer a comprehensive permit, subject to ninety-six conditions. The board found that, with these conditions, the project "promote[s] affordable housing while taking into consideration [l]ocal [c]oncerns," such as ensuring public health and safety, preserving "the natural environment" and "[o]pen [s]paces," and promoting local planning goals. As part of the approval process, the board also granted various waivers.
b. Procedural history. On September 15, 2021, the plaintiffs filed a complaint in the Superior Court, pursuant to G. L. c. 40A, § 17, and G. L. c. 40B, § 21, challenging the board's approval of the comprehensive permit. The plaintiffs included direct abutters and two non-abutters who claimed to be aggrieved by the permit approval. They argued that the board acted arbitrarily and capriciously and abused its discretion by granting a comprehensive permit for the project when (1) the developer did not have a valid purchase and sale agreement to establish site control; (2) the developer lacked economic justification for constructing sixteen additional housing units beyond the forty originally stipulated in the purchase and sale agreement; (3) the town had already exceeded the statutory minimum requirement to allot ten percent of its housing stock to subsidized units prior to granting the permit, and the board did not address the issue when they approved the construction of additional subsidized units; and (4) the board failed to vet fully the proposed impact of the project on the plaintiffs’ abutting properties. More specifically, the complaint alleged water quality and quantity issues affecting at least one of the plaintiffs’ properties as reflected in a condition to the permit requiring water quality testing, public safety issues arising from the project being situated along a dead-end road that is more than three times the length ordinarily allowed under the town's subdivision rules and regulations, "and environmental impacts to the extensive wetlands on the [p]roject [s]ite."
In response, the developer4 filed a motion for the plaintiffs to post a $50,000 surety or cash bond, pursuant to G. L. c. 40A, § 17, "to secure the payment of costs owing to the harm to the public interest" and to the developer "caused by the delays occasioned by this appeal." In a supporting memorandum,5 the developer argued that the maximum bond was necessary to protect the public interest in additional affordable housing units in Salisbury and counterbalance the costs incurred by the developer due to the appeal, estimated at $250,000. This figure included price increases for lumber and framing materials; attorney's fees that "could be $75,000 or more"; the costs of traffic, engineering, and environmental experts that "could easily exceed $50,000"; and interest rate increases raising the cost of financing, with "[e]ven a one percent increase" costing $90,000. The developer also contended that a $50,000 bond would not pose a significant financial burden to the plaintiffs, who owned real property with a collective assessed value of roughly $2.3 million.
The developer also addressed the merits of the plaintiffs’ arguments as presented in the complaint. The developer explained that a purchase and sale agreement was in full effect when the permit decision issued and that the State subsidizing agency had properly determined the site control issue when issuing the project eligibility letter, which allowed the developer to apply for the comprehensive permit. The developer also noted that the comprehensive permitting process allows for the overriding of local zoning requirements for the reasons stated by the board in its decision, even when the town has met the ten percent minimum requirement for subsidized units, and that the board, in its decision, considered and addressed the impacts on the plaintiffs and the public.
The plaintiffs opposed the motion, arguing that the bond provision does not apply to appeals of comprehensive permits but that, even if the provision does apply, they did not bring the appeal in bad faith or with malice; any harm to the developer or public interest was not outweighed by the financial imposition on them to post the bond; and, in the alternative, the $50,000 bond as requested by the developer was unreasonable. In further support of the merits of their appeal, the plaintiffs averred that the project would cause "unique harms that threaten the health, safety and quiet enjoyment of [their] properties," as documented in a single affidavit from one of the abutters. That affidavit only provided the following conclusory statement: "I am actually aggrieved because the project will cause unique harms to my property, including public health and safety impacts, as alleged in the [c]omplaint."
In a margin endorsement order dated March 17, 2022, the Superior Court judge granted in part the developer's motion,6 reducing the requested bond from $50,000 to $35,000. The judge allowed the bond "substantially for the reasons argued by the [developer] in [its] memorandum and reply brief" and found persuasive "the reasoning of the Land Court ... in [Anderson vs. Community Hous. Resources, Inc., Mass. Land Ct.], No 21 PS 000324 [(Nov. 9, 2021),] ... regarding the applicability of G. L. c. 40A, § 17, third [par.,] to appeals of comprehensive permits under G. L. c. 40B, § 21."
A single justice of the Appeals Court granted the plaintiffs leave to file an interlocutory appeal, pursuant to G. L. c. 231, § 118, seeking review of the bond order. The plaintiffs filed their notice of appeal on May 19, 2022. We transferred the case sua sponte from the Appeals Court to address whether the bond provision of G. L. c. 40A, § 17, applies to appeals of comprehensive permits issued pursuant to G. L. c. 40B, § 21.
2. Discussion. We begin our discussion with the relevant statutory language at issue. General Laws c. 40A, § 17, provides:
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