The Supreme Judicial Court (SJC), in its recent decision in Shoucair v. Board of Appeal of Boston, affirmed that under Section 11 of the Boston Zoning Code, a Trial Court can require a bond without making a preliminary finding of malice or bad faith by the party appealing the grant of a permit and/or zoning relief.

The bond requirements under the Boston zoning laws remain an important tool for developers to fend off frivolous appeals and appeals by those who might otherwise pursue a specious appeal to delay, increase development costs, and/or exact leverage.

At the outset, it is important to note that the City of Boston has its own zoning code (Chapter 665 of the Act of 1956) that regulates zoning and zoning appeals in the City of Boston. Chapter 40A, Section 17 governs zoning appeals in the rest of the Commonwealth. There are meaningful and important distinctions in their respective texts, including the bond provisions. The Boston bond provisions pre-date the state bond requirements and are responsive to the unique land use, development and zoning concerns presented in the City.

In the case at hand, Shoucair appealed a decision by the Boston Zoning Board of Appeals, granting its neighbor a conditional use permit to operate a recreational marijuana dispensary, to the Superior Court. The Superior Court judge ordered Shoucair to post a bond to appeal the decision, and the SJC granted direct appellate review to consider whether a finding of bad faith or malice was required for the judge to impose the bond requirement.

Shoucair argued to the SJC that the Trial Court could not order him to post an appeal bond unless it made a finding that the appeal was brought in bad faith or with malice, relying under G.L. c. 40A, § 17 (the state zoning statute), and the decision in Marengi v. 6 Forest Road LLC, 491 Mass. 19 (2022), interpreting the state statute, as amended in 2021. In Marengi, the SJC determined that, under G.L. c. 40A, § 17, a trial court could not order an appeal bond for "costs" unless the appeal appeared "so devoid of merit as to support an ultimate determination of bad faith or malice." In contrast, Section 11 of the Boston zoning enabling act contemplates damages for “damages and costs,” which are not so limited by a finding of bad faith or malice in bringing the appeal:

The person applying for the review shall file a bond with sufficient surety, to be approved by the court, for such a sum as shall be fixed by the court, to indemnify and save harmless the person or persons in whose favor the decision was rendered from all damages and costs which he or they may sustain in case the decision of said board is affirmed. (emphasis supplied).

As such, the SJC rejected Shoucari’s argument based on the plain, different language of the two statutes. Margengi does not control an appeal under the Boston Zoning Code and is limited to appeals brought under G.L. c. 40A, § 17. Instead, the SJC’s ruling in Shoucair affirms its decision in the 1971 case Damaskos v. Board of Appeal of Boston, 359 Mass. 55 (1971). In Damaskos, the SJC held that § 11 of the Boston Zoning Enabling Act does not require a preliminary finding that an appeal is devoid of merit as to support an ultimate finding of bad faith or malice before imposing a bond for damages. Instead, in ordering a bond, the trial court judge should exercise their sound discretion “(a) to discourage frivolous and vexatious appeals ... but not (b) unreasonably to prohibit, directly or indirectly (by requiring too large a bond), meritorious appeals.”

The SJC’s decision that the Boston zoning enabling act has distinct language and should be interpreted accordingly makes sense. To hold otherwise, would have conflated the two statutes, which have different texts and were enacted and amended to facilitate and serve different land use and zoning practices and policies.

The trial courts have routinely interpreted the Boston bond language exactly as the SJC has held here. A few months ago, in Fabiano v. Collins, Case No. 23 PS 000622 (KTS), 2024 WL 629363 (Mass. Land Ct. Feb. 14, 2024), Judge Smith of the Land Court set a $200,000 bond, without making any finding of bad faith or malice by the plaintiffs/appealing parties, where the developer calculated that the expected damages and costs of the plaintiff’s appeal could exceed $15 million.

The bond requirements under the Boston zoning laws remain an important tool for developers to fend off frivolous appeals and appeals by those who might otherwise pursue a specious appeal to delay, increase development costs, and/or exact leverage. The Boston zoning enabling act's bond requirement has two tiers: $25,000 for projects under 50,000 square feet, and an unlimited bond for “damages and costs” for larger projects.

As a final point, Shoucair also argued that the bond requirement was unconstitutional because it would limit access to the courts for parties with limited means. The SJC also rejected this argument noting that they had also addressed this very argument in Damaskos and affirmed the constitutionality of the bond provision.