MAR Online Blog

On December 14th, the highest court in Massachusetts, the Supreme Judicial Court (SJC), issued its decision in Terrence Marengi & others vs. 6 Forest Road, LLC & others (SJC-13316). The court ruled in-line with our amicus brief, that a new law MAR supported to prevent frivolous anti-development lawsuits, would apply to affordable housing developments created under a law known as Chapter 40B.   

Background: In 2014, MAR began advocating for statutory language requiring plaintiffs appealing zoning board decisions to post a bond in order to deter frivolous appeals and help offset financial burdens faced by developers. In early 2021, this bond requirement was included in the economic development bill (see Chapter 358 of the Acts of 2020).  

The Case: The case originated when the Salisbury Zoning Board of Appeals (ZBA) decided to issue a comprehensive permit under Chapter 40B to developer “6 Forest Road LLC” for a 56-unit condo development. A group of abutters and nearby homeowners filed suit in September 2021.  

The developer asked the court to require a $50,000 bond under the new law. The court granted the request in part, approving a $35,000 bond. The abutters appealed that decision, until it was taken up by the state’s highest court in order to interpret the new law. 

The Amicus Brief: An amicus, or “friend of the court” brief allows groups or individuals with a special interest in a case or special knowledge about the issues involved to advise the court. MAR joined a brief with several other housing and real estate interested groups, arguing that the bond requirement should apply to Chapter 40B comprehensive permit appeals. The brief, which was cited at oral argument (watch it here), makes two basic arguments: 

1. The “permits and approvals” granted under Chapter 40B are included in the language of the new law which applies to “special permit, variance, or site plan.”  

1. Historical context shows that the Legislature intended to create language that would curb frivolous appeals of affordable housing development, including Chapter 40B developments. 

The Decision: The SJC decision aligns with MAR’s amicus brief, finding that the plain language of the new law strongly suggests, and legislative history confirms, that the new law does apply to Chapter 40B appeals. The Court went on to add some additional explanation on the: 

• Bond requirement – the court must find that the appeal is in bad faith  
• Expenses covered by the bond – include nontaxable litigation costs like those recoverable under Chapter 93A. This covers the cost of experts, but not attorney’s fees, carrying costs, or other delay damages. 

As a result of these additional requirements, the Court sent the case back down to the Superior Court, requesting that the judge address a potential finding of bad faith and justification for the $35,000 bond within the expense bounds as laid out by the SJC.  

In sum, this decision was a significant win for the Commonwealth and will help limit frivolous appeals on affordable housing developments.