Marengi, et al. v. 6 Forest Road LLC, Massachusetts Supreme Judicial Court, SJC-13316

Arguing that Appeals of a Comprehensive Permit are Subject to a Discretionary Bond under Chapter 40A, §17, to Discourage Meritless Appeals that Delay Construction of Affordable Housing

In this appeal, the SJC invited amicus briefing on a question concerning the relationship between two important statutes.  Because the answer will have an effect on the timely construction of much-needed affordable housing for the Commonwealth’s workforce, NELF responded to the invitation and filed a brief.  In it we urge the Court to give full effect to the Legislature’s intention to discourage meritless litigation undertaken for the purpose of obstructing the construction of such housing.

In 2020 the Legislature passed an omnibus act aimed at strengthening the state’s economy by, in part, improving the conditions of its workforce.  Among the Legislature’s foremost concerns was to facilitate new construction of affordable housing.  One of the new laws amended c. 40A, §17, so that a judge is now permitted to require a bond of up to $50,000 from anyone appealing the approval of “a special permit, variance, or site plan.”  The goal of the law is obviously to discourage meritless or nuisance litigation undertaken to delay or derail housing construction.

In this case the Supreme Judicial Court has now been asked to decide whether amended §17 also applies to appeals from the approval of a comprehensive permit issued under c. 40B, §21.  The question is a crucial one because comprehensive permits are one of the most important ways in which the Legislature has sought to streamline the construction of affordable housing.  Comprehensive permits are not specifically listed in the bond statute, however.

In response to the Court’s invitation for outside briefing, NELF has filed a brief setting out the reasons why comprehensive permits should be considered to be within the scope of §17.  NELF first recounts briefly some of the history of the housing problem in Massachusetts, going back to the creation of comprehensive permits in 1969.  The comprehensive permitting system is a way of consolidating the process of getting the all the various municipal approvals needed to build new affordable housing.  NELF explains that, as the name suggests, comprehensive permits are “containers.”  What they contain are all the various individual municipal approvals required for a housing development project to go forward in a town.

The question in this case, then, is whether a comprehensive permit contains approval of “a special permit, variance, or site plan,” as amended §17 requires in order for a judge to order an appellee to post a bond.  NELF argues that it does.  The regulations governing comprehensive permits legally require site plan approval for all such affordable housing projects as a routine part of the developer’s establishing its eligibility for the permit.  More particularly, NELF points out, the plaintiffs in this appeal have objected specifically to the site plan approval in their complaint against the developer.  They are therefore doubly wrong, NELF tells the Court, when they contend that amended §17 “does not apply to appeals of comprehensive permits like the one at issue here.”6 Forest Road Docket


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