Adopting Reasoning Similar to NELF’s, the Massachusetts Supreme Judicial Court Rules that Appeals of a Comprehensive Permit may be Subject to a Discretionary Bond under Chapter 40A, §17, to Discourage Meritless Appeals that Would Delay Construction of Affordable Housing
Terrence Marengi et al. v. 6 Forest Road, LLC et al.
In this appeal, the SJC invited amicus briefing on a question concerning the relationship between two important statutes. Because the answer would affect the timely construction of much-needed affordable housing for the Commonwealth’s workforce, NELF responded to the invitation. In our brief we urged the Court to give full effect to the Legislature’s intention to discourage meritless litigation would impede 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 construction of new 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.
In this case the SJC was 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 facilitate the construction of new affordable housing. Comprehensive permits are not specifically listed in amended §17, however.
NELF filed a brief setting out reasons why comprehensive permits should be considered to be within the scope of §17. NELF first recounted some of the history of the housing problem in Massachusetts, extending back to the creation of comprehensive permits in 1969. The comprehensive permitting system provides a streamlined way of consolidating the process of obtaining all the various municipal approvals needed to build new affordable housing. NELF explained that, as the name suggests, comprehensive permits are in effect “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, was whether a comprehensive permit contains approval of “a special permit, variance, or site plan,” as amended §17 requires. NELF argued that it does. The regulations governing comprehensive permits legally require site plan approval for all affordable housing projects as a routine part of the developer’s establishing its eligibility for the permit. More particularly, NELF pointed out that in their complaint against the developer the plaintiffs objected to the site plan approval specifically. They were therefore doubly wrong, NELF argued to the Court, when they contended that amended §17 “does not apply to appeals of comprehensive permits like the one at issue here.”
In its December 14, 2022 decision, the SJC ruled that “the bond provision in G. L. c. 40A, § 17, applies to appeals from comprehensive permit approvals issued under G. L. c. 40B, § 21.” In reaching this conclusion, the Court in several places echoed points made in NELF’s brief.