Zoning Appeal Bonds
Any party involved in an appeal of a Massachusetts zoning decision should know the possibility of zoning appeal bonds for cases involving a special permit, variance, or site plan decision.
Appealing a Zoning Decision
Zoning decisions in Massachusetts are made at the local level by individual towns and cities. Depending on the particular relief, an applicant for zoning relief must apply to the appropriate zoning board of appeal, planning board, or other administrative board. These boards hold a public hearing on the matter and issue a written decision with findings of fact and law.
A party dissatisfied with a zoning decision can appeal such a matter. Zoning appeals are civil lawsuits filed, most often, in Land Court or Superior Court, where the claimant is asking the court to determine whether the local zoning board exceeded its authority in issuing the zoning decision. If the court agrees that the zoning board exceeded its authority, it can invalidate (“annul”) such a decision.
Zoning Appeal Bonds
Massachusetts zoning law allows parties defending zoning appeals in court to request zoning appeal bonds. Per G.L. c. 40A, § 17:
The 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 if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. The court shall consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.
Importantly, the requirement for such bonds is discretionary, not mandatory. A court “in its discretion” may require such a bond, and the law allows the court to consider several factors in making such a decision. In my opinion, the “relative merits of the appeal” will likely be the make-or-break factor in such a decision by the court. Often, particularly for variances, one can determine the likelihood of success in appealing a zoning matter simply by reviewing the zoning board’s written decision.
The purpose of zoning appeal bonds is to defer frivolous zoning appeals brought to stall development projects. A common complaint from real estate developers is that Massachusetts’s zoning law too easily allows claimants to initiate zoning appeals, which can delay real estate projects for considerable time. Zoning appeal bonds require claimants appealing a zoning decision to have some “skin in the game” by posting a cash bond.
Contact me for a consultation if you need assistance with a zoning appeal.