SJC Guidance on the Requirement for a Surety Bond in Appeals of Land Use Decisions
In 2020, G.L. c. 40A, § 17 was amended to provide that a plaintiff appealing the grant of a special permit, variance, or site plan could be required to post a bond of up to $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.” In the recent case of Marengi v. 6 Forest Road, LLC—an appeal of a Comprehensive Permit issued under Chapter 40B—the Supreme Judicial Court provided the first guidance on the application of this bond requirement.
In Marengi, the Court determined that a bond may be required in appeals of Comprehensive Permits brought pursuant to G.L. c. 40B, § 21 because the statute provides that such appeals proceed according to the requirements of G.L. c. 40A, § 17. The Court also determined that a bond should be imposed only if a Court finds a basis to make a preliminary determination “that the appeal appears so devoid of merit as to support an ultimate determination of bad faith or malice.” Finally, the Court determined “costs” as used in G.L. c. 40A, § 17, means “actual, reasonable costs directly incurred by litigating the appeal” which includes consultant fees, but does not include attorneys’ fees, delay damages, or jury consultant fees.