Chapter 40A

  • December 20, 2022

Mass. High Court Clarifies Scope of New Zoning Act Bond Provision

Affordable Housing, Land Use, Zoning
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The Supreme Judicial Court (SJC) last week gave real estate litigators an early holiday gift: an important, clarifying opinion on a recent amendment to Section 17 of M.G.L. c. 40A (the Zoning Act), which governs appeals to court from decisions of local zoning boards. The case is Marengi v. 6 Forest Road, LLC (pdf).

In 2020, as part of a wide-ranging economic development bill intended to spur housing production, the Legislature added (effective January, 2021) the following paragraph to Section 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

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  • May 20, 2022

Appeals Court Excuses City’s Notice-by-Mail Fail

Zoning
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Today the Appeals Court decided Markham v. Pittsfield Cellular Telephone Company (pdf), holding that the 90-day appeal period under M.G.L. c. 40A, § 17 for zoning appeals alleging procedural defects is not tolled where a zoning board failed to give notice of a special permit hearing by mail, but did provide notice by publication and by posting at city hall.

Several residents of Pittsfield tried to challenge a special permit that the Pittsfield Zoning Board of Appeals granted to the defendant telephone company more than two years earlier. The plaintiffs claimed they lacked any notice of the special permit at the time it was granted or within 90 days thereafter. M.G.L. c. 40A, § 11 requires that notice be given to “parties in interest” such as the plaintiffs in three ways: 1) by publication in a newspaper, 2) by posting in city hall, and 3) by mail. The trial judge found that the zoning board complied with the

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