Working alongside our community partners, we recently secured a favorable ruling from the Massachusetts Supreme Judicial Court that will benefit affordable housing development across the Commonwealth. This decision safeguards the production of low- and moderate-income homes, expanding the scope of economic opportunity for hard-working families statewide.
I was thrilled to join our client, Citizens’ Housing and Planning Association (CHAPA), and provide pro bono support on this important matter. The case involved one of several new provisions of the state Zoning Act, Chapter 40A, which lawmakers passed in 2020 to promote the construction of housing through local zoning reform.
Under the challenged provision, courts may require surety or cash bonds from plaintiffs challenging the approval of special permits for housing projects. This measure is designed to discourage opponents from filing frivolous appeals that delay the construction of much-needed housing developments and to provide quicker resolutions when appeals are filed.
The recent case before the Supreme Judicial Court questioned whether this provision applies to people targeting comprehensive permits issued under the Massachusetts Comprehensive Permit Act (Chapter 40B). Chapter 40B removes unnecessary zoning barriers and offers a flexible permitting approval process for affordable housing developers.
Last year, a lower court sided with a developer who secured a comprehensive permit under 40B to build condominium units in a small, coastal Massachusetts town. Neighboring property owners filed a complaint challenging the zoning board’s approval of the permit. The property owners claimed they did not have to post bond—as requested by the developer to “protect the public interest” and counterbalance legal costs—because the bond provision, added to c. 40A § 17, does not explicitly apply to appeals of comprehensive permits. Ultimately, the court ruled in favor of the developer, and the property owners appealed the decision to the Supreme Judicial Court.
In conjunction with CHAPA and other housing organizations, our NP team submitted an amicus brief supporting the lower court’s stance. As Massachusetts grapples with an affordable housing shortage, the bond provision is crucial in eliminating hurdles and speeding construction throughout the Commonwealth. We thoroughly articulated this case in our brief, including essential legislative history of the 2020 Chapter 40A amendments, much of which the court referenced in its opinion. The court confirmed that the bond provision does apply to appeals of comprehensive permits issued under 40B, and emphasized the role of this legislation in clearing the way for the creation of affordable housing projects that enrich our communities.
The court’s ruling should help deter baseless filings that stall and sometimes foil valuable projects. It preserves the integrity of Chapter 40B, the driving force behind the majority of affordable housing development in the Commonwealth—from multifamily rentals to housing for the elderly—that may not have otherwise been possible.
I’m proud to have been part of the team that secured this great outcome. Thank you to my NP colleagues, Jeff Sacks, Aaron Nadich, Jason Kim, and Ali Sisson, along with our partners at CHAPA for their critical contributions to this case.