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Significant Changes to Statutory Process for Zoning Appeals: What You Need to Know About the 2024 Massachusetts Affordable Housing Bill
Print PDFThe Massachusetts Affordable Homes Act (H. 4977), signed into law on August 6, 2024, makes several significant changes to the statutory provisions governing appeals from zoning decisions under G.L. c. 40A, § 17. Where development projects can often be delayed by appeals for many years, at tremendous cost, the changes could help to resolve appeals more quickly and to weed out frivolous claims.
New Required Showing of Measurable Injury in Complaint - The bill adds to the pleading requirements set forth in G.L. c. 40A, § 17. If the person filing the appeal is someone other than the original applicant, each plaintiff, regardless of whether they are a “party in interest” for notice purposes, “shall also sufficiently allege and must plausibly demonstrate that measurable injury, which is special and different to such plaintiff, to a private legal interest that will likely flow from the decision through credible evidence.” The new provisions thus require the plaintiff to make a plausible showing of distinct injury, at the time a complaint is filed and not later in the litigation. This will require appellants to demonstrate up front, and with credible evidence, that they will be measurably injured by a proposed development project.
New Teeth to Appeal Bond Provision - The bill amends the appeal bond provision, which was first added in 2020, to increase the total amount of an allowable bond from $50,000 to $250,000. The bill also expands the application of the bond to secure not only the payment of costs arising from the appeal, but also to indemnify and reimburse the applicant from damages and expenses incurred because of the appeal. The changes also clarify that the court can require a bond without making a prior finding of bad faith or malice on the part of the plaintiff.
Attorneys’ Fees for Bad Faith Appeals - The bill also amends the paragraph in Section 17 allowing costs against a party appealing a decision only if the court found that the appellant acted in bad faith or with malice in making the appeal. As amended, the new provision allows the court to make an award of reasonable attorneys’ fees, in addition to costs, upon the finding of bad faith or malice.
This advisory was prepared by Valerie Moore and Sarah Turano-Flores in Nutter’s Real Estate Department. For more information, please contact the authors or your Nutter attorney at 617.439.2000.
This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
