WEBVTT
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SJC-13316, Terrence Marengi and others
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v. 6 Forest Road, LLC.
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Good morning, Your Honors.
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May it please the court,
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I'm Dennis Murphy on behalf of the appellants.
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First, I'd like to appreciate that we're here
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on an interlocutory basis,
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which, if it weren't for that,
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we'd have to suffer dismissal of a time barred claim
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in order to challenge it, the bond order.
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This appeal presents a straightforward issue
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of statutory construction.
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Under Chapter 4OA, Section 17,
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zoning decisions are subject to judicial review.
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Any person aggrieved by a zoning decision
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can file an appeal in court to get that review.
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And for direct abutters, like most of my clients,
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the law presumes aggrievement as a matter of law.
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In this case, the bond should be reversed
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because the amendment that was enacted last year
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doesn't expressly apply to comprehensive permits.
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That's supported by the plain text,
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the context, and the structure of the statutory provision
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at issue, 40A 17.
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Now, before the bond amendment was enacted,
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Chapter 40A 17 already had a bond.
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The bond was for subdivisions,
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it was mandatory, and between two and $15,000.
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That's paragraph seven of Section 17.
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It also already provided for an award of costs
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upon a finding of bad faith or malice.
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When the legislature amended Section 17 last year,
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it expanded the categories of zoning decision
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that are subject to the bond.
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It specifically added three:
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special permits, variances, and site plan review.
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Subdivisions under sections, paragraph.
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About site plans, doesn't every 40B have a site plan?
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No, Your Honor.
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Almost every?
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No, I would say some.
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Some projects are subdivisions,
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and they create lots with a subdivision plan.
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How about this one?
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This had a site plan, right?
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This I believe was a condominium,
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but the issue there is that the site plan review provision
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of the Salisbury Bylaw was waived by the board
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at the developer's request.
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That's in the record.
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The way to square the amendment last year
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with the preexisting text of Section 17
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is to read it in context.
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So when the legislature added
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three new types of zoning decisions
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that are subject to a bond,
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it enumerated very specifically
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special permits, variances, site plans.
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Subdivisions were already subject to a bond.
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And so now you have four types of zoning-
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You have the one that the legislature
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feels the most strongly about,
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that it's put the most oomph behind is 40B development
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because it's addressing our housing crisis,
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it's addressing communities that are trying to keep
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low income people out of their communities,
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it's critically important.
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So we're gonna have this bond requirement
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for fights about neighbors' variances
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and fights about neighbors' special permits,
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but not for the one that the legislature
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seems to care the most about?
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Isn't that odd?
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Yes, Your Honor.
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It is a little odd.
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There is this quirk in that Chapter 40B, Section 21
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does make comprehensive permit decisions appealable to court
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by any aggrieved person.
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That's in accordance with the procedures
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of Chapter 40A, Section 17, the zoning statute.
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The best analogy to me is the other statute
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that is for the purpose of developing affordable housing.
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That's chapter 40R, Smart Growth.
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And when the legislature put a bond in Chapter 40R,
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it did it very explicitly.
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It said that the bond is for two times
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the annual carrying costs plus attorney's fees
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minus any net income from the property
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during the period of delay of construction
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due to the appeal.
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Now, the developer in this case is asking you
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to read all of those words into the bond amendment
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under 40A 17 that has one word, just costs.
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I think the cost is-
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Go ahead.
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Sorry.
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All right, it seems like you're not really addressing
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Justice Kafker's question.
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You are moving on to how much,
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and I thought the question was about
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whether it makes sense to have the bond requirement
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under this new amendment not apply in the situation
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that the legislature cared most about,
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which was making a streamline process
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for the ability to develop low income housing.
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Yes, Your Honor, and I think that there are many avenues
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that the legislature could have taken.
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It could have made comprehensive permits
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not subject to judicial review.
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It could have put a provision-
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[Justice Wendlandt] Well, let's not deal with
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what other things the legislature could have done,
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but instead deal with what they did do.
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So.
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Does it make sense to you?
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I mean, normally we construe statutes
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to avoid absurd results,
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and I think Justice Kafker's question
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really puts a fine point on whether or not
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the construction you propose is actually absurd,
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where Section 40B is supposed to streamline the process
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to get low income housing approved.
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And you're saying in connection with that quick process,
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you don't have the bond requirement,
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but in connection with all other kind of
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non low income housing,
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you do have the bond requirement,
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and does that make sense to you?
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It does, Your Honor.
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Makes sense.
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It does because when the legis-
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So there are several different types of zoning decisions
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that are subject to judicial review
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under Chapter 40A, Section 17.
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In addition to the ones that provide for a bond,
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subdivisions, site plans, variances, and special permits,
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there are also, in addition to comprehensive permits,
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there are zoning enforcement appeals under Section 15.
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Those are subject to judicial review,
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but there's no bond provision.
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If the legislature intended to make
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everything subject to a bond,
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it wouldn't have enumerated for specific types.
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On the policy issue of affordable housing,
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my answer is that if there was a bond
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as there is in 40R adopted to 40B,
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it would accomplish that purpose.
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I will say that the act that in 2021,
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the Omnibus Act enabling partnerships for growth,
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that did not amend Chapter 40B.
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It only amended chapter 40A.
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And so it's consistent to think that the bond amendment
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as part of that would apply to the 40A zoning decisions
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and not to 40B.
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Even though 40B incorporates 40A?
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40B is appealable under the procedures of Chapter 40A,
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Section 17, yes.
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So can I switch you to the cost?
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'Cause there I think I find more your literal reading there
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raises more complications to me.
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So it says $50,000 to secure the payment of costs.
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I mean, I've never heard of a case that had $50,000
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in sort of traditional costs before,
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so how do we interpret that?
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Nor have I, Your Honor.
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And in fact, the the case law is really thin on this
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because frankly, as a practicing attorney,
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I almost never submit a bill of costs.
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It's not worth my time.
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And so the way to interpret it is
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the meaning of costs in paragraph three
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where they're subject to bond
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and in paragraph six where they can be awarded,
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they've got to be consistent.
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We've got to construe that term the same way
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in the same section of the same statute.
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So absent statutory authorization-
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Okay, but then I get confused,
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and I'm honestly, I'm totally confused
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on the second part of this.
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So the cost they're providing for $50,000
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to secure the payment of costs.
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The costs that you described
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that require malice and bad faith
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are the kind you don't even file for, right,
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because they're not worth your time and energy, right?
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Generally, you're right, Your Honor, yes.
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So we're gonna allow 50 thou-
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And this applies, again, into every little zoning case,
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every little...
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You know, a lot of towns,
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everything is done through special permits.
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So we're gonna have as much of $50,000 bonds
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for these type of cases?
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I'm just trying to make sense of this thing.
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You know, your view is you don't file for these things,
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but the legislature is provided for $50,000.
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Doesn't that suggest that they're really not talking about
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those type of technical costs,
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and they're not talking about bad faith and malice?
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Your Honor, the $50,000 amount alone,
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particularly when you compare it to subdivision plans,
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when the bond for subdivisions was adopted,
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I think in the seventies, it's between two and 15,000.
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That's mandatory.
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The other is discretionary.
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I think it's meant to be an outside limit.
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I also believe that the strict interpretation
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of the word cost is really confined by the rules
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and the ordinary taxable costs for litigation items.
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When the legislature has a bond,
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and it applies for extraordinary costs
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like carrying costs or interest or attorney's fees,
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it says it, and I've cited a few.
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I mentioned Chapter 40R.
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The Boston zoning code, that has an express provision
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that says the bond is to indemnify for damages.
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It says it very clearly.
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The word indemnify, the word damages.
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You shouldn't read the word costs in 40A 17
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to mean indemnify for damages
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just because they happen to increase the amount
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from 15,000 in 1975 for subdivisions
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to now up to 50,000 in 2021 for other types of relief.
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So why should we add cost tax, you know, taxable costs?
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You're saying we shouldn't read these other things
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into the statute,
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but you're asking us to read in taxable
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into the costs that are allowable under this $50,000 bond,
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which I'll agree with you is outsized for taxable cost
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but must mean something else given that it's not taxable.
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I don't think you have to read in the term taxable
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in order to have costs have their plain meaning.
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They are defined under Rule 54,
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and there is a case cited in my brief, Styller,
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that actually says costs are to be interpreted.
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[Justice Wendlandt] But in that Styller case,
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which the author of which you may know,
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that was about taxed cost.
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It was not just about cost.
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It was a specific insurance provision
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that required the insurer to cover taxed cost,
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which is why I asked the question here.
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The statute did not see fit to say taxable cost.
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Instead it said a number,
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which suggests it's not limited to taxable costs.
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Your Honor, the cost provision of 40A 17
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was not amended by the bond amendment.
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That paragraph six of that section
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is the same as it's been for almost 50 years.
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And so I'm a zoning attorney for quite some time.
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I'm not aware of any case where there were costs awarded.
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I did cite the Sheehan case,
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which was the anomaly of some abutters in an appeal,
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who, like my clients, are direct abutters
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presumed aggrieved,
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and the court found below that there was bad faith,
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and the appeals court said that's inconsistent.
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How can somebody be presumed to be aggrieved
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with a right to judicial review
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yet somehow that seeking that judicial review
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is in bad faith,
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and I think that a similar result should obtain here.
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Isn't it possible to resolve the seeming inconsistency
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by setting requiring the judge to set the bond amount
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by considering the good or bad faith of the litigant?
267
00:14:17.520 --> 00:14:18.687
Yes, Your Honor,
268
00:14:18.687 --> 00:14:21.313
and I was gonna touch for a moment on that balancing test.
269
00:14:21.313 --> 00:14:25.740
In this case, there was no hearing,
270
00:14:25.740 --> 00:14:27.150
there's no written memorandum,
271
00:14:27.150 --> 00:14:28.770
we have no findings in the record.
272
00:14:28.770 --> 00:14:33.004
So we're left to try to guess what the balancing might be.
273
00:14:33.004 --> 00:14:35.430
The court has to consider the merits,
274
00:14:35.430 --> 00:14:37.080
the relative financial means,
275
00:14:37.080 --> 00:14:40.920
and then decide whether the burden on the plaintiffs
276
00:14:40.920 --> 00:14:45.920
to post a bond is outweighed by the burden on the developer
277
00:14:47.670 --> 00:14:48.909
from the delay.
278
00:14:48.909 --> 00:14:53.909
In this case, the $50,000 was reduced to $35,000.
279
00:14:59.250 --> 00:15:00.510
We don't know why.
280
00:15:00.510 --> 00:15:02.859
I think this is a civil matter.
281
00:15:02.859 --> 00:15:06.090
I believe that, in the criminal context,
282
00:15:06.090 --> 00:15:08.370
the judge may have thought he was doing us a favor
283
00:15:08.370 --> 00:15:09.779
by reducing it.
284
00:15:09.779 --> 00:15:14.779
In fact, whether it's 50,000 or 35, the result is the same.
285
00:15:14.990 --> 00:15:17.220
It it becomes an insurmountable hurdle
286
00:15:17.220 --> 00:15:19.264
without refinancing mortgages,
287
00:15:19.264 --> 00:15:22.383
and that's too steep a price to pay.
288
00:15:25.173 --> 00:15:28.890
I'd just like to understand that a little better.
289
00:15:28.890 --> 00:15:33.750
So to get a bond of $50,000,
290
00:15:33.750 --> 00:15:37.050
I don't know the criminal context, it's $5,000, right?
291
00:15:37.050 --> 00:15:38.729
What is it in the civil context,
292
00:15:38.729 --> 00:15:41.277
you don't put up the whole amount, do you?
293
00:15:41.277 --> 00:15:42.300
You do, Your Honor.
294
00:15:42.300 --> 00:15:43.743
We looked into this.
295
00:15:43.743 --> 00:15:45.540
It's not in the record,
296
00:15:45.540 --> 00:15:47.518
but we looked into this initially,
297
00:15:47.518 --> 00:15:51.011
and you've got to have $50,000,
298
00:15:51.011 --> 00:15:55.920
or in this case, $35,000 in order to make that surety
299
00:15:55.920 --> 00:15:57.097
with the court.
300
00:15:57.097 --> 00:16:00.347
Meaning you have to secure it with $50,000,
301
00:16:00.347 --> 00:16:03.843
but you don't have to put up $50,000, right?
302
00:16:04.920 --> 00:16:06.151
That's correct, Your Honor.
303
00:16:06.151 --> 00:16:09.060
But you have to have designated funds.
304
00:16:09.060 --> 00:16:12.360
It's not a 10% or 20% ratio.
305
00:16:12.360 --> 00:16:14.670
It's 100%.
306
00:16:14.670 --> 00:16:16.680
And the funds have to be an escrow,
307
00:16:16.680 --> 00:16:18.150
or they don't have to be an escrow?
308
00:16:18.150 --> 00:16:19.230
And none of this is in the record,
309
00:16:19.230 --> 00:16:21.030
so I guess this is not helpful.
310
00:16:21.030 --> 00:16:23.055
It's a brand new statute,
311
00:16:23.055 --> 00:16:25.260
and you're asking a civil attorney
312
00:16:25.260 --> 00:16:27.490
who is not used to posting bonds,
313
00:16:27.490 --> 00:16:32.490
so my apologies, I actually don't know the mechanism,
314
00:16:34.084 --> 00:16:36.603
and I hope never to find out.
315
00:16:37.584 --> 00:16:39.210
Thank you very much.
316
00:16:39.210 --> 00:16:40.060
Yes, thank you.
317
00:16:41.940 --> 00:16:43.390
Okay, Attorney Silverstein.
318
00:16:46.080 --> 00:16:47.610
Good morning, and may please the court,
319
00:16:47.610 --> 00:16:50.850
Jonathan Silverstein for the private defendant
320
00:16:50.850 --> 00:16:52.473
6 Forest Road LLC.
321
00:16:53.550 --> 00:16:58.243
Your Honors, this bond applies to comprehensive permits
322
00:16:58.243 --> 00:17:01.971
because comprehensive permits are umbrella vehicles
323
00:17:01.971 --> 00:17:06.404
that encompass all manner of zoning relief.
324
00:17:06.404 --> 00:17:08.250
They encompass variances,
325
00:17:08.250 --> 00:17:09.570
they encompass special permits,
326
00:17:09.570 --> 00:17:12.660
and they most certainly encompass site plans.
327
00:17:12.660 --> 00:17:15.750
In fact, Chapter 40B, Section 21
328
00:17:15.750 --> 00:17:20.750
requires or specifically references site plans.
329
00:17:21.330 --> 00:17:24.630
It says conditions may be imposed
330
00:17:24.630 --> 00:17:28.440
via the comprehensive permit on the site plans.
331
00:17:28.440 --> 00:17:30.958
The comprehensive permit itself in this case
332
00:17:30.958 --> 00:17:35.958
specifically lists the site plans
333
00:17:36.390 --> 00:17:39.990
that are included among the quote unquote final plans
334
00:17:39.990 --> 00:17:44.190
that are approved by the comprehensive permit.
335
00:17:44.190 --> 00:17:47.257
And the comprehensive permit says this,
336
00:17:47.257 --> 00:17:52.257
"This comprehensive permit shall be a master permit,
337
00:17:52.260 --> 00:17:54.420
which shall subsume,
338
00:17:54.420 --> 00:17:58.410
subsume all local permits and approvals
339
00:17:58.410 --> 00:18:00.810
normally issued by local boards."
340
00:18:00.810 --> 00:18:04.960
Now, this court has previously addressed in 135 Wells
341
00:18:06.510 --> 00:18:08.763
what those local approvals are,
342
00:18:09.810 --> 00:18:13.800
and it acknowledges that it's all local approvals,
343
00:18:13.800 --> 00:18:15.930
everything from building permits
344
00:18:15.930 --> 00:18:19.833
to every other local approval issued by a local board.
345
00:18:21.480 --> 00:18:24.937
And local board is defined in 760 CMR 56.02
346
00:18:27.180 --> 00:18:29.700
to include planning boards.
347
00:18:29.700 --> 00:18:33.330
And under the Salisbury Zoning Bylaw,
348
00:18:33.330 --> 00:18:35.730
planning boards are the site plan approval authority.
349
00:18:35.730 --> 00:18:36.563
Now-
350
00:18:37.950 --> 00:18:39.819
I'm gonna,
351
00:18:39.819 --> 00:18:41.490
unless my colleagues have questions on this part,
352
00:18:41.490 --> 00:18:43.762
I'd like to move to what I find the most confusing part,
353
00:18:43.762 --> 00:18:46.350
which is costs.
354
00:18:46.350 --> 00:18:47.580
Go ahead, Your honor.
355
00:18:47.580 --> 00:18:52.503
I mean, this thing is like a giant exploding bomb.
356
00:18:54.990 --> 00:18:56.550
I'm just trying to make sure I understand it
357
00:18:56.550 --> 00:18:59.130
'cause it's gonna apply to everything,
358
00:18:59.130 --> 00:19:01.860
variances, special permits.
359
00:19:01.860 --> 00:19:04.710
If you challenge any of these things under,
360
00:19:04.710 --> 00:19:05.910
and the way you interpret it,
361
00:19:05.910 --> 00:19:08.223
which is without malice or bad faith,
362
00:19:09.300 --> 00:19:11.479
every time someone challenges something,
363
00:19:11.479 --> 00:19:15.480
they're gonna have to get as much as a $50,000 bond.
364
00:19:15.480 --> 00:19:16.470
No, Your Honor.
365
00:19:16.470 --> 00:19:17.303
Okay, well, why not?
366
00:19:17.303 --> 00:19:18.420
Isn't that what it says?
367
00:19:18.420 --> 00:19:20.550
Because this is a discretionary bond.
368
00:19:20.550 --> 00:19:23.853
Unlike the subdivision bond, this is discretionary.
369
00:19:23.853 --> 00:19:25.422
But a judge,
370
00:19:25.422 --> 00:19:28.170
someone can impose this, right?
371
00:19:28.170 --> 00:19:29.700
Can, yes, Your Honor.
372
00:19:29.700 --> 00:19:32.038
And you have to look at the purpose
373
00:19:32.038 --> 00:19:34.205
of this bond requirement,
374
00:19:34.205 --> 00:19:37.963
which is laid out both in my brief and in the amicus briefs
375
00:19:37.963 --> 00:19:39.863
that have been submitted to the court,
376
00:19:41.850 --> 00:19:45.818
and particularly would point you to the REBA brief
377
00:19:45.818 --> 00:19:49.614
and the abstract club, which lays out,
378
00:19:49.614 --> 00:19:53.970
and also to the brief unprecedented in my experience
379
00:19:53.970 --> 00:19:57.840
submitted by too many amicus to mention, including DHCD,
380
00:19:57.840 --> 00:20:01.453
the implementing administrative body, Mass Housing.
381
00:20:01.453 --> 00:20:03.569
And what these briefs show is that,
382
00:20:03.569 --> 00:20:08.530
in 2015, a report was done by the Mass Housing Partnership
383
00:20:09.420 --> 00:20:12.269
that identifies this terrible problem
384
00:20:12.269 --> 00:20:15.491
of not frivolous, not bad faith,
385
00:20:15.491 --> 00:20:20.337
but meritless land use appeals stopping housing projects.
386
00:20:20.337 --> 00:20:21.840
I asked before-
387
00:20:21.840 --> 00:20:22.673
Go ahead, I'm sorry.
388
00:20:22.673 --> 00:20:26.188
But I agree that I could see why the legislature
389
00:20:26.188 --> 00:20:31.188
would create this kind of powerful protection
390
00:20:31.650 --> 00:20:35.044
for 40B projects, but they don't.
391
00:20:35.044 --> 00:20:40.044
They may, but they apply the same powerful tool
392
00:20:41.280 --> 00:20:43.734
to all these little projects.
393
00:20:43.734 --> 00:20:45.510
So we have to read it,
394
00:20:45.510 --> 00:20:47.220
and you're sort of the afterthought.
395
00:20:47.220 --> 00:20:50.607
We have to do creative lawyering like you just did
396
00:20:50.607 --> 00:20:54.120
to get to comprehensive permits in 40B.
397
00:20:54.120 --> 00:20:57.030
But this bond provision as written
398
00:20:57.030 --> 00:20:59.233
applies to every little dispute
399
00:20:59.233 --> 00:21:04.233
that makes its way into the appeals court, the SJC,
400
00:21:05.340 --> 00:21:06.450
and everything else, right?
401
00:21:06.450 --> 00:21:07.680
It's just-
402
00:21:07.680 --> 00:21:08.820
It can apply, Your Honor,
403
00:21:08.820 --> 00:21:10.300
and, and I see your point.
404
00:21:10.300 --> 00:21:12.030
Well, it's kind of scary
405
00:21:12.030 --> 00:21:15.333
that if my neighbor's doing something I don't like,
406
00:21:17.790 --> 00:21:21.150
and they're getting a variance or a special permit,
407
00:21:21.150 --> 00:21:23.607
I have to come up with 50,000.
408
00:21:23.607 --> 00:21:25.620
That's a kind of a-
409
00:21:25.620 --> 00:21:26.453
But it-
410
00:21:26.453 --> 00:21:29.042
That's kind of gonna shift the-
411
00:21:29.042 --> 00:21:31.860
And it's discretionary, and I don't know what-
412
00:21:31.860 --> 00:21:34.080
I take your point, but I do think you have-
413
00:21:34.080 --> 00:21:36.720
It's discretionary, but it's not unbridled discretion.
414
00:21:36.720 --> 00:21:40.020
The court has to apply this balancing test.
415
00:21:40.020 --> 00:21:41.850
It has to look at the relative merit.
416
00:21:41.850 --> 00:21:44.400
It has to look at the harm to the public interest.
417
00:21:44.400 --> 00:21:47.880
I mean, it's very similar to the test
418
00:21:47.880 --> 00:21:49.200
for a preliminary injunction.
419
00:21:49.200 --> 00:21:50.700
It's not a slam dunk.
420
00:21:50.700 --> 00:21:53.490
And I respectfully, like Mr. Murphy,
421
00:21:53.490 --> 00:21:57.063
I've been doing land use law for 26 years.
422
00:21:58.170 --> 00:22:01.990
You're not going to have abutters
423
00:22:02.850 --> 00:22:07.581
arguing about dormers claiming the right to a $50,000 bond
424
00:22:07.581 --> 00:22:10.230
because they're not gonna be able to meet
425
00:22:10.230 --> 00:22:13.800
the financial component of the test,
426
00:22:13.800 --> 00:22:15.942
and most likely they're not gonna be able to meet
427
00:22:15.942 --> 00:22:18.471
the relative marriage component of the test.
428
00:22:18.471 --> 00:22:20.490
Well, it goes if the court finds
429
00:22:20.490 --> 00:22:25.490
that the harm to the defendant or to the public interest
430
00:22:25.860 --> 00:22:28.020
resulting from the delays caused by the appeal
431
00:22:28.020 --> 00:22:31.743
outweighs the financial burden of the surety.
432
00:22:32.910 --> 00:22:35.583
Yeah, it's kind of open-ended, isn't it?
433
00:22:37.080 --> 00:22:38.370
Well, but that, again,
434
00:22:38.370 --> 00:22:40.080
that's, yes, that's that one component.
435
00:22:40.080 --> 00:22:42.810
Makes some sense in a 40B context.
436
00:22:42.810 --> 00:22:43.886
It sure does.
437
00:22:43.886 --> 00:22:47.130
But again, it's also gonna be applied
438
00:22:47.130 --> 00:22:51.090
to every little person's dispute with, you know,
439
00:22:51.090 --> 00:22:54.150
and every variance in every special permit.
440
00:22:54.150 --> 00:22:55.860
You know, it's like crazy.
441
00:22:55.860 --> 00:22:58.800
Did the legislature paint it with two broad a brush?
442
00:22:58.800 --> 00:23:01.301
Perhaps, but that's a question for another day
443
00:23:01.301 --> 00:23:04.470
and another case that involves one of these,
444
00:23:04.470 --> 00:23:05.790
as you say, little cases.
445
00:23:05.790 --> 00:23:06.623
So what is your-
446
00:23:06.623 --> 00:23:07.456
But I do think we have to look at-
447
00:23:07.456 --> 00:23:08.550
What your definition of cost then?
448
00:23:08.550 --> 00:23:11.460
So cost to you is what?
449
00:23:11.460 --> 00:23:16.460
So cost to me would be what the balancing test refers to,
450
00:23:17.520 --> 00:23:19.890
which is the harm to the public interest
451
00:23:19.890 --> 00:23:21.570
or to the defendant.
452
00:23:21.570 --> 00:23:24.834
And in this case, that harm was supported by affidavit.
453
00:23:24.834 --> 00:23:28.380
And I do think we have to look
454
00:23:28.380 --> 00:23:30.210
at the remedial nature of the statute.
455
00:23:30.210 --> 00:23:32.280
And when I started to reference a moment ago,
456
00:23:32.280 --> 00:23:33.840
the MHP report comes out
457
00:23:33.840 --> 00:23:35.492
in the very next legislative session,
458
00:23:35.492 --> 00:23:38.473
this exact provision finds its way
459
00:23:38.473 --> 00:23:42.819
into a piece of legislation that passes in the House.
460
00:23:42.819 --> 00:23:45.090
And it takes, as these things do,
461
00:23:45.090 --> 00:23:50.090
a few years to finally get into this Omnibus budget,
462
00:23:50.104 --> 00:23:54.390
but all along the way, a piece of legislation,
463
00:23:54.390 --> 00:23:59.390
all along the way you see reasons proffered
464
00:24:00.000 --> 00:24:04.200
both by supporters and by legislators themselves.
465
00:24:04.200 --> 00:24:05.760
What is this about?
466
00:24:05.760 --> 00:24:06.930
This is remedial.
467
00:24:06.930 --> 00:24:09.580
This is to prevent situations
468
00:24:09.580 --> 00:24:13.930
where relatively non meritorious appeals
469
00:24:15.060 --> 00:24:17.970
pause, raise the costs,
470
00:24:17.970 --> 00:24:20.210
and very frequently kill these projects.
471
00:24:20.210 --> 00:24:24.480
But does it include a problem with the supply chain?
472
00:24:24.480 --> 00:24:27.182
Does it include a change in interest rates
473
00:24:27.182 --> 00:24:28.800
and things like that?
474
00:24:28.800 --> 00:24:31.921
I would submit, and this goes to Mr. Murphy's,
475
00:24:31.921 --> 00:24:36.480
I'm not asking you to read in the specific language of 40R
476
00:24:36.480 --> 00:24:37.920
that's very specific.
477
00:24:37.920 --> 00:24:40.560
This language just says harm.
478
00:24:40.560 --> 00:24:41.393
It says harm,
479
00:24:41.393 --> 00:24:43.410
and it doesn't say double the carrying cost,
480
00:24:43.410 --> 00:24:45.690
so I'm not asking you to read anything, you know,
481
00:24:45.690 --> 00:24:47.524
I'm not asking you to read that in.
482
00:24:47.524 --> 00:24:49.080
It says harm.
483
00:24:49.080 --> 00:24:50.857
What is the harm to the public interest
484
00:24:50.857 --> 00:24:53.850
and to this specific developer?
485
00:24:53.850 --> 00:24:55.530
Well, if the affordable housing is going to go
486
00:24:55.530 --> 00:24:56.363
down the drain
487
00:24:56.363 --> 00:25:00.480
because since the appeal interest rates went up 3%
488
00:25:00.480 --> 00:25:03.990
and the supply chain's a problem because of the pandemic,
489
00:25:03.990 --> 00:25:06.270
so does that fit or not fit into cost?
490
00:25:06.270 --> 00:25:07.590
I submit it does fit,
491
00:25:07.590 --> 00:25:11.070
and that's why the legislature had to put a cap on it
492
00:25:11.070 --> 00:25:13.350
because that harm could be hundreds of thousands
493
00:25:13.350 --> 00:25:14.264
or millions,
494
00:25:14.264 --> 00:25:16.823
but instead it capped it
495
00:25:16.823 --> 00:25:21.823
because there had to be some reasonable upper limit
496
00:25:22.830 --> 00:25:25.200
on what this harm could amount to
497
00:25:25.200 --> 00:25:28.470
and what these costs of this harm
498
00:25:28.470 --> 00:25:32.057
could be imposed upon plaintiffs for.
499
00:25:32.057 --> 00:25:33.420
[Justice Wendlandt] Is that harm limited
500
00:25:33.420 --> 00:25:36.000
by the good or bad faith of the appellant?
501
00:25:36.000 --> 00:25:36.889
No, Your Honor.
502
00:25:36.889 --> 00:25:37.830
I mean-
503
00:25:37.830 --> 00:25:42.830
You can award costs for delay such as supply chain,
504
00:25:42.953 --> 00:25:46.440
et cetera, that Justice Lowy is referring to,
505
00:25:46.440 --> 00:25:49.345
even though the party appealing
506
00:25:49.345 --> 00:25:52.263
was acting entirely in good faith?
507
00:25:53.190 --> 00:25:55.931
Well, I would submit that good faith and bad faith,
508
00:25:55.931 --> 00:25:58.860
it's a continuum, right,
509
00:25:58.860 --> 00:26:03.860
and the legislature tells the trial, the motion judge
510
00:26:03.904 --> 00:26:07.080
to consider the relative merits of the appeal.
511
00:26:07.080 --> 00:26:07.950
Here-
512
00:26:07.950 --> 00:26:09.395
No, that's for setting the bond.
513
00:26:09.395 --> 00:26:12.900
I'm going to when awarding costs.
514
00:26:12.900 --> 00:26:15.420
Well, I would submit that setting the bond
515
00:26:15.420 --> 00:26:17.699
makes no sense if the costs aren't gonna be awarded
516
00:26:17.699 --> 00:26:18.895
at the end of the day.
517
00:26:18.895 --> 00:26:19.860
[Justice Wendlandt] Right, but doesn't-
518
00:26:19.860 --> 00:26:21.090
If this is gonna be remedial.
519
00:26:21.090 --> 00:26:23.460
What do you do with the statute provision that says
520
00:26:23.460 --> 00:26:25.143
cost shall not be allowed?
521
00:26:26.460 --> 00:26:31.460
Right, that is a earlier past general cost provision
522
00:26:32.691 --> 00:26:36.280
that does not apply to these costs
523
00:26:37.230 --> 00:26:39.210
under this bond provision.
524
00:26:39.210 --> 00:26:40.606
Clearly, the purpose,
525
00:26:40.606 --> 00:26:45.606
because if you're gonna require bad faith,
526
00:26:45.990 --> 00:26:50.990
which is, I don't know how many cases this court has seen
527
00:26:51.960 --> 00:26:54.990
of bad faith costs being awarded.
528
00:26:54.990 --> 00:26:58.020
In my 26 years, I've seen it once.
529
00:26:58.020 --> 00:27:01.530
Now, if the purpose of the statute is remedial,
530
00:27:01.530 --> 00:27:03.780
as it's clear from the legislative history,
531
00:27:03.780 --> 00:27:07.103
if the purpose is to deter non meritorious,
532
00:27:07.103 --> 00:27:09.714
not bad faith, non meritorious appeals,
533
00:27:09.714 --> 00:27:14.578
then what's the purpose of only allowing those costs
534
00:27:14.578 --> 00:27:18.030
to be imposed when there's a showing of bad faith?
535
00:27:18.030 --> 00:27:20.130
It would be pointless.
536
00:27:20.130 --> 00:27:22.110
There would be no point to the legislature
537
00:27:22.110 --> 00:27:25.530
of having taken five or six years after this report
538
00:27:25.530 --> 00:27:29.880
to impose this remedial provision
539
00:27:29.880 --> 00:27:34.766
if they were going to keep in this general requirement
540
00:27:34.766 --> 00:27:37.290
that you show bad faith to get those costs.
541
00:27:37.290 --> 00:27:38.232
It doesn't make any sense.
542
00:27:38.232 --> 00:27:39.930
[Justice Wendlandt] But the legislature
543
00:27:39.930 --> 00:27:44.340
didn't excise that paragraph from 40A.
544
00:27:44.340 --> 00:27:46.920
Well, they wouldn't because that paragraph
545
00:27:46.920 --> 00:27:50.043
applies broadly to all types of appeals.
546
00:27:50.043 --> 00:27:52.770
This paragraph, paragraph three,
547
00:27:52.770 --> 00:27:56.967
applies only to appeals from the grant of zoning relief.
548
00:27:56.967 --> 00:28:01.680
It doesn't apply to the appeals of denial of zoning relief.
549
00:28:01.680 --> 00:28:05.250
That still is governed by paragraph seven.
550
00:28:05.250 --> 00:28:07.740
It doesn't appeal to the grant or denial
551
00:28:07.740 --> 00:28:09.330
of zoning enforcement.
552
00:28:09.330 --> 00:28:12.210
That also would still require a showing of bad faith
553
00:28:12.210 --> 00:28:13.043
to get costs.
554
00:28:13.043 --> 00:28:15.810
Conditions, if there's an appeal related
555
00:28:15.810 --> 00:28:20.310
to the conditions imposed, would that be covered?
556
00:28:20.310 --> 00:28:23.940
So again, this may be a sort of an ignorant question,
557
00:28:23.940 --> 00:28:28.560
but if I've got a neighbor who all in favor of 40B housing,
558
00:28:28.560 --> 00:28:31.662
but they didn't deal with that the fire trucks
559
00:28:31.662 --> 00:28:33.564
can't get in properly,
560
00:28:33.564 --> 00:28:36.646
so I'm just appealing this because of the conditions,
561
00:28:36.646 --> 00:28:38.943
would that be subject to the bond?
562
00:28:39.840 --> 00:28:41.940
It could be, Your Honor,
563
00:28:41.940 --> 00:28:43.614
because that would still be-
564
00:28:43.614 --> 00:28:45.780
You can't just appeal a condition.
565
00:28:45.780 --> 00:28:47.400
You have to appeal the grant of relief.
566
00:28:47.400 --> 00:28:49.125
Right, so I've got some person
567
00:28:49.125 --> 00:28:52.262
who is worried about fire on their block.
568
00:28:52.262 --> 00:28:55.500
They're all in favor of the 40B project.
569
00:28:55.500 --> 00:28:58.577
They just don't like the way they've designed the road.
570
00:28:58.577 --> 00:29:00.104
So they're appealing,
571
00:29:00.104 --> 00:29:03.037
and they've gotta now come up with $50,000
572
00:29:03.037 --> 00:29:05.910
because this thing's gonna make money.
573
00:29:05.910 --> 00:29:10.910
You got to satisfy those financial requirements, you know,
574
00:29:11.490 --> 00:29:14.520
so it's gonna be easy for the developer
575
00:29:14.520 --> 00:29:17.583
to show that they've got big dollars at stake here,
576
00:29:19.170 --> 00:29:23.130
so that little neighbor is gonna have to come up
577
00:29:23.130 --> 00:29:23.963
with 50 grand.
578
00:29:23.963 --> 00:29:27.041
But you still have to convince the court
579
00:29:27.041 --> 00:29:32.041
that the relative merits favor imposition of that bond,
580
00:29:32.201 --> 00:29:34.697
and that's not an insignificant requirement.
581
00:29:34.697 --> 00:29:38.912
That's why the legislature imposed that requirement
582
00:29:38.912 --> 00:29:42.480
unlike in the subdivision bond requirement,
583
00:29:42.480 --> 00:29:43.653
which is automatic.
584
00:29:47.710 --> 00:29:49.355
Just briefly, Your Honors,
585
00:29:49.355 --> 00:29:54.355
I want to point out that the trial court was not required
586
00:29:55.170 --> 00:29:57.813
to hold a hearing on the bond requirement
587
00:29:57.813 --> 00:30:01.087
and clearly did consider the merits.
588
00:30:01.087 --> 00:30:02.780
And in my brief,
589
00:30:02.780 --> 00:30:07.647
I go through each of the elements of the test,
590
00:30:07.647 --> 00:30:11.043
including the relative merits of the appeal,
591
00:30:12.480 --> 00:30:17.480
and respectfully, the trial court had every right
592
00:30:18.090 --> 00:30:22.527
to rely on the fact that there were expert reports submitted
593
00:30:22.527 --> 00:30:26.210
both by the developer and peer reviewed
594
00:30:26.210 --> 00:30:30.016
by independent experts retained by the board,
595
00:30:30.016 --> 00:30:35.016
and there was nothing but just conjecture
596
00:30:35.328 --> 00:30:37.760
on the part of the plaintiffs,
597
00:30:37.760 --> 00:30:42.360
and those relative merits are plain on the face.
598
00:30:42.360 --> 00:30:45.630
The plaintiff's complain about the fact that
599
00:30:45.630 --> 00:30:49.800
the board could have denied the comprehensive permit
600
00:30:49.800 --> 00:30:51.360
under a safe harbor.
601
00:30:51.360 --> 00:30:52.545
Clearly not required to do so.
602
00:30:52.545 --> 00:30:56.970
And though some of the plaintiffs
603
00:30:56.970 --> 00:30:58.504
do have presumptive standing,
604
00:30:58.504 --> 00:31:01.860
we rebutted that presumption with these expert reports,
605
00:31:01.860 --> 00:31:06.276
and nothing was proffered to meet the plaintiff's burden
606
00:31:06.276 --> 00:31:08.813
of demonstrating that they do have standing.
607
00:31:08.813 --> 00:31:10.839
And for all those reasons,
608
00:31:10.839 --> 00:31:13.045
I think I submit that the trial court
609
00:31:13.045 --> 00:31:16.470
properly weighed the relative merits of the case
610
00:31:16.470 --> 00:31:18.840
in imposing the bond requirement.
611
00:31:18.840 --> 00:31:20.373
Did you say standing?
612
00:31:21.420 --> 00:31:22.542
Yes, Your Honor.
613
00:31:22.542 --> 00:31:23.375
Abutters?
614
00:31:23.375 --> 00:31:24.208
They are abutters,
615
00:31:24.208 --> 00:31:26.640
which gives them a presumptive standing under the statute
616
00:31:26.640 --> 00:31:28.500
and under the case law standard (indistinct)
617
00:31:28.500 --> 00:31:30.690
and all the case law of this court,
618
00:31:30.690 --> 00:31:33.000
that presumption of standing can be rebutted.
619
00:31:33.000 --> 00:31:35.490
We rebutted it by submitting expert reports
620
00:31:35.490 --> 00:31:38.372
from not just us but from the board itself,
621
00:31:38.372 --> 00:31:42.810
and nothing but conjecture was submitted
622
00:31:42.810 --> 00:31:43.643
by the plaintiffs in response.
623
00:31:43.643 --> 00:31:45.183
[Justice Wendlandt] Thank you.