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SJC-13526.
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William Shoucair v. Zoning Board of Appeals of Boston.
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[Justice Wendlandt] Okay, attorney,
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I'll clock whenever you're ready.
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May it please the court.
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Good morning, Your Honors.
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Sean Regan on behalf of the appellant, William Shoucair.
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We are here on interlocutory appeal
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requesting this honorable court
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vacate the trial court order imposing bond
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after finding that the claim was not brought in bad faith.
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Today we seek to harmonize the bond provision
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of the Boston Zoning Code with that of the state
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to ensure that good faith abutters have access to justice
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and are not barred from seeking judicial review
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of administrative zoning decisions.
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To do so, the court must decide
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whether the Boston Bond provision is intended as a shield
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against frivolous and vexatious claims,
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or whether it may also be used as a sword
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to cut down meritorious suits.
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Counsel, haven't we decided
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this question already in Damascus?
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Damascus was a different question.
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The question in Damascus was about whether or not
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the shall language rendered the bond mandatory.
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So it's a little bit different.
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We believe that the bond provision is a shield.
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But doesn't it...
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I mean, doesn't it say Damascus says that the discretion
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should be exercised, quote,
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"To discourage frivolous and vexatious appeals
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from the decision of the Boston Board
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but not unreasonably to prohibit
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directly or indirectly meritorious appeals."
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That's the standard, right?
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That is the standard, Your Honor.
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And we believe that a good faith claim here
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is having a bond for damages imposed against it,
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and we believe that's a bar to justice.
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I'm just trying to understand, though,
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what that standard is and how it differs
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from, you know, bad faith.
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Just...
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I don't think it that it does differ from bad faith.
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I think that there should be
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a predicate finding of bad faith
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before a bond should be imposed,
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just like this court decided in Merengue.
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Yeah, but Merengue was just interpreting
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the cost provision.
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And we said you need, basically, bad faith
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or it needs to be so devoid of merit
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as to amount to bad faith, right?
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Yes.
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Yes, Your Honor.
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And here, the question is about damages.
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The bond provision in Merengue is to secure cost.
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In Boston, it's to save harmless
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and indemnify against cost and damages.
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So-
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And so given the difference in the language
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of the statutes that you just quoted,
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why wouldn't there be a difference in terms of the standard?
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Well, one cannot be be damaged
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from a good faith claimant filing a claim.
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So there would have to be some cause
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of the potential damages down the line.
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So the-
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Where is that legal principle embodied?
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Well, I think the definition-
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That you have to have a cause of action
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in order to be indemnified and held harmless
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in connection with a bond provision?
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I think that comes from the plain language
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of those words.
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That a damage is a remedy for a harm cause to one.
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Caused to an individual.
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And an indemnity is to hold someone harmless
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from the wrongful act or harmful act of another.
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There has to be at least (indistinct).
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And so in either of those definitions,
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you did not include a private right of action,
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sort of a separate claim against the plaintiff.
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And it seems like your argument is really about
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that the defendant needs to have
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a private right of action or a claim
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in order to recover damages.
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So, in the application, in this instance,
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if we follow it all the way through to the end,
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let's say that, in this hypothetical only,
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Mr. Shoucair loses.
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What then happens at the end?
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We have to assume that the defendant, Pure Oasis,
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would move to have the bond dispersed,
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and that could only be based on damages.
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The only potential cause of that damages
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would've been the filing of a good faith claim
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under a judicial right under Section 11
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of Boston Zoning Code.
Well, isn't a delay
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in having to go through the litigation in order to get that,
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which the Zoning Board has already given it.
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But do we recognize the delay
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of regulatory process
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that was voluntarily entered into to get an exception
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from the underlying Zoning Code as a legal harm
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when someone has a judicial right to challenge that?
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Right.
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And isn't that exactly what's recognized
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in the context of this bond?
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I think the bond
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based in the words indemnity and damages
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is intended to save and hold harmless
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from frivolous and vexatious suits,
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not from good faith suits.
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So without a predicate finding, just like in Merengue,
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where cost ultimately cannot be awarded in the end,
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if damages cannot be awarded in the end,
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nor should a bond be imposed for it
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at the beginning.
You're going back
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to the words of the statute.
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It seems like the Boston specific statute says,
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"Costs can't be awarded
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unless there isn't good faith," right?
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Yes, Your Honor.
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And then Section 17 also has that cost can't be awarded
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if there isn't good faith.
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But there's nothing in the Boston statute
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that says anything about good faith vis-a-vis damages.
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I don't think that needs to be explicitly stated.
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I think that the legislature knew what they were doing
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when they put in indemnity in damages
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because those have a plain meaning,
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that there has to be a wrongful act.
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So that they did not need to place bad faith next to damages
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because one cannot be damaged
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by filing a statutory claim in good faith.
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You can file a frivolous lawsuit that's not in bad faith
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or a vexatious lawsuit that's not in bad faith.
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It's, you know, you may just be ignorant.
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Correct, Your Honor.
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I think I'm speaking generally here.
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But in this specific instance, there's-
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Say, you file a frivolous lawsuit.
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It's not brought in bad faith,
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but you don't know the law
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and you throw in something that's a bad claim,
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and that delays this project.
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So that project doesn't go up for two years.
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So they can't build, they can't occupy.
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Doesn't that cause damage?
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I don't know that ignorance of the law
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rises to the level of frivolity under-
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File something that's really stupid
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and has no legal basis.
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Isn't that a frivolous case,
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even if it's not a claim filed in bad faith?
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And there would be,
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I think there's a statute for that
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to bring that claim for frivolous.
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There's a statute here that says,
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I mean, Damascus, I don't know I exactly where Damascus
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came up with the frivolous and vexatious language.
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It relied on an earlier SJC decision.
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But it seems to be that's the standard.
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They relied on Begley.
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And in Begley, specifically in the descent,
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I'm paraphrasing,
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but in the descent, he said that while he agrees
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with the proposition that Boston can be treated separately
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from the rest of the commonwealth,
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he doesn't agree that only Boston
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should get substantive damages
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if the claim is frivolous.
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So it is about frivolity.
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But Begley says that we're more likely
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to have these kinds of claims in Boston
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because of the density and the difficulty of building there.
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Therefore, it makes sense to have a statute
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that's perhaps more protective.
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Agreed, against frivolous and vexatious claims.
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So once that finding is there,
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and I think this is even more evident
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in that there's no cap to the bond
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over the 50,000 square foot threshold.
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Over that, the bond's uncapped.
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So isn't that a deterrent
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for frivolous and vexatious claims?
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It's not intended to punish someone
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who brings a claim in good faith
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to challenge whether or not a claim is administrative whim,
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which is the purpose.
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There's no right to zoning relief.
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There is a right to challenge underlying,
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to challenge these approvals
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to ensure that they are not administrative whim.
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I believe the legislative intent is clear
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from the statutory construction
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in the plain meaning of Section 11.
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And they all support this common sense approach
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that we believe the legislature knew what they were doing
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when they included the words indemnity and damages.
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Indemnity is generally understood
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to protect one from the wrongful act of another,
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and damages do require more
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than bringing a good faith claim.
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There has to be a wrongful act, or at minimum, negligence.
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There has to be something.
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One cannot be damaged from a good faith claim.
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Sorry, can you just explain the basis for that assertion
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vis-a-vis the claimed specific damages here?
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Because assuming for purposes of your argument
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that this is a good faith claim,
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we have in front of us a whole bunch of claimed damages
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that actually are arising from the situation
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from the delay of the building of this project.
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Well, I don't know that that delay damages
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as part of the regulatory process
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are without a cause, without a wrongful act
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are damages that we recognize in the law.
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In Merengue, this court said
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that if the legislature intended to include delayed damages,
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they would say that.
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But Merengue is very different
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because it was a statute that only referred to costs.
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And this one refers to costs and damages.
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The statute that was referenced,
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that was cited, I think...
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Was it 40R?
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45R reference delay damages.
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And that was the reference.
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If they intended to include delay damages
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or carrying costs, that would be,
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in the statute here, it's just damages,
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which implies that it has to be from a wrongful act.
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Now, if there is a predicate finding-
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But doesn't the context of the entire statute
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suggest that the damages have to be from pursuing the claim
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because it's damages to hold the person harmless
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from the fact of this lawsuit going forward?
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I would in invite the conversation
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about the context of Section 11
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because that section is about the right
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of an aggrieved party to bring a claim in court
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and damages and indemnity
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have specific definitions in court.
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And so I would encourage the court
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to give those words the plain meaning of the statute
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in which they're in.
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Could you address Rule 65,
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which is sort of an analogous provision?
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Absolutely.
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I think Damascus makes the analogy
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that the bond provision should be imposed in a similar way.
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And at that time, the bond provision had shall language.
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And so what the court in Damascus intended
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was that it should be a discretionary,
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it should be a discretionary bond
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just like the Rule 65 bond is actually discretionary.
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The difference between the two bonds
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is the extraordinary remedy sought in Rule 65,
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which is to restrain someone's affirmative action.
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Here, only the status quo is being maintained
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while the decision of the administrative body
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is being checked-
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That's an interesting...
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You raised a point that I was interested in,
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which is actually the administrative body
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has approved this project going forward.
270
00:13:12.240 --> 00:13:15.090
So I recognize that it maintains the status quo
271
00:13:15.090 --> 00:13:19.440
in the sense that, you know, nothing's being built.
272
00:13:19.440 --> 00:13:21.720
But in a sense, it also alters the status quo
273
00:13:21.720 --> 00:13:23.580
because by filing this lawsuit,
274
00:13:23.580 --> 00:13:26.370
you get an automatic tat injunction
275
00:13:26.370 --> 00:13:27.450
of the project going forward.
276
00:13:27.450 --> 00:13:29.160
If you did not file this lawsuit,
277
00:13:29.160 --> 00:13:31.320
the project would be being built, correct?
278
00:13:31.320 --> 00:13:34.786
Well, the administrative body that approved the project
279
00:13:34.786 --> 00:13:37.289
is a very highly political process
280
00:13:37.289 --> 00:13:40.680
in which abutters don't have much say.
281
00:13:40.680 --> 00:13:43.540
It's a very one-sided process with the proposed-
282
00:13:43.540 --> 00:13:44.373
But you're not challenging
283
00:13:44.373 --> 00:13:45.960
the constitutionality of the process.
284
00:13:45.960 --> 00:13:49.260
I mean, sticking with the bond, to Justice Stewart's point,
285
00:13:49.260 --> 00:13:51.555
the status quo is maintained
286
00:13:51.555 --> 00:13:54.308
where the status quo is defined by the action
287
00:13:54.308 --> 00:13:56.961
before the litigation,
288
00:13:56.961 --> 00:14:01.470
and that action was approval to go ahead with the build.
289
00:14:01.470 --> 00:14:02.303
Understood.
290
00:14:02.303 --> 00:14:03.930
I guess I should be more specific
291
00:14:03.930 --> 00:14:08.930
in that we are maintaining the Zoning Code as it exists
292
00:14:10.419 --> 00:14:14.670
and not allowing an exception to the Zoning Code
293
00:14:14.670 --> 00:14:17.040
to move forward without ensuring
294
00:14:17.040 --> 00:14:18.990
that it's not administrative whim
295
00:14:18.990 --> 00:14:20.730
or arbitrary and capricious
296
00:14:20.730 --> 00:14:23.280
as with many of these political processes-
297
00:14:23.280 --> 00:14:24.930
So your status quo definition
298
00:14:24.930 --> 00:14:28.893
would be no deviations from the code as written.
299
00:14:29.970 --> 00:14:31.410
My stat...
300
00:14:31.410 --> 00:14:32.243
Sure.
301
00:14:32.243 --> 00:14:37.243
To confirm that the political administrative body
302
00:14:37.650 --> 00:14:42.650
that approved it did not violate the standard in doing so,
303
00:14:43.209 --> 00:14:48.209
which the abutters don't have much opportunity
304
00:14:48.390 --> 00:14:50.700
to challenge during that process.
305
00:14:50.700 --> 00:14:54.600
And they do have judicial review under Section 11,
306
00:14:54.600 --> 00:14:56.790
which they are attempting to bring,
307
00:14:56.790 --> 00:14:59.280
and they should not have to pay to do so
308
00:14:59.280 --> 00:15:00.690
if it is in good faith.
309
00:15:00.690 --> 00:15:02.340
Now, if frivolity
310
00:15:02.340 --> 00:15:03.903
or bad faith is found,
311
00:15:05.340 --> 00:15:10.340
then the damages and cost bond can be so applied.
312
00:15:11.850 --> 00:15:14.010
In closing, the courthouse doors
313
00:15:14.010 --> 00:15:15.690
should not be closed to the public.
314
00:15:15.690 --> 00:15:19.050
For over 50 years, this court has made great effort
315
00:15:19.050 --> 00:15:22.590
to implement bond requirements imposed by the legislature
316
00:15:22.590 --> 00:15:25.710
in ways that do not offend the constitutional rights
317
00:15:25.710 --> 00:15:28.320
of due process and access to the courts.
318
00:15:28.320 --> 00:15:32.250
In Damascus, this court ruled that bonds may be imposed
319
00:15:32.250 --> 00:15:35.970
to discourage frivolous and vexatious appeals,
320
00:15:35.970 --> 00:15:39.255
but may not be used to unreasonably prohibit directly
321
00:15:39.255 --> 00:15:42.117
or indirectly meritorious appeals.
322
00:15:42.117 --> 00:15:45.060
And Merengue, this court, reaffirmed that position,
323
00:15:45.060 --> 00:15:47.490
and now Shoucair removes the space for confusion
324
00:15:47.490 --> 00:15:49.110
between the two.
325
00:15:49.110 --> 00:15:52.440
Our interpretation is consistent with Merengue and Damascus.
326
00:15:52.440 --> 00:15:55.077
It aligns with the plain meaning of damages and indemnity,
327
00:15:55.077 --> 00:15:57.780
and most importantly, it ensures that abutters
328
00:15:57.780 --> 00:15:59.970
are free to access their right of petition
329
00:15:59.970 --> 00:16:01.830
and access the court.
330
00:16:01.830 --> 00:16:03.360
The court here has an opportunity
331
00:16:03.360 --> 00:16:06.600
to harmonize 40A in the Boston Zoning Code
332
00:16:06.600 --> 00:16:09.540
to ensure good faith claimants with presumptive standing
333
00:16:09.540 --> 00:16:10.950
have appropriate remedy of law
334
00:16:10.950 --> 00:16:13.200
for zoning appeals in the city of Boston.
335
00:16:13.200 --> 00:16:14.700
Thank you.
Okay, thank you.
336
00:16:16.620 --> 00:16:17.583
Attorney McKenna.
337
00:16:24.300 --> 00:16:27.000
Good morning, Your Honors, may it please the court.
338
00:16:27.000 --> 00:16:28.050
My name is Dennis McKenna
339
00:16:28.050 --> 00:16:31.680
and I represent the appellate defendant Pure Oasis,
340
00:16:31.680 --> 00:16:34.170
a minority-owned business here in Boston
341
00:16:34.170 --> 00:16:38.520
that holds a license from the Boston Cannabis Board
342
00:16:38.520 --> 00:16:40.770
for over two and a half years
343
00:16:40.770 --> 00:16:44.430
to operate its cannabis store
344
00:16:44.430 --> 00:16:46.260
on Washington Street in the Oak Square,
345
00:16:46.260 --> 00:16:48.393
a business section of Brighton.
346
00:16:49.410 --> 00:16:53.730
After receiving the license from the cannabis board,
347
00:16:53.730 --> 00:16:55.425
which also looks at location
348
00:16:55.425 --> 00:16:57.660
as one of its several factors
349
00:16:57.660 --> 00:17:00.480
in determining among many applicants
350
00:17:00.480 --> 00:17:03.390
who would get to operate and where,
351
00:17:03.390 --> 00:17:05.190
the Boston cannabis determined
352
00:17:05.190 --> 00:17:06.990
that this was an appropriate location.
353
00:17:06.990 --> 00:17:11.990
And then as is current under the Zoning Code-
354
00:17:13.050 --> 00:17:14.700
I get it that you've got a permit.
355
00:17:14.700 --> 00:17:19.290
And so what is the standard and how does it...
356
00:17:19.290 --> 00:17:22.170
I get that Merengue doesn't control this.
357
00:17:22.170 --> 00:17:25.173
What I'm trying to understand is a practical matter.
358
00:17:26.850 --> 00:17:31.850
What the standard is and how it differs from bad faith?
359
00:17:32.073 --> 00:17:37.073
Because in Merengue, we said it's so devoid of merit
360
00:17:38.160 --> 00:17:43.160
that you can, you know, at least infer bad faith.
361
00:17:44.520 --> 00:17:49.520
This standard about so vexatious or frivolous,
362
00:17:49.680 --> 00:17:51.180
although there's a second part,
363
00:17:51.180 --> 00:17:53.520
not to deter meritorious appeals,
364
00:17:53.520 --> 00:17:55.440
what is the standard?
365
00:17:55.440 --> 00:17:58.140
And, you know, when you're advising your clients,
366
00:17:58.140 --> 00:18:00.660
how does it differ, you know,
367
00:18:00.660 --> 00:18:05.340
from the 40A standard?
368
00:18:05.340 --> 00:18:08.070
It is designed to discourage, I would say.
369
00:18:08.070 --> 00:18:09.480
Combining the two words,
370
00:18:09.480 --> 00:18:14.480
unmeritorious appeals, but also to afford.
371
00:18:15.131 --> 00:18:19.710
So Damascus, but then under,
372
00:18:19.710 --> 00:18:24.710
I believe it was a judge to afford bond protection
373
00:18:27.420 --> 00:18:28.890
to my client.
374
00:18:28.890 --> 00:18:29.980
So it's a two-part question-
375
00:18:29.980 --> 00:18:32.010
No, I understand.
376
00:18:32.010 --> 00:18:33.120
Were^ trying to protect
377
00:18:33.120 --> 00:18:35.670
your client from something.
378
00:18:35.670 --> 00:18:40.080
And it's not bad faith, I don't think,
379
00:18:40.080 --> 00:18:41.597
but I'm trying to understand.
380
00:18:41.597 --> 00:18:45.030
It's a somewhat high standard, right?
381
00:18:45.030 --> 00:18:45.863
Which, Your Honor?
382
00:18:45.863 --> 00:18:46.696
I'm sorry.
383
00:18:46.696 --> 00:18:49.140
This standard We're applying here.
384
00:18:49.140 --> 00:18:53.190
It's not bad faith, but it's not bad...
385
00:18:53.190 --> 00:18:58.190
It's not sort of mediocre claims or sort of, you know,
386
00:18:58.230 --> 00:19:00.660
poorly thought out, you know,
387
00:19:00.660 --> 00:19:03.152
but still there's something to it claims.
388
00:19:03.152 --> 00:19:04.053
Right.
It's something else.
389
00:19:04.053 --> 00:19:04.886
So we both know what the language is.
390
00:19:04.886 --> 00:19:07.549
Well, we all know what the language is in Damascus.
391
00:19:07.549 --> 00:19:08.382
So I would say,
392
00:19:08.382 --> 00:19:11.790
from somebody who does plenty of this litigation,
393
00:19:11.790 --> 00:19:13.230
even in these...
394
00:19:13.230 --> 00:19:15.373
This is a typical abutter,
395
00:19:17.546 --> 00:19:19.050
but this is a business abutter.
396
00:19:19.050 --> 00:19:21.540
This is a multi-family person who,
397
00:19:21.540 --> 00:19:23.490
while this appeal is pending,
398
00:19:23.490 --> 00:19:27.270
is making hundreds of thousands of dollars in rent
399
00:19:27.270 --> 00:19:28.710
while my client-
400
00:19:28.710 --> 00:19:32.040
But again, that's all sort of background music.
401
00:19:32.040 --> 00:19:36.090
Is his claim frivolous or vexatious?
402
00:19:36.090 --> 00:19:38.730
If it's not, then he gets to bring it, right?
403
00:19:38.730 --> 00:19:39.960
Well, he gets to bring it.
404
00:19:39.960 --> 00:19:41.610
We cannot stop it until-
405
00:19:41.610 --> 00:19:42.443
But he doesn't...
406
00:19:42.443 --> 00:19:45.070
You don't get a bond if his lawsuit
407
00:19:45.070 --> 00:19:47.823
isn't frivolous or vexatious, right?
408
00:19:48.960 --> 00:19:51.126
Yes, we do, Your Honor.
409
00:19:51.126 --> 00:19:54.180
Don't get costs unless it's bad faith.
410
00:19:54.180 --> 00:19:56.370
So what is it that you get...
411
00:19:56.370 --> 00:19:58.170
And I also agree with your reasoning
412
00:19:58.170 --> 00:20:01.380
that damage is not a separate cause of action,
413
00:20:01.380 --> 00:20:03.947
but the delay in getting your cannabis operation
414
00:20:03.947 --> 00:20:06.510
up and running could be damages.
415
00:20:06.510 --> 00:20:08.472
I think that makes some sense.
416
00:20:08.472 --> 00:20:12.990
But he's gotta have the right to bring a meritorious appeal
417
00:20:12.990 --> 00:20:16.380
and something that's not vexatious or frivolous, right?
418
00:20:16.380 --> 00:20:17.760
What will happen,
419
00:20:17.760 --> 00:20:20.190
I'm gonna put it in the context of this case.
420
00:20:20.190 --> 00:20:23.070
What will happen when discovery is over?
421
00:20:23.070 --> 00:20:26.400
We will move for summary judgment on standing.
422
00:20:26.400 --> 00:20:28.920
This case will likely never get to trial.
423
00:20:28.920 --> 00:20:30.360
I don't know if that's true.
424
00:20:30.360 --> 00:20:31.830
He's a neighbor
425
00:20:31.830 --> 00:20:36.830
and you're putting a cannabis operation next to his house.
426
00:20:37.080 --> 00:20:38.130
Understood, Your Honor.
427
00:20:38.130 --> 00:20:40.110
So he has presumed standing.
428
00:20:40.110 --> 00:20:41.040
Right.
429
00:20:41.040 --> 00:20:43.498
Say, you ooze on standing, help me out here.
430
00:20:43.498 --> 00:20:46.650
What's the standard?
431
00:20:46.650 --> 00:20:49.500
We will then win, I predict,
432
00:20:49.500 --> 00:20:53.940
because the board is given significant deference
433
00:20:53.940 --> 00:20:57.423
on a discretionary permit, which this is.
434
00:20:58.350 --> 00:21:00.990
We meet all the standards,
435
00:21:00.990 --> 00:21:04.320
and the board's discretion
436
00:21:04.320 --> 00:21:06.990
is then given discretion by the superior court.
437
00:21:06.990 --> 00:21:09.365
His traffic analysis is so flawed
438
00:21:09.365 --> 00:21:12.390
that it's frivolous or vexatious?
439
00:21:12.390 --> 00:21:13.223
Yes, Your Honor.
440
00:21:13.223 --> 00:21:15.510
He has no traffic expert.
441
00:21:15.510 --> 00:21:18.360
He never did, and he still doesn't.
442
00:21:18.360 --> 00:21:21.600
And so these are anecdotal concerns
443
00:21:21.600 --> 00:21:24.480
that every neighbor on every project...
444
00:21:24.480 --> 00:21:26.610
There was a case called Holland Brands
445
00:21:26.610 --> 00:21:27.900
that went through the appeals court.
446
00:21:27.900 --> 00:21:30.030
I tried that to the Superior Court.
447
00:21:30.030 --> 00:21:34.230
Same exact concerns, that none of the other businesses
448
00:21:34.230 --> 00:21:36.060
that operate there successfully
449
00:21:36.060 --> 00:21:38.400
surrounding the same plaintiff's house,
450
00:21:38.400 --> 00:21:39.780
the fast food stores,
451
00:21:39.780 --> 00:21:42.030
the liquor store right down the street.
452
00:21:42.030 --> 00:21:44.070
Eventually, not today,
453
00:21:44.070 --> 00:21:46.440
we have to get a conditional use permit.
454
00:21:46.440 --> 00:21:50.777
Someday soon, these cannabis stores will be regulated
455
00:21:50.777 --> 00:21:52.230
the same as liquor stores,
456
00:21:52.230 --> 00:21:55.080
meaning the regulations will be at the regulatory level,
457
00:21:55.080 --> 00:21:57.188
there will be no conditional use permit.
458
00:21:57.188 --> 00:21:59.820
So this traffic analysis is frivolous,
459
00:21:59.820 --> 00:22:02.934
and therefore the bond is appropriate or...
460
00:22:02.934 --> 00:22:07.934
He may have his own internal concerns,
461
00:22:08.070 --> 00:22:10.320
but they're not concerns of his tenants
462
00:22:10.320 --> 00:22:11.910
who decided where they would live.
463
00:22:11.910 --> 00:22:14.310
They could have lived three blocks over
464
00:22:14.310 --> 00:22:16.680
but decided to live on Washington Street
465
00:22:16.680 --> 00:22:19.740
on the bus line next to existing businesses.
466
00:22:19.740 --> 00:22:22.920
So won't be frivolous, but it will be devoid of merit.
467
00:22:22.920 --> 00:22:27.420
And so that's why I use the words unmeritorious appeal.
468
00:22:27.420 --> 00:22:29.250
Remember, Damascus doesn't-
469
00:22:29.250 --> 00:22:34.250
But you're jumping past the conclusion of the judge.
470
00:22:35.010 --> 00:22:36.990
And I know you're going to the end
471
00:22:36.990 --> 00:22:39.960
and saying that once this is fully litigated,
472
00:22:39.960 --> 00:22:41.280
you'll be vindicated.
473
00:22:41.280 --> 00:22:43.420
But the judge has made a finding
474
00:22:44.400 --> 00:22:48.190
that this appeal was not frivolous.
475
00:22:48.190 --> 00:22:50.193
The judge only said,
476
00:22:51.150 --> 00:22:54.117
and that's a key distinction
477
00:22:54.117 --> 00:22:56.700
of what the plaintiff is arguing.
478
00:22:56.700 --> 00:22:58.971
The plaintiff is taking the superior court's words
479
00:22:58.971 --> 00:23:02.100
where the superior court,
480
00:23:02.100 --> 00:23:07.100
when she distinguished the 48 Section 17 in Merengue,
481
00:23:09.450 --> 00:23:14.450
she said that she did not find
482
00:23:14.550 --> 00:23:17.340
that the plaintiff was acting in bad faith
483
00:23:17.340 --> 00:23:19.320
because that was the language of Merengue.
484
00:23:19.320 --> 00:23:20.730
What she did not find
485
00:23:20.730 --> 00:23:22.770
is that this was a meritorious appeal.
486
00:23:22.770 --> 00:23:23.850
There's no finding.
487
00:23:23.850 --> 00:23:24.960
Well, but she has to find
488
00:23:24.960 --> 00:23:27.750
that it's vexatious or frivolous, right?
489
00:23:27.750 --> 00:23:29.180
No, no, no.
490
00:23:29.180 --> 00:23:30.690
Not at all, Your Honor.
491
00:23:30.690 --> 00:23:32.970
That's not a required finding.
492
00:23:32.970 --> 00:23:37.620
It's a purpose, but it's not a required finding and recall.
493
00:23:37.620 --> 00:23:40.290
Ultimately, the only question
494
00:23:40.290 --> 00:23:45.251
is whether the court properly exercised its broad discretion
495
00:23:45.251 --> 00:23:48.828
or whether the court was clearly erroneous.
496
00:23:48.828 --> 00:23:51.339
And the court here did exercise
497
00:23:51.339 --> 00:23:53.702
a correct amount of discretion.
498
00:23:53.702 --> 00:23:56.760
And there's no evidence, none whatsoever,
499
00:23:56.760 --> 00:23:58.680
in the records submitted by the plaintiff
500
00:23:58.680 --> 00:24:02.160
who had the opportunity to file an affidavit and did,
501
00:24:02.160 --> 00:24:06.720
there's not any question nor statement or evidence
502
00:24:06.720 --> 00:24:10.710
that a $3,500 bond is gonna cause this plaintiff
503
00:24:10.710 --> 00:24:11.949
to dismiss this appeal.
504
00:24:11.949 --> 00:24:14.460
Can I ask the...
505
00:24:14.460 --> 00:24:16.530
We don't read what the judge did.
506
00:24:16.530 --> 00:24:18.870
I can't remember if it's a he or she.
507
00:24:18.870 --> 00:24:20.643
We can't remember what the judge.
508
00:24:21.480 --> 00:24:25.680
She says, I believe that it's not in bad faith,
509
00:24:25.680 --> 00:24:28.860
but we don't know what...
510
00:24:28.860 --> 00:24:30.780
That's not good enough, right?
511
00:24:30.780 --> 00:24:34.323
Not being in bad faith is not the standard.
512
00:24:34.323 --> 00:24:37.800
It's something less than bad faith
513
00:24:37.800 --> 00:24:39.330
may still justify a (indistinct).
514
00:24:39.330 --> 00:24:41.280
We don't know whether she thought
515
00:24:41.280 --> 00:24:43.860
bad faith was the requirement or not.
516
00:24:43.860 --> 00:24:47.250
She is saying that bad faith isn't the requirement
517
00:24:47.250 --> 00:24:50.280
because she did not find the plaintiff to be in bad faith,
518
00:24:50.280 --> 00:24:52.590
which may look to your heart,
519
00:24:52.590 --> 00:24:54.600
but it doesn't look to your question,
520
00:24:54.600 --> 00:24:56.310
initially, your observation.
521
00:24:56.310 --> 00:24:57.690
It could be an ignorant appeal,
522
00:24:57.690 --> 00:25:01.230
which it's a peel devoid of merit,
523
00:25:01.230 --> 00:25:02.829
and that's what we believe it to be.
524
00:25:02.829 --> 00:25:04.650
Wait, how do we know she applied the correct standard?
525
00:25:04.650 --> 00:25:06.197
That's what...
526
00:25:06.197 --> 00:25:08.430
By saying it's not the wrong standard,
527
00:25:08.430 --> 00:25:10.710
how do we know she applied the right standard?
528
00:25:10.710 --> 00:25:12.360
Well, we know she exercised
529
00:25:12.360 --> 00:25:14.400
the correct amount of discretion
530
00:25:14.400 --> 00:25:18.067
because she said when she entered this,
531
00:25:18.067 --> 00:25:21.573
"I'm not gonna award a $25,000 bond,
532
00:25:22.776 --> 00:25:24.897
I'm gonna award a $3,500 bond."
533
00:25:25.800 --> 00:25:28.680
And that affords us the protection
534
00:25:28.680 --> 00:25:31.440
that under Damascus and related cases,
535
00:25:31.440 --> 00:25:32.470
we are entitled to
536
00:25:33.330 --> 00:25:35.820
has the plaintiff put just a little bit
537
00:25:35.820 --> 00:25:38.250
of skin in the game and nothing close
538
00:25:38.250 --> 00:25:40.260
to the hundreds of thousands of dollars
539
00:25:40.260 --> 00:25:42.360
of losses we're suffering.
540
00:25:42.360 --> 00:25:43.193
And-
541
00:25:43.193 --> 00:25:45.210
So some of those losses that you claim to be suffering
542
00:25:45.210 --> 00:25:47.610
are losses that you would suffer
543
00:25:47.610 --> 00:25:49.110
even if you had to go forward,
544
00:25:49.110 --> 00:25:51.369
like having to ensure the property and things like that.
545
00:25:51.369 --> 00:25:52.980
So how do we treat those?
546
00:25:52.980 --> 00:25:56.446
Isn't really your damages to be indemnified here,
547
00:25:56.446 --> 00:26:00.660
the lost profits maybe that you would have gotten
548
00:26:00.660 --> 00:26:02.553
if you were allowed to go forward?
549
00:26:03.965 --> 00:26:06.240
Well, they are delayed damages because-
550
00:26:06.240 --> 00:26:07.380
Well, which is they?
551
00:26:07.380 --> 00:26:09.291
can you be more specific with the pronoun?
552
00:26:09.291 --> 00:26:10.124
All of them.
553
00:26:10.124 --> 00:26:11.190
All of them are delayed damages.
554
00:26:11.190 --> 00:26:13.140
Everything that we put in the affidavit.
555
00:26:13.140 --> 00:26:14.850
That's just not true because some of them
556
00:26:14.850 --> 00:26:17.100
are things that you would've had to pay anyway.
557
00:26:17.100 --> 00:26:19.320
We would have, but we would've been operating.
558
00:26:19.320 --> 00:26:22.890
So, because we are paying them while not operating,
559
00:26:22.890 --> 00:26:25.562
that's when they become damages to us.
560
00:26:25.562 --> 00:26:26.395
That's just not true
561
00:26:26.395 --> 00:26:28.950
because you would've had to pay them if you were operating.
562
00:26:28.950 --> 00:26:33.063
So, really your delay damages is the differential.
563
00:26:34.200 --> 00:26:36.290
Well, at least, Your Honor, under...
564
00:26:37.680 --> 00:26:40.710
We differ on whether we are being damaged
565
00:26:40.710 --> 00:26:42.242
by paying real estate taxes
566
00:26:42.242 --> 00:26:44.677
when we don't get the benefit of operating,
567
00:26:44.677 --> 00:26:47.730
but I'll concede that we can see things differently.
568
00:26:47.730 --> 00:26:51.420
And so you're paying the real estate taxes
569
00:26:51.420 --> 00:26:52.530
without the benefit.
570
00:26:52.530 --> 00:26:55.800
So your damages are the differential.
571
00:26:55.800 --> 00:26:58.470
You are gonna play the real estate taxes anyway.
572
00:26:58.470 --> 00:26:59.760
Overhead is overhead.
573
00:26:59.760 --> 00:27:01.560
You can't avoid it.
Right.
574
00:27:01.560 --> 00:27:03.667
Some of the things that you put into your,
575
00:27:03.667 --> 00:27:06.000
you know, damages calculation
576
00:27:06.000 --> 00:27:09.540
in connection with asking for the bond are just not true.
577
00:27:09.540 --> 00:27:11.730
Well, they're true in that we are paying them.
578
00:27:11.730 --> 00:27:13.150
We can differ on-
579
00:27:13.150 --> 00:27:14.220
And you would have to pay them anyway.
580
00:27:14.220 --> 00:27:15.053
I concede it.
581
00:27:15.053 --> 00:27:16.650
Okay, thank you.
I concede it.
582
00:27:16.650 --> 00:27:19.959
What we will never get back are the profits.
583
00:27:19.959 --> 00:27:20.973
Yeah.
584
00:27:22.080 --> 00:27:27.080
And that is hundreds of times more than the $3,500 bond.
585
00:27:30.420 --> 00:27:32.580
Your Honors, we believe and request
586
00:27:32.580 --> 00:27:34.620
that you affirm the superior court order
587
00:27:34.620 --> 00:27:37.246
because it was within the broad discretion
588
00:27:37.246 --> 00:27:39.810
that the Superior Court had.
589
00:27:39.810 --> 00:27:42.090
Thank you for your time this morning.
590
00:27:42.090 --> 00:27:42.923
Thank you.
591
00:27:45.960 --> 00:27:47.013
Okay, Attorney Jones.
592
00:27:57.630 --> 00:27:58.590
Good morning, your Honors.
593
00:27:58.590 --> 00:27:59.520
May it please the court.
594
00:27:59.520 --> 00:28:01.537
I'm Catherine (indistinct) Jones
595
00:28:01.537 --> 00:28:03.600
on behalf of the Zoning Board of Appeal and its members.
596
00:28:03.600 --> 00:28:06.150
Zoning in Boston has long been regulated separately
597
00:28:06.150 --> 00:28:08.730
from the zoning in the rest of the commonwealth.
598
00:28:08.730 --> 00:28:11.340
The language contained in Section 17 of 40A
599
00:28:11.340 --> 00:28:14.850
and Section 11 of the Enabling Act is not nearly identical.
600
00:28:14.850 --> 00:28:17.040
Boston's bond provision Section 11-
601
00:28:17.040 --> 00:28:18.060
So tell me how...
602
00:28:18.060 --> 00:28:20.100
I understand it's not identical.
603
00:28:20.100 --> 00:28:23.820
What I can't figure out is how it differs exactly.
604
00:28:23.820 --> 00:28:25.830
It doesn't require bad faith,
605
00:28:25.830 --> 00:28:27.330
but I'm not sure the difference
606
00:28:27.330 --> 00:28:31.273
between bad faith and vexatious and frivolous.
607
00:28:31.273 --> 00:28:36.273
In a meaningful, give me, if I were advising a client,
608
00:28:36.690 --> 00:28:38.043
what's the difference?
609
00:28:39.060 --> 00:28:44.060
What kind of claim falls within the bond provision in Boston
610
00:28:44.250 --> 00:28:49.250
that doesn't fall within the one in 40A,
611
00:28:50.010 --> 00:28:52.200
in Worcester or somewhere else?
612
00:28:52.200 --> 00:28:55.230
Your Honor, I believe that that goes to things
613
00:28:55.230 --> 00:28:57.736
like delay damages, which in the Merengue-
614
00:28:57.736 --> 00:28:59.730
That's the amount.
615
00:28:59.730 --> 00:29:04.730
I'm trying to understand what the type of claim is that...
616
00:29:05.580 --> 00:29:08.130
I understand we look at the amount,
617
00:29:08.130 --> 00:29:11.460
and that affects, you know, the ability to proceed,
618
00:29:11.460 --> 00:29:14.010
but there's gotta be a substantive difference
619
00:29:14.010 --> 00:29:14.880
in these standards,
620
00:29:14.880 --> 00:29:17.080
and I'm trying to get a sense of what it is.
621
00:29:18.063 --> 00:29:21.536
And you're the best one to tell us that
622
00:29:21.536 --> 00:29:23.850
'cause you're, you know, you're from,
623
00:29:23.850 --> 00:29:25.770
you're coming from this.
624
00:29:25.770 --> 00:29:29.552
Tell me how you differ from Worcester.
625
00:29:29.552 --> 00:29:33.720
So, Boston is, like I said,
626
00:29:33.720 --> 00:29:35.720
Boston's been Enabling Act
627
00:29:35.720 --> 00:29:39.986
and the State Zoning Act are different, and have been,
628
00:29:39.986 --> 00:29:42.551
since as long as they've existed.
629
00:29:42.551 --> 00:29:44.820
We get that, but how do they differ?
630
00:29:44.820 --> 00:29:48.360
So Boston differs in population size, density.
631
00:29:48.360 --> 00:29:51.990
No, no, I understand how Boston is different
632
00:29:51.990 --> 00:29:54.240
from the rest of the commonwealth.
633
00:29:54.240 --> 00:29:58.175
What I don't understand is how the legal standard differs.
634
00:29:58.175 --> 00:30:02.625
Your Honor, the court has many times determined
635
00:30:02.625 --> 00:30:03.780
that because of the differences
636
00:30:03.780 --> 00:30:06.042
between Boston and the rest of the Commonwealth,
637
00:30:06.042 --> 00:30:08.910
the legislature is reasonable
638
00:30:08.910 --> 00:30:12.330
in making these sorts of differences in the statutes.
639
00:30:12.330 --> 00:30:14.805
The practical differences in the two,
640
00:30:14.805 --> 00:30:18.559
including the damages and costs versus just costs
641
00:30:18.559 --> 00:30:20.667
and including the different caps
642
00:30:20.667 --> 00:30:25.667
on the amount that bonds can be imposed at,
643
00:30:26.700 --> 00:30:28.950
are a reflection of those differences.
644
00:30:28.950 --> 00:30:30.270
Okay, I get it.
645
00:30:30.270 --> 00:30:32.850
So you can get damages as well as cost,
646
00:30:32.850 --> 00:30:35.820
but you're not saying the same substantive standard.
647
00:30:35.820 --> 00:30:38.640
The bad faith standard applies to both,
648
00:30:38.640 --> 00:30:40.563
and you could just get more, right?
649
00:30:42.090 --> 00:30:44.310
No, the bad faith standard does not apply to both.
650
00:30:44.310 --> 00:30:45.300
Right.
And in theory,
651
00:30:45.300 --> 00:30:46.650
yes, they could get more.
652
00:30:46.650 --> 00:30:48.810
I get that they can get more.
653
00:30:48.810 --> 00:30:51.840
That you have damages in costs in Boston,
654
00:30:51.840 --> 00:30:53.580
they only have costs.
655
00:30:53.580 --> 00:30:55.350
But I think you're arguing
656
00:30:55.350 --> 00:31:00.120
that there's a difference in the substantive standard too,
657
00:31:00.120 --> 00:31:01.053
are you not?
658
00:31:01.950 --> 00:31:02.783
Yes, there is.
659
00:31:02.783 --> 00:31:05.910
And the bond standard in Boston, Your Honor,
660
00:31:05.910 --> 00:31:10.260
is, first of all, it's not a requirement for people
661
00:31:10.260 --> 00:31:14.790
to post a bond in order to file under the Enabling Act.
662
00:31:14.790 --> 00:31:16.380
It's only done through motion practice.
663
00:31:16.380 --> 00:31:17.520
It's not done every time.
664
00:31:17.520 --> 00:31:19.650
And then as it's been discussed-
665
00:31:19.650 --> 00:31:20.850
You've gotta help us on the hard question.
666
00:31:20.850 --> 00:31:22.950
The hard question is,
667
00:31:22.950 --> 00:31:25.177
is it something less than bad faith?
668
00:31:25.177 --> 00:31:27.213
I take it you're arguing,
669
00:31:28.230 --> 00:31:29.280
but I don't know that...
670
00:31:29.280 --> 00:31:30.690
I'm trying to understand the difference
671
00:31:30.690 --> 00:31:33.360
between vexatious and frivolous.
672
00:31:33.360 --> 00:31:34.193
And maybe I'm wrong,
673
00:31:34.193 --> 00:31:36.150
but it seems like the substantive standard
674
00:31:36.150 --> 00:31:37.900
is the difference between vexatious
675
00:31:38.804 --> 00:31:41.220
and frivolous and bad faith.
676
00:31:41.220 --> 00:31:44.100
Your Honor, we would submit that vexatious and frivolous
677
00:31:44.100 --> 00:31:46.173
is something different than bad faith.
678
00:31:47.823 --> 00:31:49.223
So help me, how is it differ?
679
00:31:51.528 --> 00:31:53.070
Give us some examples of how it differs.
680
00:31:53.070 --> 00:31:55.117
I think Your Honor's point earlier
681
00:31:55.117 --> 00:31:57.970
that there can be a scenario in which,
682
00:31:57.970 --> 00:32:00.489
you know, maybe an abutter is ignorant
683
00:32:00.489 --> 00:32:02.245
of exactly what is required
684
00:32:02.245 --> 00:32:05.276
to bring a complaint under Section 11
685
00:32:05.276 --> 00:32:09.030
that results in the, in most cases,
686
00:32:09.030 --> 00:32:11.370
developer winning the appeal,
687
00:32:11.370 --> 00:32:13.920
is a great example of that.
688
00:32:13.920 --> 00:32:15.450
And in that case,
689
00:32:15.450 --> 00:32:18.060
the position is that the defendant in that scenario
690
00:32:18.060 --> 00:32:20.310
should be indemnified against damages
691
00:32:20.310 --> 00:32:21.360
that may be the result
692
00:32:21.360 --> 00:32:24.840
of the delay caused by the litigation.
693
00:32:24.840 --> 00:32:26.430
But I'm having a little trouble though
694
00:32:26.430 --> 00:32:29.550
because, again, in Merengue, we said,
695
00:32:29.550 --> 00:32:34.350
we we are using sort of the lack of merit
696
00:32:34.350 --> 00:32:37.110
in the claim to show bad faith.
697
00:32:37.110 --> 00:32:39.510
So devoid of merit as to be indicative
698
00:32:39.510 --> 00:32:41.643
or whatever the language was of bad faith.
699
00:32:43.710 --> 00:32:45.960
Here, we're not requiring bad faith,
700
00:32:45.960 --> 00:32:49.413
but we're also making a merits determination, right?
701
00:32:51.180 --> 00:32:52.402
Well, the judge, Your Honor,
702
00:32:52.402 --> 00:32:54.813
is weighing those two considerations
703
00:32:54.813 --> 00:32:56.430
as outlined in Damascus.
704
00:32:56.430 --> 00:32:59.835
And the most important point is that the legislature
705
00:32:59.835 --> 00:33:03.300
doesn't require a bad faith,
706
00:33:03.300 --> 00:33:05.430
require a bad faith finding.
707
00:33:05.430 --> 00:33:07.620
Like, the court has determined that...
708
00:33:07.620 --> 00:33:09.419
Does the second part of Merengue change,
709
00:33:09.419 --> 00:33:12.720
I mean, of Damascus changed the first part?
710
00:33:12.720 --> 00:33:15.900
The first part of Merengue is the vexatious and frivolous,
711
00:33:15.900 --> 00:33:18.630
and then it talks about not interfering
712
00:33:18.630 --> 00:33:19.890
with meritorious appeals.
713
00:33:19.890 --> 00:33:24.890
Does that soften the vexatious and frivolous requirement?
714
00:33:25.290 --> 00:33:26.813
I think it may, Your Honor,
715
00:33:26.813 --> 00:33:28.230
depending on the claim
716
00:33:28.230 --> 00:33:30.450
that's being brought in the judge's discretion.
717
00:33:30.450 --> 00:33:33.300
And to that point, I think it's also worth noting
718
00:33:33.300 --> 00:33:36.096
that to the extent, there might be an error in discretion
719
00:33:36.096 --> 00:33:38.330
that doesn't necessarily mean
720
00:33:38.330 --> 00:33:41.160
that we can read a bad faith requirement
721
00:33:41.160 --> 00:33:43.893
into the Enabling Act.
722
00:33:46.710 --> 00:33:49.563
And if there are no further questions.
723
00:33:50.400 --> 00:33:52.994
On the basis of the plain language reading of Section 11,
724
00:33:52.994 --> 00:33:55.380
the board of appeal and its members respectfully request
725
00:33:55.380 --> 00:33:56.430
that the court finds,
726
00:33:57.614 --> 00:33:58.447
that the courts may impose a bond
727
00:33:58.447 --> 00:33:59.930
absent of finding of bad faith.