In its decision this morning in Shoucair v. Board of Appeal of Boston, the Supreme Judicial Court (SJC) held that in court appeals under § 11 of the Boston Zoning Enabling Act (Section 11), the trial judge can require the plaintiff to post an appeal bond without a preliminary finding that the appeal has been brought in bad faith or with malice. The court affirmed that its 1971 decision in Damaskos v. Board of Appeal of Boston remains good law despite recent changes to the bond provisions in M.G.L. c. 40A, § 17 (Section 17) – which applies to zoning appeals in every Massachusetts municipality other than Boston – and the SJC’s 2022 decision in Marengi v. 6 Forest Road, LLC, in which it construed the new language of Section 17.

As the SJC has now confirmed, the different language in the two statutes is meaningful and dictates different results. In Boston, Section 11 authorizes the trial judge to require an appeal bond to “indemnify and save harmless [the permit holder] from damages and costs” (emphasis added), while elsewhere, Section 17 authorizes a bond solely for “costs” – a term of art that is narrowly defined. Though Section 11 does require a finding of bad faith or malice to support an eventual award to the permit holder of “costs,” it doesn’t require such a finding for an award of “damages.” In this context, as the court noted, “damages” doesn’t mean the permit holder must have an independent claim or cause of action against the appellant for damages; rather, the purpose of this provision is to indemnify and save the permit holder harmless from “damages and costs which he or they may sustain in case the decision of [the board of appeal] is affirmed.”

In footnote 8, the court observed that some of the damages claimed by the permit holder – namely, property taxes, maintenance costs, and snow removal – would have been incurred regardless of the appeal and therefore “cannot properly be characterized as [damages] under § 11.” The court distinguished the permit holder’s claim for an estimated $100,000 in lost profits resulting from the one-year delay caused by the appeal, which it called “a delay damage appropriately considered in setting a § 11 bond.”

Though it doesn’t break new ground, Shoucair will be welcomed by Boston developers for putting to rest the argument advanced by some appellants’ counsel that the more restrictive approach to appeal bonds under Section 17 of Chapter 40A should be imported and applied to appeals under the Section 11 of the Boston Zoning Enabling Act.