Zoning Appeals Litigation Changes

The Affordable Homes Act (AHA) includes a provision similar to a "loser pays" rule for litigation related to zoning appeals. The Act makes significant changes to the statutory process for zoning appeals under G.L. chapter 40A, section 17, which include the following:

Attorneys' Fees for Bad Faith Appeals: The court can now award reasonable attorneys' fees, in addition to costs, if it finds that the appellant acted in bad faith or with malice in making the appeal.

Increased Bond Requirement: The maximum bond that courts can require appellants to post has been increased from $50,000 to $250,000. This bond is not only to secure the payment of costs but also to indemnify and reimburse damages and expenses incurred due to the appeal.

Stricter Standing Requirements: The Act raises the bar for abutters challenging local zoning permits. Appellants must now allege and plausibly demonstrate a measurable injury that is special and unique to them, which they claim will be proven through credible evidence.

These changes are designed to discourage what the Legislature viewed as "frivolous" appeals and reduce delays in housing development projects. While not a traditional "loser pays" system, these provisions create significant financial risks for those filing appeals, especially if their claims are found to be without merit or made in bad faith.

It's important to note that these changes apply specifically to zoning appeals and not to all types of litigation. The new provisions took effect immediately upon the signing of the Act into law on August 6, 2024.

In Stockbridge, the Select Board will adjudicate at least one special permit for a large development project in 2025. It is all the more important to get these permits right, including conditions should the Board decide to permit, as the ability for neighbors and others to appeal any permit has been curtailed. I plan to be ready.