Favorable Decision from the SJC on Eliminating Barriers to Affordable Housing Development under Chapter 40B Comprehensive Permits

On December 14, 2022, the Supreme Judicial Court (SJC) issued their opinion in the case of TERRENCE MARENGI et al vs. 6 FOREST ROAD, LLC et al (Marengi), in favor of the application of the bond provision to the comprehensive permit law. Marengi involves a group of abutters challenging an order requiring them to post a $35,000 bond to pursue their appeal of an approved 40B comprehensive permit in Salisbury. The abutters argued that the bond provisions of chapter 40A, § 17, do not apply to appeals of 40B comprehensive permits. The SJC found otherwise and concluded in its opinion, "At issue is whether the bond provision set out in G. L. c. 40A, § 17, applies to comprehensive permits issued under G. L. c. 40B, § 21, to promote low- and moderate-income  housing. We conclude that it does, as such permits are reviewed pursuant to G. L. c. 40A, § 17, and necessarily include, as in this case, site plans, which are referenced explicitly in the provision."

In addition to the statutory "plain language" argument, the Court relied on the legislative history of Chapter 40B and the passage of the state's Economic Development Bill of 2020, citing both Senators Brendan Crighton and Julian Cyr and their advocacy efforts to deter frivolous lawsuits that impede affordable housing production contemplated by the statute and needed by the Commonwealth.  Thanks to all 23 signers of our Amicus Brief!  The strength of this collaboration, including the Department of Housing and Community Development and 21 industry, non-profit and state partners was critical to this positive outcome. Not only was the opinion favorable to affordable housing advocates, but it picked up arguments directly from our brief in reference to site plan reviews and the legislative history!  

 The SJC did not rule on the specific bond determination in this case, but remanded the matter to the lower court to determine the application of the standard established by the SJC for imposing a bond.

The SJC Slip Opinion can be found here.