NAIOP & Massachusetts Association of REALTORS® in Shoucair v. Zoning Board of Appeals of Boston & Others
Brief Urges SJC to Affirm Superior Court’s Imposition of Boston’s Zoning Appeal Bond
NAIOP's Advocacy Alerts are Generously Supported by Serlin Haley and Pierce Atwood, LLP.
BOSTON, MA – Today, the Supreme Judicial Court (SJC) heard oral arguments in the case of Shoucair v. Zoning Board of Appeals in Boston & Others. Ahead of the arguments, Justices solicited “friend of the court” briefs focused on the question of whether or not appeals pursuant to Boston’s Zoning Act (Chapter 665 of the Acts of 1956) must proceed similarly to an appeal bond sought under the statewide Zoning Act (Chapter 40A Section 17). At issue is whether the bond requirements for appellants in the statewide Zoning Act, which require a determination of “bad faith” by the appellant, apply to Boston.
On March 8, law firm Dain, Torpy, Le Ray, Wiest & Garner (Dain Torpy) filed an amicus brief on behalf of NAIOP Massachusetts - The Commercial Real Estate Development Association (NAIOP) and the Massachusetts Association of REALTORS® (MAR). Because Boston’s zoning appeal bond requirement is established by statutory text that is distinct from, and pre-dates, the Commonwealth’s separate zoning appeal bond provision, the brief urges the SJC to affirm the Superior Court’s imposition of a bond on the appellant in this case without requiring an “in bad faith” determination.
“A decision conflating Boston’s zoning appeal bond provision with the Commonwealth’s separate zoning appeal bond provision would upend decades of case law and legislative treatment,” said NAIOP CEO Tamara Small. “It is critical that the SJC uphold this well-established precedent to ensure that needed housing and economic development projects can move forward without costly delay.”
“For decades, Massachusetts has regulated zoning under two separate enabling acts, one that is specific to Boston, and one that applies to the rest of the Commonwealth’s cities and towns,” said Theresa Hatton, CEO of MAR. “Rejecting established precedent would add time, money and uncertainty to building desperately needed housing in Boston.”
“The legislature and the courts have consistently upheld that Chapter 665 provides distinct statutory language and land use regulation that reasonably reflects Boston’s unique built environment, its population density, and its economic importance,” said Michael McDermot of Dain Torpy, the lead attorney on the brief. “The statutory text authorizing the two zoning appeal bonds differ in plain and material ways, and it is our opinion that the Legislature’s continued decision to treat Boston’s zoning differently remains both necessary and practical.”
The Justices have 130 days from the date of oral argument to publish a decision. In rare cases, the Justices are permitted to vary from this standard when necessary to accommodate special problems in individual cases.
###
About NAIOP Massachusetts
NAIOP Massachusetts, The Commercial Real Estate Development Association, represents the interests of companies involved with the development, ownership, management, and financing of commercial properties. NAIOP’s members are involved with office, lab, industrial, mixed use, multifamily, retail, and institutional space. Committed to building a diverse, equitable, and inclusive culture within the commercial real estate industry, NAIOP provides educational and networking opportunities while advocating for laws, policies and regulations that advance economic development. For more information, visit www.naiopma.org.
About Massachusetts Association of REALTORS®
Organized in 1924, the Massachusetts Association of Realtors is a professional trade organization with more than 27,000+ members. The term Realtor is registered as the exclusive designation of members of the National Association of Realtors who subscribe to a strict code of ethics and enjoy continuing education programs.
About Dain Torpy
Dain, Torpy, Le Ray, Wiest & Garner, P.C. offers developers, business and property owners and users experienced legal representation in all aspects of real estate development, ownership and operation. Each attorney with our firm has multiple areas of deep expertise, as well as years of experience working with members of the real estate community. Our overlapping complementary skill sets provide the foundation for working together and with our clients, and our contacts within the real estate community provide the ability to assemble the team necessary for assessing and/or completing any project.
NAIOP Contact:
Anastasia Nicolaou
Vice President of Policy & Public Affairs, NAIOP
nicolaou@naiopma.org
MAR Contact:
Jonathan Schreiber
Legislative & Regulatory Counsel, Massachusetts Association of REALTORS®
jscreiber@marealtor.com