Shoucair v. Bd. of App. of Bos.

236 N.E.3d 812

William SHOUCAIR & another¹

v.BOARD OF APPEAL OF BOSTON & another.²

SJC-13526

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 1, 2024

Decided July 10, 2024

Zoning, Appeal, Bond. Practice, Civil, Appeal, Bond. Bond. Statute, Construction. Words, "Damages."

Civil action commenced in the Superior Court Department on January 10, 2023.

A motion for an appeal bond was heard by Claudine A. Cloutier, J.

A proceeding for interlocutory review was heard in the Appeals Court by Sookyoung Shin, J. The Supreme Judicial Court granted an application for direct appellate review.

Sean T. Regan (Edmund A. Allcock also present) for William Shoucair.

Dennis E. McKenna for Pure Oasis LLC.

Katherine Aubuchon-Jones, Assistant Corporation Counsel, for board of appeal of Boston.

Michael J. McDermott & Abigail S. LaFontan, for NAIOP Massachusetts, Inc., & another, amici curiae, submitted a brief.

Kenneth Glidden, Linda Burnett, & Charles Vilnis, pro se, amici curiae, submitted brief.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

DEWAR, J.

This case concerns the standard for imposing a bond on an aggrieved party who wishes to appeal from a decision of the board of appeal of Boston (board). Section 11 of the Boston zoning enabling act (§ 11) gives a judge discretion to set a bond "to indemnify and save harmless the person or persons in whose favor the decision was rendered from damages and costs which he or they may sustain in case the decision of said board is affirmed." St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5. In Marengi v. 6 Forest Rd. LLC, 491 Mass. 19, 20-21, 198 N.E.3d 1215 (2022), interpreting the separate bond provision applicable to zoning appeals in the rest of the Commonwealth, G. L. c. 40A, § 17, we held that a trial court could not order an appeal bond for "costs" unless the appeal appears to be "so devoid of merit as to support an ultimate determination of bad faith or malice." In this appeal, we are urged to hold that such a preliminary finding is likewise required before imposing a bond for damages under § 11 of the Boston zoning enabling act. We hold that no such preliminary finding is required under the distinct terms of that statute, which, unlike the statute for the rest of the Commonwealth, provides for a bond for "damages" not conditioned on a finding of bad faith or malice. Reaffirming the standard for imposing such bonds under Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 267 N.E.2d 897 (1971), we find no abuse of discretion by the judge below, who applied the Damaskos standard in ordering the bond here.³

1. Background. The defendant Pure Oasis LLC (Pure Oasis) applied for a conditional use permit to operate a recreational cannabis dispensary at a property on Washington Street in the Brighton section of Boston. The permit was denied by the building commissioner, and Pure Oasis appealed to the board. After a hearing, the board dismissed the appeal. Pure Oasis sought reconsideration, which the board allowed. A second hearing was held, but a decision was deferred to a later date. At a third hearing, the board approved the conditional use permit.

The plaintiff William Shoucair is an abutter to the property and opposed the conditional use permit before the board, contending that Pure Oasis did not meet the permit requirements under Boston’s zoning code. Together with his brother Edward Shoucair, whose claims have since been dismissed, he claimed the dispensary would negatively affect the nature of the residential neighborhood, where children congregate, and would adversely affect traffic and parking conditions in the area.

After the conditional use permit was approved, the Shoucairs filed a complaint in the Superior Court in Suffolk County, appealing from the board’s decision under § 11. See St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5 (providing for appeals by "[a]ny person aggrieved by a decision of [the] board of appeal"). The complaint alleged that Pure Oasis failed to satisfy the conditional use permit requirements for the reasons the Shoucairs had unsuccessfully advanced before the board and also alleged that the board’s procedures and ultimate decision were arbitrary and capricious.

Pure Oasis moved to require each plaintiff to post an appeal bond of $25,000 to "indemnify and save Pure Oasis from damages and costs which it will likely sustain" from the appeal under § 11. An affidavit from a Pure Oasis manager averred that, even if Pure Oasis prevailed in the case within approximately one year, its damages from the appeal would exceed the $50,000 requested. The estimated damages included at least $100,000 in lost profits; over $40,000 in fees to sustain the property (taxes, insurance, maintenance, and snow removal); and at least $50,000 in legal fees. The Shoucairs objected to the imposition of an appeal bond on the ground that their appeal was not brought in bad faith or malice, citing this court’s decision in Marengi, 491 Mass. at 20-21, 198 N.E.3d 1215.

After a hearing, the judge allowed Pure Oasis’s motion in part, ordering each plaintiff to post a bond of $3,500. While the judge did "not find that the plaintiffs’ ap- peal [was] in bad faith," she disagreed that the standard set forth in Marengi applied under § 11 and instead applied the principles articulated by this court in Damaskos, 359 Mass. at 64, 267 N.E.2d 897. In ordering a smaller bond than Pure Oasis requested, the court reasoned that "the bond requirement is not intended to deter otherwise meritorious appeals" and also considered "the resources of the parties."

The Shoucairs filed a petition under G. L. c. 231, § 118, first par., seeking vacatur of the bond order. A single justice of the Appeals Court stayed the order and granted them leave to file an interlocutory appeal. A stipulation thereafter entered below, dismissing Edward Shoucair’s claims. We granted William Shoucair’s (Shoucair’s) application for direct appellate review.

[1] 2. Discussion. Appeal bonds "are not unusual." Damaskos, 359 Mass. at 58, 267 N.E.2d 897. An appeal bond provides a means of "protect[ing] the interest of the appellee" during the pendency of an appeal. Broderick v. Board of Appeal of Boston, 361 Mass. 472, 476, 280 N.E.2d 670 (1972). This case concerns two different bond provisions for appeals from zoning decisions: § 11, covering zoning decisions in Boston;⁴ and G. L. c. 40A, § 17 (§ 17), covering zoning decisions in the rest of the Commonwealth.⁵

[2, 3] In Damaskos, 359 Mass. at 64, 267 N.E.2d 897, we explained that the purpose of § 11 in particular is to "discourage frivolous and vexatious appeals" while also not "unreasonably … prohibit[ing], directly or indirectly (by requiring too large a bond), meritorious appeals" (citation omitted). The statute gives judges discretion to set a bond amount that will effectuate this purpose. Id. Accordingly, for an appeal that appears frivolous, a judge may order a bond "sufficient to protect the grantee of the variance fully." Id. "On the other hand, where an aggrieved person may be seriously harmed and has a meritorious case, the bond requirement may be so applied as to avoid obstructing proper appeals." Id.

Shoucair argues that a bond cannot be ordered at all under § 11 unless the judge finds that the appeal is brought in bad faith or with malice, citing our decision in Marengi, 491 Mass. at 31, 198 N.E.3d 1215. Marengi concerned the act governing zoning appeals in the rest of the Commonwealth, § 17. See Marengi, supra at 20, 198 N.E.3d 1215. That statute allows a judge to set a bond "to secure the payment of costs." G. L. c. 40A, § 17, third par. Noting that the statute ultimately permits the award of costs against an unsuccessful appealing party only if the judge finds that the party "acted in bad faith or with malice in making the appeal," G. L. c. 40A, § 17, sixth par., and that the statute expressly instructs the judge to "consider the relative merits of the appeal," G. L. c. 40A, § 17, third par., we held that a judge cannot order a bond under this provision unless the judge makes a preliminary finding that "the appeal appears to be so devoid of merit as to allow the reasonable inference of bad faith or malice." Marengi, supra at 30, 198 N.E.3d 1215. Shoucair notes that § 11 likewise permits an award of costs only upon a showing that the appeal was brought in bad faith or with malice, see St. 1956, c. 665, § 11, second par., as amended through St. 1993, c. 461, § 5, and so argues the same preliminary finding must be made here.

[4] We disagree, because the two statutory provisions materially differ in their plain language. See Marengi, 491 Mass. at 24-25, 198 N.E.3d 1215, quoting Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001) ("statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result"). While § 17 authorizes a bond solely for recovery of "costs," G. L. c. 40A, § 17, third par., Boston’s statute allows a judge to set a bond "to indemnify and save harmless the [defendant] from damages and costs" (emphasis added), St. 1956, c. 665, § 11, first par., as amended through St. 1993, c. 461, § 5. We highlighted this distinction in Marengi, supra at 33-34, 198 N.E.3d 1215, noting that the Legislature chose not to include a bond for "damages" in § 17, unlike in § 11.⁶ Moreover, § 11 does not condition an ultimate award of damages to a prevailing defendant on a finding of bad faith or malice by the plaintiff; that limitation applies solely to the award of "costs," see St. 1956, c. 665, § 11, second par., as amended through St. 1993, c. 461, § 5. Accordingly, a judge need not make a finding that the appeal appears to be so devoid of merit as to support an ultimate determination of bad faith or malice before fixing a bond for damages under § 11.⁷

Shoucair contends that, if no such predicate finding...