In a case of first impression, the Housing Court for the City of Boston ruled that neighbors who appealed the issuance of a variance by the Zoning Board of Appeal (ZBA) must post a $20,000 bond or the case will be dismissed.

Background

A developer applied for a building permit to combine two parcels of land in a South Boston neighborhood, demolish the existing building and create a four story, sixteen-unit building in its place. The ZBA granted the developer’s request for a variance and two neighbors filed an appeal in the Boston Housing Court. The neighbors’ action prompted the developer, represented by Rudolph Friedmann partner Jon Friedmann, to file a motion to require the neighbors to post a bond in order to pursue their appeal and the Boston Housing Court granted the request, setting the bond at ,000.

The bond provision is designed to discourage frivolous appeals and to compensate those who have received zoning relief against damage and loss. In determining whether and at what amount a bond should be set, the Court had to consider the merits of the neighbors’ claim, the extent of the neighbors’ resources and the extent of the possible harm to the developer if no bond was set.

Ruling

Relying on prior case law, the Court noted that a decision by the ZBA should not be disturbed unless it is based on legally untenable grounds, or is unreasonable, whimsical, capricious or arbitrary. The Court also stated that in deciding whether to fix a bond it must reach a conclusion as to the merits of the appeal based on the ZBA record. This de novo review prevented the Court from considering any issues the neighbors raised on appeal that were not presented to the ZBA.

In this case, the Court found that the board provided detailed and thorough grounds for its decision and that the decision was made in accordance with the provisions of the Boston Zoning Code. The Housing Court further found that the neighbors failed to establish a likelihood of success on the merits of their claim or the limit of their resources and were required to post a bond to maintain their appeal.

Key Takeaway

When faced with an appeal of a variance issued by the ZBA, developers should consider filing a motion with the appropriate court to require the appealing party to post a bond. This critical step can discourage frivolous appeals and can prevent developers from incurring damages and loss as a result of an appeal. For developers located outside of Boston, consult an attorney to discuss the legal remedies that may be available to you.