November 30, 2020

Volume X, Number 335


“Frivolous” Town Complaint Results in Attorney’s Fees Award for Affordable Housing Developer

The Massachusetts Land Court’s recent award of attorney’s fees to an affordable housing developer serves as a warning to municipalities opposed to affordable housing projects under the Massachusetts affordable housing statute, M.G.L. c. 40B. In Town of Sudbury v. Bartlett, et al., Land Court Case No. 16 MISC 000734 (2017), the Town sought to block development of property that it had sold to the developer, arguing that the parcel was subject to a deed restriction. The Land Court rejected this argument and sided with the developer in a decision on cross-motion for summary judgment. The developer filed a subsequent motion to recover attorney’s fees under M.G.L. c. 231, § 6F.

The Section 6F motion required the judge to determine, in part, if the Town’s claims in the underlying action were “wholly insubstantial, frivolous and not advanced in good faith.” The developer claimed that “the Town advanced claims that it knew or should have known were without merit, and that it did so in an attempt . . . to use any means available to stop the G.L. c. 40B development.” After reviewing the facts, Land Court Judge Howard P. Speicher made plain that he “did not find any of the… issues raised by the Town to present anything resembling a close call.” When the Town argued that reference to an approved subdivision plan in the deed is tantamount to a restrictive covenant, the Judge called it a “dangerous and farfetched proposition.”  The Town’s contention that an equitable servitude can be imposed by “circumstances to be deduced from other evidence, including statements at public hearings” met a similar fate: the Judge found that this claim is “not supported by any statutory or case law  . . . [and] is antithetical to our jurisprudence . . . .”

As required for an award of attorney’s fees under Chapter 231, § 6F, the Court also found that the offending party operated with an absence of good faith. Massachusetts case law supports a finding of the absence of good faith where there is evidence that municipal claims against a Chapter 40B developer are brought with the intention of delaying or preventing low or moderate incoming housing projects. Here, the Court found undisputed factual evidence in the minutes of town meetings and correspondence that the Town was aware prior to filing its complaint that the parcel was not subject to any deed restrictions or covenants. The record also demonstrated a desire by the Town to file the complaint to merely block the proposed development. At one point in the process, a member of the Board of Selectmen said to the Developer, “that type of a project will bring the riff-raff into the center of town . . . you know, riff-raff like they have in West Virginia, with people that will be working on their cars in the front yards, hanging laundry on their laundry lines, and leaving a mess outside.”

Finding that the Town had run afoul of Section 6F, the Land Court ordered the Town to pay the Developer more than $75,000 for attorney’s fees incurred in fighting the Town’s frivolous complaint. The Town of Sudbury serves as a harsh reminder for opponents of Chapter 40B projects that legal challenges must be based on substantive issues and cannot be a mere pretext for delaying or blocking an unpopular development.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 89



About this Author

Brian C. Levey Real Estate Attorney Beveridge & Diamond Boston, MA & Framingham, MA

Brian has more than 20 years of project development experience before permit-granting authorities and in court.


Brian's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...

Dylan J. King Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Dylan uses his legal and business skills to help clients solve problems.

He maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. He has developed experience with solid waste facility siting, pipeline and hazardous material transportation regulations, site contamination litigation, and local zoning matters. Dylan joined the firm following his graduation from Vermont Law School with a certificate in Energy Law.

During his time at Vermont Law School, Dylan worked with the Vermont Law School Energy Clinic...