Do the Massachusetts Legislature's 2024 Amendments Adding Burdens to Zoning and Permit Appeals Apply to Your Case? The Appeals Court Creates a Bright Line Test

The Massachusetts Legislature passed, and Governor Healey signed, the Affordable Homes Act (the “Act”) in August 2024. Among other pro-development policies the Act sought to promote, it created new obstacles for plaintiffs attempting to overturn or otherwise challenge a permit or approval issued by a municipal board to a developer or property owner. These changes, which were in the form of amendments to the judicial review section of the state’s zoning statute, Mass. Gen. L. c. 40A, s. 17 (“Chapter 40A Appeals”), included the following:

  • Heightening the threshold for Chapter 40A Appeal plaintiffs to demonstrate their legal standing — that is, the “measurable, special and different” harm the permit or approval will allegedly inflict against each plaintiff — in order to even prosecute the case in court;

  • In the same vein, eliminating the rebuttable presumption of standing for abutters or abutters-to-abutters within 300 feet of the development site;*

  • Raising the maximum amount of an appeal bond a judge may impose on a plaintiff pursuing a Chapter 40A Appeal to $250,000; and

  • Allowing a judge to require an unsuccessful Chapter 40A Appeal plaintiff to pay the reasonable attorneys’ fees incurred by the prevailing defendant(s) if the judge determines that the plaintiff’s appeal was brought “in bad faith or with malice.”

Since the Act became law on August 6, 2024, state court judges have faced the question of whether the amendments imposing these new burdens on plaintiffs in Chapter 40A Appeals (the “Amendments”) are applicable if the case started before that date of enactment. In at least two (2) Massachusetts Land Court cases, judges of that state court determined the Amendments could be retroactively applied depending on certain fact-specific criteria such as what stage of litigation the Chapter 40A Appeal had reached. (In each of these Land Court cases, the judge found that the retroactivity test was not met).**

The Massachusetts Appeals Court has now clarified the question of which Chapter 40A Appeals the August 2024 Amendments apply to. In a decision issued on October 16, 2025 in Cline v. Planning Bd. of Framingham, -- N.E.3d --, 2025 WL 2933888 (“Cline”), the Appeals Court set out the following straightforward bright-line rule:

“We do not believe that the Affordable Homes Act … amending [Chapter 40A Appeals] can be applied retroactively …. Any retroactive operation of the amendments ‘should be limited to those cases in which, on the effective date of the statute, no decision had yet been made by the [permit granting authority].’”

Cline, at 2 n.3, quoting City Council of Waltham v. Vinciullo, 364 Mass. 624, 629 (1974) (“Vinciullo”).***

Read literally, this Appeals Court statement in Cline means that the Amendments do not apply to any Chapter 40A Appeal that challenges a municipal board decision granting a permit or approval issued before August 6, 2024.

Because the only part of the Amendments that was at issue in Cline was Chapter 40A standing, parties in other pending Chapter 40A Appeals might argue that the decision’s reach does not extend to those parts of the Amendments unrelated to standing (i.e., the increased appeal bond maximum, and the availability of a fee award for prevailing defendants in cases found to have been brought in bad faith by plaintiffs). Some parties may also argue that this Cline holding is not a precedential holding at all, but mere dicta in a footnote — that is, not binding on lower state courts. But the Cline Court did not caveat its statement in that way, and even dicta from the Appeals Court serves as persuasive authority for lower courts such as the Land Court.

There is a dwindling number of pending Chapter 40A Appeals that began before the August 2024 Amendments yet still feature unresolved issues in court around standing, appeal bonds, or fee awards. Admittedly, then, to call this blog post “micro-targeted” to a very small set of Massachusetts land use practitioners is probably an understatement. Nonetheless, to those in that cohort it’ll be interesting to see whether our state courts have ocassion to apply this new bright-line test in any pending Chapter 40A Appeals.

NOTES:

*The text of the Amendments limits the heightened standing requirements and elimination of an abutter’s presumption of standing to any plaintiff who is “someone other than the original applicant, appellant or petitioner” at the municipal level. See G.L. c. 40A, s. 17. Such “original applicant, appellant or petitioner” is not always the permit-holder — the class of people the Act seemed intended to favor — but in some circumstances can be the abutter challenging a neighbor’s permit (such as a disappointed applicant to a zoning board who appealed a neighbor’s receipt of a building permit). Nonetheless, no Land Court decision to date that has interpreted the Amendments has parsed the statutory words so finely as to exempt an abutter from the heightened standing requirements or the elimination of the presumption on that textual basis.

** The two cases are: J.D. Raymond Transp., Inc. v. Farm Ave. Two Lots, LLC, 2024 WL 4346532, at *7-9 (Mass. Land Ct. Sept. 30, 2024); and Byrne v. Mello, No. 2025 WL 2631180, at *3 n.6 (Mass. Land Ct. Sept. 12, 2025); see Van Reed v. Schultberg, 2025 WL 1682925, at *6-7 (Mass. Land Ct. June 12, 2025) (discussing mechanics of evaluating plaintiff standing under the Amendments’ heightened threshold).

***The Land Court decision in J.D. Raymond Transp., Inc. took Vinciullo’s holding into extensive account, but reached a different conclusion than the Appeals Court in Cline regarding the ability to retroactively apply the Amendments to Chapter 40A Appeals.

^ Tymann, Davis & Duffy, LLP represented the plaintiffs-appellants in Cline, and represents a party in one of the Land Court cases cited herein.

Benjamin Tymann