DEMETRIOS DAMASKOS & others vs. BOARD OF APPEAL OF BOSTON & another.

CUTTER, J. The plaintiffs, residents of Boston, by their bill in equity sought review under St. 1956, c. 665, Section 11, of a decision of the board of appeal of Boston granting to Conway Realty Trust (Trust) a variance from the Boston zoning ordinance for a twenty-four unit apartment house on a parcel of land of 36,099 square feet (the locus), in a general residence district in the area where the plaintiffs reside. The "minimum lot size should be two acres." Trust, also a defendant, filed its answer and a motion that the plaintiffs be required to file a bond under c. 665, Section 11. [Note 1] The motion was allowed in the Superior Court on January 21, 1970. Bond was set in the amount of $50,000. No bond had been filed by March 31, 1970. Thereupon, on Trust's motion, a final decree dismissing the bill was entered. The plaintiffs appealed.

1. The plaintiffs contend that the provision in Section 11, requiring a bond, imposes an unreasonable, unconstitutional limitation upon "open and equal access to the courts." See North Carolina v. Pearce, 395 U.S. 711, 724 (appellate criminal review, once established, "must be kept free of unreasoned distinctions"). They raise novel questions, largely of first impression in Massachusetts, not dealt with in the

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two earlier decisions concerning Section 11. [Note 2] See Begley v. Board of Appeal of Boston, 349 Mass. 458, 460, where it was held (with a dissent by one judge based on the amount of the bond) only that Section 11 did not deny the equal protection of the laws by requiring a bond only in zoning appeals to the Superior Court from the zoning board of Boston, without (see G. L. c. 40A, Section 21) making a similar provision applicable to comparable appeals from zoning boards of appeal in other communities. In upholding Section 11 against this contention, this court placed reliance upon the principle (see Thompson v. Chelsea, 358 Mass. 1, 8) that the Commonwealth's largest city may reasonably be made the subject of special legislation not applicable to other communities in the State. See also McNeely v. Board of Appeal of Boston, 358 Mass. 94, 108-110, where this court said (at page 110) that the "legislative purpose, among others, was to discourage frivolous and vexatious appeals from the decisions of the Boston board, a condition which might not be found in comparable degree in other counties."

The present question arises from the provision that each person appealing from a decision of the board shall file a surety bond sufficient to indemnify the person prevailing before the board "from all damages and costs which" the prevailing party "may sustain in case the [board's] decision . . . is affirmed." As was pointed out in the Begley case ( 349 Mass. 458, 459, 461, where a $15,000 bond was required), under Section 11, it seems to have been assumed that the statute permitted the court to require a bond in an amount securing any substantive loss incurred by the prevailing party before the board and not merely any court costs. In the present case, the bond was set at $50,000. [Note 3] The plaintiffs, if they had provided the bond (as a condition of

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having the legality of this local zoning board's decision tested judicially), would have undertaken not only to pay any necessary premium (probably a large sum) for the bond, but also to pay (within the penal sum) any loss to Trust, if the board's decision should be affirmed. The heavy financial risk of an appeal is plainly a substantial, if not prohibitive, deterrent to questioning the board's decision, even if that decision reasonably may appear to the owner of land adjacent to that owned by the successful party to be arbitrary, capricious, and grossly illegal. The appealing owner may not have the resources either to obtain the necessary bond or to pay (or assume the risk of having to pay) the losses to the appellee in the event of an affirmance. The provision in Section 11 for a bond securing "from all damages," literally interpreted, results in far more than mere discouragement of frivolous or vexatious appeals. It may constitute, for all but very wealthy aggrieved persons, a de facto denial of highly meritorious appeals.

Provisions for a bond, as a condition of judicial or other action, are not unusual. See e.g. G. L. (Ter. Ed.) c. 224, Section 21 (discharge of debtor from imprisonment on supplementary process); c. 231, Sections 98, 104 (as amended through St. 1965, c. 377 -- $100 bond on removal of District Court actions to Superior Court); c. 239, Section 5 (as amended through St. 1969, c. 366 -- appeal bond of defendant in summary process for the possession of real estate, which may be waived by court order); [Note 4] c. 246, Sections 1 (as amended through St. 1961, c. 158) 31, 66 (bonds in trustee process); c. 247, Sections 2, 8 (replevin); c. 250, Sections 17 (bond in petition to vacate judgment), 24 and 25 (writ of review). In some jurisdictions, statutes require security for litigation and some other expenses before certain class proceedings, such as minority stockholders' suits, may be pressed. See McKinney's N. Y. Bus. Corp. Law, Section 627 (as amended Law of N. Y. 1965,

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c. 803, Section 23); Henn, Corporations (2d ed.), Section 372. Such statutes have been upheld as valid under the Fourteenth Amendment. See Cohen v. Beneficial Ind. Loan Corp. 337 U.S. 541, 550-553. See also Phelps v. Burnham, 327 F. 2d 812, 813 (2d Cir.); Marks v. Seeaman, 309 F. Supp. 332, 333-334 (S.D. N.Y.); Roach v. Franchises Intl. Inc. 32 App. Div. 2d (N. Y.) 247, 249-253.

Bonds also may be required, under usual equity principles, in connection with granting or dissolving injunctions and possibly other equitable relief, as matter of judicial discretion. See American Circular Loom Co. v. Wilson, 198 Mass. 182, 211; Thayer Co. v. Binnall, 326 Mass. 467, 480; Yakus v. United States, 321 U.S. 414, 440. See also Eastern Inv. & Dev. Corp. v. Franks, 339 Mass. 280, 292-293. That such a requirement of security is discretionary is indicated by cases under Rule 65 (c) of the Federal Rules of Civil Procedure. [Note 5] Despite the seemingly absolute mandate of the rule, it has been interpreted as discretionary, in part because of the italicized words (fn. 5), and in part by application of general principles of judicial discretion in granting equitable relief. See Urbain v. Knapp Bros. Mfg. Co. 217 F. 2d 810, 815-816 (6th Cir.), cert. den. 349 U.S. 930; Continental Oil Co. v. Frontier Ref. Co. 338 F. 2d 780, 781-783 (10th Cir.). See also Russell v. Farley, 105 U.S. 433, 446; Brotherhood of Locomotive Engrs. v. Missouri-Kans.-Tex. R.R. 363 U.S. 528, 533-534.

It should be noticed that, in almost all the examples, noted above, of a statute or rule requiring a party to provide security, the provision falls within one or more of the following groups: (a) it does not require substantial security; (b) there has been a prior judicial (and not merely an administrative) proceeding, and the security is a condition of relief on appeal, or of vacating a court order; or (c) modification of the requirement is possible, to some extent, as a

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matter of judicial discretion; or (d) it is a condition of garnishment or other attachment. Access to a court for the first time is usually unlimited, except for replevin, statutory attachments, and statutes such as those in some other States relating to a shareholders' derivative or class action, where a bond is required (usually subject to an exception that the bond requirement shall not apply if holders of a stated minimum percentage of the shares join in the action) to prevent unreasonable, frivolous, or vexatious proceedings harmful to the corporation and the greater part of its shareholders.

2. We consider St. 1956, c. 665, Section 11, in the light of the somewhat comparable requirements just mentioned. The zoning jurisdiction of Boston's board of appeal includes appeals under c. 665, Sections 8, 9, (a) from the refusal of a building or other permit under that chapter, or (b) from any order or decision of the building commissioner or other administrative official in violation of that chapter or any regulation thereunder. On appeals to the board, it may grant or withhold exceptions under Section 10 (cf. G. L. c. 40A, Section 4, as amended) and variances under Section 9 (cf. c. 40A, Section 15, as amended). We are concerned here with a review of a variance which the board has granted from zoning provisions applicable to the affected land which would have precluded Trust's proposed development in the absence of the variance.

The granting of variances is subject to as strict requirements under the Boston zoning statute (St. 1956, c. 665, Section 9) [Note 6] as under G. L. c. 40A, Section 15. Comparable decisions have been rendered under the two statutes. See e.g. Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180,

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184-185; Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 678-680; Hurley v. Kolligian, 333 Mass. 170, 172-174; Abbott v. Appleton Nursing Home, Inc. 355 Mass. 217, 220-223. Cf. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 336-337. No person has a legal right to a variance and they are to be granted sparingly. DiRico v. Board of Appeals of Quincy, 341 Mass. 607, 610-611. Rose v. Board of Appeals of Wrentham, 352 Mass. 301, 303. Bottomley v. Board of Appeals of Yarmouth, 354 Mass. 474, 476-477. Cf. Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556. Because of the rigid restrictions imposed by the Legislature upon boards of appeal (including that of Boston) with respect to granting variances, there is strong reason for careful scrutiny of any statutory provision (such as Section 11) for a bond which, if literally applied, might have the practical effect of barring from the courts owners of property adjacent to a parcel concerning which a variance has been granted. A legislative intention to provide a prohibitive obstruction (by requiring a security bond) to the bringing of meritorious suits to set aside variances allegedly arbitrarily, capriciously, or illegally granted by the Boston board of appeals [Note 7] is not lightly to be inferred.

Zoning ordinances, by-laws, and regulations adopted under G. L. c. 40A are designed (see Section 3) "to lessen congestion in the streets; to conserve health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city or town; and to preserve and increase its amenities." In St. 1956, c. 665, Section 2, this same concept is expressed more briefly, viz. to promote "the

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health, safety, convenience, morals, or welfare of . . . [Boston's] inhabitants." To accomplish these purposes zoning provisions must (G. L. c. 40A, Section 2, and St. 1956, c. 665, Section 2) "be uniform for each class or kind of buildings, structures, or land, and for each class or kind of use, throughout the district." If variances (or exceptions, unless bestowed fairly in accordance with ascertainable standards properly stated in the zoning provisions) are granted with undue frequency or liberality, and without strict compliance with the prescribed statutory criteria, zoning regulations can become a matter of administrative whim. The intended uniformity of rule may be destroyed. There is thus an important public, as well as private, interest in permitting court review at the behest of aggrieved persons to ensure that local boards of appeal conform with the statutory restrictions upon granting variances.

3. The plaintiffs' attack upon the bond provisions of Section 11 rests largely upon allegedly unconstitutional denial of access to the courts (to set aside a variance) on a discriminatory basis, in effect limited and measured by the wealth and resources of the persons objecting. The plaintiffs ask us to hold entirely invalid so much of Section 11 as seems to require a bond to be given as a condition of testing in the courts the validity of a variance. Access to the courts, they argue, should not be based on the financial ability of an aggrieved person to pay bond premiums and to assume the risk of paying damages to the recipient of a variance in the event of an unsuccessful appeal.

Decisions setting aside (as constitutionally invalid) restrictions upon use of the courts, based upon the ability of a party to pay, have occurred principally in criminal cases. See e.g. Griffin v. Illinois, 351 U.S. 12, 16-20; Douglas v. California, 372 U.S. 353, 354-358; Draper v. Washington, 372 U.S. 487, 496-500; Rinaldi v. Yeager, 384 U.S. 305, 307-311. See also North Carolina v. Pearce, 395 U.S. 711, 723-726 (imposition of more severe sentence at second trial as deterrent to appeal). It is argued that something like this principle should be applied to civil cases

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with respect to financial obstacles preventing or obstructing access to the courts. The principle has been applied to protect the fundamental rights of some indigents in civil cases. See e.g. Coonce v. Coonce, 356 Mass. 690, 693-695 (proceedings in forma pauperis in divorce); Boddie v. Connecticut, 401 U.S. 371, 376-379; Morganti v. Morganti, 99 Cal. App. 2d 512, 515-516 (statute unconstitutionally denied divorce to the spouse of an incurably insane person, unless the plaintiff could prove ability to support the insane person); Harrington v. Harrington, 269 Atl. 2d (Maine) 310, 314-316 (statutory bond in repossession proceedings); Jeffreys v. Jeffreys, 58 Misc. 2d (N.Y.) 1045, 1048-1059 (costs in divorce proceedings). Cf. State v. Sanks, 225 Ga. 88, 90 (indigent required to furnish bond as condition of presenting defense to eviction), [Note 8] app. dism. 401 U.S. 144, 153.

We need not and do not consider whether the cases just cited, concerning court expenses of indigents in civil cases, would all be followed in Massachusetts, or whether they would be extended to cover aggrieved persons, even if not indigent, who are precluded from taking a zoning appeal under Section 11 by lack of the resources needed to incur the heavy expense and serious risks of a bond. We conclude, in any event, that Section 11 should be interpreted in a manner which will avoid various constitutional questions suggested by these authorities. See Opinion of the Justices, 341 Mass. 760, 785; Commonwealth v. Buckley, 354 Mass. 508, 512. We hold that the bond requirements of Section 11 are to be interpreted in somewhat the same manner as the similar provisions of Rule 65 (c) of the Federal Rules of Civil Procedure (fn 5, supra). See Urbain v. Knapp Bros. Mfg. Co. 217 F. 2d 810, 815-816 (6th Cir.) cert. den. 349 U.S. 930, where it was said that Rule 65 (c) of the Federal Rules of Civil Procedure "leaves it to the . . . [j]udge to order the giving of

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security in such sum as the court considers proper. This would indicate plainly that the matter of requiring security in each case rests in the discretion of the . . . [j]udge." Continental Oil Co. v. Frontier Ref. Co. 338 F. 2d 780, 782 (10th Cir. -- "Under this rule [65 (c)] the trial judge has wide discretion . . .."). The words of Section 11 ("a bond with sufficient surety, to be approved by the court, for such a sum as shall be fixed by the court," comparable to the language of the Federal rule), also reasonably may be read as discretionary. The discretion should be exercised in a manner to accomplish the purpose of Section 11, as described in the Begley case, 349 Mass. 458, 460, and the McNeely case, 358 Mass. 94, 110, viz. -- (a) "to discourage frivolous and vexatious appeals from the decisions of the Boston board" of appeal, but not (b) unreasonably to prohibit, directly or indirectly (by requiring too large a bond), meritorious appeals (see General Motors Corp., Petr. 344 Mass. 481, 482) from allegedly illegal variances. [Note 9] So interpreting Section 11, and applying usual equitable principles to the requirement of a bond, frivolous appeals (or appeals by an aggrieved person not seriously harmed by the variance) may be discouraged by a decree [Note 10] ordering a bond with a penal sum sufficient to protect the grantee of the variance fully. 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.

4. In the present case, the record reveals little about the circumstances in which a bond of $50,000 was required. Those circumstances must be reconsidered upon further hearing in the Superior Court in accordance with the principles

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stated in this opinion. We do note that the decision of the board of appeal contains no adequate findings of either subsidiary or ultimate facts to justify the granting of a variance under St. 1956, c. 665, Section 9. There is, for example, no suggestion of any facts showing "conditions especially affecting . . . [the locus], but not affecting generally the zoning district in which it is located" which would make literal enforcement of the zoning regulation "involve substantial hardship to the" owner of the locus. See fn. 6. Also no facts found by the board (as opposed to very general conclusions) would permit the conclusion that "desirable relief may be granted without substantial detriment to the public good and without . . . substantially derogating from the intent and purpose of . . . [the applicable] zoning regulation." Unless there is substantial expansion of the board's decision, nothing in the decision will indicate that the grant of the variance (cutting the required lot size by more than one half) is not arbitrary and capricious. Before requiring by a new decree any substantial bond, equitable principles necessitate a careful investigation whether a meritorious review will not thereby be precluded unjustly.

5. The requirement that the plaintiffs give the $50,000 bond, and the plaintiffs' failure to do so, directly affected the final decree. See G. L. (Ter. Ed.) c. 214, Section 27. Cf. McNeely v. Board of Appeal of Boston, 358 Mass. 94, 110. Questions with respect to the interlocutory decree requiring the bond thus are open on appeal from the final decree.

6. The interlocutory decree fixing the amount of the bond and the final decree are reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.