"Trust But Verify"

Jeffrey A. Gordon, M.D.

If you make a contract with someone do work on your house, then you expect that person will complete the job in a full, timely and satisfactory manner. Having a contract binds them legally to either finish the work or to repay you for what they did not do.  If you had not paid them in full, then you do not pay them the remainder.  The contract protects you.  It also protects the person doing the work in case you do not pay for what they did.  These contracts are commonplace and we take them for granted.

Your town’s planning and zoning commission likewise deals with contracts.  When a land use activity is given approval to be performed, a bond or a surety guarantee requirement may be incorporated into the approval.  This is usually put into place when the land use activity involves the building of public infrastructure, the protection of natural resources, or the restoration of land after construction has finished.  Why is bonding necessary?  Because if what is needed to be completed is not done, then your town government is left to do the work - you as the taxpayer will foot the bill.  That is not fair and should not be allowed.  By casting the land use permit approval with a bond, the applicant will be required to provide upfront a certain amount of money to your town government to be used only in the circumstance that your town has to pick up and do the work if it is otherwise not done properly or at all.  If the work is done as specified, then the bond money must be returned.

Bonding is not done to penalize a contractor or an individual.  Rather, bonding is done for the necessary protection of two groups of people: 1) the people who will live, work or travel to whatever is built, and 2) the general public.  Bonding stems from the very important purpose of your town’s planning and zoning commission to uphold public safety, health, welfare and quality of life.  The vast majority of contractors and builders do a good job, following all that is required of them by the terms of a permit approval.  However, there are people out there who don’t follow the rules.  Hence why your town’s Zoning Enforcement Officer, Building Official, Wetlands Agent, Highway Foreman, Fire Marshall, Public Health Inspector, and others do their due diligence in monitoring construction and finalizing a review post-construction.  As Ronald Reagan made famous, “trust but verify” is a wise Russian proverb.

A good example of how bonding works is what is done when a new residential subdivision or commercial building is approved in your town.  There are more than just houses or offices that will be built.  The people who will live or work there need things like a street (usually a public road), sewer and water services, hydrants or other fire safety things, etc...  Your town needs things like wetlands and watercourses protections, erosion and sediment control systems, stormwater runoff management, landscaping buffers, traffic improvements, pedestrian ways, and all other items to protect not just the land that is being developed but the surrounding neighborhoods and neighbors.  The public good as a whole and the individuals in a community all need to be protected.

Bonding has several key provisions: 1) the total dollar amount to be provided, 2) the work to be completed, 3) the time line of the work’s completion (is it all done at once or is it phased over time), 4) the mechanism for release of the bond money back to the person who posted the bond (is it all released once all work is done or is it released in phases based upon what construction steps are completed), and 5) the legal process for calling the bond when town government needs to step in to do the work.  It is not necessarily straightforward, especially when there are complex state statutes involved.  A planning and zoning commission gets the advice of town staff and any contracted professional engineers, etc… in order to make an appropriate determination as to how the bonding will be set up.  Sometimes more than one bond is required, each pertaining to a specific aspect of a land use project.

A planning and zoning commission’s work does not end when an approval for a permit is issued.  As I learned long ago when I played little league baseball in Worcester, follow through is important.  This is just one aspect of the public work your town’s planning and zoning commission does for and on your behalf.  It may not seem sexy, but it is a fundamental part of the “nuts and bolts” work of your municipal government.  It is also part of paying attention to the details of land use applications and the permitting process.

By the way, I played for a team called the Colonial Donuts.  I was not a good hitter, but I could run the bases fast and I could throw accurately from the outfield.  I never did realize my dream of playing for the Red Sox.


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