Not just because a later court ruling makes the deal less attractive. The Appeals Court held that a developer had to honor a settlement with neighbors after a Land Court zoning decision, and that using that decision to push for a better deal was an unfair practice under G.L. c. 93A. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
A developer was building on three small, nonconforming lots on a street in Newton. Neighbors challenged the building permits, and the zoning board revoked permits for two lots. The developer appealed to the Land Court. While cross motions for summary judgment were pending, the neighbors, the developer, its principals and its lender signed a settlement in April 2015. The developer agreed to pay the neighbors $80,000, seek a special permit to redivide the lots with the neighbors’ support, restore one lot’s landscaping, and record restrictions on building. The agreement said it would control over any Land Court ruling on the pending motions. The Land Court then ruled on those motions in May 2015. The developer refused to confirm it would perform, proposed declaring the settlement void, and later claimed the neighbors’ protective court filings let it walk away. The neighbors sued in the Superior Court and won on contract and c. 93A claims.
What the court decided
The Appeals Court affirmed in Filzer v. Pitsick LLC, No. 24-P-720 (Mass. App. Ct. November 18, 2025) (Rule 23.0 decision).
No impossibility. A party may be excused from a contract only in limited cases where an unanticipated event makes performance impracticable. The developer argued the Land Court ruling made the lot redivision unlawful. The court said the settlement was about much more than redivision. Its heart was ending the litigation in exchange for money, landscaping and restrictions. Nothing stopped construction on the developer’s lot, and the house there was finished and had an occupancy certificate by trial.
No frustration of purpose. Frustration applies when a party’s main purpose is substantially defeated by an event the parties assumed would not happen. Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371 (1991). The Land Court ruling was not unanticipated. The agreement expressly addressed it.
Breach and bad faith. The court agreed that the developer’s refusal to give assurances, and its push to renegotiate, amounted to an anticipatory repudiation. The agreement let the developer back out only for costly conditions imposed on the special permit by a town body and disclosed in writing within ten days. The neighbors’ court filings did not qualify. The court read the agreement by its plain terms.
Chapter 93A. Conduct that disregards known contract arrangements to gain a benefit for the breaching party is an unfair practice. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451 (1991). Using a failure to pay as a wedge to gain advantages can cross that line. Zabin v. Picciotto, 73 Mass. App. Ct. 141 (2008). The trial judge found the developer used the Land Court ruling to try to leverage a better deal. That finding was not clearly erroneous. The judge found the violation was not knowing or willful, so damages were not multiplied.
Damages and interest. The judgment included the $80,000 settlement payment and $15,000 in nominal damages, with interest from the filing of the complaint under G.L. c. 231, § 6C, and attorney’s fees. The obligation to pay ran to the developer, not the lender, and the developer had blocked the lender from releasing the funds. The Appeals Court also allowed the neighbors appellate attorney’s fees under G.L. c. 93A, § 9 (4).
What this means for you
If you are a neighbor who settles a zoning or building dispute, a signed agreement can be enforced in court. A developer cannot treat a later court ruling as an exit when the agreement already planned for it. If the other side refuses to confirm it will perform, you can take steps to protect your position, as these neighbors did with placeholder filings.
Not every breach of contract violates c. 93A. A genuine, good faith disagreement over what a contract requires usually is not enough. The difference here was the judge’s finding that the developer used the Land Court ruling as leverage to try to get a better deal.
What to do now
- Put any settlement with a developer or neighbor in writing, and spell out what happens if a court or board rules first.
- Define exactly when either side may cancel, and require written notice within a set time.
- If the other side signals it will not perform, ask in writing for assurance that it will.
- Protect pending deadlines in the underlying case until the settlement is fully carried out.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
Prior results do not guarantee a similar outcome.
