March 29, 2016 Practice Points

Major Development Project Appeals Cannot Go to MA Housing Court

Although its case is a win for developers generally, a Bay State developer could not secure the relief it hoped for

byMarc J. Goldstein

In a win for developers in Massachusetts, the state’s highest court ruled that appeals of major development projects of 25 or more dwelling units or 25,000 square feet or more of gross floor area cannot go to the Massachusetts Housing Court, as jurisdiction for these projects is exclusively with the Superior Court and permit session of the Massachusetts Land Court. Although the case, Skawski v. Greenfield Inv'rs Prop. Dev. LLC, No. SJC-11926 (Feb. 11, 2016), was a win for developers generally, this particular developer could not convince the court to dismiss the appeal and will have to now defend in the proper court instead.

When abutters appealed the decision of the Greenfield Planning Board granting a special permit to Greenfield Investors Property Development LLP for the development of 135,000 square feet of retail commercial space to the Massachusetts Housing Court, Greenfield sought to relocate that case to the Permit Session of the Massachusetts Land Court pursuant to M.G.L. c. 185, § 3A.  The request to the administrative judge went unanswered and the case proceeded.  However, Greenfield renewed its effort to move the case out of the housing court after the Massachusetts Appeals Court’s decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass.App.Ct. 40, 43–44 (2012).

In Buccaneer, the appeals court held that M.G.L. c. 185, § 3A, the statute creating the permit session of the land court, deprived the housing court of subject matter jurisdiction to hear major development permit appeals.  However, Greenfield’s motion to dismiss for lack of subject matter jurisdiction was denied by the housing court, which distinguished the holding in Buccaneer, stating that “the Appeals Court ruled effectively that the developer’s choice of forum trumped the defendants’ right under G.L. c. 185C, § 20[,] to transfer the case to the Housing Court” and that where  the developer’s request to transfer the case to the permit session has been denied, allowance of the defendants’ motion to dismiss “would deprive the plaintiffs entirely of their statutory right to judicial review of the [p]lanning [b]oard's decision.”

The ruling was reported to the appeals court, which reversed the judge’s order, finding that M.G.L. c .185, § 3A, did in fact deprive the housing court of subject matter jurisdiction over major development permit appeals. Skawski v. Greenfield Investors Prop. Dev., LLC, 87 Mass.App.Ct. 903, 905–906 (2015).  The Massachusetts Supreme Judicial Court accepted the application for further appellate review.

The top Massachusetts Court noted that the statute did not explicitly reject the Housing Court’s jurisdiction over permit appeals, which was established earlier in M.G.L. c. 40A, § 17 and looked to see if the “clear implication” of Section 3A was to divest the housing court of jurisdiction over these appeals.  The court looked to the text of the act as well as its legislative history and determined that “it is plain that the Legislature sought to reduce the costs and delays of the permitting process required to conduct business and develop property.”  The court rejected the abutters’ argument that the purpose of the statute was to merely create a new alternative venue in the permit session of the land court rather than to supplant the jurisdiction of any other courts in hearing appeals of this sort.  “But, if its purpose were simply to create a new permit session in the Land Court, there would be no need to mention the concurrent original jurisdiction of the Superior Court. By specifying that the Superior Court Department shared concurrent jurisdiction with the permit session of the Land Court, and not also specifying any other court department as having concurrent jurisdiction, the Legislature impliedly reflected its intent that these major development permit appeals be adjudicated only by these two courts.”

Although a win for developers generally, as the Massachusetts Housing Court was viewed as a relatively unfriendly venue, this developer could not secure the relief it hoped in the form a dismissal.  Instead, the court transferred the case from the housing court to the permit session. “Dismissal would be especially unfair here, where the abutters timely filed their appeal in a court that appeared at the time to have jurisdiction under G.L. c. 40A, § 17; where the defendants did not challenge the Housing Court's jurisdiction until the Appeals Court issued its opinion in the Buccaneer case in 2012, eighteen months after the appeal was filed and well after the abutters might have filed a timely new appeal in the Land Court or Superior Court; and where our conclusion regarding the absence of jurisdiction in the Housing Court rests principally on the doctrine of implied repeal rather than the express language of § 3A.”

Marc J. Goldstein is a principal at Beveridge & Diamond, P.C., in Wellesley, Massachusetts.

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