November 20, 2016 Practice Points

In a Multi-Court System, Beware of the Jurisdiction for Zoning Appeals

A pointed reminder from the MA Appeals Court

by Carson M. Shea

Real estate and land use litigators in Massachusetts recently received a pointed reminder from the Appeals Court to confirm (and double-check) proper jurisdiction before appealing a zoning decision from the trial court level. Massachusetts has a multi-court system set up as follows: the trial court is made up of the District Court, the Superior Court (claims for more than $25,000), and courts of special jurisdiction (such as the Land Court); the Appeals Court; and the Supreme Judicial Court. The Massachusetts Appeals Court recently ruled that it does not have direct appellate jurisdiction over a district court decision in a zoning appeal under G.L. c. 40A, § 17.  The court’s decision in Tusino v. Zoning Board of Appeals of Douglas, et al. (Mass. App. Ct. Aug. 25, 2016), reflects the change to the statutory landscape when the Legislature extended equity jurisdiction to the district courts.

Tusino obtained a building permit to build a house on a nonconforming lot he owns in Douglas, Massachusetts.  His neighbor who owns the adjacent property asked the building commissioner to revoke the permit, but his request was denied.  The neighbor appealed to the Zoning Board of Appeals (ZBA), which revoked the permit.  Tusino applied to the ZBA for a variance, which was denied.  He appealed the variance denial to the Land Court to no avail.  The Appeals Court then affirmed the Land Court’s decision.  Regardless, Tusino continued to build his home.  

Meanwhile, the neighbor refused to give up.  He filed a mandamus action in the Land Court, asking the building commissioner to order that the house be removed, but the Court dismissed his action.  The neighbor again requested the commissioner to order the house be removed, and she again refused.  The neighbor appealed the building commissioner’s denial to the ZBA.  This time, the ZBA ordered that Tusino remove the house.  Tusino appealed the order to the Uxbridge District Court, but summary judgment entered in the neighbor’s favor.  Tusino then appealed the summary judgment decision directly to the Appeals Court, rather than the Appellate Division of the District Court.

Tusino argued that the Appeals Court has subject matter jurisdiction based on Walker v. Board of Appeals of Harwich, 388 Mass. 42, 50 (1983), which held that appeals from District Court decisions in cases decided under G.L. c. 40A, § 17, were to be made directly to the Appeals Court.  The Tusino court, however, noted that the conclusion in Walker relied on the fact the Appellate Division did not yet “have a general grant of equity jurisdiction and . . . actions under G. L. c. 40A, § 17, are clearly equitable in character.”  Walker v. Board of Appeals of Harwich, 338 Mass. 42, 48 (1983).  After Walker, the statutory landscape changed when the Legislature extended equity jurisdiction to the district courts.  The Legislature approved the one trial system for all District Courts and Boston Municipal Court Departments, in St. 2004, c. 252.  Since the Appellate Division is part of the District Court, the SJC has determined that the equitable jurisdiction granted to the District Court “necessarily extends to it.”  Herman v. Home Depot, 436 Mass. 210, 215 (2002). 

The Tusino court found that Walker was effectively superseded by the Legislature’s changes.  The court held that, since the SJC determined that the Appellate Division had primary jurisdiction to hear appeals of G. L. c. 93A injunctions, there was no reason why the result under G.L. c. 40A, § 17, should be different. Thus, the Tusino court dismissed the zoning appeal for lack of subject matter jurisdiction.

Tusino should act as a cautionary tale to all lawyers practicing in a multi-court system to ensure there is proper jurisdiction before filing a costly zoning appeal that may only result in a loss of their client’s time and resources.

Neal Suit is a partner at Carrington, Coleman, Sloman, and Blumenthal, LLP in Dallas, Texas.

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