Order denying motion to dismiss reversed.
David S. Weiss ( Marshall D. Senterfitt with him) for the defendant.
Thomas Lesser for the plaintiffs.
[26 N.E.3d 1113] Upon a joint motion by the defendant, Greenfield Investors Property Development, LLC (Property Development), and the plaintiffs (abutters), a judge of the Western Division of the Housing Court Department reported, for further review and determination pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), her order denying Property Development's motion to dismiss. Property Development challenges the Housing Court's jurisdiction over the abutters' claim. Relying on our holding in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass.App.Ct. 40, 980 N.E.2d 458 (2012) ( Buccaneer ), Property Development argues that with the enactment of G. L. c. 185, § 3A, establishing an expedited permit session in the Land Court for large-scale development projects and grant of concurrent jurisdiction to the Superior Court, the Legislature divested the Housing Court of jurisdiction over such matters. It asserts, therefore, that the judge erred in denying its motion to dismiss the abutters' claim for lack of subject matter jurisdiction. We agree and reverse the order denying Property Development's motion to dismiss.
The planning board of Greenfield issued a special permit approving Property Development's plan to develop a 135,000-square-foot retail facility within the town of Greenfield. The abutters [26 N.E.3d 1114] filed an appeal pursuant to G. L. c. 40A, § 17, in the Western Division of the Housing Court Department, challenging the issuance of a special permit to Property Development. Property Development and its codefendants (see note 2, supra ) subsequently filed a joint motion with the Chief Justice for Administration and Management of the Trial Court (CJAM) to have the matter transferred pursuant to G. L. c. 185, § 3A, to the permit session of the Land Court. The abutters opposed the transfer. The CJAM denied the motion, and litigation proceeded in the Western Division of the Housing Court Department.
Following our decision in Buccaneer, supra, Property Development moved to dismiss the abutters' action, asserting that the Housing Court lacked subject matter jurisdiction over the action. The Housing Court judge denied Property Development's motion to dismiss and conditioned that denial upon approval from the Chief Justice of the Housing Court Department to transfer the matter to the Superior Court. To obtain that approval, the judge sent a letter requesting that the case " be transferred administratively to the Superior Court department pursuant to G. L. c. 211B, § 9, and that [she] be cross-designated and assigned to handle it." After that request went unaddressed for five months, the Housing Court judge issued an order denying Property Development's motion to dismiss. That order is the subject of this appeal.
The abutters argue that before the enactment of G. L. c. 185, § 3A, the Western Division of the Housing Court Department had concurrent jurisdiction with both the Superior and Land Courts pursuant to G. L. c. 40A, § 17, over permit appeals. They assert that because the Legislature did not confer to the permit session of the Land Court and the Superior Court exclusive jurisdiction over matters falling within the scope of G. L. c. 185, § 3A, the Housing Court retained jurisdiction over these matters under G. L. c. 40A, § 17. They contend the enactment of G. L. c. 185, § 3A, established simply an additional forum for these matters without stripping the Housing Court of its prior jurisdiction. In Buccaneer, we rejected this precise contention. We " disagree[d] with the motion judge's ruling" that " [n]othing in [G. L.] c. 185, § 3A[,] purports to change [the Housing] [C]ourt's jurisdiction [under G. L. c. 185C, § 3, and G. L. c. 40A, § 17, but] [r]ather, that statute add[ed] a new forum to the existing scheme." Buccaneer, 83 Mass.App.Ct. at 43.
We noted that in carving a distinct path for permit-based cases stemming from litigation pertaining to large-scale projects, [26 N.E.3d 1115] the Legislature conferred original jurisdiction of those matters to the Superior Court and the permit session of the Land Court. See ibid. We reasoned that " where a statute covers the whole subject to which it relates, [as G. L. c. 185, § 3A, does here] ... , other provisions of law are superseded," id. at 44 (citation omitted), and we concluded that " [b]y explicitly granting jurisdiction to the permit session and the Superior Court to hear permit-based civil actions involving large-scale projects, the Legislature implicitly denied such jurisdiction to the Housing Court." Ibid.
Contrary to the abutters' assertions and the motion judge's ruling, the fact that the abutters' permit appeal was filed before our decision in Buccaneer is of no consequence, as it is G. L. c. 185, § 3A, itself and not our decision in Buccaneer that deprives the Housing Court of jurisdiction. See id. at 41. See also Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520, 870 N.E.2d 67 (2007), quoting from Edgar v. Edgar, 403 Mass. 616, 619, 531 N.E.2d 590 (1988) ( " Subject matter jurisdiction ... 'is both conferred and limited by statute'" ). Cf. Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622, 420 N.E.2d 339 (1981) (" The point was not raised until after the case had been decided in the Superior Court and reported to the Appeals Court. Nevertheless, we cannot proceed if jurisdiction is lacking" ). Furthermore, the judge's ...