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Skawski v. Greenfield Investors Property Development LLC

Supreme Judicial Court of Massachusetts, Hampden

February 11, 2016

Michael Skawski & others [1]
v.
Greenfield Investors Property Development LLC

         Argued January 7, 2016.

          Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011.

         A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Thomas Lesser ( Michael E. Aleo with him) for the plaintiffs.

          Marshall D. Senterfitt ( David S. Weiss with him) for the defendant.

          Isaac J. Mass, for Citizens for Growth, amicus curiae, submitted a brief.

          Ashley Grant, for Massachusetts Fair Housing Center, amicus curiae, submitted a brief.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

          [45 N.E.3d 562] Gants, C.J.

          On August 2, 2006, the Legislature enacted G. L. c. 185, § 3A, which established the permit session of the Land Court department and provided that " [t]he permit session shall have original jurisdiction, concurrently with the superior court department," over civil actions adjudicating the grant or denial of permits for " the use or development of real property" where " the

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underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area." St. 2006, c. 205, § 15. At the time § 3A was enacted, G. L. c. 40A, § 17, authorized " [a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority" to appeal to the Land Court, the Superior Court, the Housing Court, or the District Court.[2] The issue before us is whether the Legislature, by enacting G. L. c. 185, § 3A, intended to [45 N.E.3d 563] grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear this subset of major development permit appeals, or intended simply to create a permit session in the Land Court to hear these cases without eliminating the subject matter jurisdiction of the Housing Court to adjudicate this subset of appeals. We conclude that the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court. We also conclude that, where the permit appeal in this case was timely filed in the Housing Court in accordance with G. L. c. 40A, § 17, the appropriate remedy is not to dismiss the case for lack of subject matter jurisdiction but to transfer the case to a court with jurisdiction, that is, the permit session of the Land Court or the Superior Court.[3]

          Background.

          The defendant, Greenfield Investors Property Development LLC[4] (developer), seeks to build a retail development of not more than 135,000 square feet of commercial space in Greenfield (project). On May 17, 2011, the planning board of Greenfield (planning board) granted a special permit in favor of the developer to construct the project, subject to various conditions. The notice granting the special permit advised that " [a]n appeal from the decision of the [p]lanning [b]oard may be made by any person aggrieved pursuant to [G. L. c. 40A, § 17,] ...

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within twenty (20) days after the date of filing of a notice of decision in the [o]ffice of the [t]own [c]lerk."

         The plaintiffs, who own property abutting the proposed development (abutters), filed a timely appeal to the grant of the special permit in the Housing Court on June 7, 2011. On July 19, 2011, the defendants, without challenging the subject matter jurisdiction of the Housing Court, requested the Chief Justice of the Trial Court[5] to transfer the appeal from the Housing Court to the permit session of the Land Court, pursuant to G. L. c. 185, § 3A. The abutters opposed the motion, and, on August 31, 2011, the then-sitting Chief Justice of the Trial Court denied the motion to transfer, without explanation.

         The defendants then filed a motion for summary judgment, claiming that the abutters lacked standing to appeal the grant of the special permit and that their due process allegations failed to state a valid constitutional claim. On January 15, 2013, the judge allowed the motion as to the due process claims but denied it as to standing, thereby allowing the abutters to proceed with their appeal of the special permit.

         On December 28, 2012, the Appeals Court issued its decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass.App.Ct. 40, 43-44, 980 N.E.2d 458 (2012) ( Buccaneer ), where it held that G. L. c. 185, § 3A, deprived the [45 N.E.3d 564] Housing Court of subject matter jurisdiction to hear major development permit appeals. In Buccaneer, the zoning board of appeals (board) denied the special permit for a major housing development and the developer filed an appeal in the permit session of the Land Court. Id. at 40, 42. The board filed a notice in the permit session to transfer the case to the Housing Court, invoking G. L. c. 185C, § 20, which provides that " [a]ny civil action within the jurisdiction of the housing court department which is pending in another [trial] court department may be transferred to the housing court department by any party." Id. at 41. After the case was transferred to the Housing Court, the developer moved that it be remanded to the permit session of the Land Court; the motion was denied, and the

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board's denial of the special permit was affirmed. Id. The Appeals Court declared 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." Id. at 44. The court vacated the judgment and directed the Housing Court to remand the case to the permit session of the Land Court. Id. at 45.

         On January 25, 2013, the developer in this case, citing the Appeals Court decision in Buccaneer, moved to dismiss the appeal for lack of subject matter jurisdiction. On February 26, the judge denied the motion but conditioned her denial on allowance of her request for administrative transfer of the case and herself to the Superior Court. On February 28, the judge wrote a letter to the then-sitting Chief Justice of the Housing Court, requesting, in light of the " uncertainty" created by the Appeals Court decision in Buccaneer and the pending application for further appellate review in that case, that the instant case be transferred administratively to the Superior Court Department and that she be cross-designated and assigned to handle it. The developer opposed the transfer. The Housing Court Chief Justice failed to act on the request and, on July 25, the judge withdrew it and thereafter declared her intention to rule on the merits of the motion to dismiss.

         On August 27, the judge denied the defendants' motion to dismiss for lack of subject matter jurisdiction. The judge noted that the procedural posture of this case differed from Buccaneer in that the plaintiffs here had initially filed their appeal in the Housing Court, not the permit session of the Land Court. The judge 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." The judge declared that the Housing Court had jurisdiction under G. L. c. 40A, § 17, to hear permit appeals and that, where the Chief Justice of the Trial Court[6] had exercised the discretion granted to him under G. L. c. 185, ยง 3A, to deny the developer's request to transfer the case to the permit session of the Land ...


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