January 7, 2016.
action commenced in the Hampden Division of the Housing Court
Department on June 7, 2011.
motion to dismiss was heard by Dina E. Fein, J., and
the ruling was reported by her.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Lesser ( Michael E. Aleo with him) for the plaintiffs.
Marshall D. Senterfitt ( David S. Weiss with him) for the
J. Mass, for Citizens for Growth, amicus curiae, submitted a
Grant, for Massachusetts Fair Housing Center, amicus curiae,
submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 562] Gants, C.J.
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
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. 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.
defendant, Greenfield Investors Property Development
LLC (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,] ...
within twenty (20) days after the date of filing of a notice
of decision in the [o]ffice of the [t]own [c]lerk."
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 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.
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.
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
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.
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.
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 had exercised the discretion granted
to him under G. L. c. 185, § 3A, to deny the
developer's request to transfer the case to the permit
session of the Land ...