Creating Thriving Communities Through Land Use And Real Estate Law

The Land and Superior Courts’ Exclusive Original Jurisdiction over Permit Session Cases

Today the Appeals Court in Skawski et al. v. Greenfield Investors Property Development, LLC, Docket No. 13-P-1947, confirmed that the Land Court and the Superior Court have exclusive original jurisdiction over Zoning Act (G.L. c. 40A, § 17) appeals that arise from applications concerning projects which fall within the scope of G.L. c. 185, § 3A.  That statute established the permit section of the Land Court Department of the Trial Department, which has jurisdiction in certain delineated cases where the underlying project or development involves: 1) 25 or more dwelling units; and/or 2) the construction or alteration of at least 25,000 square feet of gross floor area.

Several abutters appealed the Greenfield Planning Board’s grant of a special permit approving Property Development’s plan to develop a 135,000 square-foot retail facility.  The abutters filed their appeal in the Western Division of the Housing Court Department.  Relying on the Appeals Court’s decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012) (“[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.”), Property Development moved to dismiss the appeal for lack of subject matter jurisdiction.  The Motion to Dismiss was denied, and Property Development appealed.  In a relatively short decision, the Appeals Court reversed the decision of the Housing Court judge and granted the Motion to Dismiss, stating that “G. L. c. 185, § 3A, itself and not our decision in Buccaneer [] deprives the Housing Court of jurisdiction,” and describing as “unavailing” the policy and convenience considerations raised by the Housing Court Judge.

This case serves as an important reminder that, after the passage of G. L. c. 185, § 3A, those challenging a municipality’s approval of a permit for a development that falls within the scope of the permit session’s jurisdiction (“if the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area or both.”) must choose the proper forum for prosecuting such appeal, or risk having the appeal dismissed.

For more, see the Decision.