Creating Thriving Communities Through Land Use And Real Estate Law

SJC Oral Arguments in Skawski: Housing Court or Land Court Permit Session?

Today the Supreme Judicial Court heard oral arguments in the matter of Skawski v. Greenfield Investors Property Development, LLC, SJC-11926, which concerns the jurisdiction of the Housing Court and Land Court permit session over certain large-scale developments.

The case has taken a somewhat convoluted procedural path.  In 2011, Greenfield Investors applied for and received a special permit from the Greenfield Planning Board to construct a proposed 135,000 square foot commercial building.  The Notice of Decision stated that an aggrieved party could appeal the decision pursuant to G.L. c. 40A, § 17.  That statute states, in part:

Any person aggrieved by a decision . . . may appeal to the land court department, the superior court department . . . the housing court department . . . or . . the district court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.

The plaintiffs in this matter, abutters of the proposed development, appealed the decision to the housing court on June 3, 2011.  On July 19, 2011, the Defendants asked the Chief Justice for Administration and Management to transfer the case the Land Court pursuant to G.L. c. 185, § 3A, which created the permit session of the Land Court and states, in part:

The permit session shall have original jurisdiction, concurrently with the superior court department, over civil actions in whole or part: . . (d) any other claims between persons holding any right, title or interest in land and any municipal, regional or state board, authority, commission or public official based on or arising out of any action taken with respect to any permit or approval concerning the use or development of real property . . . only 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.

Notwithstanding any other general or special law to the contrary, any action not commenced in the permit session, but within the jurisdiction of the permit session as provided in this section, may be transferred to the permit session, upon motion by any party to the chief justice of the trial court.

All parties agree that the requirements of G.L. c. 185, § 3A are met in this case such that the permit session of the Land Court would have jurisdiction over the appeal.  The dispute arises because the plaintiffs claim that the Housing Court also has jurisdiction, based on the language of G.L. c. 40A, § 17, whereas the defendants claim that the Land Court has sole jurisdiction over the matter.

The request to transfer the case to the Land Court was denied.  The Defendants challenged the plaintiffs’ standing in a Motion for Summary Judgment; the Motion was denied.  However, shortly before the Housing Court issued its decision on the Motion, the Appeals Court issued its decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals, 83 Mass. App. Ct. 40 (2012).  Buccaneer held that the Housing Court lacked jurisdiction over actions which fall within the Land Court permit session’s jurisdiction.

Shortly after the Buccaneer decision, the Defendants moved to dismiss this case for lack of subject matter jurisdiction, arguing that, based on Buccaneer, the Housing Court lacked jurisdiction over the plaintiffs’ appeal.  After some procedural dealings, the Housing Court denied the Motion to Dismiss, but later granted a joint Motion to report its order to the Appeals Court.  The Appeals Court considered the matter and issued a decision in favor of Greenfield Investments on February 27, 2015, relying heavily on its decision in Buccaneer.  The plaintiff abutters appealed.

The issue at the heart of the matter is this: does G.L. c. 185, § 3A created another forum (in addition to those set out in G.L. c. 40A, § 17) for resolving large-scale development appeals, or does G.L. c. 185, § 3A establish the exclusive forums for appeals relating to large-scale developments?  Not surprisingly, the plaintiffs argue the former, while the defendants take the latter position.

During oral argument, the justices of the SJC pushed both parties on their interpretations.  Justice Cordy questioned the plaintiffs’ argument that special permit appeals and land use cases are the “grist of the mill” of housing court, while Justice Hines pushed the defendants on their position that the language “any action not commenced in the permit session,” G.L. c. 185, § 3A (emphasis added), only includes actions filed in the Superior Court, and not the Housing Court.

Fundamentally, there is a question of statutory interpretation – whether the later, more specific, statute which created the permit session (G.L. c. 185, § 3A) functions to remove the Housing Court’s jurisdiction over certain appeals which is otherwise created by the Zoning Act (G.L. c. 40A, § 17).  Should the SJC determine that the Housing Court lacks jurisdiction over cases which are within the purview of the Land Court permit session, there remains the question of whether the plaintiffs have lost their opportunity to appeal the special permit decision by virtue of having brought the appeal in the wrong court (and the 20-day appeal period having long since expired).  The Justices did not seem particularly pleased with either party’s response to this second question.

It seems to us that the Legislature intended through enactment of G.L. c. 185, § 3A to ensure that certain actions will be brought in, or at least transferred to, the permit session of the Land Court to take advantage of its expedited time standards and considerable expertise in land use matters.  Promoting economic development seems to have been the driving force behind c. 185, § 3A, which was passed in 2006 “to forthwith expedite the permitting process in the Commonwealth” during a time when many major projects were delayed, sometimes by years, by the appeals process.  While the precise relationship between the two statutes at issue may need further clarification by the Legislature, allowing cases which are properly within the jurisdiction of the permit session of the Land Court to be heard in Housing Court essentially nullifies the language of c. 185, § 3A, and also departs from the Legislature’s intent in creating the permit session.

It will likely be some time before the SJC issues a decision in this matter.  Further analysis will follow once the decision is published.