Posted by: Patricia Salkin | February 22, 2016

MA Supreme Judicial Court Finds Remedy for Abutting Property Owners’ Filing of Development Permit Appeal was Transfer to a Court with Jurisdiction Rather than Outright Dismissal

The defendant, Greenfield Investors Property Development LLC (“developer”), sought to build a retail development of about 135,000 square feet of commercial space. The planning board of Greenfield granted a special permit in favor of the developer to construct the project, and the abutting property owners appealed. The defendant, 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, the trial court denied the motion to transfer. The Appeals Court reversed the judge’s order denying the defendants’ motion to dismiss, concluding that the enactment of G.L. c. 185, § 3A, deprived the Housing Court of subject matter jurisdiction over major development permit appeals.

In this case, the court analyzed whether the Legislature, by enacting § 3A, intended to divest the Housing Court of subject matter jurisdiction over major development permit appeals (arising from an action on any permit concerning the use or development of real property in projects that involve the construction of twenty-five or more dwelling units or 25,000 square feet or more of gross floor area). While it did not do so explicitly, by specifying that the Superior Court Department shared concurrent jurisdiction with the permit session of the Land Court, and not also specifying any other court department as having concurrent jurisdiction, the Legislature impliedly reflected its intent that these major development permit appeals be adjudicated only by these two courts. Moreover, the court found with respect to a party’s motion to transfer an appeal to the permit session, the word “shall” had been struck and replaced with “may,” thereby giving the Chief Justice of the Trial Court the discretion to allow or deny a motion to transfer. Thus, the court held that the clear implication of these amendments was that the Legislature intended that major development permit appeals be adjudicated in the permit session and, if they could not be, either because the Chief Justice of the Trial Court denied the motion to transfer the case to that session or because a party claimed a right to a jury trial, that they be adjudicated in the Superior Court Department.

Dismissal was held to be unfair here, where the abutters timely filed their appeal in a court that appeared at the time to have jurisdiction since the Appellate decision answering this question was not issued until eighteen months after the appeal was filed and well after the abutters could have filed a timely new appeal in the Land Court or Superior Court. The order denying the defendants’ motion to dismiss was therefore vacated.

Skawski v. Greenfield Investors Property Development LLC, 2016 WL 527282 (MA 2/11/2016)

 


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