In February 2016 the Supreme Judicial Court decided Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580 (2016), and concluded that, in establishing the permit session of the Land Court, “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.” Id. at 581. Therefore, Skawski ruled that the Housing Court lacked jurisdiction over challenges to a special permit granted for a major developments. That decision was consistent with both the Appeals Court’s rescript decision in Skawski, 87 Mass. App. Ct. 903 (2015), and the Appeals Court’s earlier decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871 (2015).
G.L. c. 185, § 3A (“Section 3A”) gave rise to each of these cases. That statute, which was enacted in 2006, established the permit session of the Land Court and granted it “original jurisdiction, concurrently with the superior court department, over civil actions in whole or part … arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property” and other similar projects with 25 or more dwelling units and/or involving the construction or alteration of 25,000 square feet or more of gross floor area (which Skaswki termed “major developments”).
Skawski considered an abutter’s challenge to a special permit granted by the Greenfield Planning Board for construction of a retail development of approximately 135,000 square feet. As was then common in Hampden County, the appeal was filed in Housing Court.
The Chief Justice of the Trial Court denied a motion to transfer the case to the permit session of the Land Court. Later, the Chief Justice of the Housing Court failed to act on a request by the trial judge that the case be transferred administratively to the Superior Court Department and that she (the Housing Court trial judge) be cross-designated as a Superior Court judge.
Faced with a pending motion to dismiss for lack of subject matter jurisdiction, the Housing Court judge withdrew her request and denied the motion to transfer the case. She then reported her ruling to the Appeals Court. Following the Appeals Court’s reversal of the trial judge’s order, the SJC granted the plaintiff’s application for further appellate review.
The issue confronted by the SJC was how to square Section 3A, which established the permit session, with G.L. c. 40A, § 17 (“Section 17”), which “gave subject matter jurisdiction in all permit appeals to the Housing Court, along with the Land Court, Superior Court, and District Court, and G.L. c. 185C, § 20, [which] gave any party the power to transfer such an appeal to the Housing Court if it were not initially filed there.” Skawski, 473 Mass. at 585. Chief Justice Gants engaged in a lengthy analysis of the language, context and history of Section 3A to reach the conclusion that the Housing Court was without subject matter jurisdiction to hear the appeal.
Skawski first acknowledged that Section 3A did not expressly repeal Section 17. The SJC next turned to the legislative purpose of Section 3A to determine if it repealed Section 17 by clear implication. The SJC emphasized that Section 3A was but one section of St. 2006, c. 205 (the “act”), “whose purpose is clear from its title, ‘An Act relative to streamlining and expediting the permitting process in the commonwealth,’ and its preamble—‘to forthwith expedite the permitting process in the commonwealth.’” Skawski, 473 Mass. at 587. “From the text of the act and its legislative history, it is plain that the Legislature sought to reduce the costs and delays of the permitting process required to conduct business and develop property.” Id. (citations omitted). The SJC also observed that the “comprehensive scope of the act further suggests that the Legislature intended to be equally comprehensive in declaring which court departments would have original jurisdiction to adjudicate major development permit appeals.” Id. at 588.
In light of the legislative purpose, the SJC concluded that, “[b]y 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.” Id. at 587-88 (emphasis added; citations omitted).
The SJC found further support for this conclusion in the fact that the “establishment of the permit session of the Land Court to hear major development permit appeals was an integral part of the act’s over-all plan to expedite the permitting process because § 3A establishes demanding time frames for the final disposition of such appeals in the permit session.” In addition, Section 3A “allows any party, with the approval of the Chief Justice of the Trial Court, to transfer the appeal to the permit session…. But, if the Housing Court continued to have jurisdiction over these cases, any party could invoke G.L. c. 185C, § 20, and ensure that the final disposition of the appeal would be decided, not by the permit session, but by the Housing Court.” Id. at 588-89. Finally, the SJC found that the legislative history further supported its decision. Id. at 589-591.
The SJC concluded
that the clear implication of these amendments is 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 …. In short, … the clear implication of § 3A is that the Legislature wanted all major development permit appeals to be adjudicated either in the permit session of the Land Court or in the Superior Court and therefore limited jurisdiction over these cases to these courts.
Id. at 590-91 (footnote omitted).
Interestingly, the SJC did not order dismissal of the case for lack of subject matter jurisdiction. Rather, it remanded the case to Housing Court to give the parties the opportunity to apply to the Chief Justice of the Trial Court for a transfer to the permit session of the Land Court or to the Superior Court.
Skawski gives effect to the Legislature’s intent to expedite appeals concerning major projects through use of the newly established permit session of the Land Court, staffed by judges with an expertise in land use matters. Practitioners should take note that interdepartmental assignments of Housing Court judges to hear major development permit appeals are now impossible because the Housing Court is without jurisdiction over such appeals, notwithstanding the language of G.L. c. 40A, § 17 and G.L. c. 185C, § 20.
Gordon Orloff is a litigator at Rackemann, Sawyer & Brewster in Boston, where he focuses on resolving real estate, land use, probate and business disputes. Mr. Orloff is a regular contributor to Massachusetts Land Use Monitor, a blog that reports on new developments in real estate and land use law.