Skawski v. Greenfield Investors Property Development LLC , 473 Mass. 580 ( 2016 )

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SJC-11926
MICHAEL SKAWSKI & others1 vs. GREENFIELD INVESTORS PROPERTY
DEVELOPMENT LLC.
Hampden. January 7, 2016. - February 11, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Jurisdiction, Land Court, Housing Court. Land Court,
Jurisdiction. Housing Court, Jurisdiction. Statute,
Construction, Repeal.
Civil action commenced in the Hampden Division of the
Housing Court Department on June 7, 2011.
A motion to dismiss was heard by Dina E. Fein, J., and the
ruling was reported by her.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Thomas Lesser (Michael E. Aleo with him) for the
plaintiffs.
Marshall D. Senterfitt (David S. Weiss with him) for the
defendant.
Isaac J. Mass, for Citizens for Growth, amicus curiae,
submitted a brief.
1
Melani Skawski; Ralph Gordon, Jr.; Susan Gordon; Joanna W.
Mann; Joanna J. Mann; and Shirley Lowe.
2
Ashley Grant, for Massachusetts Fair Housing Center, amicus
curiae, submitted a brief.
GANTS, C.J. On 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.2 The issue before us is
whether the Legislature, by enacting G. L. c. 185, § 3A,
intended to grant exclusive subject matter jurisdiction to the
permit session of the Land Court and to the Superior Court to
2
A party may only file an appeal in the Housing Court if
the land is situated in an area served by a division of the
Housing Court and may not file in the District Court if the land
is situated in Hampden County. G. L. c. 40A, § 17, first par.
If the appeal is filed in the District Court, "any party shall
have the right to file a claim for trial of said appeal in the
superior court department within twenty-five days after service
on the appeal is completed." Id.
3
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.3
Background. The defendant, Greenfield Investors Property
Development LLC4 (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
3
We acknowledge the amicus curiae briefs submitted by
Citizens for Growth and the Massachusetts Fair Housing Center.
4
The members of the planning board of Greenfield, as
required by G. L. c. 40A, § 17, second par., and the planning
board itself are also defendants in this action, but they have
not been joined as appellants.
4
"[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."
The 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 Court5 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.
The 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
5
At the time of the enactment of G. L. c. 185, § 3A, the
Chief Justice of the Trial Court was known as the Chief Justice
for Administration and Management. See G. L. c. 211B, § 1, as
amended through St. 2011, c. 93, § 49. Section 3A was amended
in 2011 only to reflect the change in nomenclature from "chief
justice for administration and management" to "chief justice of
the trial court." St. 2011, c. 93, §§ 25-26. Although some of
the events relevant to this case occurred before the change in
title, we use the current title to avoid confusion.
5
but denied it as to standing, thereby allowing the abutters to
proceed with their appeal of the special permit.
On 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 (2012) (Buccaneer), where it held that
G. L. c. 185, § 3A, deprived the 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
6
vacated the judgment and directed the Housing Court to remand
the case to the permit session of the Land Court. Id. at 45.
On 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.
On 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,
7
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 Court6 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 Court, allowance of the
defendants' motion to dismiss "would deprive the plaintiffs
entirely of their statutory right to judicial review of the
[p]lanning [b]oard's decision." The judge subsequently granted
the joint motion of the parties to report her ruling to the
Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended,
423 Mass. 1403 (1996).
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. Skawski v.
Greenfield Investors Prop. Dev., LLC, 87 Mass. App. Ct. 903,
905-906 (2015). We granted the abutters' application for
further appellate review.
6
See note 5, supra.
8
Discussion. General Laws c. 185, § 3A, established the
permit session of the Land Court and granted that session
"original jurisdiction, concurrently with the superior court
department," over major development permit appeals.7 It also
7
General Laws c. 185, § 3A, provides in relevant part:
"There shall be established a separate session of the land
court department, which shall be known as the permit session of
the land court department.
"Sessions of the permit session shall be held in Suffolk,
Middlesex, Essex, Norfolk, Plymouth, Worcester and Hampden
counties, and other counties as the chief justice of the land
court department shall from time to time designate.
"The permit session shall have original jurisdiction,
concurrently with the superior court department, over civil
actions in whole or part: (a) based on or 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, including without
limitation appeals of such permits, orders, certificates or
approvals, or denials thereof, arising under or based on or
relating to [G. L. c. 21; G. L. c. 30, §§ 61 to 62H, inclusive;
G. L. cc. 30A, 40A to 40C, inclusive, 40R, 41, 43D, 91, 131,
131A; or G. L. c. 249, §§ 4 and 5; or St. 1956, c. 665]; or any
local bylaw or ordinance; . . . but . . . only if 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 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.
There shall be a presumption against more than one transfer of a
case between any departments of the trial court. If a party to
an action commenced in or transferred to the permit session
claims a valid right to a jury trial. Then [sic] the action
shall be transferred to the superior court for a jury trial.
9
provides that, "[n]otwithstanding 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
"Each case filed in the permit session shall be assigned to
a single judge from the commencement to the conclusion of the
case. The judge assigned to the case will hold all hearings and
preside at the trial, except in the case of death, disability,
expiration of judicial appointment to the permit session or
emergency.
". . .
"The chief justice of the land court shall report to the
chief justice of the trial court, the clerks of the house and
senate, and the chairs of the judiciary committee of the general
court on an annual basis, with: (1) the number of cases handled
under this session; (2) the timelines achieved in cases pursuant
to this session; (3) any additional resources required by the
land court to meet its goals for this session; and (4) the
number of cases before the land court according to the county
from which they originate. To the extent that the chief justice
of the land court does not have sufficient resources to maintain
the timeframes mentioned above, then the chief justice of the
trial court shall assign judges with land use and environmental
expertise from other departments of the trial court to sit as
justices of the permit session. In making such appointments,
the chief justice of the trial court shall make reasonable
efforts to select justices who, by reason of their past
experience in private practice or practice with public agencies
or as jurists have particular skills related to environmental
and land use permitting and disputes concerning the same.
"The final disposition of cases in the permit session by
the court by dismissal, judgment or otherwise shall be in
accordance with the following timeframes which shall commence on
the filing of the trial transcript with the court or in the case
of a summary judgment motion, from the date the motion is taken
under advisement: A Track in 4 months, F Track in 3 months and
X Track in 2 months."
10
trial court." G. L. c. 185, § 3A, fourth par. The statute
notes, however, that "[t]here shall be a presumption against
more than one transfer of a case between any departments of the
trial court." Id.
1. Subject matter jurisdiction. At the time § 3A was
enacted in 2006, G. L. c. 40A, § 17, 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, gave any party the power to transfer such
an appeal to the Housing Court if it were not initially filed
there. The question we must grapple with is whether the
Legislature, by enacting § 3A, intended to divest the Housing
Court of subject matter jurisdiction over what we call major
development permit appeals (that is, appeals arising from 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) and to grant exclusive subject matter jurisdiction over
such appeals to the permit session of the Land Court and to the
Superior Court.
We use as our starting point the traditional tools of
statutory interpretation. "It is well established that '[a]
statute is not to be deemed to repeal or supersede a prior
statute in whole or in part in the absence of express words to
11
that effect or of clear implication.'" Commonwealth v. Palmer,
464 Mass. 773, 777 (2013), quoting Commonwealth v. Harris, 443
Mass. 714, 725 (2005). The words of § 3A do not explicitly
divest the Housing Court of jurisdiction over major development
permit appeals. Section 3A makes no reference to G. L. c. 40A,
§ 17, or to the subject matter jurisdiction over permit appeals
granted to the Housing Court by that statute. Nor does it grant
"exclusive jurisdiction" over major development permit appeals
to the permit session of the Land Court and to the Superior
Court; it simply grants these courts "original jurisdiction"
over these appeals. Contrast G. L. c. 185, § 1 ("The land court
department shall have exclusive original jurisdiction of the
following matters: . . ."); G. L. c. 212, § 3 ("The [superior]
court shall have exclusive original jurisdiction of civil
actions for the foreclosure of mortgages . . .").
Therefore, if § 3A divests the Housing Court of
jurisdiction over major development permit appeals, it must do
so by "clear implication," see Palmer, supra, that is,
implication so clear that it overcomes our "strong presumption
against implied repeal of a prior law." Dartmouth v. Greater
New Bedford Reg'l Vocational Tech. High Sch. Dist., 461 Mass.
366, 374 (2012). See generally 1A N.J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 23:10 (7th ed.
2009) (discussing judicially created presumption against repeal
12
of prior laws by implication). Implied repeal is clear where
"the earlier statute 'is so repugnant to and inconsistent with
the later enactment covering the subject matter that both cannot
stand.'" See Dartmouth, supra at 374-375, quoting Doherty v.
Commissioner of Admin., 349 Mass. 687, 690 (1965). It may also
be clear where the subsequent legislation comprehensively
addresses a particular subject and impliedly supersedes related
statutes and common law that might frustrate the legislative
purpose. See id. at 375-376, and cases cited. See generally 1A
N.J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction, supra at § 23:9 (discussing implied repeal where
later legislation covers whole subject of earlier legislation
and is intended as substitute). Ultimately, the touchstone is
"the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated." Weems v. Citigroup Inc., 453 Mass. 147, 153
(2009), quoting Boston Police Patrolmen's Ass'n v. Boston, 435
Mass. 718, 720 (2002).
Placing § 3A within the context of the larger legislative
enactment illuminates the legislative purpose underlying the
statute. Section 3A is found in one of twenty-four sections in
13
St. 2006, c. 205 (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." To
accomplish this purpose, the Legislature created a comprehensive
statutory program that, among other things, (1) provided funding
for technical assistance grants to assist State and local
governments and agencies in streamlining their permitting
processes, St. 2006, c. 205, §§ 2, 6; (2) provided for the
appointment of a director of the permit regulatory office within
the Executive Office of Economic Development to "serve as the
state permit ombudsman to new and expanding businesses, [and] to
provide one-stop licensing for businesses and development in
order to streamline and expedite the process of obtaining state
licenses, permits, state certificates, state approvals, and
other requirements of law," id. at § 4; and (3) provided
expedited permitting for property designated as a "priority
development site," id. at § 11. 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. See, e.g.,
State House News Service (Senate Sess.), July 25, 2006
(statement of Sen. Jack Hart) ("the number-one issue of concern
to businesses here in the Commonwealth is the long permitting
14
process. It may take anywhere from three to five years for a
business to get permitted. . . . We're not trying to supplant
the process; we're trying to expedite it").
Section 3A, which is found in § 15 of the act, must be
interpreted in light of that legislative purpose. The abutters
contend that the Legislature's purpose in enacting § 3A was to
create the permit session in the Land Court to hear these major
development permit appeals, not to affect the jurisdiction of
other court departments granted by G. L. c. 40A, § 17. But, if
its purpose were simply to create a new permit session in the
Land Court, there would be no need to mention the concurrent
original jurisdiction of the Superior Court. 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. See Commonwealth v. Russ R., 433 Mass.
515, 521 (2001) ("The Legislature enumerated three courts in the
immunity statute, but did not include the Juvenile Court.
Accordingly, the Legislature's actions suggest that it intended
to exclude the Juvenile Court"); Bagley v. Illyrian Gardens,
Inc., 401 Mass. 822, 824-825 (1988), and cases cited ("By
explicitly singling out the Hampden County division of the
15
Housing Court and granting it concurrent jurisdiction over such
appeals, the Legislature implicitly denied such jurisdiction to
the other divisions of the Housing Court"). See also Tilman v.
Brink, 74 Mass. App. Ct. 845, 852-854 (2009) (District Court
cannot award attorney's fees under G. L. c. 231, § 6F, because
it is not included in statutory definition of "court" under
G. L. c. 231, § 6E). This interpretation is consistent with the
statutory maxim, "expressio unius est exclusio alterius,"
meaning "the expression of one thing in a statute is an implied
exclusion of other things not included in the statute." See
Bank of Am., N.A. v. Rosa, 466 Mass. 613, 619 (2013); Bagley,
supra.
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.
See Dartmouth, 461 Mass. at 375, quoting Doherty, 349 Mass. at
690 (noting that implied repeal may be found where "the
Legislature enacts a law covering a particular field but leaves
conflicting prior prescriptions unrepealed").
Moreover, if we were to adopt the abutters' interpretation
of § 3A that the Housing Court continues to have jurisdiction to
hear these cases, the legislative purpose in having these cases
heard by the permit session of the Land Court would be
16
frustrated because any party could exercise its authority under
G. L. c. 185C, § 20, to transfer to the Housing Court any case
that was filed in or transferred to the permit session of the
Land Court. 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.8 See
G. L. c. 185, § 3A, sixth and eighth pars. Although a party
could file a major development permit appeal in the Superior
Court, § 3A allows any party, with the approval of the Chief
Justice of the Trial Court, to transfer the appeal to the permit
session. See id. at § 3A, fourth par. 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.
A careful review of the legislative history suggests that
the Legislature's intent regarding jurisdiction over major
development permit appeals evolved during the legislative
process. Initially, the Joint Committee on Labor and Workforce
8
General Laws c. 185, § 3A, also directs the Chief Justice
of the Trial Court to assign justices from other trial court
departments with "particular skills related to environmental and
land use permitting" to sit in the permit session if the Land
Court has insufficient resources to meet these time frames.
17
Development proposed in the House bill that a separate permit
division of the Superior Court be established that "shall have
original jurisdiction, concurrently with the Superior Court,"
over all permit appeals. 2006 House Doc. No. 4741. The bill
also provided:
"Notwithstanding any other General Law to the
contrary, any action not commenced in the Permit Division,
but within the jurisdiction of the Permit Division . . . ,
shall be transferred to the Permit Division upon motion by
any party to the Chief Justice for Administration of the
Trial Courts. There shall be a presumption against more
than one transfer of a case between any Departments of the
Trial Court." (Emphasis added.)
Id. Under this bill, any party to any permit appeal had the
right to transfer the appeal to the permit division. It is
doubtful that the proponents of this bill intended to divest the
jurisdiction of the Land Court, Housing Court, and District
Court over all permit appeals within the jurisdictional scope of
G. L. c. 40A, § 17, if only because the presumption against more
than one transfer of a case between trial court departments
would make no sense if only the Superior Court Department had
jurisdiction over these cases. But under this bill, even with
no limitation of jurisdiction, a developer could be assured
that, if it wanted a permit appeal to be decided in the permit
division, the appeal would be decided there.
The House bill was subsequently amended to establish a
permit session in the Land Court rather than a permit division
18
in the Superior Court. 2006 House J. 1659. This amendment
provided that the permit session "shall have original
jurisdiction, concurrently with the superior court department,"
over all permit appeals. Id. at 1659-1660. This amended
version retained the language providing that, on motion by any
party, the Chief Justice of the Trial Court "shall" transfer any
permit appeal that was not in the permit session to that
session. Id. at 1660.
The House bill was then further amended in three other
important ways. First, the scope of jurisdiction of the permit
session was limited to major development permit appeals; it no
longer had jurisdiction over all permit appeals. 2006 House J.
1661. Second, with respect to a party's motion to transfer an
appeal to the permit session, the word "shall" was struck and
replaced with "may," thereby giving the Chief Justice of the
Trial Court the discretion to allow or deny a motion to
transfer. Id. at 1665. Third, a provision was added declaring
that where a party in the permit session claims a right to a
jury trial, "then the action shall have a trial in the superior
court."9 Id. See G. L. c. 185, § 25 (Land Court "shall hold no
trials by jury"); G. L. c. 186, § 15 (where trial by jury is
9
This language was later revised before enactment. General
Laws c. 185, § 3A, provides, "If a party to an action commenced
in or transferred to the permit session claims a valid right to
a jury trial. Then [sic] the action shall be transferred to the
superior court for a jury trial."
19
claimed, questions of fact resolved in Superior Court). As a
result of these amendments, a party to a major development
permit appeal no longer has a right to have its case adjudicated
in the permit session; it could request such a transfer, but the
allowance of that transfer rests in the discretion of the Chief
Justice of the Trial Court. See 2006 House J. 1665. And even
if the appeal were filed in or transferred to the permit
session, it would nonetheless be tried in the Superior Court if
any party claimed a right to a jury trial. See id.
We conclude 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, which was the
department that had sole jurisdiction over permit appeals under
the earlier version of the House bill and concurrent
jurisdiction under the later version of that bill. And, once
the Legislature gave the Chief Justice of the Trial Court the
discretion to deny transfer of cases to the permit session of
the Land Court, even where no right to a jury trial was claimed,
the only way the Legislature could effectuate this intent was to
limit the scope of jurisdiction over these appeals to the permit
20
session of the Land Court and the Superior Court.10 In short, we
conclude that 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.
2. Remedy. Having concluded that the Housing Court lacks
jurisdiction to decide this major development permit appeal, we
address whether the remedy should be the outright dismissal of
10
The abutters argue that the inclusion in G. L. c. 185,
§ 3A, of the sentence, "There shall be a presumption against
more than one transfer of a case between any departments of the
trial court," demonstrates that the Legislature did not intend
that the permit session of the Land Court and the Superior Court
would have exclusive jurisdiction over major development permit
appeals because there could be multiple transfers of a case only
if there were jurisdiction in more than two trial court
departments. We recognize that this sentence was originally
included in the House bill, see 2006 House Doc. No. 4741, whose
proponents did not intend to divest jurisdiction over permit
appeals from the Housing Court, but we disagree that its
survival in § 3A suggests that the legislative intent did not
change with the revisions to that bill. Section 3A grants
discretion to the Chief Justice of the Trial Court to determine
whether to transfer a case from the Superior Court to the permit
session but requires transfer to the Superior Court from the
permit session where there is a claim of a right to a jury
trial. This sentence creates a presumption that discretionary
transfer to the permit session should not be granted if a party
earlier exercised its right to transfer an appeal from the
permit session to the Superior Court by claiming a right to a
jury trial and then sought to return to the permit session after
waiving its right to a jury trial.
21
the case, or transfer to a court with jurisdiction to decide it.
We conclude that transfer is the fair and appropriate remedy.11
The developer contends that the permit appeal should be
dismissed for lack of jurisdiction and that, if the abutters
wish to appeal the grant of the special permit, they should be
required to refile their complaint in a court with jurisdiction.
The developer also made clear at oral argument, however, that
were the abutters to refile, it would move to dismiss the
refiled complaint as untimely, because G. L. c. 40A, § 17,
requires that any such appeal be filed within twenty days after
the planning board filed the notice of decision in the office of
the town clerk, which occurred in 2011. The result would be
that the permit appeal would be procedurally barred, and the
merits of the appeal would never be reached by a court.
11
The Appeals Court declined to address the question of
transfer or the possibility of the abutters refiling their
appeal in either the Land Court or the Superior Court,
concluding that "[t]hese questions are outside of the bounds of
the reported question and were not made below." Skawski v.
Greenfield Investors Prop. Dev., LLC, 87 Mass. App. Ct. 903, 906
n.9 (2015). We disagree. The judge's report brings before us
the entirety of her ruling on the motion to dismiss, and the
question of remedy -- transfer as an alternative to dismissal --
is intimately and necessarily tied to that ruling. Moreover, it
is plain from the judge's earlier request to transfer the case
and from the express language of the judge's ruling that she was
concerned that dismissal of the action for lack of jurisdiction
might have the consequence of denying the abutters the
opportunity to litigate the merits of their appeal. In these
circumstances it would not serve the interests of justice to
avoid deciding this issue and leave it to be decided below,
where it could, and likely would, be the subject of yet another
appeal and further delay.
22
We have long rejected dismissal in comparable
circumstances. "[W]hen a court of limited jurisdiction is
confronted with a case over which its jurisdiction is doubtful
or lacking, the court should not dismiss the case out of hand;
rather, 'the proper procedure is for the judge to ask the Chief
Administrative Justice to transfer the case, or the judge, or
both, to the appropriate department of the Trial Court.'" Arno
v. Commonwealth, 457 Mass. 434, 446 (2010), quoting
Konstantopoulos v. Whately, 384 Mass. 123, 129 (1981). Thus, in
ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607-608 (2000),
where we concluded that the District Court lacked jurisdiction
over a summary process action it had adjudicated, we stayed the
order of dismissal to allow time for the judge to apply to the
Chief Justice for Administration and Management to "appoint the
District Court judge to sit as a Superior Court judge for the
purposes of this case." Similarly, in Konstantopoulos, supra at
130, 138, where we concluded that the Probate Court lacked
jurisdiction to review the revocation of an entertainment
license, we did not dismiss the case but instead remanded the
case to the Probate Court "with instructions to the judge to ask
the Chief Administrative Justice to transfer the case, or the
judge, or both to the Superior Court."
Dismissal would be especially unfair here, where the
abutters timely filed their appeal in a court that appeared at
23
the time to have jurisdiction under G. L. c. 40A, § 17; where
the defendants did not challenge the Housing Court's
jurisdiction until the Appeals Court issued its opinion in the
Buccaneer case in 2012, eighteen months after the appeal was
filed and well after the abutters might have filed a timely new
appeal in the Land Court or Superior Court; and where our
conclusion regarding the absence of jurisdiction in the Housing
Court rests principally on the doctrine of implied repeal rather
than the express language of § 3A.
Conclusion. The order denying the defendants' motion to
dismiss is hereby vacated, and the case is remanded to the
Housing Court, where the parties are to be given an opportunity
to apply within thirty days to the Chief Justice of the Trial
Court to have the case transferred either to the permit session
of the Land Court or to the Superior Court.12 The Chief Justice
of the Trial Court will act on that request forthwith. Once the
case is transferred, it should proceed expeditiously in the
court selected by the Chief Justice, so that the parties may
obtain a prompt decision on the merits.
So ordered.
12
We note that on March 23, 2015, shortly after filing
their application for further appellate review, the abutters
made a written request to the Chief Justice of the Trial Court,
pursuant to G. L. c. 185, § 3A, and G. L. c. 211B, § 9, for such
a transfer. That request has not been acted on while this
appeal has been pending.