For Large Project Permitting Appeals, No Removal From Land Court’s Permit Session to Housing Court

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In a decision handed down just last week, the Appeals Court ruled that a large project permitting appeal filed in the Land Court’s six-year-old permit session cannot be removed to the Housing Court, since the Housing Court lacks jurisdiction over such matters. In Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, Appeals Ct. No. 1-P-1159, the Appeals Court vacated a Housing Court judgment upholding the Town of Lenox’s denial of a special permit for construction of a twenty-three home retirement community, and remanded the matter to the Land Court for a new trial.

Although the Buccaneer case was originally filed in the permit session, town counsel removed it to the Housing Court. The developer then brought a motion to remand the case to Land Court. That motion was denied, with the Housing Court ruling that (i) the Housing Court had jurisdiction over appeals such as Buccaneer’s prior to the Legislature’s 2006 enactment of G.L. c. 185, § 3A, which established the permit session, and (ii) the new statute merely added an additional forum to the pre-existing scheme, and did not strip the Housing Court of its then-existing jurisdiction to hear such cases.

The Appeals Court disagreed, commenting that both the text and the title of the legislation, An Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth, rendered the law’s purpose “readily apparent.”

According to the Appeals Court’s opinion, “[t]he permit session was created by the Legislature to serve as a specialized judicial forum, bound by strict time standards, in order to promote the expeditious resolution of permit-based civil cases stemming from large development projects.”

As to whether the Housing Court has retained jurisdiction over such matters, the Appeals Court held that “[t]he more recent, specific permit session law controls over G.L. c. 185C, § 3, and G.L. c 40A, § 17, which relate generally to permit-based zoning appeals. . . . By 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.”

The permit session statute, G.L. c. 185, §3A, provides for three expedited “tracks” on which a large project appeal should proceed to trial: (i) an “A,” or “Average” track of 12 months to trial; (ii) an “F” or “Fast” track of 9 months to trial; and (iii) an “X” or “Accelerated” track of 6 months to trial. The statute also specifically requires assignment of a case filed in the permit session to a single judge from commencement of the action to conclusion.

Arguably, the Buccaneer case itself demonstrates precisely why developers appealing from adverse permitting decisions may seek such streamlined proceedings. The Buccaneer matter was filed in the Land Court on February 1, 2008. The Appeals Court’s decision is dated December 28, 2012 – nearly five years after the action was first commenced.

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