Appeals Court Settles Jurisdiction Question For Large-Scale Development Projects

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In February, the Massachusetts Appeals Court clarified that the Land Court and Superior Court have exclusive jurisdiction over appeals of permits granted by cities and towns for large-scale development projects. See Skawski v. Greenfield Investors Property Dev., LLC, No. 13-P-1947 (February 27, 2015). The Court relied on G.L. c. 185, § 3A and its prior decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012), in rendering its decision.

The issue came to the Appeals Court from the Western Division of the Housing Court Department after a group of abutters filed an appeal of a special permit for a 135,000-square foot retail facility planned in Greenfield. The Housing Court denied the developer’s motion to dismiss for lack of subject matter jurisdiction.

On appeal, the developer relied on G.L. c. 185, § 3A to claim that the Housing Court lacked jurisdiction to hear appeals of permits granted for large-scale development projects. Section 3A states:

“The permit session [of the Land Court] shall have original jurisdiction, concurrently with the superior court department, over civil actions…arising out of the appeal of any municipal…permit…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.”

Before the enactment of G.L. c. 185, § 3A, the Housing Court had concurrent jurisdiction with both the Land Court and the Superior Court over permit appeals. The abutters argued that G.L. c. 185, § 3A simply established a “permit session” within the Land Court, but did not disturb the Housing Court’s jurisdiction over G.L. c. 40A, § 17 (permit) appeals. The Appeals Court disagreed and quoted its decision in Buccaneer:

“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.”

In accord with that principle, the Appeals Court held that the Housing Court lacked subject matter jurisdiction over the abutters’ appeal and that the motion judge erred in denying the defendants’ motion to dismiss.


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