An interesting case-much less frustrating one for the plaintiff-developer involved-came out of the Appeals Court at the very end of 2012. In Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, Docket No. 11-P-1159 (Mass. App. Ct. Dec. 28, 2012), the sole issue before the court was whether the Housing Court had jurisdiction to decide a transferred case that was initially filed in the Land Court permit session.
The facts are straightforward. Plaintiff-developer applied for a special permit in the Town of Lenox to build a 23-unit retirement community. The Lenox Zoning Board of Appeals denied the special permit. On January 9, 2008, the developer then appealed the ZBA's decision by commencing an action in the permit session of the Land Court. Town counsel for the ZBA filed a motion to transfer the case to the Western Division of the Housing Court (under M.G.L. c. 185C, § 20), which was allowed. Thereafter, the developer sought to remand the case back to the permit session, but that effort was denied by the Housing Court. In approximately February 2010, the Housing Court issued its decision upholding the ZBA's denial of the special permit.
Fast forward to almost now five years after the case was initially commenced in the permit session of the Land Court, and it turns out that the developer was entitled to have his case heard in the Land Court. Yes, the Appeals Court determined in Buccaneer that the legislation that created the permit session (M.G.L. c. 185, §3A) for large scale projects like the one proposed in Lenox, omitted the Housing Court as a possible venue for such appeals. Only the Land Court or the Superior Court (for jury trials only) are the two venues allowed to hear permit session cases. The Appeals Court rightfully points out:
The legislative purpose of the permit session law is readily apparent from its title and its text. The 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. Original jurisdiction of such cases is conferred only on the permit session and the Superior Court. Conspicuously absent from the permit session law's jurisdictional designation is the Housing Court.
General Laws c. 185C, § 3, confers general jurisdiction on the Housing Court over G. L. c. 40A appeals, concurrently with the District Court and Superior Court, and G. L. c. 40A, § 17, authorizes appeals of final decisions of a permitting authority to the Land Court, Superior Court, or if the land is in Hampden Country, "to the division of the housing court department for said county." In contrast, in G. L. c. 185, § 3A, the Legislature did not grant authority to the Housing Court to adjudicate the types of actions specified by the statute. The statute does not allow any necessary inference to the contrary, and "[w]e will not expand or limit the meaning of a statute unless such is required by the 'object and plain meaning' of the statute." [citation omitted]
The legal conclusion to be drawn from the Legislature's omission of the Housing Court from the permit session law's jurisdictional designation is clear. "If the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it . . . would be tantamount to adding to a statute a meaning not intended by the Legislature." [citation omitted] . . .
It is also readily apparent that the Legislature has covered the field of permit-based actions arising from large-scale projects with its enactment of the permit session law. "It is a general principle that, where a statute covers the whole subject to which it relates, including means for redress for wrongs arising in connection with it, other provisions of law are superseded." [citation omitted] That is the situation here. The 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. [citation omitted] The Housing Court's general grant of jurisdiction under G. L. c. 185C "must be construed in light of other statutes dealing more specifically with the permitting process." . . . .
The Appeals Court remanded the case back to Housing Court so that court can reverse its decision on the developer's remand motion, and thus the case will go back to the Land Court to be heard again for trial.
What makes this kind of case frustrating for those of us who represent developers in particular, much less all parties involved in protracted legislation, is that there was a specific forum established for fast-tracking these kinds of appeals within a very tight timeframe. The permit session was created, in part, to support large-scale development efforts within the Commonwealth that had been notoriously held up for years in litigation. Yet here the system fell apart and now the developer-already in his fifth year of litigation-must start again. It is unclear why no interlocutory motion was filed to avoid this multi-year fiasco, but in any event at least future parties and their attorneys will be clear on where these cases must be heard.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.