Skawski v. Greenfield Investors Property Development, LLC

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

13-P-1947 Appeals Court

MICHAEL SKAWSKI & others1 vs. GREENFIELD INVESTORS PROPERTY

DEVELOPMENT, LLC.2

No. 13-P-1947. February 27, 2015.

Jurisdiction, Land Court, Housing Court. Land Court,

Jurisdiction. Housing Court, Jurisdiction.

Upon a joint motion by the defendant, Greenfield Investors

Property Development, LLC (Property Development), and the

plaintiffs (abutters), a judge of the Western Division of the

Housing Court Department reported, for further review and

determination pursuant to Mass.R.Civ.P. 64(a), as amended, 423

Mass. 1403 (1996), her order denying Property Development's

motion to dismiss. Property Development challenges the Housing

Court's jurisdiction over the abutters' claim. Relying on our

holding in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of

Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer), Property

Development argues that with the enactment of G. L. c. 185,

§ 3A, establishing an expedited permit session in the Land Court

for large-scale development projects and grant of concurrent

jurisdiction to the Superior Court,3 the Legislature divested the

1

Melani Skawski, Ralph Gordon, Jr., Susan Gordon, Joanna W.

Mann, Joanna J. Mann, and Shirley Lowe.

2

The planning board of Greenfield and its members,

individually and in their capacity as members of the planning

board, were named as defendants in the complaint; however, they

are not parties to this appeal.

3

General Laws c. 185, § 3A, inserted by St. 2006, c. 205,

§ 15, in pertinent part, states: "The permit session [of the

2

Housing Court of jurisdiction over such matters. It asserts,

therefore, that the judge erred in denying its motion to dismiss

the abutters' claim for lack of subject matter jurisdiction. We

agree and reverse the order denying Property Development's

motion to dismiss.

Background. The planning board of Greenfield issued a

special permit approving Property Development's plan to develop

a 135,000-square-foot retail facility within the town of

Greenfield.4 The abutters filed an appeal pursuant to G. L.

c. 40A, § 17, in the Western Division of the Housing Court

Department, challenging the issuance of a special permit to

Property Development. Property Development and its codefendants

(see note 2, supra) subsequently filed a joint motion with the

Chief Justice for Administration and Management of the Trial

Court (CJAM)5 to have the matter transferred pursuant to G. L.

c. 185, § 3A, to the permit session of the Land Court. The

abutters opposed the transfer. The CJAM denied the motion, and

litigation proceeded in the Western Division of the Housing

Court Department.

Following our decision in Buccaneer, supra, Property

Development moved to dismiss the abutters' action, asserting

that the Housing Court lacked subject matter jurisdiction over

the action. The Housing Court judge denied Property

Development's motion to dismiss and conditioned that denial upon

Land Court] shall have original jurisdiction, concurrently with

the superior court department, over civil actions . . . arising

out of the appeal of any municipal . . . permit . . . concerning

the use or development of real property . . . 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."

4

There is no dispute that a project of this size falls

within the scope of G. L. c. 185, § 3A. See note 3, supra.

5

At that time, G. L. c. 185, § 3A, inserted by St. 2006,

c. 205, § 15, stated: "[A]ny action not commenced in the permit

session, but within the jurisdiction of the permit session

. . . , may be transferred to the permit session, upon motion by

any party to the chief justice for administration and

management." The statute was subsequently amended, and the

authority to transfer such cases is now vested in the Chief

Justice of the Trial Court. G. L. c. 185, § 3A, as amended by

St. 2011, c. 93, §§ 25, 26.

3

approval from the Chief Justice of the Housing Court Department

to transfer the matter to the Superior Court. To obtain that

approval, the judge sent a letter requesting that the case "be

transferred administratively to the Superior Court department

pursuant to G. L. c. 211B, § 9, and that [she] be cross-

designated and assigned to handle it." After that request went

unaddressed for five months, the Housing Court judge issued an

order denying Property Development's motion to dismiss. That

order is the subject of this appeal.

Discussion. The abutters argue that before the enactment

of G. L. c. 185, § 3A, the Western Division of the Housing Court

Department had concurrent jurisdiction with both the Superior

and Land Courts pursuant to G. L. c. 40A, § 17, over permit

appeals. They assert that because the Legislature did not

confer to the permit session of the Land Court and the Superior

Court exclusive jurisdiction over matters falling within the

scope of G. L. c. 185, § 3A, the Housing Court retained

jurisdiction over these matters under G. L. c. 40A, § 17. They

contend the enactment of G. L. c. 185, § 3A, established simply

an additional forum for these matters without stripping the

Housing Court of its prior jurisdiction.6 In Buccaneer, we

rejected this precise contention. We "disagree[d] with the

motion judge's ruling" that "[n]othing in [G. L.] c. 185,

§ 3A[,] purports to change [the Housing] [C]ourt's jurisdiction

[under G. L. c. 185C, § 3, and G. L. c. 40A, § 17, but]

[r]ather, that statute add[ed] a new forum to the existing

scheme." Buccaneer, 83 Mass. App. Ct. at 43.

We noted that in carving a distinct path for permit-based

cases stemming from litigation pertaining to large-scale

projects, the Legislature conferred original jurisdiction of

those matters to the Superior Court and the permit session of

the Land Court. See ibid. We reasoned that "where a statute

6

The abutters also argue that because G. L. c. 185, § 3A,

contemplates discretionary transfers of actions falling within

its scope to the permit session, the Legislature implicitly

contemplated the existence of multiple forums, including that of

the Housing Court. We agree that § 3A confers jurisdiction over

these matters to more than simply the permit session of the Land

Court, as it explicitly identifies the Superior Court as having

concurrent jurisdiction. G. L. c. 185, § 3A. We disagree,

however, that G. L. c. 185, § 3A, extended such jurisdiction to

the Housing Court. See Buccaneer, 83 Mass. App. Ct. at 43

("Conspicuously absent from the permit session law's

jurisdictional designation is the Housing Court").

4

covers the whole subject to which it relates, [as G. L. c. 185,

§ 3A, does here] . . . , other provisions of law are

superseded," id. at 44 (citation omitted), and we concluded 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." Ibid.

Contrary to the abutters' assertions and the motion judge's

ruling,7 the fact that the abutters' permit appeal was filed

before our decision in Buccaneer is of no consequence, as it is

G. L. c. 185, § 3A, itself and not our decision in Buccaneer

that deprives the Housing Court of jurisdiction. See id. at 41.

See also Middleborough v. Housing Appeals Comm., 449 Mass. 514,

520 (2007), quoting from Edgar v. Edgar, 403 Mass. 616, 619

(1988) ("Subject matter jurisdiction . . . 'is both conferred

and limited by statute'"). Cf. Litton Bus. Sys., Inc. v.

Commissioner of Rev., 383 Mass. 619, 622 (1981) ("The point was

not raised until after the case had been decided in the Superior

Court and reported to the Appeals Court. Nevertheless, we

cannot proceed if jurisdiction is lacking"). Furthermore, the

judge's emphasis on policy considerations, such as the proximity

of the parties' residences to the Housing Court session or the

ability of the Housing Court to dispose of the matter equally as

expeditiously as the permit session of the Land Court, is also

unavailing.8 See Wachovia Bank, Natl. Assn. v. Schmidt, 546 U.S.

303, 316 (2006) ("Subject-matter jurisdiction . . . does not

entail an assessment of convenience"); Buccaneer, supra at 45

("Nor is it of any relevance that the Housing Court may have

been more convenient . . . as opposed to the permit session").

7

We disagree with the judge's ruling that the Housing Court

retained jurisdiction because the abutters filed their case

"prior to the decision in Buccaneer, when the case[] [law] left

no question that [the Housing] [C]ourt had jurisdiction to hear

their appeal."

8

The judge found that "the tracking order which issued when

this case was originally filed would have disposed of the case

relatively as expeditiously as provided for in the Permit

Session," and that the abutters "filed this case in the Western

Division Housing Court, which sits weekly in the county where

they live and where the project in question will abut their

homes if the decision to allow the special permit is upheld."

The judge also determined that "the policy considerations

implicit in the [Buccaneer] decision [do not] mitigate in favor

of dismissing this case."

5

Accordingly, we conclude that the Housing Court lacks subject

matter jurisdiction over the abutters' permit action and,

further, that the motion judge erred in denying Property

Development's motion to dismiss for lack of subject matter

jurisdiction.9

Order denying motion to

dismiss reversed.

David S. Weiss (Marshall D. Senterfitt with him) for the

defendant.

Thomas Lesser for the plaintiffs.

9

Finally, we address neither the abutters' request that we

rule that they have the right to refile their action in either

the permit session of the Land Court or the Superior Court nor

their request that we remand the case to one of those courts in

the event that we reverse the judge's order. These questions

are outside of the bounds of the reported question and were not

made below. See Spellman v. Shawmut Woodworking & Supply, Inc.,

445 Mass. 675, 679 (2006), quoting from McStowe v. Bornstein,

377 Mass. 804, 805 n.2 (1979) ("we need not answer the reported

questions 'except to the extent that it is necessary to do so in

resolving the basic issue'"); Atlas Tack Corp. v. DiMasi, 37

Mass. App. Ct. 66, 70 (1994) ("Ordinarily, a party is not

entitled to present an argument on appeal on an issue not

presented in the court below").