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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").
