Appeals Court Ruling Promotes Expedited Resolution of Land Use Disputes

John Adams CourthouseIn 2006, then-Governor Mitt Romney signed into law “An Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth.”  The Act created a designated “permit session” in the Land Court designed to handle all permit-related litigation involving large projects on an expedited basis.  G.L. c. 185, §3A.  A designated judge was assigned to the permit session and cases were placed “on an accelerated track in order to promote the speedy disposition of disputes.” 

The Appeals Court’s decision last week in Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox (follow link for full opinion) underscores that objective.  In that case, Buccaneer appealed the denial of its application for a special permit by the Lenox Zoning Board of Appeals.  Buccaneer filed its appeal in the permit session of the Land Court.  The Board transferred the case to the Housing Court.  Buccaneer tried to have the case remanded back to the permit session at the Land Court, but the Housing Court denied the motion.  Two years later, the Housing Court held a trial at which Buccaneer lost, and the special permit denial was affirmed.  Buccaneer then appealed to the Appeals Court arguing that the case should have been remanded to the Land Court permit session. 

The Appeals Court agreed with Buccaneer.  The Court held that the Act is clear – projects involving either 25 or more dwelling units or 25,000 square feet or more of gross floor area, or both, are under the jurisdiction of the Land Court permit session or the Superior Court, but not the Housing Court.  It was not disputed that Buccaneer’s project fell within the Act’s guidelines.  In transferring the case back to the Land Court permit session, the Appeals Court reasoned: 

There is no provision in the statute that allows the transfer of a pending permit session case to any other trial court department of the Commonwealth, including the Housing Court…  The permit session was created by the Legislature to serve as a specialized judicial forum, bound by strict standards, in order to promote the expeditious resolution of permit-based 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 designation is the Housing Court.  (Emphasis added).

 While this ruling may appear to be a narrow, technical one, the Appeals Court’s handling of the Buccaneer case should not be overlooked.  Developers and other permit applicants are crying out for greater speed, transparency and certainty in permit applications and appeals.  The procedural history of the case itself is certainly not a model of judicial efficiency – Buccaneer will now have to be re-tried at the Land Court.  However, the Appeals Court’s decision underscores the Legislature’s intent in the Act – permit appeals for large projects should be handled on an expedited basis by the Land Court’s permit session.

For more information on litigating zoning and permit-related disputes, please contact David McCay, an experienced Massachusetts real estate litigator at Mirick O’Connell at (508) 791-8500.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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