Skawski v. Greenfield Investors Property Development LLC

The defendant, Greenfield Investors Property

Development LLC4 (developer), seeks to build a retail development

of not more than 135,000 square feet of commercial space in

Greenfield (project). On May 17, 2011, the planning board of

Greenfield (planning board) granted a special permit in favor of

the developer to construct the project, subject to various

conditions. The notice granting the special permit advised that

[a]n appeal from the decision of the [p]lanning [b]oard may be

made by any person aggrieved pursuant to [G. L. c. 40A, § 17,]

. . . within twenty (20) days after the date of filing of a

notice of decision in the [o]ffice of the [t]own [c]lerk."

The plaintiffs, who own property abutting the proposed

development (abutters), filed a timely appeal to the grant of

the special permit in the Housing Court on June 7, 2011. On

July 19, 2011, the defendants, without challenging the subject

matter jurisdiction of the Housing Court, requested the Chief

Justice of the Trial Court5 to transfer the appeal from the

Housing Court to the permit session of the Land Court, pursuant

to G. L. c. 185, § 3A. The abutters opposed the motion, and, on

August 31, 2011, the then-sitting Chief Justice of the Trial

Court denied the motion to transfer, without explanation.

The defendants then filed a motion for summary judgment,

claiming that the abutters lacked standing to appeal the grant

of the special permit and that their due process allegations

failed to state a valid constitutional claim. On January 15,

2013, the judge allowed the motion as to the due process claims

5 At the time of the enactment of G. L. c. 185, § 3A, the Chief Justice of the Trial Court was known as the Chief Justice for Administration and Management. See G. L. c. 211B, § 1, as amended through St. 2011, c. 93, § 49. Section 3A was amended in 2011 only to reflect the change in nomenclature from "chief justice for administration and management" to "chief justice of the trial court." St. 2011, c. 93, §§ 25-26. Although some of the events relevant to this case occurred before the change in title, we use the current title to avoid confusion.

5

but denied it as to standing, thereby allowing the abutters to

proceed with their appeal of the special permit.

On December 28, 2012, the Appeals Court issued its decision

in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83

Mass. App. Ct. 40, 43-44 (2012) (Buccaneer), where it held that

G. L. c. 185, § 3A, deprived the Housing Court of subject matter

jurisdiction to hear major development permit appeals. In

Buccaneer, the zoning board of appeals (board) denied the

special permit for a major housing development and the developer

filed an appeal in the permit session of the Land Court. Id. at

40, 42. The board filed a notice in the permit session to

transfer the case to the Housing Court, invoking G. L. c. 185C,

§ 20, which provides that "[a]ny civil action within the

jurisdiction of the housing court department which is pending in

another [trial] court department may be transferred to the

housing court department by any party." Id. at 41. After the

case was transferred to the Housing Court, the developer moved

that it be remanded to the permit session of the Land Court; the

motion was denied, and the board's denial of the special permit

was affirmed. Id. The Appeals Court declared 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." Id. at 44. The court

6

vacated the judgment and directed the Housing Court to remand

the case to the permit session of the Land Court. Id. at 45.

On January 25, 2013, the developer in this case, citing the

Appeals Court decision in Buccaneer, moved to dismiss the appeal

for lack of subject matter jurisdiction. On February 26, the

judge denied the motion but conditioned her denial on allowance

of her request for administrative transfer of the case and

herself to the Superior Court. On February 28, the judge wrote

a letter to the then-sitting Chief Justice of the Housing Court,

requesting, in light of the "uncertainty" created by the Appeals

Court decision in Buccaneer and the pending application for

further appellate review in that case, that the instant case be

transferred administratively to the Superior Court Department

and that she be cross-designated and assigned to handle it. The

developer opposed the transfer. The Housing Court Chief Justice

failed to act on the request and, on July 25, the judge withdrew

it and thereafter declared her intention to rule on the merits

of the motion to dismiss.

On August 27, the judge denied the defendants' motion to

dismiss for lack of subject matter jurisdiction. The judge

noted that the procedural posture of this case differed from

Buccaneer in that the plaintiffs here had initially filed their

appeal in the Housing Court, not the permit session of the Land

Court. The judge distinguished the holding in Buccaneer,

7

stating that "the Appeals Court ruled effectively that the

developer's choice of forum trumped the defendants' right under

G. L. c. 185C, § 20[,] to transfer the case to the Housing

Court." The judge declared that the Housing Court had

jurisdiction under G. L. c. 40A, § 17, to hear permit appeals

and that, where the Chief Justice of the Trial Court6 had

exercised the discretion granted to him under G. L. c. 185,

§ 3A, to deny the developer's request to transfer the case to

the permit session of the Land Court, allowance of the

defendants' motion to dismiss "would deprive the plaintiffs

entirely of their statutory right to judicial review of the

[p]lanning [b]oard's decision." The judge subsequently granted

the joint motion of the parties to report her ruling to the

Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended,

423 Mass. 1403 (1996).

The Appeals Court reversed the judge's order denying the

defendants' motion to dismiss, concluding that the enactment of

G. L. c. 185, § 3A, deprived the Housing Court of subject matter

jurisdiction over major development permit appeals. Skawski v.

Greenfield Investors Prop. Dev., LLC, 87 Mass. App. Ct. 903,

905-906 (2015). We granted the abutters' application for

further appellate review.

6 See note 5, supra.

8

Discussion. General Laws c. 185, § 3A, established the

permit session of the Land Court and granted that session

"original jurisdiction, concurrently with the superior court

department," over major development permit appeals.7 It also

7 General Laws c. 185, § 3A, provides in relevant part:

"There shall be established a separate session of the land court department, which shall be known as the permit session of the land court department.

"Sessions of the permit session shall be held in Suffolk, Middlesex, Essex, Norfolk, Plymouth, Worcester and Hampden counties, and other counties as the chief justice of the land court department shall from time to time designate.

"The permit session shall have original jurisdiction, concurrently with the superior court department, over civil actions in whole or part: (a) based on or arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property, including without limitation appeals of such permits, orders, certificates or approvals, or denials thereof, arising under or based on or relating to [G. L. c. 21; G. L. c. 30, §§ 61 to 62H, inclusive; G. L. cc. 30A, 40A to 40C, inclusive, 40R, 41, 43D, 91, 131, 131A; or G. L. c. 249, §§ 4 and 5; or St. 1956, c. 665]; or any local bylaw or ordinance; . . . but . . . only if the underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area or both.

"Notwithstanding any other general or special law to the contrary, any action not commenced in the permit session, but within the jurisdiction of the permit session as provided in this section, may be transferred to the permit session, upon motion by any party to the chief justice of the trial court. There shall be a presumption against more than one transfer of a case between any departments of the trial court. If a party to an action commenced in or transferred to the permit session claims a valid right to a jury trial. Then [sic] the action shall be transferred to the superior court for a jury trial.

9

provides that, "[n]otwithstanding any other general or special

law to the contrary, any action not commenced in the permit

session, but within the jurisdiction of the permit session as

provided in this section, may be transferred to the permit

session, upon motion by any party to the chief justice of the

"Each case filed in the permit session shall be assigned to a single judge from the commencement to the conclusion of the case. The judge assigned to the case will hold all hearings and preside at the trial, except in the case of death, disability, expiration of judicial appointment to the permit session or emergency.

". . .

"The chief justice of the land court shall report to the chief justice of the trial court, the clerks of the house and senate, and the chairs of the judiciary committee of the general court on an annual basis, with: (1) the number of cases handled under this session; (2) the timelines achieved in cases pursuant to this session; (3) any additional resources required by the land court to meet its goals for this session; and (4) the number of cases before the land court according to the county from which they originate. To the extent that the chief justice of the land court does not have sufficient resources to maintain the timeframes mentioned above, then the chief justice of the trial court shall assign judges with land use and environmental expertise from other departments of the trial court to sit as justices of the permit session. In making such appointments, the chief justice of the trial court shall make reasonable efforts to select justices who, by reason of their past experience in private practice or practice with public agencies or as jurists have particular skills related to environmental and land use permitting and disputes concerning the same.

"The final disposition of cases in the permit session by the court by dismissal, judgment or otherwise shall be in accordance with the following timeframes which shall commence on the filing of the trial transcript with the court or in the case of a summary judgment motion, from the date the motion is taken under advisement: A Track in 4 months, F Track in 3 months and X Track in 2 months."

10

trial court." G. L. c. 185, § 3A, fourth par. The statute

notes, however, that "[t]here shall be a presumption against

more than one transfer of a case between any departments of the

trial court." Id.

1. Subject matter jurisdiction. At the time § 3A was

enacted in 2006, G. L. c. 40A, § 17, gave subject matter

jurisdiction in all permit appeals to the Housing Court, along

with the Land Court, Superior Court, and District Court, and

G. L. c. 185C, § 20, gave any party the power to transfer such

an appeal to the Housing Court if it were not initially filed

there. The question we must grapple with is whether the

Legislature, by enacting § 3A, intended to divest the Housing

Court of subject matter jurisdiction over what we call major

development permit appeals (that is, appeals arising from action

on any permit concerning the use or development of real property

in projects that involve the construction of twenty-five or more

dwelling units or 25,000 square feet or more of gross floor

area) and to grant exclusive subject matter jurisdiction over

such appeals to the permit session of the Land Court and to the

Superior Court.

We use as our starting point the traditional tools of

statutory interpretation. "It is well established that '[a]

statute is not to be deemed to repeal or supersede a prior

statute in whole or in part in the absence of express words to

11

that effect or of clear implication.'" Commonwealth v. Palmer,

464 Mass. 773, 777 (2013), quoting Commonwealth v. Harris, 443

Mass. 714, 725 (2005). The words of § 3A do not explicitly

divest the Housing Court of jurisdiction over major development

permit appeals. Section 3A makes no reference to G. L. c. 40A,

§ 17, or to the subject matter jurisdiction over permit appeals

granted to the Housing Court by that statute. Nor does it grant

"exclusive jurisdiction" over major development permit appeals

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

Court; it simply grants these courts "original jurisdiction"

over these appeals. Contrast G. L. c. 185, § 1 ("The land court

department shall have exclusive original jurisdiction of the

following matters: . . ."); G. L. c. 212, § 3 ("The [superior]

court shall have exclusive original jurisdiction of civil

actions for the foreclosure of mortgages . . .").

Therefore, if § 3A divests the Housing Court of

jurisdiction over major development permit appeals, it must do

so by "clear implication," see Palmer, supra, that is,

implication so clear that it overcomes our "strong presumption

against implied repeal of a prior law." Dartmouth v. Greater

New Bedford Reg'l Vocational Tech. High Sch. Dist., 461 Mass.

366, 374 (2012). See generally 1A N.J. Singer & J.D. Shambie

Singer, Statutes and Statutory Construction § 23:10 (7th ed.

2009) (discussing judicially created presumption against repeal

12

of prior laws by implication). Implied repeal is clear where

"the earlier statute 'is so repugnant to and inconsistent with

the later enactment covering the subject matter that both cannot

stand.'" See Dartmouth, supra at 374-375, quoting Doherty v.

Commissioner of Admin., 349 Mass. 687, 690 (1965). It may also

be clear where the subsequent legislation comprehensively

addresses a particular subject and impliedly supersedes related

statutes and common law that might frustrate the legislative

purpose. See id. at 375-376, and cases cited. See generally 1A

N.J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction, supra at § 23:9 (discussing implied repeal where

later legislation covers whole subject of earlier legislation

and is intended as substitute). Ultimately, the touchstone is

"the intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated." Weems v. Citigroup Inc., 453 Mass. 147, 153

(2009), quoting Boston Police Patrolmen's Ass'n v. Boston, 435

Mass. 718, 720 (2002).

Placing § 3A within the context of the larger legislative

enactment illuminates the legislative purpose underlying the

statute. Section 3A is found in one of twenty-four sections in

13

St. 2006, c. 205 (act), whose purpose is clear from its title,

"An Act relative to streamlining and expediting the permitting

process in the commonwealth," and its preamble -- "to forthwith

expedite the permitting process in the commonwealth." To

accomplish this purpose, the Legislature created a comprehensive

statutory program that, among other things, (1) provided funding

for technical assistance grants to assist State and local

governments and agencies in streamlining their permitting

processes, St. 2006, c. 205, §§ 2, 6; (2) provided for the

appointment of a director of the permit regulatory office within

the Executive Office of Economic Development to "serve as the

state permit ombudsman to new and expanding businesses, [and] to

provide one-stop licensing for businesses and development in

order to streamline and expedite the process of obtaining state

licenses, permits, state certificates, state approvals, and

other requirements of law," id. at § 4; and (3) provided

expedited permitting for property designated as a "priority

development site," id. at § 11. From the text of the act and

its legislative history, it is plain that the Legislature sought

to reduce the costs and delays of the permitting process

required to conduct business and develop property. See, e.g.,

State House News Service (Senate Sess.), July 25, 2006

(statement of Sen. Jack Hart) ("the number-one issue of concern

to businesses here in the Commonwealth is the long permitting

14

process. It may take anywhere from three to five years for a

business to get permitted. . . . We're not trying to supplant

the process; we're trying to expedite it").

Section 3A, which is found in § 15 of the act, must be

interpreted in light of that legislative purpose. The abutters

contend that the Legislature's purpose in enacting § 3A was to

create the permit session in the Land Court to hear these major

development permit appeals, not to affect the jurisdiction of

other court departments granted by G. L. c. 40A, § 17. But, if

its purpose were simply to create a new permit session in the

Land Court, there would be no need to mention the concurrent

original jurisdiction of the Superior Court. By specifying that

the Superior Court Department shared concurrent jurisdiction

with the permit session of the Land Court, and not also

specifying any other court department as having concurrent

jurisdiction, the Legislature impliedly reflected its intent

that these major development permit appeals be adjudicated only

by these two courts. See Commonwealth v. Russ R., 433 Mass.

515, 521 (2001) ("The Legislature enumerated three courts in the

immunity statute, but did not include the Juvenile Court.

Accordingly, the Legislature's actions suggest that it intended

to exclude the Juvenile Court"); Bagley v. Illyrian Gardens,

Inc., 401 Mass. 822, 824-825 (1988), and cases cited ("By

explicitly singling out the Hampden County division of the

15

Housing Court and granting it concurrent jurisdiction over such

appeals, the Legislature implicitly denied such jurisdiction to

the other divisions of the Housing Court"). See also Tilman v.

Brink, 74 Mass. App. Ct. 845, 852-854 (2009) (District Court

cannot award attorney's fees under G. L. c. 231, § 6F, because

it is not included in statutory definition of "court" under

G. L. c. 231, § 6E). This interpretation is consistent with the

statutory maxim, "expressio unius est exclusio alterius,"

meaning "the expression of one thing in a statute is an implied

exclusion of other things not included in the statute." See

Bank of Am., N.A. v. Rosa, 466 Mass. 613, 619 (2013); Bagley,

supra.

The comprehensive scope of the act further suggests that

the Legislature intended to be equally comprehensive in

declaring which court departments would have original

jurisdiction to adjudicate major development permit appeals.

See Dartmouth, 461 Mass. at 375, quoting Doherty, 349 Mass. at

690 (noting that implied repeal may be found where "the

Legislature enacts a law covering a particular field but leaves

conflicting prior prescriptions unrepealed").

Moreover, if we were to adopt the abutters' interpretation

of § 3A that the Housing Court continues to have jurisdiction to

hear these cases, the legislative purpose in having these cases

heard by the permit session of the Land Court would be

16

frustrated because any party could exercise its authority under

G. L. c. 185C, § 20, to transfer to the Housing Court any case

that was filed in or transferred to the permit session of the

Land Court. The establishment of the permit session of the Land

Court to hear major development permit appeals was an integral

part of the act's over-all plan to expedite the permitting

process because § 3A establishes demanding time frames for the

final disposition of such appeals in the permit session.8 See

G. L. c. 185, § 3A, sixth and eighth pars. Although a party

could file a major development permit appeal in the Superior

Court, § 3A allows any party, with the approval of the Chief

Justice of the Trial Court, to transfer the appeal to the permit

session. See id. at § 3A, fourth par. But, if the Housing

Court continued to have jurisdiction over these cases, any party

could invoke G. L. c. 185C, § 20, and ensure that the final

disposition of the appeal would be decided, not by the permit

session, but by the Housing Court.

A careful review of the legislative history suggests that

the Legislature's intent regarding jurisdiction over major

development permit appeals evolved during the legislative

process. Initially, the Joint Committee on Labor and Workforce

8 General Laws c. 185, § 3A, also directs the Chief Justice of the Trial Court to assign justices from other trial court departments with "particular skills related to environmental and land use permitting" to sit in the permit session if the Land Court has insufficient resources to meet these time frames.

17

Development proposed in the House bill that a separate permit

division of the Superior Court be established that "shall have

original jurisdiction, concurrently with the Superior Court,"

over all permit appeals. 2006 House Doc. No. 4741. The bill

also provided:

"Notwithstanding any other General Law to the contrary, any action not commenced in the Permit Division, but within the jurisdiction of the Permit Division . . . , shall be transferred to the Permit Division upon motion by any party to the Chief Justice for Administration of the Trial Courts. There shall be a presumption against more than one transfer of a case between any Departments of the Trial Court." (Emphasis added.)

Id. Under this bill, any party to any permit appeal had the

right to transfer the appeal to the permit division. It is

doubtful that the proponents of this bill intended to divest the

jurisdiction of the Land Court, Housing Court, and District

Court over all permit appeals within the jurisdictional scope of

G. L. c. 40A, § 17, if only because the presumption against more

than one transfer of a case between trial court departments

would make no sense if only the Superior Court Department had

jurisdiction over these cases. But under this bill, even with

no limitation of jurisdiction, a developer could be assured

that, if it wanted a permit appeal to be decided in the permit

division, the appeal would be decided there.

The House bill was subsequently amended to establish a

permit session in the Land Court rather than a permit division

18

in the Superior Court. 2006 House J. 1659. This amendment

provided that the permit session "shall have original

jurisdiction, concurrently with the superior court department,"

over all permit appeals. Id. at 1659-1660. This amended

version retained the language providing that, on motion by any

party, the Chief Justice of the Trial Court "shall" transfer any

permit appeal that was not in the permit session to that

session. Id. at 1660.

The House bill was then further amended in three other

important ways. First, the scope of jurisdiction of the permit

session was limited to major development permit appeals; it no

longer had jurisdiction over all permit appeals. 2006 House J.

1661. Second, with respect to a party's motion to transfer an

appeal to the permit session, the word "shall" was struck and

replaced with "may," thereby giving the Chief Justice of the

Trial Court the discretion to allow or deny a motion to

transfer. Id. at 1665. Third, a provision was added declaring

that where a party in the permit session claims a right to a

jury trial, "then the action shall have a trial in the superior

court."9 Id. See G. L. c. 185, § 25 (Land Court "shall hold no

trials by jury"); G. L. c. 186, § 15 (where trial by jury is

9 This language was later revised before enactment. General Laws c. 185, § 3A, provides, "If a party to an action commenced in or transferred to the permit session claims a valid right to a jury trial. Then [sic] the action shall be transferred to the superior court for a jury trial."

19

claimed, questions of fact resolved in Superior Court). As a

result of these amendments, a party to a major development

permit appeal no longer has a right to have its case adjudicated

in the permit session; it could request such a transfer, but the

allowance of that transfer rests in the discretion of the Chief

Justice of the Trial Court. See 2006 House J. 1665. And even

if the appeal were filed in or transferred to the permit

session, it would nonetheless be tried in the Superior Court if

any party claimed a right to a jury trial. See id.

We conclude that the clear implication of these amendments

is that the Legislature intended that major development permit

appeals be adjudicated in the permit session and, if they could

not be, either because the Chief Justice of the Trial Court

denied the motion to transfer the case to that session or

because a party claimed a right to a jury trial, that they be

adjudicated in the Superior Court Department, which was the

department that had sole jurisdiction over permit appeals under

the earlier version of the House bill and concurrent

jurisdiction under the later version of that bill. And, once

the Legislature gave the Chief Justice of the Trial Court the

discretion to deny transfer of cases to the permit session of

the Land Court, even where no right to a jury trial was claimed,

the only way the Legislature could effectuate this intent was to

limit the scope of jurisdiction over these appeals to the permit

20

session of the Land Court and the Superior Court.10 In short, we

conclude that the clear implication of § 3A is that the

Legislature wanted all major development permit appeals to be

adjudicated either in the permit session of the Land Court or in

the Superior Court and therefore limited jurisdiction over these

cases to these courts.

2. Remedy. Having concluded that the Housing Court lacks

jurisdiction to decide this major development permit appeal, we

address whether the remedy should be the outright dismissal of

10 The abutters argue that the inclusion in G. L. c. 185, § 3A, of the sentence, "There shall be a presumption against more than one transfer of a case between any departments of the trial court," demonstrates that the Legislature did not intend that the permit session of the Land Court and the Superior Court would have exclusive jurisdiction over major development permit appeals because there could be multiple transfers of a case only if there were jurisdiction in more than two trial court departments. We recognize that this sentence was originally included in the House bill, see 2006 House Doc. No. 4741, whose proponents did not intend to divest jurisdiction over permit appeals from the Housing Court, but we disagree that its survival in § 3A suggests that the legislative intent did not change with the revisions to that bill. Section 3A grants discretion to the Chief Justice of the Trial Court to determine whether to transfer a case from the Superior Court to the permit session but requires transfer to the Superior Court from the permit session where there is a claim of a right to a jury trial. This sentence creates a presumption that discretionary transfer to the permit session should not be granted if a party earlier exercised its right to transfer an appeal from the permit session to the Superior Court by claiming a right to a jury trial and then sought to return to the permit session after waiving its right to a jury trial.

21

the case, or transfer to a court with jurisdiction to decide it.

We conclude that transfer is the fair and appropriate remedy.11

The developer contends that the permit appeal should be

dismissed for lack of jurisdiction and that, if the abutters

wish to appeal the grant of the special permit, they should be

required to refile their complaint in a court with jurisdiction.

The developer also made clear at oral argument, however, that

were the abutters to refile, it would move to dismiss the

refiled complaint as untimely, because G. L. c. 40A, § 17,

requires that any such appeal be filed within twenty days after

the planning board filed the notice of decision in the office of

the town clerk, which occurred in 2011. The result would be

that the permit appeal would be procedurally barred, and the

merits of the appeal would never be reached by a court.

11 The Appeals Court declined to address the question of transfer or the possibility of the abutters refiling their appeal in either the Land Court or the Superior Court, concluding that "[t]hese questions are outside of the bounds of the reported question and were not made below." Skawski v. Greenfield Investors Prop. Dev., LLC, 87 Mass. App. Ct. 903, 906 n.9 (2015). We disagree. The judge's report brings before us the entirety of her ruling on the motion to dismiss, and the question of remedy -- transfer as an alternative to dismissal -- is intimately and necessarily tied to that ruling. Moreover, it is plain from the judge's earlier request to transfer the case and from the express language of the judge's ruling that she was concerned that dismissal of the action for lack of jurisdiction might have the consequence of denying the abutters the opportunity to litigate the merits of their appeal. In these circumstances it would not serve the interests of justice to avoid deciding this issue and leave it to be decided below, where it could, and likely would, be the subject of yet another appeal and further delay.

22

We have long rejected dismissal in comparable

circumstances. "[W]hen a court of limited jurisdiction is

confronted with a case over which its jurisdiction is doubtful

or lacking, the court should not dismiss the case out of hand;

rather, 'the proper procedure is for the judge to ask the Chief

Administrative Justice to transfer the case, or the judge, or

both, to the appropriate department of the Trial Court.'" Arno

v. Commonwealth, 457 Mass. 434, 446 (2010), quoting

Konstantopoulos v. Whately, 384 Mass. 123, 129 (1981). Thus, in

ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607-608 (2000),

where we concluded that the District Court lacked jurisdiction

over a summary process action it had adjudicated, we stayed the

order of dismissal to allow time for the judge to apply to the

Chief Justice for Administration and Management to "appoint the

District Court judge to sit as a Superior Court judge for the

purposes of this case." Similarly, in Konstantopoulos, supra at

130, 138, where we concluded that the Probate Court lacked

jurisdiction to review the revocation of an entertainment

license, we did not dismiss the case but instead remanded the

case to the Probate Court "with instructions to the judge to ask

the Chief Administrative Justice to transfer the case, or the

judge, or both to the Superior Court."

Dismissal would be especially unfair here, where the

abutters timely filed their appeal in a court that appeared at

23

the time to have jurisdiction under G. L. c. 40A, § 17; where

the defendants did not challenge the Housing Court's

jurisdiction until the Appeals Court issued its opinion in the

Buccaneer case in 2012, eighteen months after the appeal was

filed and well after the abutters might have filed a timely new

appeal in the Land Court or Superior Court; and where our

conclusion regarding the absence of jurisdiction in the Housing

Court rests principally on the doctrine of implied repeal rather

than the express language of § 3A.

The order denying the defendants' motion to

dismiss is hereby vacated, and the case is remanded to the

Housing Court, where the parties are to be given an opportunity

to apply within thirty days to the Chief Justice of the Trial

Court to have the case transferred either to the permit session

of the Land Court or to the Superior Court.12 The Chief Justice

of the Trial Court will act on that request forthwith. Once the

case is transferred, it should proceed expeditiously in the

court selected by the Chief Justice, so that the parties may

obtain a prompt decision on the merits.