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Land Court Permit Session: A Useful Tool for Appeals of Larger Development Projects

In 2006, the Massachusetts Legislature created the "Permit Session" of the Land Court to allow a more expedited appeal process for development projects that meet certain build-out thresholds. So long as the underlying project involves either twenty-five (25) or more dwelling units, or the construction or alteration of 25,000 square feet or more of gross floor area (including commercial and industrial projects), or both, then the appeal can be heard by the Permit Session of the Land Court.

For developers of large projects, the expediency provided by the Permit Session is essential, particularly during times when strained court resources would otherwise stall or prolong the appeal process to well over two years in many cases. It also avoids unnecessary delay during an current economic climate that has increased financial pressures for developers.

The scope of the types of appeals that can be heard by the Permit Session is quite comprehensive. To the extent that many projects require several development permits, this makes the appeal process more convenient for developers because it allows for "one stop shopping".

Specifically, provided that the jurisdictional thresholds are met, M.G.L. c. 185, § 3A, the Permit Session can hear appeals

(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 chapter 21, sections 61 to 62H, inclusive, of chapter 30, chapters 30A, 40A to 40C, inclusive, 40R, 41, 43D, 91, 131, 131A, or sections 4 and 5 of chapter 249, or chapter 665 of the acts of 1956; or any local bylaw or ordinance;

(b) seeking equitable or declaratory relief (i) designed to secure or protect the issuance of any municipal, regional or state permit or approval concerning the use or development of real property or (ii) challenging the interpretation or application of any municipal, regional or state rules, regulations, statutes, laws, bylaws, ordinances concerning any permit or approval;

(c) claims under section 6F of chapter 231, or for malicious prosecution, abuse of process, intentional or negligent interference with advantageous relations or intentional or negligent interference with contractual relations arising out of or based upon or relating to the appeal of any municipal, regional, state permit or approval concerning the use or development of real property; and

(d) any other claims between persons holding any right, title or interest in land and any municipal, regional or state board, authority, commission or public official based on or arising out of any action taken with respect to any permit or approval concerning the use or development of real property

In essence, the Permit Session allows for a unified appeal process for the wide range of state, municipal and regional permits that are often necessary for development projects, including wetlands and waterways permits. Moreover, provided that the jurisdictional minimums are met, M.G.L. c. 185, § 3A, also gives rare jurisdiction to the Land Court over appeals related to the Boston Zoning Code, which must otherwise be adjudicated in Suffolk Superior Court (or Boston Housing Court if the decision involves a dwelling).

The pace of Permit Session appeals is also very attractive. In many cases, trial or other final disposition of a Permit Session case takes place about one (1) year or less from filing the action, depending on which "track" the case was assigned.

In most instances, Permit Session appeals conclude far quicker than the usual development permits appealed in the Land Court and Superior Court. For example, of the five Permit Session cases filed in 2010, three are closed, one remains pending due to some procedural motions filed after the case languished (for reasons not disclosed on the docket), and the fifth case (filed in late December 2010) went to trial in just over a year in early January 2012. Considering the strained resources of trial courts across the Commonwealth, to reach trial in thirteen months is quite impressive and highlights the benefits of the Permit Session for developers.

However, because of the faster timeline provided by the Permit Session, discovery and procedural motions take place very rapidly over the course of the appeal, so parties and their counsel must be prepared to adhere to the court's timeline for Permit Session cases.

Overall, developers should take advantage of the Permit Session when faced with an appeal of a large project that meets the statutory requirements.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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