Massachusetts Creates Permitting Session of Land Court to Expedite Judicial Review

Beveridge & Diamond, P.C., February 2007

The creation of a new Permit Session of the Land Court Department with expanded jurisdiction holds great promise for expediting review of many appeals which now serve as a roadblock to residential, commercial, and industrial developers and landowners.  Created under the Streamline Permitting Act of 2006, this new Land Court session will have original jurisdiction, concurrent with the Superior Court, over most disputes regarding land use permits and real estate provided the underlying project meets the minimum size threshold of 25 dwelling units or construction or alteration of 25,000 square feet of gross floor area.  The Permit Session’s jurisdiction includes:

• Appeals of municipal, regional, or state permits, orders, certificates, or other approvals or denials including under Chapters 30A, 40A, 40B, 40C, 40R, 41, 43D, 91, 131, and 131A and others.

• Appeals seeking equitable or declaratory relief in order to obtain such a permit; and

• Appeals challenging interpretation or application of municipal, regional, or state rules, regulations, statutes, bylaws, or ordinances arising out of a permit or approval.

Cases in the new session will be assigned to a single judge for the life of the case and will be assigned one of three expedited tracks.  For the first time, these tracks provide deadlines for both getting to trial (ranging from six to 12 months) and for receiving a decision after trial or summary judgment (ranging from two months to four months).  In order to augment the capacity of the Permitting Session, a seventh justice has been added to the Land Court.  Harry Grossman, previously General Counsel of the Executive Office of Administration and Finance, was confirmed in late 2006. 

The Permit Session will be held in numerous counties, including Suffolk, Middlesex, Essex, Norfolk, Plymouth, Worcester, and Hampden, and other counties as the Chief Justice of the Land Court determines.  In addition, cases meeting the jurisdictional requirements filed in other sessions can be transferred to the Permit Session upon motion to the Chief Justice for Administration and Management.

This same act made other important changes to both permitting and environmental appeals, including:

• The right of a developer to proceed at risk on an appealed special permit issued after August 2, 2006.

• New time requirements on the Division of Administrative Law Appeals, including a written decision within 90 days after completion of the record.

• In Chapter 91 license challenges, five of 10 intervenors must now reside in the community in which the group seeks to challenge the permitting action.

• Wholesale revision of G.L. c. 43D’s provisions regarding municipal options to opt into a streamlined permitting scheme and designate priority development sites.

For further information, please contact Brian Levey at blevey@bdlaw.com or Marc J. Goldstein at mgoldstein@bdlaw.com. 

Brian Levey was a co-recipient of the 2006 Public Service Award given by the Massachusetts Chapter of the National Association of Industrial and Office Properties (NAIOP) for his work on the Streamline Permitting Act.