Bagley v. Illyrian Gardens, Inc.

• Decision Date: 09 March 1988
• Citation: 401 Mass. 822,519 N.E.2d 1308
• Parties: Joan BAGLEY et al. 1 v. ILLYRIAN GARDENS, INC., et al. 2 (and a companion case 3 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1308

519 N.E.2d 1308

401 Mass. 822

Joan BAGLEY et al. ¹

v.

ILLYRIAN GARDENS, INC., et al. ² (and a companion case ³).

Supreme Judicial Court of Massachusetts Worcester.

Argued Dec. 8, 1987.

Decided March 9, 1988.

Burton Chandler (Beth C. Schuster, Worcester, with him), for Joan Bagley & others.

John W. Spillane, for Paul Cahill.

David A. Talman (Michael Moschos, Worcester, with him), for Illyrian Gardens, Inc.

Jonathan Finkelstein, Asst. City Solicitor (Bridget Murphy, Worcester, with him), for Zoning Bd. of Appeals of Worcester.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The plaintiffs appeal from a judgment entered by a judge in the Housing Court Department affirming the grant by the zoning board of appeals of Worcester (board) to the defendant Illyrian Gardens, Inc. (Illyrian), of a comprehensive permit to build under G.L. c. 40B, § 21 (1986 ed.).

Illyrian proposes to build subsidized housing for low and moderate income elderly and handicapped persons. After hearings, the board voted to grant Illyrian a comprehensive permit. As granted, the permit represents a substantial variance from applicable zoning regulations. The plaintiffs are residents of the neighborhood of the proposed building, and are aggrieved by the issuance of the permit. They filed an appeal in the Superior Court challenging the grant of the permit. Over their objection, the case was transferred to the Worcester division of the Housing Court, which affirmed the board's grant of the permit. This court granted the plaintiffs' application for direct appellate review. Because we conclude that the Worcester division of the Housing Court lacked subject matter jurisdiction over an appeal from a grant of a comprehensive permit under G.L. c. 40B, § 21, we reverse.

The defendants urge that the Worcester division of the Housing Court had jurisdiction over this case under G.L. c. 185C, § 3 (1986 ed.), which grants the divisions of the Housing Court jurisdiction over, inter alia, civil actions arising under "any ... law ... as is concerned directly or indirectly with the health, safety, or welfare of any occupant of any place used, or intended for use, as a place of human habitation" and of "all housing problems arising within and affecting residents in ... Worcester county." Standing alone, this jurisdictional grant appears to encompass an appeal from the grant of a comprehensive permit. This language, however, must be construed in light of other statutes dealing more specifically with the permitting process.

General Laws c. 40B, § 21, authorizes zoning boards of appeal to grant comprehensive permits to build low or moderate income housing, and gives to any person aggrieved by the issuance of such a permit the right to appeal the issuance, "as provided in section seventeen of chapter forty A." General Laws c. 40A, § 17 (1986 ed.), provides for appeal "to the superior court department in which the land concerned is situated or, if the land is situated in Hampden county, either to said superior court department or to the division of the housing court department for said county " (emphasis added). By explicitly singling out the Hampden County division of the Housing Court and granting it concurrent jurisdiction over such appeals, the Legislature implicitly denied such jurisdiction to the other divisions of the Housing Court. Expressio unius est exclusio alterius. See, e.g., New England Power Co. v. Selectmen of Amesbury, 389 Mass. 69, 74, 449 N.E.2d 648 (1983) (grant to board of selectmen of power to grant or to refuse to grant street crossing locations implicitly excludes the power to revoke); Iannelle v. Fire Comm'r of Boston, 331 Mass. 250, 252, 118 N.E.2d 757 (1954) (omission of phrase, "exclusive of Sundays and holidays," in statute regarding running of time period within which action is timely taken, implies that Sundays and holidays are to be included in computing running of time period, where such phrase was used in similar statutes); General Elec. Co. v. Commonwealth, 329 Mass. 661, 663-664, 110 N.E.2d 101 (1953) (provisions for award of costs in addition to judgment by implication excludes award of interest on judgment). While maxims of statutory construction should not be followed slavishly where to do so would frustrate the legislative purpose in enacting a statute, see, e.g., Brady v. Brady, 380 Mass. 480, 484, 404 N.E.2d 75 (1980), and authorities cited; Creed v. Apog, 377 Mass. 522, 524, 386 N.E.2d 1273 (1979), and cases cited, it is readily apparent from an examination of the statutory language at issue that the Legislature intended that the Worcester division of the Housing Court should not have jurisdiction of an appeal from a grant of a comprehensive permit.

As the Worcester division of the Housing Court was without jurisdiction to try this case, its judgment must be reversed. We think it worthwhile to iterate our previous suggestion that, in the future, a judge in a court of limited jurisdiction, faced with a serious jurisdictional issue, should forestall such waste by asking the Chief Administrative Justice of the Trial Court to transfer the case, or the judge, or both, to the appropriate department of the Trial Court. See Konstantopoulos v. Whately, 384 Mass. 123, 129, 424 N.E.2d 210 (1981).

It is, of course, unnecessary, in light of our disposition of the jurisdictional issue, to consider the other issues raised by the plaintiffs. However, because it is likely that this case will be retried, we address, in the interest of judicial economy and expedience, the plaintiffs' remaining arguments. Nothing we say in any way constrains the parties' actions on retrial, or precludes the introduction of issues or evidence different from or in addition to what was presented at the...