Dichrisda, LLC v. Housing Appeals Committee et al

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Case 09-01004 Doc 32 Filed 05/12/09 Entered 05/15/09 10:54:44 Desc Main
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION

In re: Chapter 11
Case No. 08-18234-HJB

DICHRISDA, LLC,

Debtor

DICHRISDA, LLC, a Massachusetts
Limited Liability Company,

Adversary Proceeding
No. 09-1004-HJB

Plaintiff,
Vv.

HOUSING APPEALS COMMITTEE, and
ALBERT BANGERT, SARA TREZISE,
and BRIAN SULLIVAN, as they are
members of the Zoning Board of Appeals
of Scituate,

Defendants

emer Nome Smee el ee mel Mee “nema Meese “oes” ear Meee” Meese” nee Mme Men!” me Me ee Se Sree eet ner”

ORDER

WHEREAS, in March, 2006, DiChrisda, LLC (the “Debtor”) applied, pursuant to
Massachusetts General Laws (“MGL) ch. 40A, to the Zoning Board of Appeals of the
Town of Scituate, Massachusetts (the “Board”) for a Special Permit to construct a twenty-
two unit condominium building on property located at 44 Jericho Road, Scituate,
Massachsetts (the “Property”)(the “40A Application’), replacing an existing restaurant; and

WHEREAS, on August 18, 2006, the Board denied the 40A Application; and

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WHEREAS, on September 6, 2006, the Debtor appealed the Board's denial to the
Commonwealth of Massachusetts, Superior Court Department of the Trial Court, Plymouth
Division (the “State Court}; and

WHEREAS, on August 28, 2007, the State Court remanded the matter to the Board
and ordered the Board to conduct a new hearing; and

WHEREAS, on December 19, 2007, the Debtor filed a new application seeking a
consolidated Comprehensive Permit under MGL ch. 40B (the Massachusetts Affordable
Housing Statute)(the “40B Application”) for development of the property; and

WHEREAS, on March 20, 2008, the Board denied the 408 Application; and

WHEREAS, the Debtor appealed the Board’s denial of the 40B Application to the
Massachusetts Housing Appeals Committee (the “Committee”); and

WHEREAS, the Committee affirmed the Board’s March 2008 decision on the sole
grounds that, pursuant to 760 CMR §§ 56.03(1), the decision of the Board must be upheld
if a “related” application had been previously received during a 12 month period as defined
in § 56.03(7); and

WHEREAS, the Debtor responded by filing the instant compiaint in the State Court
against various parties, including the Committee and the Board, challenging, infer alia, the
Board’s and the Committee’s interpretations of § 56.03, the characterization of the § 40B
Application as related to the § 40A Application and the pendency of the § 40A Application
during relevant periods ; and

WHEREAS, the Debtor filed this Chapter 11 case on October 29, 2008 and then

removed the State Court Action to this Court, pursuant to 28 U.S.C. § 1452(a); and

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WHEREAS, the Committee and the Board have moved to remand the State Court

Action back to the State Court, pursuant to 28 U.S.C. § 1452(b),' arguing that, inasmuch

as the dispute centers upon the proper interpretations of provisions of the Massachusetts

Administrative Procedure Act and the Massachusetts Housing Statute:

1.

the State Court has greater expertise and experience with respect to the
statutory and regulatory provisions at issue, and permitting removal to this
Court would be a waste and duplication of judicial resources, create a risk of
inconsistent or disparate results and work a hardship on the Board;

no asset of the estate is implicated in the dispute (suggesting either a lack
of this Court’s subject matter jurisdiction or a challenge to its core
jurisdiction);

principles of comity toward the Massachusetts state court require remand;
the State Court is nearing resolution of the State Court Action, as all of the
briefs have been filed and only the hearing before the State Court remains;
and

the Debtor's removal of this action from the State Court to this Court

constitutes forum shopping; and

128 U.S.C. 1452(b) provides in relevant part that: :

(b) The court to which such claim or cause of action is removed may remand
such claim or cause of action on any equitable ground. . ..

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WHEREAS, the Debtor in turn argues that:

1.

this Court has related-to jurisdiction, pursuant to 28 U.S.C. § 1334(b) and
that jurisdiction is core under § 157(b);

the Court should give great weight to the Debtor's choice of forum;

the relevant state statutory and regulatory framework is neither difficult nor
novel;

the movants’ arguments relative to the speed of the State Court in resolving
the dispute are disingenuous because, prepetition, the Board opposed the
Debtor’s request for expedited determination in the State Court, and

the Board has acted out of self-interest and not consistent with its
responsibility to provide a fair and unbiased determination of the § 40B

Application; and

WHEREAS, this Court now finds and rules that:

1.

this Court has subject matter of the instant dispute, pursuant to 28 U.S.C. §
1334(b), and that jurisdiction is core, pursuant to 28 U.S.C. §§ 157(b)(1) and
(2)(A) and (O);

however, the State Court is a far more experienced and expert forum for
interpreting the statutory and administrative framework with respect to the
issues presented herein and is entitled to comity with respect thereto; and
the State Court appears ready and able to reach a prompt determination of

this dispute;?

2in this connection, counsel for the Board and the Committee agreed, in open court, not
to oppose the Debtor's further request(s) for expedited determination in the State Court. This

4

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it is hereby ORDERED that the instant adversary proceeding be and it hereby is
REMANDED for determination to the Commonwealth of Massachusetts Superior Court
Department of the Trial Court, Plymouth Division, pursuant to 28 U.S.C. § 1452(b) and, sua
sponte, pursuant to 28 U.S.C.

§ 1334(c)(1).°

DATED: May 12, 2009

United tates Bankrupicy Judge

Court will hold them to that representation.

398 U.S.C. § 1334(c)(1) provides in relevant part:

(c)(1) .. . nothing in this section prevents a district court in the interest of justice, or in
the interest of comity with State courts or respect for State law, from abstaining from

hearing a particular proceeding arising under title 11 or arising in or related to a case
under title 11.

Abstention under § 1334(c)(1) moots the issue raised by the Debtor with respect to the
timeliness of the Board's request for remand.