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 Supe *824 nor 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 atierras. See, e.g.,
New England Power Co.
v.
Selectmen of Amesbury,
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,
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 original trial.
The plaintiffs argue that the Housing Court’s decision cannot be upheld, as there was no evidence presented on the issue of
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the regional need for low and moderate income housing.
4
This being so, they argue, the judge could not determine properly whether the board’s decision to grant the comprehensive permit was “consistent with local needs” as that phrase is defined in G. L. c. 40B, § 20 (1986 ed.). “The ‘consistent with local needs’ standard requires [the board] to balance the regional need for low and moderate income housing against any objection to the details of the proposed plan.”
Board of Appeals of Hanover
v.
Housing Appeals Comm.,
What has been said above disposes of the plaintiffs’ further contention that there was no evidence before the judge as to the local need for subsidized housing. The evidence indicated that a significant segment of the local population of low and moderate income persons needs subsidized housing. As such, the judge appropriately could balance this consideration against the objections to the plan.
The plaintiffs further argue that the judge erred in denying their motion to strike the testimony of one Dr. Donald Chamberlayne, an expert witness who was summonsed by the defendants and paid only the statutory fee, in contravention of the principle of
Commonwealth
v.
Vitello,
The plaintiff Cahill alleges several additional grounds for reversal of the trial court’s decision, among them, that the decision of the board was invalid because the board was composed of four members, in violation of statutes governing its composition; that the board’s decisions are void as a result of significant procedural defects; that, for various reasons, the comprehensive permitting process under G. L. c. 40B, §§ 20-23 (1986 ed.), does not apply in this case; and that the board ignored relevant factors required by law to be considered in its deliberations. There is no merit to any of these arguments.
Judgment reversed.
Notes
Without attempting to define comprehensively the terms “local need” and “regional need,” we think that in this context it is clear that “local” need relates to the municipality directly concerned, in this case, Worcester, while “regional” need includes surrounding communities.