-: SJC-13218.
Bask Inc. V Members of the Taunton City Council.
-: Okay, Attorney Field, we're ready for you.
-: Morning, your honor.
-: [Chief Justice Budd] Morning.
-: Chief Justice Budd and associate justices,
may it please the court.
My name is George Field,
and I'm here speaking on behalf of
the nine individually named members
of the Taunton City Council,
formally known as the Taunton Municipal Council,
whose decision is at issue in this case and in this appeal
concerning a special permit
for a prospective marijuana retailing facility
in Taunton, Massachusetts.
Standards for review of a zoning decision
on a special permit,
take up many pages in the reports
of the Supreme Judicial Court and the Appeals Court,
but one of the criteria
that I think is most important in this case
is the determination of whether there is any rational basis
for the decision.
-: Can I cut you off and put you to issue two,
which I'm more concerned about?
The issue two, in my view,
isn't the decision on the special permit,
which is certainly in contest under review here,
but it's more of the remedy and the equitable relief
that was provided by the judge.
What do I make of chapter 40A, section 17, the last line?
Where it says,
"Or make such other decree
as justice and equity may require."
What do I make of that
when I consider what the judge did in this case,
the land court judge?
-: Thank you, Justice Gaziano.
We urge on the court that
that language be focused on, of course,
and narrowly construed for the following reasons.
The Wendy's Old Fashioned Hamburger's case of this court,
which is cited by the applicant,
tells us at note 21,
"Massachusetts courts have long declined
to construe the statutory language,
make such other decree as justice and equity may require,
as permitting a review in court to invade the whole area
of administrative discretion,
rather the phrase merely requires a decree
according to law."
That phrase is quoted
from the Pendergast case of this court
from 1954 to a similar fact.
-: The land court has equitable jurisdiction, right?
-: The land court has equitable jurisdiction
within those substantive areas
in which it has subject matter jurisdiction.
-: So I guess my dilemma in this case is
assuming for the sake of argument.
I know you think differently
that the special permit was improperly withheld
in the decision of the counsel's annulled.
What then happens?
Is it a paper judgment that nothing happens
because they've lost their place in line,
or what's the real relief to the applicant?
-: There was a piece of your honor's question,
which I didn't get.
I just wanna be sure I'm answering the correct (indistinct)
-: I'm sure it was your honor's fault.
(all laugh)
but I mean, yeah, I try to be more (mumbles)
So is this a paper judgment?
If they don't get the equitable relief
and get to basically be part of the consideration
for the dispensary license,
is it just a paper judgment?
They win?
They should have gotten this special permit,
they didn't get it, but now what?
-: So the premises
that the judgment of the land court stands
with respect to the special permit?
-: Right, and then they just take that judgment
and they put it on their wall?
(Justice Gaziano and counsel chuckles)
-: Well, we haven't yet gotten to the point in this case
where we're discussing that issue,
but I think there are options that the applicant has.
Justice Gaziano: Like what?
-: One of the options, by the way,
would've been to file a certiorari complaint
in the superior court,
and or ask the land court
to take an interdepartmental transfer
of the superior court jurisdiction over licensing.
I don't know whether that would've been proper,
but it wasn't done.
In fact, when Justice (indistinct)
the single justice in the appeals court
was looking at the situation,
he suggested more than once in his written memoranda
that a superior court action would be appropriate,
but that hasn't happened.
That being the case,
we are left with the question of
what equitable jurisdiction, if any,
the land court has over this matter?
And I would ask the court in the sense of Wendy's
to construe that phrase narrowly
and to bear in mind that it was inserted in the statute
at a time when,
according to this court's decision in Pendergrass,
"The court construed these words
as opening up to the court...
We do not construe these words as opening up to the court
the whole area of administrative discretion
contrary to all precedent,
we construe them as requiring a decree according to law."
And I would point out, your honor,
that the phrase,
it hasn't always been quoted this way in our materials,
but the phrase that we're focusing on
begins with the word, or.
So that the land court may annul
the particular permit in question,
or make such other decree as justice and equity may require.
And there is case authority,
and I believe we've cited it correctly in our briefs
that the real purpose of that language in this context
is to give the court assurance
that it may remand the matter to the municipal authority
with or without instructions.
And there's pretty broad discretion there, I think.
So what does Bask have
if its new special permit,
if you wanna call it that,
is determined to have been properly issued
by the land court?
You can go back to the city and say,
okay, I've got a special permit.
Now I don't have a license.
-: I guess the timing is the issue, right?
In the interim, the town,
the city has provided a dispensary license
to a place that's a quarter mile away within Route 44.
Counsel: Yes.
-: And now the clock is ticking
and the other five may have been awarded,
that's I guess the issue, the timing.
And I don't if Justice Lowy
has a different question than that,
but that's- Really, that's what I'm trying to figure out.
And maybe you've provided the answer,
but if there's an issue
with the city council's licensing process,
and as Justice Gaziano alluded to,
if there's no injunction here,
when you finally get time to take a look at it,
there's no locations left for dispensaries,
then where do you go?
And I guess your point in a nutshell is,
well, the land court's jurisdiction
cannot be enhanced by chapter 40, section 17.
So if you are in this position,
then you better figure something else out
like interdepartmental powers to the land court judge,
or go to the superior court.
Otherwise, you know, there's nothing you can do
because the land court can only do
what the land court can do.
Counsel: Yes.
-: And justice single under his point was just that.
-: And the amicus brief here
of the Real Estate Buyer Association
analyzes the reasons why
one might file a special permit appeal in the land court.
They're fairly obvious to most of us who practiced- Well,
But if you can file an appeal in the land court
from the special permit,
why can't they handle the injunction?
Counsel: I'm sorry, I didn't hear the...
-: If you can file that appeal
in the land court from the special permit,
why can't everything else
that would go along with facilitating
or implementing that appeal
be within the jurisdiction of the land court?
Why can't they handle that? -: Well, it has to do,
your honor
with the limited jurisdiction of the land court.
-: Well, counsel, can I follow up on that
to Justice Cypher point?
Because if the appeal can be to the land court,
and 185K gives the land court whatever its jurisdiction is.
Ordinarily in my experience,
in order to ask for the interdepartmental transfer,
typically on filing the complaint,
there will be counts in the complaint
that are outside the jurisdiction of the land court.
So prior to that, you'd ask for a designation
to sit as a superior court judge
to hear both the land court case claims
and the superior court claims.
I'm mystified by this.
The concern I had or the confusion I had is,
how is that an after the fact remedy
that you can do and say,
it's annulled and we don't have the equitable jurisdiction
to do what the land court did in this case.
So now the land court judge goes after the fact and says,
Hey, chief justice,
can you let me sit as a superior court judge now
to afford this relief to the petitioner,
who's been vindicated?
Have you ever seen that after the fact?
-: I have not, your honor.
And I'm not sure it could happen in this case at this point.
I suppose it would depend on how the court sends it back
or makes its part of the judgment.
-: Is part of your argument that they filed the wrong court?
That they should have filed in the superior court
because the superior court could have intervened
with respect to the licensing part of it?
-: Well, if they intended to go down the licensing path,
and as we've argued,
there's nothing in the case that referred to licensing.
-: Well, but they're getting the permit
to get the license, right?
I mean, it's clear they don't want a special permit
unless they get a license, right?
It's one and the same.
-: I think that's correct as you say it, your honor,
I do wanna say that there's some reference in the briefs to,
the sequence of these events,
and if you look at the ordinance
with respect to marijuana licenses in the town,
it says that a retail entity or outlet
can operate only if it has these three things.
As I think Justice Singh would have pointed out
at one point,
there's no indication of a sequence.
Now I was reading the quotes- I mean,
it's clear you need a special permit
to get to the next stage.
I mean, I take it your simple argument is,
if they go the land court route,
as soon as they get the special permit,
they have to immediately file in superior court, is that?
And then they're protected. Counsel: Well,
not if they don't wanna add claims to the case.
-: I mean, they don't want a special permit
to sell marijuana. (chuckles)
I mean, they're getting a special permit
for a marijuana license.
I mean, you can't divide the two.
I mean, you can divide the two if you say,
they have to go to superior court, and that may be correct.
Then we're requiring another court
to get completely up to speed,
we're duplicating the entire process,
but that may be required,
but it's clear they're not getting a special permit
without getting a marijuana license,
they want both.
-: Right.
And knew that I assume,
when they set out on the original course.
-: But does the marijuana statute sort of...
It doesn't weigh in on this issue
of whether you should be in the land court
or in the superior court, right?
-: It does not, your honor.
The jurisdiction is concurrent in almost all respects,
but it's the question of substantive jurisdiction.
I know the amicus has abandoned the chapter 185 basis
for authority to exercise equitable jurisdiction.
They now focus on- Can I ask one last question?
-: Only the 40A, section 17 part.
-: One last question from me is,
is money damages...
I mean, there's no discussion about,
isn't money damages enough to compensate them?
I'm a little confused by that.
If they're denied the special permit improperly,
and then they lose out on the ability to participate
in the marijuana licensing process,
can they sue the city for money damages?
-: I haven't thought about that
with respect to a superior court action, your honor,
under 40A, 17,
but in the land court,
as your honor knows,
the opportunities for money damages are very limited.
I mean, they have to be specifically flawless.
Justice Kafker: No, I understand
they might have to go to superior court.
-: I'm sorry.
-: I understand they might have to go to superior court,
but it just seems like if you engaged
in a sort of favoritism in the permit process,
I know you disagree with that,
and you deny them a permit they should have gotten,
and then it's too late
to participate in the permitting process
because you've again, played favorites.
Can they sue for money damages in superior court
even though they got too late into the permitting process?
-: I don't know what the authority would be
for that claim, your honor.
I haven't considered that, but...
-: Okay, does anybody have any further questions?
-: Are all the licenses gone?
They're all issued?
Counsel: No.
-: Okay, so they're still- No, they're not, your honor.
And it's outside the record, I think,
but at one point,
the city council expanded the number from five to eight.
My understanding is that there are still two
that are in process.
This appears to be intended
to be a relatively expedited process,
but it really isn't,
and particularly with the effects of COVID
and the need to have formal meetings
and hearings scheduled.
It's dragged out in almost all municipalities, I think.
-: Though, a decision by this court
that the land court properly authorized
a special permit to be issued
is not something that they will just staple to the wall.
I mean, they could go through the licensing process.
-: Oh, it's definitely not annulity.
I mean, it's up to the person who gets the relief
to figure out how to use it,
and that was true when the original case was filed.
-: And at the time
that the judge tried to issue the injunction,
that was still true?
There were still pending open licenses?
-: I'm sorry, I can't hear.
I guess I have more of a hearing problem
than I thought I did.
-: No, it's probably 'cause these are the first words
I've spoken today.
(counsel and Justice Wendlandt laugh)
At the time the land court judge issued the decision
trying to enjoin the licensing process of the city,
there were open licenses available
to the complainant? Counsel: Yes.
-: Okay, thank you.
-: And there was an avenue open,
which I wasn't counsel at the time, maybe Mr. Burke knows,
but I mean, a way to compromise this
would've been for the city to agree to do something
with respect to the outstanding licenses.
I'm not sure it could have reserved one for Bask,
but it certainly could have- What are the chances of that
when they've just issued a license
a quarter mile up the street?
-: Your honor, may I say just a word about that?
First thing I looked at when I saw this case
was the quarter mile,
and I think the applicants want us to do that,
they're good advocates.
And the land court bought that argument, I think.
-: I think the land court judge went out on a view,
didn't he?
-: He did go out on a view, your honor.
And he walked from this location
up .27 miles the same street on the same side
and then back again.
And I will tell you when he took that walk,
he could not have seen any part of the other location
except weeds and an open area right on the sidewalk.
That is a lot that I don't wanna say
it had super fun status,
but it was cleaned up at one point, right?
It's vacant.
It's next to a cemetery.
This other project, as you will see,
it's in the very last page of our record appendix
set of exhibits for the trial.
It's that applicant's map of that property.
And you will see in terms of setback,
there was some push and pull here about the setback.
If you look at trial exhibit four,
in, I believe it's record appendix volume four,
you will see that this property is almost in the road.
This one that was disputed here.
The setback is less than the 30 feet
that the judge said it should have been.
He said, it's a nonconforming use
and there's no real analysis anywhere in the case
that I've found as to what the result of that is,
or whether it was grandfathering or whatever we call it
now that we don't call it grandfathering anymore,
I don't know.
But the setback was an important issue.
And in fact, as I said in my reply brief,
the president of the council rested his no vote
on the articulated concern about the fact
that it wasn't set back further from the road.
And if you're interested in the reason
for the highway business district,
which I suggest you should be,
our brief sets out...
I had it here two minutes ago.
-: That's okay.
I think you answered my question.
I just wondered if the judge had seen...
I wanted to confirm the judge had seen the area.
-: He did, he did take a view.
-: I'm satisfied.
-: You know what? (chuckles)
Frankly, I think the traffic jam aspect of this
is blown way out of proportion.
This is Route 44. -: Okay, I'm sorry.
Attorney Field, thank you.
You're overtime. -: Yes, I know that.
Thank you, your honor. -: Okay, we're gonna move on.
Thank you.
Counsel: Thank you very much.
-: Attorney Burke.
-: Thank you, your honor.
May it please the court.
My name is Richard Burke.
I represent the plaintiff appellee, Bask Inc.
With me today is my colleague, Lisa Armandi.
Our position is that the land court's findings
were supported at the trial by uncontested evidence.
There was unrefuted expert opinion
that there was no traffic problem
posed by Bask's proposed retail store.
Justice Gaziano: Did you file in the wrong court?
-: No, your honor.
This case started as...
I was not counsel when case was filed.
However, it was filed in the right court.
It was a special permit appeal.
There's no question about that.
-: But then it has the ancillary issue of licensing, right?
So had counsel gone to the superior court,
you could have clearly had that remedy, correct?
-: I don't really think that makes sense to me, your honor,
because you can't apply for a license
until you have a special permit.
So there was really no opportunity
to make a claim for a license
until the special permit case was adjudicated.
And what happened here is that
the city was basically doing nothing with licenses
as this case was being litigated
and after it was under advisement,
they all of a sudden were in a hurry to not just issue...
They had issued one license,
they had a total of five that were available.
So there were four left
when the case in the land court was under advisement
after the trial.
And a notice came that within days,
the city plan to have all of the pending applicants
for these licenses come all together
and basically issue all of the licenses,
where the idea being
that they were gonna issue licenses throughout the city
and take into account
where the various- Oh, I have to have community agreements
and special permits to be applicants, correct?
Counsel Burke: Yes, your honor.
Bask at that time- [Justice Wendlandt] Other applicants
had all their ducks in a row
and they were just waiting for the city to do the licensing?
Counsel Burke: That's correct, your honor, they had.
-: Why at that point, when you were notified
or had noticed that the city was ready
to go forward with the license
didn't you then file in superior court,
which would properly have the jurisdiction?
-: This was happening within a matter of days, your honor.
I know there's been some discussion about,
we could have filed another lawsuit,
we could have sought an- I guess I'm trying to figure out
why we should hold that the land court had authority
to enjoin the city in this licensing procedure,
when in fact, you as the litigant had the ability
to go do the proper court and get that.
Counsel Burke: We think we were in the proper court,
your honor. -: Why?
-: Because the land court
was the court adjudicating the special permit case,
and from which we were seeking a remedy
to reverse that special permit.
At that point, we did not have a judgment.
There was no judgment saying
we were entitled to a special permit.
-: I know, but it doesn't matter.
If the land court's jurisdiction is right, title,
interest and land,
and if the relief you're seeking
under section 40, 17 is beyond that,
it doesn't matter as Justice Gaziano said that,
all you're gonna have is a piece of paper,
'cause the special permit is not gonna do you any good.
You have to be in a court
that has the equity power to address it.
It can't just be, well, you know, we need this.
You have to need it in the right court.
Counsel Burke: We think, your honor,
we were in the right court.
-: Oh, then go back to the last question
from Justice Wendlandt.
what is it about this situation
that fits within the land court's jurisdiction?
-: The land court as a court sitting in a zoning appeal
has general equitable powers with respect to that case
under chapter 40A, section 17,
the language of the statute
to do what justice and equity requires.
-: So your position just that I understand it
is that chapter 40, section 17
expands the jurisdiction of the land court?
Counsel Burke: It gives the land court
equitable jurisdiction to handle remedies and zoning cases.
-: I know, but just my question.
You are saying that section 17
expands the jurisdiction of the land court
in this circumstance?
-: I'm not sure that it expands its jurisdiction, your honor,
it gives it equitable jurisdiction
just like the superior court has on zoning appeals
to do what justice and equity requires,
and that there really should not be a difference
in the two courts
who both have statutory ability to hear appeals
in zoning cases.
It does not make sense to separate them.
-: Could it have wiped out the licenses
that were already given
and make the licensing process start all over again?
Say it agrees with you,
the favoritism is in place,
so it has to wipe out...
It has to allow a special permit,
but at least one of them them had already gotten a license
and there were limited number of licenses.
Does it have the power to say start the whole process over
and wipe out a license you already gave?
-: Well, I think that we don't have to go that far,
your honor.
The land court never attempted to do
Justice Kafker: But why not?
-: Any such thing. -: I mean,
if it can level the playing field,
I mean, by the way,
the first license that was given
was the one right up the street, right?
-: No, I think there was the first license
that had been given some time previously
was to an applicant at a different section of town,
but the one right up the street
was part of the group within days that was set
to be part of this group that the city was gonna issue
presumably all of the licenses to,
and that it did in fact issue
three of the remaining four licenses in a matter of days.
Justice Kafker: Could the land court have just said,
okay, I disagree with that, wipe out those three?
Would that be within its power too?
-: I'm not sure that the land court's jurisdiction
to issue an appropriate, equitable remedy
in a zoning appeal,
what the land court did here, your honor
was just a temporary pause.
It did not step in and say, I'm vacating licenses,
I'm ordering that you issue Bask a license
or not issue someone else a license,
it simply said, since the city has chosen
to enact this two part process
that both with the city council
as the special permit granting authority
and the licensing authority as set up by the city ordinance,
the land court simply asked for a pause of the same body
that did hear the special permit appeal
and that the land court found
had improperly denied the special permit to simply say,
pause for a moment,
give Bask a brief time
to apply with the rest of the- I understand what they did.
Is there anything in the legislative history
or any of the guidance from the Cannabis Commission
or anything else that addresses land court
versus superior court on this?
Counsel Burke: Not that I'm aware of, your honor.
-: And were the other applicants given notice
in an opportunity to be heard
in connection with this injunction issued by the land court?
-: No, I don't believe that they were, your honor.
And again, and I think- We'll agree,
they're interested parties given that they're on hold now?
-: I suppose, if they had petitioned to intervene
in the matter that perhaps
the land court would've heard that,
but when the judgment came out,
and this is we're just really looking
to uphold the judgment,
it just was a matter of a brief pause, days
that we were looking for
because we needed the city council
to issue the special permit
pursuant to the land court's judgment
before we could apply for the license,
and we said that we would do that
all within a matter of days.
And so that's all this is about, is a very short pause.
And then Bask would've had an opportunity
once it had this special permit
to be part of the opportunity with the other applicants
for the citywide licenses that they were going to issue.
-: Is there some correlation between the December hearings
on the other applicants
in the case in front of the land court?
Because we have, I think it's December 23rd,
the land court decision comes out
and then we have five days later.
Is it coincidental or not?
That all of a sudden we're having these hearings?
-: I think that it's not a coincidence.
I think that the land court could see that,
that this was an attempt
to circumvent the land court's judgment,
that there was a rush
to circumvent the land court's judgment
by the same city council by simply saying,
okay, forget about that case,
we'll just make it moot
by issuing all of the remaining licenses.
-: And that spurred the contempt to complaint, correct?
-: Yes, that's where the contempt to complaint comes in.
The judgment came out.
Within a matter of days after getting the judgment,
the city council said,
we're just going to flout the judgment,
we're going to ignore it,
and they proceeded to hold a hearing
and to issue remaining licenses.
-: Now the contempt raises another
sort of extension of the power
or how far the power goes, right?
So don't we need clear and convincing evidence for contempt?
And how do you do that on a statute
where the jurisdictional issue is somewhat unclear?
I mean...
-: I think the contempt issue is a different issue.
If a court finds that there is a valid judgment
and a party intentionally violates that judgment,
it's a different issue.
-: But does that raise some problematic issues
where we're holding parties in contempt
when there's a jurisdictional issue potentially in play?
-: Well, the city could have sought,
before they just proceeded to flout the court's order,
they could have asked for reconsideration,
they could have sought a stay of the order.
They didn't do any of those things,
they just ignored the order.
-: You also could have gone to superior court
and taken this up from there.
I've got my special permit
and you could have solved that problem too, right?
-: Well, no, we didn't.
At the time that...
Well, the court's judgment came out.
When the court's judgment came out,
the court's judgment said that
the special permit should be ordered to be issued.
We didn't have it yet.
And the judgment said to the city,
give Bask, you know, a brief pause
and an opportunity to participate in this licensing hearing
once you issued the special permit.
So the judgment addressed that issue.
All of the parties had the judgment,
the question was that the city simply ignored the judgment.
-: Counsel, I'm still struggling with this,
and I really don't get this from your papers
or the argument.
Go back to Justice Lowy's question,
because if you're saying that the claim, right?
The appeal, the claim under chapter 40A, right?
That that last sentence somehow can affect 185K,
because that's effectively what you're saying.
Because if you were just looked to at the enabling statute,
this remedy isn't there,
you're resting that on the claim.
So if you marry Justice Lowy's point
and Justice Kafker's point,
how far can this go?
How far can you rely on that last sentence
to just give the land court judge,
not necessarily unfettered authority,
but just to do whatever they think is best
under the circumstances as it keeps evolving?
What's the limit on that?
-: The limit is that you have to start with a zoning case,
and here, that's what we had.
We have under chapter 40A, section 17,
it's clear that the land court has jurisdiction
to issue orders and remedies with regard to special permits,
and it has attached to that
ability to adjudicate those permits,
some aura of equity around that,
pursuant to chapter 40A, section 17.
So that in adjudicating special permit cases,
it can make appropriate equitable orders
with regard to those permits.
So the authority, that equitable authority, your honor,
would come from the same statute
that gives the court the ability
to adjudicate special permit cases.
It's to make sure that
in adjudicating a special permit case,
the court's authority is not (mumbles)
the court can issue a remedy that has meaning
and that it can do justice.
-: Am I wrong that the land court
also has equitable jurisdiction
where right, title and interest in land is involved
separate from section 17?
-: I think there is also equitable jurisdiction
related to that, your honor.
Yes.
And there is some overlap
between the general jurisdictional statute
and the zoning appeal statute,
but in either case,
it's clear that the court was properly adjudicating
the special permit that was at issue.
The question becomes,
when it comes to the point of issuing a remedy,
are its hands tied,
or can it issue an equitable remedy
that will have meaning and effect,
or can it only issue in the circumstances
that it was faced with here,
a worthless piece of paper- But it's not really worthless,
is it?
I mean, one thing I'm confused by,
I mean, I agree with you,
the land court are the experts on special permits.
So I see why you wanted to go there first,
but isn't there sort of a simplicity of saying,
okay, you got your special permit
and now they're giving you the bums rush possibly.
Go to superior court and get an injunction,
'cause the superior court's the one who deals with
the marijuana legislation.
So why not stick to a simple approach?
You got your right for the special permit,
but now we're in a...
'Cause eventually,
you're gonna be in superior court anyway, right?
The land court can't resolve the marijuana case,
so we're gonna have two courts at the end of the day anyway,
the question is when we switch courts, right?
Counsel Burke: Well, I think again, your honor,
when the judgment came out,
the judgment addressed the issue of
the order that the special permit be granted
and it contained this language that
the city give Bask an opportunity
to participate in the licensing process.
So we had a court order at that point.
-: But that the question is
whether the land court should have gone that far
or just said, here's your special permit,
it's issued immediately.
I can't help you any further than that.
Go to superior court and get an injunction
if they're giving you the bums rush.
-: If that had been the outcome,
if the court had simply said,
I'm ordering that the special permit be issued, period,
and nothing else,
perhaps then we would've had to look to see,
is there some other equitable remedy we can get
to pause this process?
-: But isn't there a simple one?
Go to superior court and get an injunction
on the next stage of this.
-: We already had an order with an injunction
from the land court, your honor,
and then on top of that, as a practical matter,
it was clear that within days this was going to happen.
So there would not have been to time to file another case,
ask for an interdepartmental transfer,
try to get, you know, an injunction.
-: [Justice Wendlandt] Really?
-: This was about- Really?
You don't think there was enough time?
-: Well, I think...
No, I don't think so, your honor.
-: Why? -: But we had a judgment
that issued that order.
So why was it not reasonable
to expect that the judgment would be followed
by the city in this case?
That was my expectation.
-: If it was void to begin with,
because the land court didn't have the authority
to issue that paragraph,
well, then...
-: We didn't think it was void.
-: Obviously,
you didn't think it was void? (Justices laughing)
-: We believed it was a valid judgment.
-: You're saying you only had a few days
to file something in superior court,
and I'm questioning whether or not
that's why you're suggesting that isn't enough time.
-: To file another case,
to seek an interdepartmental transfer,
to have another judge hear the case.
We hadn't even applied for a license at that point.
-: Well, you know what?
You can't do better than win.
I understand why you didn't go to superior court.
You can't do better than win,
but think beyond the situation
and what we're struggling to try and understand here.
What you already know is,
what's the limit of what the land court can do
in this special permit situation
when there's limits to its jurisdictional power.
-: Again, your honor,
I guess that's for the court to decide
the parameters of that authority,
and we certainly adopt the argument of the amicus brief
in that regard.
We think that the land court
did have that equitable authority
to make a meaningful judgment here.
And we had a judgment that said, do this,
and they ignored that judgment.
But beyond that,
we didn't have a special permit even at that point.
We couldn't apply for a license
until we have a special permit.
We didn't have a license
'cause we couldn't even apply for it
until we have the special permit.
So what would be the odds that the superior court
would issue an injunction in a case like that
on other parties that had licenses,
as opposed to going back to the land court,
which was familiar with the case,
which had issued a remedy to say,
use your equitable authority
to make an appropriate, meaningful, limited remedy,
which is what the land court did.