MEMORANDUM AND ORDER PURSUANT TO RULE 23
Stephen B. White filed this action in Superior Court, purportedly pursuant to G. L. c. 249, § 4, against the Dennis board of health (board), challenging the boards recommendation to the planning board regarding a special permit application for an affordable housing development submitted under the local zoning bylaw by an abutting landowner, the trustee of Cape Commerce Nominee Trust. The trustee was allowed to intervene. The parties filed cross motions for judgment on the pleadings, the board arguing that its recommendation was not independently appealable. The judge concluded, and the parties now all agree, that the boards recommendation was a component of the special permit application and was not an independently appealable final decision. See Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343, 350 (1978). Cf. St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1, 9-10 (1999); Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137, 142-143 (2000). In an abundance of caution, however, the judge proceeded to reach the merits of the case, held in favor of the defendants, and ultimately granted the boards motion for judgment on the pleadings. White appeals.
We agree for the reasons stated by the judge and the parties that the boards recommendation was not an independently appealable decision. The Superior Court, therefore, lacked jurisdiction to hear the appeal and for that reason, the case should have been dismissed. See Everett v. 357 Corp., 453 Mass. 585, 612-613 (2009) (remanding after trial for entry of judgment of dismissal where court lacked jurisdiction over case from its inception). “A court without subject matter jurisdiction over a controversy is without authority to issue a binding judgment regarding that controversy.” Bevilacqua v. Rodriguez, 460 Mass. 762, 780 (2011).
We therefore vacate the judgment and remand for entry of a judgment of dismissal for lack of jurisdiction.
3
So ordered.
vacated and remanded
FOOTNOTES
3
. Given the result we reach, we need not address the parties arguments on the merits.