Plaintiffs obtained a special permit from the planning board to construct eighty-four townhouse condominium units in phases subject to a number of conditions. The first permit for phase one was issued in April, 1986 and in March, 1987 the fist occupancy permit was issued. The condominium included twenty-one units in five buildings, with the right to add three additional phases to include an additional sixty-three units. The deed was amended in September, 1987 to include the units of phase two; however, in spring 1988, due to an issue with the Township’s sewer system, the water-sewer department requested an extension of time for phase three of the project. The board agreed that no written extension was necessary as long as construction resumed once the sewer issue was resolved. No construction began until the fall of 2005 when KML Holdings Corp. entered into an agreement with the association to purchase the rights and develop additional units. The master deed was amended and the owner applied to the board for a modification in December 2006, which was denied on the basis that the special permit had lapsed. The plaintiffs appealed in Land Court raising, among other things, the issue of whether or not the rights under the special permit had lapsed. The Land Court entered judgment in favor of the board on the issue of lapse and in favor of the plaintiffs on the issue of amending; the plaintiffs appealed from the decision that the special permit had lapsed.
The Massachusetts Supreme Judicial Court determined that that the decision was legally untenable and could not be upheld. The Court pointed out that G.L. c. 40A, § 9 states that a special permit “shall lapse within a period of time, not more than two years, which shall not include such time required to pursue or await the determination of an appeal, if a substantial use has not sooner commenced except for good cause, or in the case of a permit for construction, if construction has not begun by such date except for good cause.” Further, the applicable township zoning law provides that a special permit will lapse if substantial use or construction has not begun within twelve months of approval. Finding that because the bylaw is disjunctive, providing for either substantial use or construction commencing, the Court determined only one must be fulfilled and that construction commenced within the required period, and that nothing indicates that each phase of a project is subject to its own lapsing period. The Court ultimately held that because construction began within one year of approval and because there was no time limit on the special permit, there is no basis to conclude that the special permit lapsed.
Lobisser Building Corp. v. Planning Board of Bellingham, 2009 WL 1708934 (Mass. 6/22/2009).
The opinion can be accessed at: http://www.courthousenews.com/AppellateOpinions/10316.doc
