Agenda - Planning Commission - 09/03/2009

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r'j ;~" ( .--"/ (,J Zoning Bulletin August 10, 20091 Volume 31 No. 15 alty Trust (the "Trust"). The special permit allowed the construction of eighty-four townhouse condominium units with construction to be per- formed in phases. Under the special permit, no more than twenty-one units could be built in any given year. After completion of the first two of four phases of the condominium development in January 1988; no further activity or construction took place. In 2005, after the Trust sold its development rights, Lobisser Building Corp. ("Lobisser") applied to the Board for a modification of the special permit and for development plan approval. The Board denied Lobisser's application on the basis that the special permit had lapsed. State law, Mass. General Laws c. 40A, S 9, required that town bylaws "provide that a special permit... lapse within a. specified period of time, not more than two years ...." The town's bylaw provided that a special permit would lapse if "a substantial use thereof or construction ha[d] not begun" within twelve months of special permit approval. In denying Lobisser's application, the Board contended that the special permit had lapsed because no substantial use had occurred for nearly twenty years. The Board said this was because the Trust and Lobisser had failed to construct the third and fourth phases of the project during that time. Lobisser appealed the Board's decision to the Land Court. The Land Court upheld the Board's decision that the special permit had lapsed. Lobisser appealed. DECISION: Reversed and remanded. ~ The Supreme Judicial Court of Massachusetts concluded that the spe- cial permit had not lapsed. The court found that, under the plain language of Mass. General Laws c. 40A, S 9, a special permit would not lapse as long as sub- stantial use or construction commenced within the applicable lapse pe- riod-which here was twelve months under the town's bylaw. Here, there was no question that construction commenced within that pe- riod. Although that construction was for the first phase of the project, nothing in the statute: (1) required both construction and substantial use to commence within the lapse period; (2) required substantial use or construction for each phase of the project to begin within the one- year lapse period; or (3) indicated that each phase of the project was subject to its own lapse period. Thus, where construction of the first phase of a multi-phased development project begins within two years, the special permit cannot lapse-unless there is express language to the contrary in the permit. "Here, where construction of the project began within one year of special permit approval and where the spe- @ 2009 Thomson Reuters 11 65