Agenda - Planning Commission - 08/05/2010

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May 25, 2010 I Volume 41 No. 10 Zoning Bulletin sachusetts courts had "been reluctant to hold that a permit holder had commenced substantial use or construction unless actual construction had begun, where, as here, the special permit in question authorized con- struction work." Thus, "anything short of actual construction work" would be "considered mere preparation rather than `substantial use or construction.," Here, the court found that the Cooperative's actions amounted only to preparations. The court rejected the Cooperative's argument that its various activities on and use of the jeep trail were sufficient to prevent lapse of the Special Permit. Rather, the court found that "[e]verything done by or on behalf of [the CooperativeBerkshire] during that year in connection with its planning and analysis of the Wind Facility could have been done without the issuance of the Special Permit and without construction of the Road authorized by the Special Permit." Berkshire/ the Cooperative could have continued to use the exiting jeep trail to gain access to the Wind Facility for planning and design purposes. The Spe- cial Permit was required because significant improvements and changes to the. jeep trail were required in order to transport the equipment and vehicles necessary to construct the Wind Facility. Thus, here, the court found that "under the unusual circumstances presented by this case, sub- stantial use and construction [were], in essence, identical." "Consequent- ly, Berkshire[/the Cooperative] was required to commence construction of the Road within one year of the date of issuance of the Special Permit [iri order to prevent lapse of the Special Permit]." Since it had not done so, and since it had not requested an extension of the Special Permit, the court concluded that the Cooperative's Special Permit lapsed on June 29, 2005 and was void. See also: McDermott v. Board Of Appeals Of Melrose, 59 Mass. App. Ct. 457, 796 N.E.2d 455 (2003). See also: Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 907 N.E.2d 1102 (2009). Case Note: The Cooperative had also argued that Silverleaf's claims should be barred "due to the equitable defense of laches." Such a defense bars a party from asserting a claim "if the party so unrea- sonably delayed in bringing the claim that it caused some injury or prejudice to the defendant (i.e., in this case, the Cooperative)." The court found that the six months (from late summer 2006 until Feb- ruary 2007) that it took Silverleaf to file the enforcement request with the town's building inspector was not an unreasonable delay sufficient to bar Silverleaf's claim under the doctrine of laches. 10 ©2010 Thomson Reuters 158