Plaintiff Evergreen Douglas, LLC, filed its Verified Complaint on October 24, 2012, seeking, 1) pursuant to G. L. c. 240, § 14A, a determination of its rights under Section 7.2 of the Douglas Zoning By-law (the By-law), and 2) pursuant to G. L. c. 231A, a declaratory judgment relative to the legal status of a Flexible Development Special Permit (the Special Permit) issued by the Town of Douglas Planning Board (the Planning Board) in 2006. Defendants Douglas Building Commissioner (the Building Commissioner) and Town of Douglas (the Town) (together, Defendants) filed their Answer on November 16, 2012. A case management conference was held on December 3, 2012. Plaintiff filed its Motion for Summary Judgment on March 15, 2013, together with supporting memorandum, Statement of Undisputed Facts, and Appendix containing the Affidavit of Henry J. Lane (the Lane Affidavit). On April 18, 2013, Defendants filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum. Plaintiff filed its Opposition to Defendants Cross-Motion of April 30, 2013. A hearing was held on both motions of June 19, 2013, and the matter was taken under advisement. [Note 1] At the hearing Plaintiff filed its Motion for Attorneys Fees, and on June 24, 2013, with this the courts permission, Defendants filed their Opposition.
Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmity. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 59(c).
I find that the following material facts are not in dispute:
1. Plaintiff owns a parcel of land on South Street in Douglas consisting of 67.38 acres (Locus). Locus is located in the Rural Agricultural (R-A) zoning district.
2. The JK Realty Trust (the Trust) owned Locus in 2005.
3. On April 13, 2005, Orbison Corp. (Orbison) (under purchase and sale agreement with the Trust for Locus) applied to the Planning Board for the Special Permit. The Trust conveyed Locus to McCloud Development LLC (McCloud), the assignee of Orbisons purchase and sale agreement, by deed dated June 4, 2006, and recorded with the Worcester County Registry of Deeds (the Registry) at Book 41303, Page 170. The Planning Board issued the Special Permit on September 26, 2006, and the Special Permit was filed with the Town Clerk on September 27, 2006.
4. The Special Permit authorized a subdivision (the Subdivision) with a total of thirty-one building units on twenty-seven lots (the Project). The thirty-one building units were to consist of twenty-three single family homes and four duplex residential units (three of which must be developed as affordable units). Condition 1.c of the Special Permit stated:
Prior to issuing any occupancy permits to the Applicant and/or prior to issuing any building permits to any party other than the Applicant, the 64.15 acre parcel of land (the Open Space) comprised of 36.11 Acres as shown on the Flexible Preliminary Plan and the remainder 28.04 Acres (the Additional Open Space Parcel) which is shown as Remaining Land on an unendorsed ANR Plan shall be conveyed and accepted by the Douglas Conservation Commission (the Con-Comm).
5. Pursuant to Section 9.3.8 of the By-law, the Special Permit would lapse if substantial use thereof or construction thereunder [had] not begun...within 24 months of filing the special permit approval...with the Town Clerk.
6. On October 10, 2006, the Planning Board approved a definitive subdivision plan for the Subdivision (the Subdivision Plan). The Subdivision Plan was endorsed by the Planning Board on January 29, 2008, and was recorded with the Registry in Plan Book 869, Plan 51.
7. By letter dated January 29, 2008, the Trust tendered a proposed deed conveying the Additional Open Space Parcel to the Town (the Additional Open Space Deed). The Additional Open Space Deed was accepted by the Town of Douglas Board of Selectmen (the Selectmen) and the Con-Comm on December 16, 2008, and was recorded with the Registry in Book 43607, Page 145.
8. Locus was conveyed from McCloud back to the Trust by deed in lieu of foreclosure dated May 19, 2009 and recorded with the Registry at Book 44288, Page 138.
9. In early 2010, the Trust was in negotiations to sell Locus to a developer. This prospective sale was never consummated. In the Verified Complaint, Plaintiff attested that a Town official informed the developer/potential buyer that the Special Permit had lapsed. Plaintiff states that the sale fell through because of the Town officials alleged statement to the buyer regarding the lapse and because of the Building Commissioners delay in responding to the 2010 Letter, as defined, infra. [Note 2]
10. By letter dated March 1, 2010 (the 2010 Letter), the Trust made a written request to the Building Commissioner for a determination that the Special Permit had been validly exercised. [Note 3] By letter dated March 31, 2010 (the 2010 Response), the Building Commissioner confirmed that substantial use of the Special Permit has commenced and that the Special Permit is still active. The 2010 Response noted that [s]ubsequent to the approval of the subdivision, certain conditions of the Special Permit have been acted on, such as the conveyance of land to the Town. Also, the Definitive Subdivision Plan has been recorded at the registry of deeds... The Building Commissioner concluded the 2010 Response by stating, [i]t is the determination that the act of filing the [Subdivision Plan] and following the process shows that substantial use of the Special Permit has commenced [and] therefore [it] is still active.
11. The Trust and Plaintiff have continued to actively market Locus to prospective developers. As attested to in the Lane Affidavit, in May and June of 2012, the Building Commissioner informed Attorney Henry Lane, the attorney for a potential buyer of Locus, that although she had issued [the 2010 Response] indicating that substantial use had been made of the Special Permit and that it was still active, no work had been done since, and that accordingly, she was no longer able to confirm that the Special Permit was in force. The Building Commissioner also informed Attorney Lane that if [Attorney Lanes client] wanted a formal determination someone would have to file an application for a building permit. [The Building Commissioner] also agreed that a building permit would not be a practical alternative because construction of the subdivision roadways and utilities would be a prerequisite to the application for a building permit.
12. By letter dated June 18, 2012 (the 2012 Letter), both the Trust and Plaintiff sought a second determination from the Building Commissioner with respect to the status of the Special Permit. The Trust and Plaintiff explained that they had a bona fide third party purchaser for Locus, and that [i]t is critical to [the Trusts and Plaintiffs] lawful use and enjoyment of its property that this issue be resolved in a timely manner. By letter dated July 25, 2012 (the 2012 Response), the Building Commissioner wrote that the 2010 Response speaks for itself. The 2012 Response concludes:
In any event, at this time I lack the necessary facts to conclude that any work on or development of the subject property that is the subject of the Special Permit has been conducted and/or continued in good faith.
13. By deed dated October 4, 2012, the Trust conveyed Locus to Plaintiff, and the deed was recorded with the Registry in Book 47004, Page 234.
There are a number of issues that must be addressed in this Decision. First, Plaintiff has submitted a Motion for Attorneys Fees arising out of Defendants failure to appear at the originally scheduled Summary Judgment hearing. Defendants oppose this Motion. Next, Defendants contend that this court lacks jurisdiction under either G.L c. 240, § 14A and G.L. c. 231A to make a determination as to whether the Special Permit remains in effect. Plaintiff states that this court has jurisdiction pursuant to G.L. c. 231A to determine whether the Special Permit remains in effect. [Note 4] Finally, Plaintiff maintains that the Special Permit has not lapsed. Defendants do not brief this issue and rely exclusively on their jurisdictional objection. I shall address each issue in turn.
I. Motion for Attorneys Fees.
Plaintiff filed its Motion for Attorneys Fees as a result of Defendants failure to appear at the summary judgment hearing originally scheduled for June 17, 2013. Plaintiff claimed fees of $1,200. [Note 5] Defendants admit in their Opposition that their failure to attend the hearing on June 17, 2013, was a mistake on their part because the attorney who had been handling this case had left the firm, which resulted in a scheduling oversight. In awarding fees a court will consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, 379 Mass. 381 , 388-389 (1979). The court shall exclude hours that are excessive, redundant, duplicative, or unproductive.
Plaintiff alleges, and Defendants admit, that Defendants inadvertent error caused delay to this court and to counsel for Plaintiff. This court agrees in that regard; however, Plaintiff has failed to establish certain underlying facts necessary to fully succeed on its Motion for Fees. Plaintiffs Motion provides no hourly breakdown for services rendered, no hourly rate charged, and no offer of proof that the rates charged by either of the two attorneys who appeared on behalf of Plaintiff are reasonable.
Defendants failure to appear resulted in counsel for Plaintiff appearing before this court for no longer than one hour on June 17, 2013. The Summary Judgment hearing was scheduled for 9:30 A.M. on June 17, 2013, and this courts records indicate that the hearing concluded, after a brief telephone conference, at approximately 10:15 A.M. [Note 6] Two attorneys appeared on behalf of Plaintiff, but when the Motions for Summary Judgment were finally argued, only one attorney presented Plaintiffs position. As Defendants point out, the Summary Judgment hearing was not evidentiary in nature. The foregoing notwithstanding, counsel for Plaintiff is well experienced and has demonstrated ample ability before this court on numerous occasions. In this courts broad discretion, it shall award attorneys fees in the amount of $500 to Plaintiff. Such sum shall be remitted to counsel for Plaintiff within thirty days from the date hereof.
II. Jurisdiction Pursuant to G.L. c. 240, § 14A [Note 7]:
G. L. c. 240, § 14A states, in part,
The owner of a freehold estate in possession in land may bring a petition in land court against a city or town...for determination as to the validity of a municipal ordinance, by-law or regulation...which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land...or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use...
The Complaint sought judicial relief pursuant to G.L. c. 240, § 14A. Defendants argue that G. L. c. 240, § 14A applies only to a challenge of the validity or interpretation of a local zoning bylaw and not to the validity of a special permit. Defendants are correct in their analysis. This court may decide a claim under G. L. c. 240, § 14A only if the claim concern[s] the validity of or the extent to which a zoning code affect[s] a proposed use of property and not the extent or validity of a special permit. Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 , 763 (1985). As such, the count in the Complaint pursuant to G.L. c. 240, § 14A shall be dismissed.
III. Jurisdiction Pursuant to G.L. c. 231A:
Plaintiff contends that this court has jurisdiction over this dispute under G.L. c. 231A, § 1, et. seq. Defendants contend that Plaintiff cannot bring suit under G.L. c. 231A because Plaintiff has failed to exhaust its administrative remedies and because there is no actual controversy between the parties.
G.L. c. 231A, provided in relevant part:
The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such... (emphasis supplied).
A. Exhaustion of Administrative Remedies:
Defendants argue that the next step in the administrative process, which must be taken prior to an appeal to a zoning board or the court, is for Plaintiff to apply for a building permit. Only then will the Building Commissioner make a determination as to the validity of the Special Permit. Plaintiff contends that it has no administrative remedies, thus an appeal to this court under G.L. c. 231A is appropriate.
In the zoning area, application of exhaustion principles has been complicated. Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 , 209 (1985). Exhaustion is the normal rule and exceptions to it are not to be readily invited, Id., at 212, but if there is no adequate remedy under 40A, then an appeal to the court under 231A may be proper. See id. The Supreme Judicial Court stated that the evil to be remedied [by the declaratory judgment statute] is a situation where someone may be forced to invest in land before being able to find out whether there are restrictions. Id., quoting Whitinsville, supra, at 763. Where a party has no administrative remedy an appeal to the Land Court under G.L. c. 231A is appropriate. See Ware Real Estate, LLC v. Town of Ware, 81 Mass. App. Ct. 1120 (2012) (unpublished). In the absence of any action on the part of the building inspector or the town, we agree with the [trial court] judge that the administrative procedures set out in the by-laws were not triggered or available. Id.
Exceptions to the exhaustion requirement are sometimes made in extraordinary circumstances, as when the administrative remedy is inadequate (e.g., the administrative board does not have jurisdiction to hear the plaintiff's complaint), or the issues in the case are of such public significance that the outcome will affect numerous persons in addition to the plaintiffs, or where there is no dispute about the facts, and the issue involves merely a question of law. Balcam v. Town of Hingham, 41 Mass. App. Ct. 260 , 266-267 (1996).
G.L. c. 40A, § 7, requires that local administrative remedies, if available, be exhausted before judicial relief is sought. The right to proceed under G.L. c. 231A turns on the availability of an administrative remedy at the local level. City of Woburn v. McNutt Brothers Equipment Corp., 16 Mass. App. Ct. 236 , 239 (1983).
A review of other cases indicates that the facts in the case at bar do not lend themselves to an administrative appeal. For example in Clark & Clark Hotel Corp., supra, a lessee was operating a business and the building inspector went to the premises and ordered the lessee to cease operations because the use was not permitted. Instead of appealing this order to the board of appeals pursuant to G.L. c. 40A, the lessee and the landowner appealed to the Superior Court under G.L. c. 231A. In dismissing the case for lack of jurisdiction, the Appeals Court stated that there is no showing that the remedy of c. 40A is inadequate here. [Note 8] Id. at 213. Other courts have also found there to be an administrative route to appeal a cease and desist order. See e.g. Town of Eastham v. Great Bluewater Dev. Co., 2006 Mass. Super. LEXIS 105 (2006) (must first exhaust administrative route of appeal of cease and desist order pursuant to G.L. c. 40A, §§ 8, 14); Boston Outdoor Ventures, LLC v. Aikens, 2011 Mass. LCR LEXIS 25 (2011); Cf. Ware Real Estate LLC, supra, at *7 (finding jurisdiction under G.L. c. 231A because no administrative remedy existed where building inspector had not issued a cease and desist order or a finding of violation or prospective violation) (emphasis supplied).
In Marlborough Savings Bank v. City of Marlborough, 45 Mass. App. Ct. 250 (1998), the landowner brought a suit under G.L. c. 231A to determine whether it was entitled to building permits. The Appeals Court held that G.L. c. 40A, §§ 8 and 15 provided an administrative appeal route based on the facts of that case, i.e. appeal the denial of the permits to the local board of appeals. As such, the superior court lacked jurisdiction to hear the G.L. c. 231A direct appeal. See id., at 252. In Balcam, supra, a building inspector issued a cease and desist order and denied a landowners application for an occupancy permit. Instead of appealing that denial through an administrative route, the landowner appealed to the Superior Court under G.L. c. 231A. The Appeals Court determined that such direct appeal should have been dismissed because the landowner failed to exhaust its administrative remedies.
This case is not aligned with those discussed, supra. G.L. c. 40A does not provide any administrative route given the facts in the case at bar. G.L. c. 40A, § 7, charges the Building Commissioner with the enforcement of the By-law and states that the Building Commissioner shall withhold a building permit if any structure or use will conflict with the By-law. Also under § 7, the Building Commissioner is required to respond to any written zoning enforcement request alleging that a landowner is in violation of the By-law. [Note 9] G.L. c. 40A, § 7 is inapplicable to this case. No party is seeking a zoning enforcement request against Plaintiff and, at this juncture, Plaintiff does not seek a Building Permit. [Note 10]
Next, G.L. c. 40A, § 8, states:
An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter.
In essence, G.L. c. 40A, §§ 8 and 15, provide an administrative appeal route for a party that has been aggrieved by a decision of the zoning enforcement officer under § 7. In this case, there has been no formal action of the Building Commissioner that could give rise to an administrative appeal. [Note 11] Again, Plaintiff has not been denied a building permit and Plaintiff (or anyone else) is not seeking a zoning enforcement action with the Building Commissioner. This route of administrative appeal of a zoning enforcement officers (i.e. the Building Commissioners) action or inaction is simply not applicable in this scenario. The Building Commissioner has not issued a cease and desist order or has not informed Plaintiff that the Special Permit has been revoked or is ineffective. Both of those scenarios would give rise to an administrative appeal under G.L. c. 40A or possibly G.L. c. 240, § 14A. See Banquer, supra, at 573 (written cease and desist order and written revocation of building permit can be appealed directly under G.L. c. 240, 14A and also likely under G.L. c. 40A); see also Town of Eastham, supra.
G.L. c. 40A, § 9, also provides no guidance given the facts in this case. The By-law is modeled after this section, which states that a special permit shall lapse not more than two years after it has been issuedif a substantial use thereof has not commenced. This section provides no administrative route to determine if a substantial use has commenced. G.L. c. 40A, § 13, is also of no avail. This section states in relevant part, Any person aggrieved by a decision or order of the zoning administrator, whether or not previously a party to the proceeding, or any municipal office or board, may appeal to the board of appeals, as provided in section fourteen, within thirty days after the decision of the zoning administrator has been filed in the office of the city or town clerk.
In the case at bar, the Building Commissioner has not issued any formal decision or order that Plaintiff could appeal. This fact presents exactly the issue at hand as the Building Commissioners inaction has denied any administrative route of appeal. Finally, a judicial appeal under G.L. c. 40A, § 17, is inapplicable to the facts presented in this case because Plaintiff is not alleging that it is aggrieved by the special permit granting authority. Plaintiff contends it is being harmed by the Building Commissioners failure to give a formal opinion relative to the validity of the Special Permit.
The By-law also affords Plaintiff no avenue for administrative relief given the facts in this case. Section 9.0 of the By-law entitled Administration and Procedures, sets forth no administrative procedure for determining whether a Special Permit has lapsed. Section 9.1.2, Enforcement states, that the Building Inspector shall institute and take any and all such action as may be necessary to enforce full compliance with any and all of the provisions of this By-law and of permits and variances issued thereunder, including notification of noncompliance... If the Building Commissioner and the Town are taking the position that the Special Permit has lapsed, which they appear to be doing, it seems to this court that appropriate action would have been to respond to the 2012 Letter providing the towns official opinion on the issue. That seems to be an action that may be necessary to enforce full compliance with...the By-law. Such action would have set in motion Plaintiffs rights to an administrative appeal under G.L. c. 40A, §§ 8, 14, and/or 15.
There does not appear to be any reason, nor do Defendants proffer any, as to why the Building Commissioner refused to give a straight forward answer to Plaintiff relative to the Special Permit. Defendants point out that no provision of G.L. c. 40A requires a zoning enforcement officer to issue zoning determinations upon request. There appears to be no logical or practical reason why the Building Commissioner refuses to make a zoning determination at this juncture. Indeed, it seems odd that the Building Commissioner had no objection to giving what she called a zoning determination in the 2010 Response; however, in 2012, she took the position that she did not have to give any definitive answer or zoning determination regarding the validity of the Special Permit. Instead, Defendants would have Plaintiff go through the time and considerable expense of applying for a building permit with no certainty that the Special Permit is valid. The validity of the Special Permit is merely one issue that the Building Commissioner must analyze in Plaintiffs or its successors application for a building permit. [Note 12] The Building Commissioners analysis regarding the validity of the Special Permit will not change between now and when a building permit application is filed. The question at this juncture, which will be the same question requiring the exact same analysis upon her receipt of an application for a building permit, is whether or not the Special Permit has lapsed. At some point, the Building Commissioner must take a firm stance one way or the other. There is no reason why the Building Commissioner should not issue such opinion now. Instead, her inaction has caused great uncertainty, and chilled sale potential, and has resulted in no administrative means for alleviating such uncertainty.
Based on the Building Commissioners inaction, I find that Plaintiff has been denied any administrative route of appeal.
B. Actual Controversy:
To pursue a claim under G.L. C. 231A, there must be an actual controversy between the parties in order for this court to have jurisdiction over this action. See G.L. c. 231A; Harrison v. Braintree, 355 Mass. 651 (1969). The party seeking relief must set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a definite interest and the denial of such assertion by the other party, where the circumstances indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue. Hogan v. Hogan, 320 Mass. 658 , 662 (1957). The actual controversy requirement...is to be liberally construed. Boston v. Keene Corp., 406 Mass. 301 , 304 (1989).
In certain instances, particularly in suits by landowners, a controversy arises because of pending attempts to make use of land. Owners who have been denied permits or who, being about to make a new use of their land, are threatened with enforcement proceedings, are in dispute with the public officials concerned. Such a dispute is a controversy within our definition of the word for purposes of c. 231A. Woods v. Newton, 349 Mass. 373 , 376 (1965).
Plaintiffs assertion of its definitive rights is that the Special Permit has not lapsed and therefore remains valid. The issue that must be resolved is whether Defendants, namely the Building Commissioner, have in fact denied the existence of this right. The facts are murky in this regard because the Building Commissioner has provided different interested parties with dissimilar answers relative to the validity of the Special Permit. First, Plaintiff attests that its predecessor lost a sale of Locus because a town official informed the prospective buyer that the Special Permit had lapsed. Such representation certainly gives rise to a controversy between Plaintiff, who contends that the Special Permit has not lapsed, and some unidentified agent of the Town who informed a potential buyer otherwise. Next, it is undisputed that the Building Commissioner informed Plaintiff, in the March 2010 Response, that the Special Permit remained valid and in effect. Then, in 2012, the Building Commissioner informed Attorney Henry Lane that the Special Permit may not remain in effect because no site work had been completed on Locus. The Building Commissioners waffling continued in the 2012 Response when she simply refused to opine as to whether the Special Permit remained valid.
As stated, supra, no provision of G.L. c. 40A requires a zoning enforcement officer to issue zoning determinations upon request. This may be true; however, it is inherently unfair for the Building Commissioner to make dissimilar representations to similarly situated parties. On three occasions (2010 representation to potential buyer, 2012 oral representations to Attorney Lane, and 2012 Responses refusal to re-affirm the 2010 Response), representatives of the Town appeared to be taking the position that the Special Permit has lapsed. These representations amount to a denial of Plaintiffs position that the Special Permit remains in effect and valid. It is undisputed that Plaintiff is attempting to make use of its land, i.e. by attempting to sell it, and Plaintiff is in a dispute with the Town over the validity of the Special Permit. At stated in Woods, supra, these facts give rise to an appropriate action under G.L. c. 231A. Based on the foregoing, I find that there is an actual controversy between the parties, thus an appeal to this court pursuant to G.L. c. 231A is appropriate.
IV. Lapse of the Special Permit.
G. L. c. 40A, § 9, states
Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years . . . from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause.
According to Section 9.3.8 of the By-law, the Special Permit would lapse if substantial use thereof or construction thereunder [had] not begun . . . within 24 months of filing the special permit approval...with the Town Clerk. The Special Permit was filed with the Town Clerk on September 27, 2006. Plaintiff argues that it has made a substantial use of Locus by obtaining approval of the Subdivision Plan on October 10, 2006, obtaining the Planning Board endorsement of the subdivision plan on January 29, 2008, and thereafter recording the Subdivision Plan with the Registry. Most importantly, Plaintiff fulfilled an onerous condition of the Special Permit by tendering the Additional Open Space Deed to the Town on January 29, 2008, thereby giving up substantial legal rights in the process.
Plaintiff also argues that there is no language in the Special Permit which provides an express time limitation for the exercise under the Special Permit. Plaintiff cites Lobisser Building Corp. v. Planning Board of Bellingham, 454 Mass. 123 (2009) to support its argument. See also Bernstein v. Chief Bldg. Inspector & Bldg. Commr of Falmouth, 52 Mass. App. Ct. 422 (2001). These cases point out that all that is required to prevent the lapse of the Special Permit is that substantial use has commenced within the two year period. This court is convinced that the approval of the Subdivision Plan in October of 2006, the endorsement and recording of the Subdivision Plan in January 2008, and most critically, the tendering of the Additional Open Space Deed in January 2008 all demonstrate that substantial use of the Special Permit had commenced within two years from the date the Special Permit was issued. [Note 13]
Defendants did not argue the merits of the lapse in their memorandum, but based on their prior filings, it appears that they argue that Plaintiff has done no construction or site work on Locus since the Special Permit was issued, and therefore the Special Permit has lapsed. The By-law provides in disjunctive form that a Special Permit will lapse if no substantial use of the Special Permit has been made or no construction has begun within two years from the filing with the Town Clerk. See also Lobisser Building Corp., supra, at 131 (noting disjunctive language relating to substantial use or construction). As stated, supra, Plaintiff had made substantial use of the Special Permit within the two year window.
Based on the foregoing, I find that the Special Permit has not lapsed and is still valid.
As a result of the foregoing, I ALLOW Plaintiffs Motion for Summary Judgment and DENY IN PART Defendants Cross-Motion for Summary Judgment. Defendants Cross-Motion relative to the G.L. c. 240, § 14A count is ALLOWED (to the extent that the G.L. c. 240, § 14A count was not waived by Plaintiff).
Judgment to enter accordingly.
[Note 1] The hearing on the summary judgment motions was scheduled for June 17, 2013. Defendants did not appear, and after a telephone conference, the hearing was rescheduled for June 19, 2013.
[Note 2] In their Answer, Defendants deny that any Town official informed the developer / potential buyer that the Special Permit had lapsed. If the plaintiff files a verified complaint [then it] is treated as an affidavit for purposes of rule 56(e). Godbout v. Cousens, 396 Mass. 254 , 262 (1985). Defendants merely denied this verified allegation without submitting any competing Affidavit disputing this fact. Allegations in an unverified pleading are not accorded any evidentiary weight in determining whether there exists a genuine issue of material fact under rule 56©). Id., at 263. As such, this court shall treat as fact Plaintiffs verified allegation that a Town official informed the developer/potential buyer that the Special Permit had lapsed.
[Note 3] The 2012 Letter (defined, infra) stated, [t]he reason for my March 1, 2010 letter was because a potential purchaser of the property had been informed by town officials that the Special Permit had lapsed. Due to the uncertainty regarding the status of the Special Permit, and the passage of time before your March 31, 2010 letter, the buyer determined not to proceed with the sale.
[Note 4] Although plead in the Complaint, Plaintiff does not argue that this court has jurisdiction to resolve this dispute under G.L. c. 240, § 14A.
[Note 5] Plaintiffs fees were itemized as follows: 1. Attorney Giaimo: $660.00 for Appearing at Summary Judgment hearing on June 17, 2013. 2. Attorney Berardi: $405.00 for Appearing at Summary Judgment hearing on June 17, 2013. 3. Attorney Berardi: $135.00 for Preparing motion for attorneys fees as a result of Defendants failure to appear for Summary Judgment hearing.
[Note 6] Plaintiffs counsels office is located less than one quarter mile from the courthouse.
[Note 7] Plaintiffs claim under G.L. c. 240A, § 14A, although raised in the Complaint, was not raised in Plaintiffs Motion for Summary Judgment. At the oral argument, Plaintiff acknowledged that the count under G.L. c. 240A, § 14, was not part of the Summary Judgment argument. Defendants argue that this issue has been waived.
[Note 8] The Appeals court simply alluded generally to G.L. c. 40A without any further guidance as to a proper administrative route of appeal. It would appear that such an appeal could have been taken to the local board of appeals pursuant to G.L. c. 40A, §§ 8 and 14.
[Note 9] The relevant first paragraph of G.L. c. 40A, § 7 states: The inspector of buildings, building commissioner or local inspector, or if there are none, in a town, the board of selectmen, or person or board designated by local ordinance or by-law, shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of any zoning ordinance or by-law; and no permit or license shall be granted for a new use of a building, structure or land which use would be in violation of any zoning ordinance or by-law. If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.
[Note 10] In fact, it has been represented to this court that the Building Commissioner conceded that requesting a building permit would not be a practical alternative because of the involvement with the subdivision process.
[Note 11] It should be noted, however, that even though there has been no formal action by the Building Commissioner, informal communications by the Building Commissioner and/or other Town officials have resulted in chilled sale potential for Locus.
[Note 12] Plaintiff points out that 780 CMR 5110.7 requires that any application for a building permit shall include three copies of (1) Site plan, (2) Foundation plan and details, (3) Floor plans, (4) Exterior building elevations, (5) framing plans and/or building section, (6) Schedules, legends, and/or details adequately depicting doors, windows, and related material installations; and (7) Energy conservation information. As this case also involves a subdivision approval, Plaintiff would also have to construct or provide surety for all subdivision infrastructure prior to any issuance of a building permit. The requisite plans and construction/surety would indeed result in considerable expense to Plaintiff.
[Note 13] Plaintiff also argues that Chapter 240, Section 173 of the Acts of 2010 as amended by Chapter 238, Sections 74-75 of the Acts of 2012 (the Permit Extension Act) extended the date of lapse by two years. The Permit Extension Act states in part: [n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of 4 years, in addition to the lawful term of approval. As explained in simpler terms in the Massachusetts Department of Housing and Economic Permit Extension Act FAQ Sheet, any permit in effect or existence during the tolling period of August 15, 2008 through August 15, 2012, is automatically extended for four years from the date the permit was set to expire. The Special Permit would have lapsed on September 12, 2008 (during the tolling period), if substantial use thereunder had not commenced by that date. Pursuant to the Permit Extension Acts four year extension, the Special Permit would expire on September 27, 2012, if substantial use thereunder had not commenced by that date. As such, any steps to substantially use the Special Permit prior to September 27, 2012, also support the notion that the Special Permit has not lapsed. For example, the Additional Open Space Deed was accepted by the Town on December 16, 2008, and subsequently recorded with the Registry. Plaintiff and its predecessors also attempted to make substantial use of the Special Permit by attempting to market Locus as land entitled to the benefit of the Special Permit. This marketing occurred in 2010 and continues through the present date.