Builders can once again go to sleep at night knowing phased condo developments are safe.
The Massachusetts Supreme Judicial Court (SJC) has reversed a 2007 Land Court ruling against a condo developer; reaffirming the viability of cost-saving phased developments and protecting later stages from the whims of ever-changing municipal governments.
The case, Lobisser v. the Town of Bellingham, pitted Lobisser Development Corp., which bought development rights to the phased Crystal Spring Condominiums development in Bellingham, against that town’s planning board.
The planning board denied the request of the developer to resume building units at the site after a 20-year hiatus, stating the special permit has expired because the final phases had not seen “substantial progress” in the last two years.
Massachusetts law states that special permits expire unless substantial building progress is made on the project after two years, and the Land Court upheld the Bellingham planning board’s decision.
“The fact that the project was dormant for so long raised some concern on the board, and obviously some concern in the court,” said Thomas Moriarty, a partner at Marcus, Errico, Emmer, and Brooks P.C., the firm that represented Lobisser Development Corp.
The developer argued that because 40 condos had already been built on the site, substantial development had taken place, and Massachusetts law pertains to the entire project, not the individual phases.
The permit restricts the number of condos built per phase, stating a maximum of 41 condos could be built before 1987. However there was no time limit written into the permit; nowhere did the permit state the condos had to be built by a certain date.
The SJC agreed with the developer, and reversed the Land Court’s decision.
“The Land Court’s decision would have been a watershed decision for the way condominium phases are planned in the commonwealth of Massachusetts,” Moriarty said. “It would have put this artificial requirement on a developer to invest artificial money just to retain the right to build units two years from now, or four years from now. For some projects, the price associated with making sure phase-specific elements were constructed would have been uneconomical. It would have been too much risk. Now developers can go forward with the assurance that if they start construction within the application lapse period, they don’t have to worry about this multiple look analysis.”
Jason Talerman, the town counsel for Bellingham, was not yet affiliated with the town when the case was in front of the Land Court, but did argue in front of the SJC. He said the decision essentially upheld the current law, and would direct town planning boards to be very careful in their creation of special permits.
“I think this says ‘If you have a strict requirement that you want to impose, you better be specific and explicit about that requirement,’” Talerman said. “The courts will be reluctant to read into any special conditions in the special permit that aren’t explicitly written.”
Talerman said condo building isn’t going up yet; Lobisser needs to reapply for its construction permit.
“The result of this case does not mean that those people get that condominium, not yet,” he said.
