Those familiar with construction in Massachusetts know all too well the numerous types of building permits, approvals, orders of conditions, and the like that may be required to proceed with construction work on a given project. Typically, these governmental permits/approvals/orders are valid for a set period of time within which the work must be completed. But what happens when a building permit faces a legal challenge that prevents the permit-holder from proceeding with the permitted work? Is the term of the building permit automatically extended?
Last week, the Appeals Court issued a decision reaffirming that building permit durations may be automatically extended in certain circumstances to account for delays caused by litigation. In some cases – such as special permits – there may be a governing statute that excludes appeal periods from the term of the permits. The Appeals Court also made clear that, even absent statutory authority, Massachusetts courts have – in the interests of fairness – extended or “tolled” the terms of building permits that are subject to legal challenges.
One issue that was not before the court to decide was whether a building permit term could be automatically extended when there is a legal challenge that does not directly concern the validity of the building permit itself. For example, what if an abutter claiming nuisance obtains a court order shutting down construction? Similarly, what happens if the project is stalled due to a pending appeal of an order of conditions. Neither example involves a challenge to the validity of the building permit itself, but may still affect whether construction can proceed. Is the clock still ticking on the building permit?
The answer will often depend on the facts and circumstances of a given case. However, the safer course is for permit-holders to timely request extensions to permits, approvals, orders of conditions and the like that may potentially be affected by legal challenges. As the Appeals Court noted, permit-holders may have bases to affirmatively request and obtain extensions in certain circumstances, such as upon a showing of “justifiable cause.” As a result, where the pendency of legal processes create “practical impediments” to performing the work, permit-holders are advised not to assume that their permits will be automatically extended, but should take pro-active steps to seek appropriate extensions where available.
