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special permit must be exercised? <br /> General Laws 40A section 9 requires local bylaws to require that <br /> a special permit will lapse within a specified period of time, <br /> not more than 2 years without substantial use or unless there is <br /> good cause for non use. <br /> Mashpee bylaws provide that a special permit shall lapse within 2 <br /> years from the granting or shorter period of time if specified in <br /> the decision. Two year period extends from the date the decision <br /> was granted. <br /> 2 . Who can record the special permit and what can be done if the <br /> original has been lost? <br /> She was informed that a duplicate original was located subsequent <br /> to asking for this opinion. In her opinion the special permit <br /> may be recorded because there is no express time in which <br /> recording must take place, however, the recording may not have <br /> any practical effect because of reasons set out above. <br /> She really didn't address who can record it. <br /> Tony said there doesn 't seem to be any time limit on recording <br /> it, but does it have any effect after two years? <br /> Tom said the only effect would be if they did record it and then <br /> come to the Planning Board for a determination to seek just cause <br /> for non use and extend the two years. <br /> 3. Does road construction constitute substantial use of a special <br /> permit? <br /> In her opinion, substantial use of the cluster special permit <br /> does not constitute simple roadway utility construction with or <br /> without releasing roadway security. <br /> Ordinarily such road construction could be allowed by subdivision <br /> approval so that in and of itself it does not exercise a cluster. <br /> In my opinion for road construction to be evidence of substantial <br /> use of a cluster special permit, it be necessary that it occur <br /> after the recording of the special permit and that the open space <br /> restriction be recorded no later than the date of which the two <br /> year lapse expired. <br /> Tony said she is saying it might if you had recorded the special <br /> permit and put your deed restriction in place. <br /> Tom said no one out there has a buildable lot, the whole <br /> subdivision is invalid. A lot of people bought lots and none of <br /> them have a chance of making them buildable. <br /> Current zoning is still in place. They could get together and <br /> come in and get a new special permit application and go through <br /> the process again . The other possibility, if they don't get <br /> together is Mr.Sullivan has 19 acres of raw land (the open space) <br /> and they have small pieces of unbuildable land. <br /> The preferable course for the town is to have the cluster lots <br /> reapproved. <br /> Attorney Lane' s summary. It appears regardless of whether the <br /> special permit granted in 1987 is recordable or despite if it is <br /> actually recorded, the special permit has long ago lapsed for <br /> lack of substantial use unless the Planning Board finds good <br /> cause existed for failure to exercise the permit. <br /> 11 <br />