ROBERT MORRA, in his capacity as TOWN OF AMHERST BUILDING COMMISSIONER, and the TOWN OF AMHERST PLANNING BOARD, v. BRIAN COVEL D/B/A FRATELLI'S RISTORANTE AND PIONEER VALLEY PIZZA, PVP HOLDINGS, LLC, and BARBARA FORD, ERIC BEAL, THOMAS EHRGOOD, as they are Members of the TOWN OF AMHERST ZONING BOARD OF APPEALS.

On July 24, 2012, the Town of Amherst Zoning Board of Appeals took a series of votes on the application of Brian Covel and PVP Holdings, LLC for a special permit for two proposed restaurants, Fratelli’s Ristorante and Pioneer Valley Pizza. The plaintiffs, the Building Commissioner and Planning Board of the Town of Amherst, maintain that the result of these votes was a decision to grant the special permit for Fratelli’s Ristorante and deny the special permit for Pioneer Valley Pizza. Covel and PVP Holdings, LLC maintain that there was never a final decision on the special permit application for Pioneer Valley Pizza, resulting in a constructive approval of that special permit under G.L. c. 40A, § 9. The Special Permit and Decision of the Zoning Board of Appeals, filed with the Amherst Town Clerk on October 10, 2012, discloses that the plaintiffs’ interpretation of the votes is correct. The Plaintiffs’ Motion for Summary Judgment is therefore ALLOWED, and the Defendants’ Cross-Motion for Summary Judgment is DENIED.

Procedural Background

On November 13, 2012, Robert Morra, in his capacity as Town of Amherst Building Commissioner (Commissioner), and the Town of Amherst Planning Board (Planning Board) filed a two count complaint naming as defendants Brian Covel D/B/A/ Fratelli’s Ristorante and Pioneer Valley Pizza, PVP Holdings, LLC (Covel), and Barbara Ford, Eric Beal, and Thomas Ehrgood, as they are members of the Amherst Zoning Board of Appeals (ZBA). Count I of the complaint requests that the Court declare that no constructive grant of special permit occurred with respect to the Pioneer Valley Pizza portion of Brian Covel’s application for Special Permit. Count II requests, in the alternative, if the Court were to find that a constructive grant occurred, that the Court annul such grant as arbitrary and capricious and in excess of the Zoning Board of Appeals’ authority. Plaintiffs filed an amended complaint on December 12, 2012, seeking the same relief. The case management conference was held on December 14, 2012.

The plaintiffs filed Plaintiffs’ Motion for Summary Judgment, Statement of Facts in Support of Plaintiff’s Motion for Summary Judgment, and Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment on February 1, 2013. Covel filed Defendants’ Cross-Motion for Summary Judgment, Statement of Facts in Support of Defendants’ Motion for Summary Judgment, Statement of Legal Elements in Support of Defendants’ Cross-Motion for Summary Judgment, and Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ Motion for Summary Judgment on February 25, 2013.

The court heard argument on the cross-motions for summary judgment on March 19, 2013. On March 27, 2013, Covel filed his Supplemental Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, and on March 28, 2013, the plaintiffs filed their Supplemental Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment. This Decision follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

I find that the following facts are undisputed.

1. On April 24, 2012, Covel filed Special Permit Application No. ZBA FY2012-00023 (Application) with the Town of Amherst Zoning Board of Appeals (ZBA), requesting a special permit to establish two new Class II restaurants, one in an existing building and one in a proposed addition to the existing building, under sections 3.352.1 and 5.041 of the Amherst Zoning Bylaw.

2. The first restaurant, to be known as Fratelli’s Ristorante, would be located in an existing 1,600 square foot basement level space within a commercial-residential building known as Webster House, at 30 Boltwood Walk, Unit 1, Amherst, Massachusetts.

3. The second restaurant, to be known as Pioneer Valley Pizza, would be located in a new standalone 540-square-foot building adjacent to the Webster House and would focus primarily on delivery and take-out service, with a limited number of dine-in seats available.

4. On October 10, 2012, the ZBA filed its sixteen-page Special Permit and Decision in the office of the Amherst Town Clerk. The first two pages of the document consist of a Special Permit, dated October 9, 2012, which authorizes the portion of Covel’s application related to Fratelli’s Ristorante subject to fifteen conditions.

5. Pages 3-16 of the document consist of the ZBA’s Decision. Pages 3-10 of the Decision provide details pertaining to the applicant, nature, and submissions associated with the Application, and the two site visits and three public hearings between June 4 and July 2, 2012.

6. Pages 10-16 of the Decision set forth the actions of the ZBA at its final public hearing regarding the Application, on July 24, 2012, at which (a) the ZBA closed the evidentiary portion of the public hearing process; (b) applied portions of the Amherst Zoning Bylaw to the Application; and (c) ultimately voted on two motions associated with the Application.

7. Pages 11 and 12 of the Decision document the ZBA’s application of portions of the Amherst Zoning Bylaw to the Pioneer Valley Pizza portion of Covel’s proposal.

8. Pages 13 through 15 of the Decision document the ZBA’s application of portions of the Amherst Zoning Bylaw to the Fratelli’s Ristorante portion of Covel’s proposal. This part of the Decision indicates several conditions for approval of the Fratelli’s Ristorante portion of the application.

9. Pages 15 and 16 of the Decision describe three motions and two votes taken by the ZBA at the conclusion of the public hearing on July 24, 2012, as follows:

Public Meeting – Zoning Board Decision

The Board discussed whether a partial approval could be granted. Mr. Bagg [staff member] stated that the Board could approve only part of the proposal and deny other aspects. He recommended that the first be based on the whole application, as presented. If that vote fails to achieve a unanimous vote, a second vote for only part of the proposal could be taken.

Motion 1:

Mr. Beal MOVED to approve the application, ZBA FY2012-00023, to establish two new Class II restaurants, one in an existing commercial space and one in a proposed addition to the existing building with outdoor dining, under Sections [sic] 3.352.1 of the Zoning Bylaw, with conditions. Ms. Ford seconded the motion.

Mr. Beal and Ms. Ford voted in favor. Mr. Ehrgood opposed. The vote failed to achieve a unanimous decision.

Motion 2:

Ms. Ford MOVED to approve the application, ZBA FY2012-00023, for Fratelli’s Ristorante with the conditions that would apply to the Fratelli’s Ristorante and that anything that applies to PV Pizza is not authorized. Mr. Ehrgood seconded the motion.

Mr. Beal stated that he did not want to vote in favor of a motion that is a denial. Mr. Ehrgood stated that it is not a denial; rather, it is a partial approval.

Motion 3:

Mr. Beal MOVED to approve that portion of the proposal related to Fratelli’s Ristorante, with conditions. Mr. Ehrgood seconded the motion.

Ms. Ford noted that the motion does not include Pioneer Valley Pizza. It was acknowledged that the motion was approving only that portion of the proposal related to Fratelli’s Ristorante, and not the Pioneer Valley Pizza.

For the reasons stated above, the Board VOTED unanimously to grant Special Permit, ZBA FY2012-00023, for that portion of the proposal related to Fratelli’s Ristorante, a Class II restaurant, under Section 3.352.1 of the Zoning Bylaw, with conditions.

10. On October 25, 2012, Covel filed a Notice of Deemed Grant of Special Permit with the Amherst Town Clerk stating that the Application (including the portion of the Application pertaining to Pioneer Valley Pizza) had been approved because of the ZBA’s failure to take final action within the 90-day period required by G.L. c. 40A, § 9.

Discussion

General Laws c. 40A, § 9, requires a special permit granting authority, such as the ZBA, to hold a public hearing on a special permit application, make a decision, and take final action on that decision within 90 days of the filing of the application. [Note 1] G.L. c. 40A, § 9. “The filing of the board’s decision in the office of the municipal clerk constitutes ‘final action’ as that term is used in § 9.” Board of Alderman of Newton v. Maniace, 429 Mass. 726 , 729 (1999); see also Bldg. Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109 , 112 (1981). If the board fails to file its decision within 90 days, the applicant may notify the town clerk within fourteen days that the application has been deemed granted. G.L. c. 40A, § 9. The legislative intent behind the “deemed granted,” or constructive approval, provision of § 9 was “to obligate a board of appeals to act on an appeal within the statutory time period, otherwise the appellant prevails by default.” Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 , 622 (1983), quoting Rinaudo v. Zoning Bd. of Appeals of Plymouth, 383 Mass. 885 (1981). “The purpose of the constructive relief provided for in § 9, together with the requirement that the board make its decision within a set period of time, is to induce a special permit granting authority to act promptly.” Maniace, 429 Mass. at 729 (1999).

The Special Permit and Decision is the final action required by § 9. Id. It was filed with the Amherst Town Clerk on October 10, 2012, within 90 days of the July 24, 2012 public hearing. At issue in this action is whether that Special Permit and Decision constitutes final action on Covel’s entire Application. Covel argues that the Decision discloses that the ZBA only took action on the portion of the Application concerning Fratelli’s Ristorante, but did not take action on the portion of the Application concerning Pioneer Valley Pizza. Because, Covel argues, the Special Permit and Decision did not contain a final vote on the portion of the Application concerning Pioneer Valley Pizza, it did not act on that portion of the Application and is not a final action with respect to Pioneer Valley Pizza. Therefore, Covel maintains, the ZBA did not take action on Pioneer Valley Pizza within the time period set forth in § 9, and that portion of the Application is deemed approved. See Board of Appeal of Westwood v. Lambergs, 42 Mass. App. Ct. 411 (1997) (holding that board’s failure to vote on one of two requests constituted failure to act entitling owners to constructive approval).

Specifically, Covel points to the series of votes taken on July 24, 2012 that are recorded in the Decision. It is undisputed that on that day, after closing the public hearing as required by G.L. c. 40A, § 9, the ZBA voted on a motion to approve Covel’s Application for a special permit to establish both new restaurants, Fratelli’s Ristorante and Pioneer Valley Pizza. Of the three-member ZBA, two voted in favor, and one (Mr. Ehrgood) opposed. Because G.L. c. 40A, § 9 requires a unanimous vote of a three-member board in order to approve an application for a special permit, Mr. Ehrgood’s vote in opposition to the motion to approve the Application resulted in the denial of the motion. The ZBA then considered a motion to approve one of the restaurants, Fratelli’s Ristorante, but deny the other, Pioneer Valley Pizza. A board member (Mr. Beal) mentioned he did not want to vote in favor of a motion that is a denial. That motion was not voted on. The ZBA then voted on and unanimously approved a third motion to approve only the portion of the Application related to Fratelli’s Ristorante.

Covel argues that his Application has been deemed granted under G.L. c. 40A, § 9, because “the Board revisited or reconsidered its actions [in the first vote and motion] by proposing additional motions and ultimately acting on them. The result was that the first motion was no longer in effect.” Def. Supp. Mem. of Law at 1. In response to Covel’s assertion that the ZBA revisited or reconsidered its actions by proposing additional motions and ultimately acting on them, the Commissioner and the Planning Board argue that “[t]here is no mention in the detailed record of such vote to reconsider. Furthermore, the express language used by the [ZBA] indicates that the second vote applied to Fratelli’s only and that the action previously taken with regard to [Pioneer Valley] Pizza remained in place, a denial.” Supplemental Mem. of Law in Supp. of Pl’s. Mot. for Summ. J. 2-3. They argue that the ZBA’s first vote constituted an effective denial because “anything less than the required unanimous vote of a three member board constitutes a denial of the permit.” Supplemental Mem. of Law in Supp. of Pl’s. Mot. for Summ. J. 1.

The argument of the Commissioner and the Planning Board is more persuasive. There is nothing in the Decision of the ZBA that supports an assertion that the ZBA either intentionally or accidentally reconsidered, revisited, or did any other act that would cause the result of the first vote to be invalidated. Covel’s application for a special permit to establish two new restaurants in Amherst, Massachusetts, to be called Fratelli’s Ristorante and Pioneer Valley Pizza, was denied on July 24, 2012, when the first motion failed to garner the unanimous vote statutorily required of the three-member Town of Amherst Zoning ZBA of Appeals. Thus, by that vote, the Application for Pioneer Valley Pizza was denied. The vote on the third motion was only to approve the portion of the Application for Fratelli’s Ristorante. The denial of the portion of the Application for Pioneer Valley Pizza was not changed by that vote. As required by G.L. c. 40A, §9, the ZBA took final action on October 10, 2012, by filing its decision in the office of the Amherst Town Clerk within ninety days of its final public hearing. Therefore, on October 24, 2012, ninety days after the ZBA’s final public hearing on the matter, Mr. Covel did not receive a deemed grant of special permit to establish two new restaurants in Amherst, Massachusetts, under G.L. c. 40A, § 9.

The ZBA did not revisit or reconsider its vote on the first motion when it proposed a second motion and ultimately acted on a third motion. Had the ZBA wished to reconsider its action in the first vote, it certainly could have made steps to do so by a motion to reconsider. “The purpose of reconsidering a vote is to permit correction of hasty, ill-advised, or erroneous action, or to take into account added information or a changed situation that has developed since the taking of the vote.” H.M. Robert & S.C. Robert, Robert’s Rules of Order, Newly Revised 304 (10th ed. 2000). Covel argues that “[n]o motion for ‘reconsideration was necessary [because] principals of . . . formal parliamentary procedure are not strictly applied in administrative zoning proceedings.” Defs.’ Supp. Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. at 1. While a motion to reconsider may not have been strictly necessary, some evidence that the ZBA had considered the results of its first vote hasty, ill-advised, or erroneous, or that a need had arisen to take into account a situation that had changed since the first vote would be necessary in order to find that the ZBA intended to reconsider the result of the first vote. No such evidence is to be found in the record. The result is that the first vote, denying a permit for Pioneer Valley Pizza and Fratelli’s Ristorante together, remained in effect through the second motion, and the final motion and vote, which approved Fratelli’s Ristorante alone.

The facts of the present case are distinguishable from those in Lambergs. In that case, the Lambergses sought a variance from width and frontage regulations from the Westwood Board of Appeal. Lambergs, 42 Mass. App. Ct. at 412. At a public hearing concerning the application, the zoning board in that case focused on issues surrounding the frontage variance. Id. The decision of the board stated that the variance from the width requirements had been denied, but no mention was made in the decision of the variance from the frontage requirements. Id. After one hundred days, the Lambergses filed a request with the town clerk for a certificate stating that they had been granted a constructive variance from the frontage requirements under G.L. c. 40A, § 15, [Note 2] a provision similar to c. 40A, § 9. Id. at 412-413. Even though the zoning board argued that its failure to mention the variance from frontage requirements was an inadvertent clerical error, the Appeals Court held that “[t]he board’s failure to act on the request for a variance from the [] frontage requirement within one hundred days after the Lambergses had filed their application entitled them to a constructive variance regarding [the frontage requirement].” Id. at 414. Here, on the other hand, the Decision of the ZBA did not fail to address the portion of the Application concerning Pioneer Valley Pizza. Unlike the decision of the board in Lambergs, the Decision thoroughly and systematically documents the ZBA’s procedural consideration and rejection of Covel’s two-restaurant proposal and its approval of only one of the restaurants. It sets forth a vote that denied the Application for Pioneer Valley Pizza.

The ZBA could, perhaps, have been more specific in the body of the third motion that it was not considering Pioneer Valley Pizza or that it was again denying the portion of the Application for Pioneer Valley Pizza. Nevertheless, its series of motions do make clear that the Application for Pioneer Valley Pizza was denied. In other words, while the “procedure of the defendant board [may have been] slipshod, . . . the board did not blunder its way into a position where the [Application] became constructively approved.” Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336 , 339 (1966). Covel’s Notice of Deemed Grant of Special Permit is not valid. Summary judgment shall enter in favor of the plaintiffs and against the defendants, declaring that no constructive grant of approval of the Application occurred on or before October 24, 2012, and Covel’s Notice of Deemed Grant of Special Permit is void.

Conclusion

For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment is ALLOWED, and Defendants’ Cross-Motion for Summary Judgment is DENIED.

Judgment accordingly.