Robert Morra, in his capacity as Town of Amherst Building Commissioner (Commissioner), and the Town of Amherst Planning Board (Planning Board) filed their complaint in this action on November 13, 2012. The complaint names as defendants Brian Covel D/B/A/ Fratellis 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 Covels application for Special Permit. Count II requests, in the alternative, that 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. The plaintiffs filed an amended complaint on December 12, 2012, seeking the same relief. The plaintiffs filed Plaintiffs Motion for Summary Judgment on February 1, 2013. Covel filed Defendants Cross-Motion for Summary Judgment on February 25, 2013.
Plaintiffs Motion for Summary Judgment and Defendants Cross-Motion for Summary Judgment came on to be heard on March 19, 2013. In a decision of even date, the court (Foster, J.) has allowed Plaintiffs Motion for Summary Judgment and denied Defendants Cross-Motion for Summary Judgment.
In accordance with the courts decision issued today, it is
ORDERED, ADJUDGED and DECLARED that Special Permit Application No. ZBA FY2012-00023 (Application), filed with the Town of Amherst Zoning Board of Appeals (ZBA) by Covel on April 24, 2012 and requesting a special permit to establish two new Class II restaurants, was not constructively approved on or before October 24, 2012. It is further
ORDERED ADJUDGED and DECLARED that the Notice of Deemed Grant of Special Permit filed by Covel with the Amherst Town Clerk on October 25, 2012 is void and without force or effect.