Posted by: Patricia Salkin | January 10, 2014

MA Land Ct. Upholds Board’s Denial of Application for Failure to Reach Unanimous Approval on Special Permit Request, Finding Subsequent Motions Did Not Constitute Reconsiderations and Hence There was no Deemed Approval

In April of 2012, Brian Covel filed a special permit application with the Town of Amherst Zoning Board of Appeals (“ZBA”), requesting a permit to establish two restaurants: Fratelli’s Ristorante (“Fratelli’s”) and Pioneer Valley Pizza (“Pioneer Valley”). In reaching its decision, the ZBA determined that it would first vote on the application as a whole. If the ZBA members were unable to come to a unanimous decision, the application as a whole would be denied, but they would hold a second vote on separate parts of the application. In July of 2012, the ZBA members voted 2-1 in favor of approval of the entire application. However, since the vote was not unanimous, this motion constituted a denial. The ZBA considered a second motion to approve Fratelli’s, but deny Pioneer Valley. This motion was never voted on. Finally, the ZBA considered a third motion to approve only the portion of the application that would grant a permit for Fratelli’s. The ZBA voted unanimously in favor of the third motion.

In October of 2012, Covel filed a Notice of Deemed Grant of Special Permit, asserting that the ZBA’s failure to take a position on the permit for Pioneer Valley constituted a deemed approval. In November of 2012, Robert Morra, the Building Commissioner of the Town of Amherst (“Commissioner”), filed a complaint in the Massachusetts Land Court against Covel and certain members of the ZBA. The Commissioner requested a declaration that no permit was granted for Pioneer Valley Pizza. Alternatively, if the court found that a permit was granted, the Commissioner sought to have that determination annulled as arbitrary, capricious, and beyond the authority of the ZBA. Both parties filed cross motions for summary judgment.

The central issue here was whether the ZBA’s decision constituted a final action with respect to the permits for both Fratelli’s and Pioneer Valley. The relevant zoning laws provide that in making a decision on a permit application, the ZBA must take a final action within 90 days of the filing of the application. If the ZBA fails to do so, then the applicant may notify the town clerk within fourteen days and the application will be deemed granted.

Covel argued that the ZBA’s second and third motions constituted reconsiderations of the first motion, thus rendering the first motion ineffectual. Since the third motion only considered the permit for Fratelli’s and not Pioneer Valley, Covel claimed that there was no final action with respect to Pioneer Valley. Thus, the permit should have been deemed granted. The Commissioner countered that the second and third motions were not motions to reconsider the first. Rather, the first motion resulted in a denial of the entire application. The second and third motions applied only to Fratelli’s, and the initial denial of Pioneer Valley remained in effect.

The court found the Commissioner’s argument to be “more persuasive.” The ZBA’s failure to reach a unanimous vote resulted in a denial of the application for Fratelli’s and Pioneer Valley together. The ZBA did nothing to suggest that it was revisiting, reconsidering, or invalidating the first motion. The second and third motions instead considered only the portion of the application for Fratelli’s. As such, the denial of the permit for Pioneer Valley remained in effect and constituted a final action on that issue. Since a final action was taken with respect to Pioneer Valley, Covel’s Notice of Deemed Grant of Special Permit was void. The court entered summary judgment in favor of the Commissioner and against Covel.

Morra v. Covel, 2013 WL 6021430 (MA Land Ct. 11/12/2013)

The opinion can be accessed at:

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