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Town of Amherst sues over proposed pizza shop

The town in November filed the lawsuit against Brian Covel and the partners in Pioneer Valley Pizza after they attempted to claim they had a constructive grant to move forward with the project to build the new restaurant at 30 Boltwood Walk.

A constructive grant is a legal action based on the argument that no decision had been made by the board about the pizza shop within 90 days of closing its hearing, as required by state law.

If left unchallenged, this means Covel would be free to build a 560-square-foot addition onto the Webster House, on top of an empty concrete patio area adjacent to Johnny’s Tavern, even without the special permit to operate a class 2 restaurant or make changes to a non-conforming building.

“Our lawsuit was, in effect, a preemptive strike,” said town attorney Joel Bard of Kopelman and Paige.

The lawsuit contends that a decision on both Pioneer Valley Pizza and a second special permit to open Fratelli’s Ristorante, a sit-down Italian restaurant in basement space in the building, were made simultaneously by the Zoning Board on July 24.

“We’re saying that several motions and votes show that they clearly denied the pizza shop,” Bard said.

John Fitz-Gibbon, the Northampton attorney representing Covel and his business partners, said his clients believe that the Zoning Board didn’t reach a decision within the prescribed time and thus failed to meet the requirements of state law.

“The Zoning Board has to take final action within a certain time period,” Fitz-Gibbon said. “My clients contend the board only voted on the Fratelli’s.”

According to information filed with the town clerk Oct. 10 and written by Senior Planner Jeffrey Bagg, the board’s decision was made during the third motion. The filing reads: “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.”

The first motion, which was to approve both restaurants, failed because it didn’t achieve the unanimous vote needed. Board member Thomas Ehrgood repeatedly expressed concerns about the difficulty in running a take-out restaurant in a congested area with limited parking and that the addition would have a negative impact on the historic building. Ehrgood’s vote against prevented approval, despite the affirmative votes by Chairman Eric Beal and member Barbara Ford.

The second motion was to approve just Fratelli’s, and exclude any approvals for the take-out restaurant, but no vote was taken on this before moving to the third motion, which doesn’t specifically reference Pioneer Valley Pizza.

Fitz-Gibbon said immediately after filing the constructive grant, the building commissioner’s office and planning staff set out to sue his clients. This came even though the town’s zoning bylaw is clear a decision has to be filed with the town clerk within 90 days following close of the hearing.

“Failure by the board to act within the prescribed time limits shall be deemed approval of the application, and a constructive grant of the permit,” according to the panel’s rules and regulations.

Bard said the lawsuit was needed to make it evident what the Zoning Board did act.

“This is about protecting the intent of the Zoning Board’s decision,” Bard said. “Clearly they had no intention of approving the pizza shop.”

Briefs have been filed and oral arguments on motion for a summary judgment are expected to be made March 19.

It is uncertain when a decision will be reached and whether it might affect ability to move forward with Fratelli’s. Fitz-Gibbon said he expects the Fratelli’s project, proposed as a 90-seat restaurant with a 1,088-square-foot dining room in basement space, to proceed.

The space was most recently used to house The Copper Mine, a tanning salon open for only a few weeks in 2005 before a fire gutted the space and damaged other portions of the building. The basement was previously the site of Pruddy’s Latin American Restaurant and before that Twister’s Tavern.

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