COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT HAMPDEN, ss. PERMIT SESSION CASE No. 21 PS 000331(GHP) PALMER RENEWABLE ENERGY, LLC, Plaintiff, v. ZONING BOARD OF APPEALS of the CITY OF SPRINGFIELD, et al., Defendants, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT And GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT This case commenced on June 17, 2021, when plaintiff Palmer Renewable Energy LLC filed in this court a one-count complaint for judicial review under G. L. ¢. 40A, § 17, docketed as Permit Session Case No. 21 PS 000331, contesting the Springfield Zoning Board of Appeals (°ZBA")'s decision revoking two building permits previously issued to the plaintiff. A case management conference was held on July 12, 2021. The court noted that the appealed decision lacked any elaboration as to the reasons for the ZBA’s decision to overturn the building permits issued to the plaintiff in 2011. The court invited either party to file a motion for remand to the board of appeals, for the limited purpose of allowing the board to explain its reasoning. On August 2, 2021, the ZBA, whose members are defendants, filed a motion to remand, which theplaintiff opposed. The court issued an Order of Remand on August 11, 2021, directing that the defendant ZBA hold a public hearing and issue a revised decision, noting that “this remand is for the limited purpose of having the Board revise its original decision only by supplying reasons for the decision the Board already has reached.” The ZBA convened a public hearing on September 2, 2021, and filed its decision, including supplemental reasoning, with the court on September 22, 2021. Plaintiff filed a motion for summary judgment on February 24, 2022, contending that, on the undisputed facts and as a matter of law, the building permits issued to plaintiff in 2011 remained valid and, in any event, plaintiff had commenced construction and thereby preserved the building permits. Defendants filed a cross-motion for summary judgment ‘on March 24, 2022, arguing that the building permits issued to the plaintiff were expired and that the plaintiff had not commenced or continued construction to preserve the building permits, UNDISPUTED FACTS Plaintiff Palmer Renewable Energy, LLC (“Palmer”), is a Massachusetts limited liability company with a principal place of business at 40 Shawmut Road, Suite 220, Canton, Massachusetts. The locus at issue in this case (“Property”) is a thirteen-acre parcel situated at 1000 Page Boulevard in Springfield, Massachusetts. Since at least 2009, Palmer has been attempting to build a biomass fired energy plant at the locus. On June 30, 2011, the Massachusetts Department of Environmental Protection ("MassDEP") issued Palmer a Conditional Approval for Comprehensive Plan Approval under Section 7.02 of the Commonwealth's Air Pollution Control Regulations (the "Conditional Approval") for the construction of a 35-megawatt biomass-fired power plant (the "Facility") at the Property. ' Order of Remand, August 11, 2021 (Piper. C.J.).On November 15, 2011, Springfield Building Commissioner Steven Desilet (“Building Commissioner”) issued Palmer two building permits for construction of the Facility (the “Building Permits”). Building Permit No. 11BLDOT-00180AL authorized “site grading for storm drainage control in preparation for construction” of the Facility. Building Permit No. IIBLDOT-00161ER authorized Palmer to install a “reinforced concrete foundation for [the Facility’s] future 275” tall power stack.” Appeal of Conditional Approval On July 21, 2011, the Conservation Law Foundation, Arise for Social Justice, and ten residents of the Commonwealth (the “Citizen Groups”) together filed a Notice of Claim with MassDEP for an adjudicatory appeal of the Conditional Approval. MassDEP issued a final decision (the “Final Decision”) on September 11, 2012, upholding the earlier conditional approval and dismissing the Citizen Groups’ appeal. The Citizen Groups filed an appeal of ‘MassDEP’s Final Decision in Hampden Superior Court on October 12, 2012 (the “MassDEP Appeal”). On January 3, 2017, the Hampden Superior Court entered judgment in the MassDEP Appeal, affirming the Final Decision issued by MassDEP. City Council and Project Opponent Appeals On December 12, 2011, defendant Springfield City Council? (“City Council”) and other individual opponents of Palmer's project (Michaelann Bewsee and William and Toni Keefe, of Springfield) filed with the ZBA? two separate appeals of the issuance of the Building Permits. ? Individual defendants Gumercino Gomez, Michael A. Fenton, Melvin A. Edwards, Malo brown, Marcus Williams, Victor Davila, Timothy C. Allen, Orlando Ramos, Trayce Whitfield, Justin Hurst, Sean Curran, Kateri Walsh, and Jesse Lederman are members of the City Council Individual defendants Daniel P. Morrissey, Walter Gould, Norman Roldan, Ryan Hess, George Bruce, and Ed Corbin are duly appointed members of the ZBA, and, by statute, are the proper parties defendant in an appeal brought under G. L. c. 40A, § 17.On January 25, 2012, defendant ZBA held a public hearing on the two appeals. The ZBA voted to revoke the Building Permits (the "January 2012 ZBA Decision”) based on the individual ‘opponents’ petition but deferred voting on the City Council’s petition. On February 27, 2012, the ZBA issued the written decision of the vote taken during the January 25, 2012 public hearing, which was timely filed with the City Clerk on March 8, 2012. Palmer appealed the January 2012 ZBA Decision to the Land Court on N farch 26, 2012 (the “March 2012 Appeal”). On July 9, 2012, the ZBA held a public hearing on the City Couneil’s petition for appeal of the Building Permits. The ZBA voted to grant the appeal, revoking the Building Permits. On July 23, 2012, the ZBA issued the written decision of the vote taken during the July 9, 2012 public hearing (the “July 2012 ZBA Decision). Palmer appealed the July 2012 ZBA Decision to the Land Court on August 6, 2012 (the “August 2012 Appeal”). The Land Court (Sands, J.) reversed the 2012 ZBA Decision, thereby reinstating the Building Permits issued to Palmer on November 15, 2011 (the “2014 Land Court Decision”), Palmer Renewable Energy, LLC v. City of Springfield Board of Appeals, et al., 22 LCR 380 (2014) (Case Nos. 12 PS 449538 & 12 PS 461494) (Sands, J.) ‘The City Council and others appealed the 2014 Land Court Decision to the Appeals Court, which upheld the 2014 Land Court Decision reinstating the Building Permits issued to Palmer in 2011 (the “2015 Appeals Court Decision”). Palmer Renewable Energy, LLC v, Zoning Bd. of Appeals, 88 Mass. App. Ct. 1104 (2015). The City Council and others thereafter filed an Application for Further Appellate Review of the 2015 Appeals Court Decision with the Supreme Judicial Court. The application was denied on October 30, 2015. Palmer Renewable Energy, LLC v. Zoning Bd. of Appeals of Springfield, 473 Mass. 1105 (2015).cility Preparation On December 19, 2017, Palmer began constructing a new road for Eversource, in exchange for an existing Eversource road that Palmer would use to relocate the pre-existing asphalt recycling plant at the locus. In May 2019, Palmer hired Top-Notch Abatement LLC to remove the asbestos found in the building to be demolished on the locus. At some point before October 30, 2019 (though Palmer does not provide exact dates) Palmer acquired the real property located at 365 Cadwell Avenue, Springfield, Massachusetts, to be used by Palmer as a laydown area for construction equipment and a location for maintenance of construction offices. Around the same time, Palmer acquired the real property located at 400 Cadwell Avenue, Springfield, Massachusetts, for relocation of the asphalt recycling plant that was previously situated at locus. Finally, Palmer entered into a land swap agreement with Eversource, to facilitate the construction of a substation next to the locus. City Council Requests for Zoning Enforcement On January 7, 2019, nine members of the City Council made a zoning enforcement request to the Building Commissioner (the “2019 Request for Zoning Enforcement”), seeking to revoke the Building Permits on the grounds that Palmer lacked a special permit required by a 2013 amendment to the Springfield Zoning Ordinance. The Building Commissioner denied the 2019 Request for Zoning Enforcement on January 17, 2019 (the “2019 Zoning Enforcement Denial”), reasoning that the 2013 zoning amendment did not apply because Palmer's Building Permits were still valid because of tolling that occurred while the Building Permits were appealed, because of tolling afforded by the Permit Extension Act, and because of protections from certain zoning changes under G. L. ¢. 40A, §6. The City Council did not appeal the 2019 Zoning Enforcement Denial.On October 14, 2020, 12 members of City Council made an additional zoning enforcement request to the Building Commissioner, seeking the issuance of a cease and desist order on any ‘ongoing Facility construction, on the grounds that the Building Permits had expired (the “2020 Request for Zoning Enforcement"). The Building Commissioner denied the 2020 Request for Zoning Enforcement on February 23, 2021, reasoning that the Building Permits had not expired, based on Palmer's continuous construction activities at the Property (the “2020 Zoning Enforcement Denial”), On March 25, 2021, the City Council filed with the ZBA an appeal of the 2020 Zoning Enforcement Denial (the “2021 Appeal”). The ZBA held public hearings on the 2021 Appeal on April 28, 2021 and May 5, 2021 and voted to revoke the Building Permits, and thereafter filed its written d sion”) ision with the City Clerk on May 28, 2021 (the “2021 ZBA Di On June 17, 2021, Palmer initiated this case by appealing the 2021 ZBA Decision to the Land Court, The Land Court (Piper, C.J.) issued an order of remand on August 11, 2021, remanding the matter to the ZBA for the limited purpose of explaining the reasons for its 2021 ZBA Decision. On September 22, 2021, the ZBA filed its updated decision with the Land Court, providing supplemental reasoning for its original 2021 ZBA Decision (the “Updated 2021 ZBA Decision”). DISCUSSION ‘Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and responses to requests for admissions....together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving patty is entitled to a judgment as a matter of law.” Mass. R. Civ. P 56 (c). See LeBlane v. Logan Hilton Joint Venture, 463 Mass. 316, 325-326, 974 N.E.2d 34 (2012). The moving party bears the burden of affirmatively showing that there are no tr ble issues of fact and that the moving party is as alegal matter entitled to entry of summary judgment in its favor. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 639, 644, 766 N.E.2d 864 (2002). All evidentiary inferences must be resolved in favor of the non-moving party. Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197, 706 N.E.2d 1135 (1999). “Summary judgment for the defendant is not appropriate if ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff [as the nonmoving party}’.” Bowers v. P. Wiles, Inc., 475 Mass. 34, 37, 54 N.B.3d 1089 (2016), quoting Mullins v. Pine Manor College, 389 Mass. 47, 56, 449 N.E.2d 331 (1983). In deciding a G. L. e. 40A, §17 appeal, the court “must find the facts de novo and give no weight to those the board has found,” Britton v, Zoning Bd. of Appeals, 59 Mass. App. Ct. 68, 72 (2003). The court must uphold a board’s decision unless the decision is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001), quoting Roberts v. Southwestern Bell Mobile Sys. Inc., 429 Mass. 478, 486 (1999). In its Updated 2021 ZBA Decision, ZBA members expressed reliance on a timeline provided Attomey Johannes Epke, who spoke at the May 5, 2021 ZBA Hearing held after the court’s order of remand. The timeline posited that by at least May 5, 2021, Palmer's Building Permits had expired. In assessing whether the 2021 ZBA Decision was unreasonable, whimsical, capricious, arbitrary or based on a legally untenable ground, the court ‘must apply the relevant law to the facts and determine whether the Building Permits issued to Palmer have indeed expired, as voted by the ZBA in its 2021 ZBA Decision. The parties agree that the Permit Extension Act of 2010, St. 2010, c. 240 § 173, as modified by St. 2012, ¢. 238 §§ 74-75 (the “Act”) applies to the Building Permits issued in 2011. Resolution of this case requires determining whether the Permit Extension Act runs concurrentlywith or consecutively to any equitable tolling of the Building Permits, whether that equitable tolling occurs because of municipal appeal, permit revocation by the ZBA, or the initiation of litigation. The answer to this query controls whether Palmer's Building Permits were still valid at the time the City Council made its 2020 Request for Enforcement, which in tum dictates whether Palmer was entitled to proceed with construction of its Project in October 2020. ‘The Act (in relevant part) provides that: Notwithstanding any general or special law to the contrary, certain regulatory approvals are hereby extended as provided in this section. (a) For purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings: “Tolling period”, the period beginning August 15, 2008, and continuing through August 15, 2012. (b) (1) Notwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of 4 years, in addition to the lawful term of approval. St. 2010, c. 240 § 173, as modified by St. 2012, c. 238 §§ 74-75. The Act contains no express direction on how it is to operate in conjunction with other types of tolling, including equitable tolling. Thus, it falls to the court to determine the statute’s meaning in that regard. The court reviews questions of statutory construction de novo. Water Dept. of Faithaven v. Department of Envtl, Prot., 455 Mass. 740, 744 (2010), quoting Commerce Ins. Co. v. Commissioner of Ins., 447 Mass, 478, 481 (2006). The court's duty is to “effectuate the intent of the Legislature in enacting” the Act. International Org. of Masters v. Woods Hole, Martha’s Vineyard & Nantucket $.S. Auth., 392 Mass 811, 813 (1984). If the statute's language is “plain and unambiguous in meaning, the court accepts the statute’s language as conclusive evidence of legislative intent, Dorrian v. LVNV Funding, LLC, 479 Mass. 265, 272 (2018), quoting Water Dept. of Fairhaven v, Department of Envt'l Prot., 455 Mass. 740, 744 (2010), ultimately quotingSterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986). If the statute’s language is, ambiguous, the court looks to “the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished{.” Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975), quoting Hanlon v, Rollins, 286 Mass. 444, 447 (1934). Additionally, “respect for the Legislature's considered judgment dictates that we interpret the statute to be sensible, rejecting unreasonable interpretations unless the clear meaning of the language requires such an interpretation.” DiFiore v. American Airlines, Inc., 454 Mass. 486, 490-491 (2009), Courts interpreting ambiguous legislation will advance “the spirit of the act.” Commonwealth v. Galvin, 388 Mass. 326, 328 (1983), quoting Holbrook v. Holbrook, 1 Pick. 248, 250 (1823) Interpreting the Act and its relationship to equitable tolling requires knowing what the Act intends by referring to a “lawful term of approval.” The phrase “lawful term of approval” is undefined in the Act. It is not clear from the language of the Act whether this phrase refers to the stated term of validity in an approval, or to the stated term as altered by any other lawful tolling methods. Here, if “lawful term of approval” refers only to the 180-day period that the Building Permits are valid, then the four-year extension offered by the Act would apply from the expiration of that 180-day period. Thus, if the Building Permits” lawful term of approval ended ‘on May 13, 2012 (180 days from their approval date), the Act’s four-year extension would extend the valid period of the Building Permits to May 13, 2016. If, instead, the Building Permits’ lawful term of approval lasted 180 days and also included any period of equitable tolling, the lawful term of approval would end on either February 16, 2016 or March 31, 2016.4 * Palmer argues that equitable tolling of the Building Permits began on December 12, 2011, when the Springfield City Council and other opponents of Palmer’s project filed with the ZBA ‘two separate appeals of the issuance of the Building Permits. On December 12, 2011, 27 days had elapsed since the Building Permits issued, meaning that when equitable tolling ended on October 30, 2015, another 153 days remained during which the Building Permits were‘Adding the four year extension granted by the Act, this would have the Building Pern its expire on either February 16, 2020 or March 31, 2020. The COVID Emergency Act, which extended permit deadlines falling after March 10, 2020 to June 15, 2021, would further extend the valid term of the Building Permits given this interpretation of “lawful term of approval”. Varying interpretations of the phrase “lawful term of approval” result in vastly different expiration dates for the Building Permits at issue, and indeed, determine whether Palmer can proceed with construction of its Facility at all. Without guidance from the plain language of the Act, the phrase is ambiguous. The question for the court to resolve, then, reduces to whether the running of the Act is concurrent with or consecutive to any other tolling, including equitable tolling. The Superior Court has described the Act as “approved in 2010 as part of legislation designed to stimulate job growth and ease limitations on business operations.” Town of Wellesley Dept. of Pub. Works, Water Div. v. Mass. Dept. of Envt’l Prot., Mass. Super., Nos. 140055, CV2017-1944, at *3 (May 17, 2018). 1 e preamble to chapter 240, entitled “An Act Relative to Economic Development and Reorganization” (“Chapter 240”), reads: The deferred operation of this act would tend to defeat its purpose, which is to provide forthwith a business-friendly environment that will stimulate job growth and improve the ease with which businesses can operate in the markets they serve, and to coordinate economic development activities funded by the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience. G.L. c. 240. In the preamble, the legislature clearly stated that Chapter 240 would only effectuate its purpose if immediately enacted. Chapter 240 sought to provide relief “forthwith[.]” valid. Conversely, the Defendants contend that equitable tolling began on February 27, 2012, when the ZBA issued its decision revoking the Building Permits. On February 27, 2012, 71 days had elapsed since the Building Permits issued, meaning that when equitable tolling ended on October 30, 2015, another 109 days remained during which the Building Permits were valid. 5 See fin. 4It was “an emergency law(,]” its operation needed for the “immediate preservation” of the public good. Enacted during a period of economic uncertainty, Chapter 240 plainly was intended to act as a salve to those businesses struggling during recession. The multiple references to the necessarily timely operation of the act illustrate that the “spirit of the act” was to act as a remedial statute crafted to resolve pressing, then-present difficulties in the Commonwealth, Galvin, 388 Mass. at 328, quoting Holbrook, 1 Pick. at 250. In contrast, the language of Chapter 240’s preamble does not suggest any intention that it operate interminably. The Act was meant to operate as a solution to a discreet and time-bound problem: The Great Recession. It was not intended to be cobbled together with other legal theories to create a franken-permit that would stubbornly persist for more than a decade after passage of the Act. It is further instructive that, while this court has not expressly addressed the operation of the Act in relation to equitable tolling, one Land Court case does provide insight. In Milton Legion Post No. 114 v, Alves, 19 LCR 311, 311, Case No. 10 MISC 427658 (2011) (Cutler, J.), the plaintifis sought to invalidate a special permit renewal granted by the Milton Board of Appeals. The special permit as originally approved was set to expire in 2008, bringing it within the ambit of the Act. Id. at 312. The court noted in dicta that by application of the Act, the special permit expired “while this action was still pending and prior to the motion for summary judgment.” Id, at 313. This observation suggests the court’s view that the extension granted by the Act was not itself tolled by the initiation of litigation concerning the special permit. Indeed, the court implied that extensions granted by the Act run concurrently with any other equitable © The subsequent amendment to the Act, Sections 74 and 75 of Chapter 238 of the Acts of 2012, modifies the Act by adjusting the extension period to four years rather than two, and extending the tolling period through August 15, 2012. Notably, the preamble to Chapter 240, stating the purposes of Chapter 240, did not change in the amendment to the Act.tolling begun by the initiation of litigation. Palmer’s contention about the operation of the Act, if correct, would have had the Act’s extension period paused in Milton, with the efit that any time remaining in the extension period when litigation began would be reserved and added on to the special permits’ viable life once litigation was complete (subject to any appeals). That plainly did not occur, suggesting the legal infirmity of that reasoning pressed by the plaintiff in the case at bar. Compare the Act’s failure to address equitable tolling to G. L. c. 40A, § 9s explicit, reference to equitable tolling. The latter states, in part, that special permits “shall lapse within a specified period of time... which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen|.J” G. L. ¢. 40A, § 9 (emphasis added). G. L. ¢. 40A, § 9 makes clear that any time spent litigating a special permit decision will not count toward the permit’s stated period of validity. The inclusion of this language demonstrates the legislature's intent to ensure the operation of equitable tolling in the context of special permits. The Act, conversely, makes no reference to equitable tolling. The Act does not, as does G. L. ¢. 40A, § 9, instruct that the period of a permit’s validity is to exclude time spent litigating the permit, It is not the province of the court to insert terms into legislation. “[W]e have long recognized that ‘statutes must be interpreted as enacted and statutory omissions cannot be supplied by the court.”” City Electric Supply Co. v. Arch Insurance Co., 481 Mass. 784, 789 (2019), quoting Modern Cont. Constr. Co. v. Lowell, 391 Mass. 829, 839-840 (1984). “Additionally, ‘[t]he omission of particular language from a statute is deemed deliberate where the Legislature included [the] omitted language in related or similar statutes.” Commonwealth v. Johnson, 482 Mass. 830, 835 (2019), quoting Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). Comparing these two statutes, both of which concern the valid period ofmunicipal approvals, the court concludes that, where express reference to equitable tolling can be made but is not made (as in the Act), the legislature did not intend the provisions of the Act to afford an entirely additional period of extension resulting from equitable tolling. At bottom, Palmer's argument asks the court to accept that the Act was intended to grant permit recipients a “chit,” entitling them to stack a period of extension, ultimately four-years in duration, on top of all other time periods available to keep alive permits earlier received. This interpretation defies common sense, and would stretch the intention of the legislature beyond its breaking point. There is no good reason the legislature would have intended the four-years of extension afforded by the Act to reach out further into the future, after all other conventional ‘grounds for extensions had run out, and long after the time of economic slowness--which was the impetus for the Act~had passed. Considering the intent of the Act, Land Court decisions instructive on how the Act is to function, and the omission of language in the Act concerning equitable tolling, the court concludes that the time period granted by the Act runs concurrently with any other types of tolling acting upon an approval like the Building Permits. Here, Palmer's Building Permits were granted on November 15, 2011, within the tolling period stated in the Act. The Building Permits, by their own terms, were set to expire 180 days after they were granted, on May 13, 2012. With the addition of the four-year extension mandated by the Act, the Building Permits expired four years later, on May 13, 2016. The court need not decide whether or when the Building Permits’ periods of validity were equitably tolled—either by the Springfield City Council’s appeal of their issuance on December 12, 2011 or by the January 25, 2012 ZBA vote to revoke the Building Permits—because the court has concluded that the four-year extension afforded by the Act did not follow consecutivelyand in addition to equitable tolling, but instead ran concurrently with any equitable tolling. The Building Permits were operative, then, through the later of either of these periods—four years after the Building Permits were issued (given the Act’s extension) or 180 days plus any period of equitable tolling after the Building Permits were issued. If Palmer's contention is correct, equitable tolling would have the Building Permit expire on March 31, 2016 (the sum of the period of 27 days between the Building Permit’s issuance on November 15, 2011 and the Springfield City Council Appeal on December 12, 2011; the equitable tolling period while the Building Permits were contested in litigation; and another 153 days after equitable tolling ended ‘on October 30, 2015). On the other hand, if the ZBA's argument is correct that tolling began with their January 2012 ZBA Decision, the Building Permit would have expired on February 16, 2016 (a total made up of the period of 71 days between the Building Permit’s issuance on November 15, 2011 and the January 2012 ZBA Decision; the equitable tolling period while the Building Permits were contested in litigation; and another 109 days after equitable tolling ended on October 30, 2015). Neither computation respects the plain operation of the Act as a four-year, concurrently-running extension of the Building Permits. Regardless of which date governs the start of equitable tolling, using either date yields an expiration date for the Building Permits that, is earlier than the expiration date afforded by the Act—May 13, 2016. Ultimately, even with the extension afforded by the Act, the latest Palmer's Building Permits could have expired is on May 13, 2016. The Updated 2021 ZBA Decision confirms that the ZBA relied, in part, on a timeline provided at the May 5, 2021 hearing on the 2021 Appeal showing the Building Permits had previously expired by operation of law. The court has determined that Building Permits expired by no later than May 13, 2016, and that they were no longer valid on the date of the 2021 ZBADecision. The ZBA’s conclusions in that decision, consistent with the ultimate finding of the court, cannot be described as “based on a legally untenable ground... unreasonable, whimsical, capricious or arbitrary” and will not be disturbed. Davis, 52 Mass. App. Ct. at 355, quoting s, 429 Mass. at 486 It is unnecessary to address the parties’ competing arguments about Palmer's alleged construction activities and whether they amounted to the beginning or continuation of construction, because on the summary judgment record before the court, Palmer has not cited any construction activity that occurred before May 13, 2016, the date on which its Building Permits expired. CONCLUSION Summary judgment is granted in favor of the defendants. Defendants are entitled to judgment as matter of law that, because the ZBA correctly concluded that Palmer’s Building Permits had expired, the 2021 ZBA Decision filed on May 28, 2021 is not legally entitled to be modified or annulled by the court, and is to be upheld Judgment accordingly. So Ordered. By the Court. (Piper, C.J.) A/ Gordon H. Piper Attest: /s/ Deborah J. Patterson Deborah J. Patterson Recorder Dated: November 30, 2023