Michael Ford, attorney for the &pizza eatery chain, and its founder Michael Lastoria present at a Tuesday hearing of the Planning Board. (Photo: John Hawkinson)

The Planning Board consented Tuesday to allowing &pizza to return to Board of Zoning Appeal on Aug. 10, when the chain will try once again to get a fast food permit to occupy the former Tory Row and Crimson Corner spaces in the heart of Harvard Square.

Now styling itself “milk &pizza” through a collaboration with a bakery called Milk Bar, &pizza will have to get four out of five votes from the zoning board affirming it has made “specific and material changes” before the board can even consider the case; then it will need four votes on the merits of the case.

In April, &pizza got three out of five votes from the board: a majority, but not enough.

A lot will depend on the zoning board’s Brendan Sullivan, one of the two dissenters April 27, who said his vote was based in part on &pizza’s storefront design, which ordinance requires to “be compatible with and sensitive to the visual and physical characteristics” of its surroundings. The other vote against was from zoning board chairman Constantine Alexander, who almost never votes in favor of fast food permits.

Planning Board hearing

Normally, Massachusetts law restricts applicants from coming back with a second application within two years. But there’s an out: They can get consent of the Planning Board as well as a supermajority of the zoning board. That’s the process &pizza is following.

The purpose of the law is “to give finality to administrative proceedings and to spare affected property owners from having to go repeatedly to the barricades on the same issue,” said Justice Rudolph Kass of the Massachusetts Court of Appeals in 1981.

The Aug. 10 zoning board hearing will be &pizza’s eighth public hearing in Cambridge after one with the Historical Commission, two with Harvard Square advisory committees, three with the zoning board and one with the Planning Board.

Because this doesn’t happen very often, the process was somewhat unclear. Should the Planning Board consent first? Should the zoning board hear it first, then the Planning Board, then back to zoning? Does the “specific and material” standard apply to the Planning Board, too? Should the Planning Board hear from the applicant? From the public? Or should it just vote?

Planning Board chairman H Theodore Cohen said he would follow guidelines promulgated by Donald Schmidt, a longtime attorney at the state’s Department of Housing and Community Development: The Planning Board would hear the case first and use the “specific and material” standard.

The board decided to hear from &pizza at the hearing, and at first not to hear from the public – but then took public comment anyhow: about a half-hour from &pizza, 15 minutes from the public (including whether to hear from the public), and another half-hour discussing the case.

A proposed new design for milk &pizza in Harvard Square.

&pizza founder Michael Lastoria and attorney Michael Ford presented their case, saying they’d changed the concept from a single store into “two separate concepts,” and Milk Bar would have a separate retail counter at the store and a separate register.

But they also had trouble answering questions about whether it was one lease or two or a sublease; how many times they had presented their plans to the zoning board; whether the plans they were showing the Planning Board were new (“Yes! – No!” they said at the same time), and similar.

They were ready for one of the board’s questions, though, namely whether the Milk Bar coloration was new. When &pizza mentioned a collaboration with Milk Bar at the April 27 zoning meeting, Lastoria said, “it consisted of us selling a cereal milk cream soda cookie, and a cereal milk cream soda soda. One cookie and one soda.”

Cohen had also done his homework, acknowledging he had read the entirety of the 152-page transcript of the zoning board hearing and quoting from it at times.

Initially board members Tom Sieniewicz and Hugh Russell seemed against granting consent. “It’s still a fast food application. It’s still the same address. It’s still materially the same dimensions,” Sieniewicz said. “There were objections to issues of traffic that having dessert here isn’t going to address.”

But Steve Cohen convinced his fellow board members, saying he thought it was a close case and, “I think the ZBA should have the opportunity to take another look. Obviously if the ZBA doesn’t want to do so, I’m sure they can find a way to dispose of the matter quickly and efficiently.”

Russell also noted that instead of an outright denial, the Planning Board usually would grant a continuance and allow an applicant to work with its design staff to improve a design. Because that staff review didn’t happen at the zoning board, he favored sending it back.

Ultimately, those reasons carried the day. The board voted unanimously, 7-0, to consent to the repetitive petition.

Next hearing Aug. 10

When &pizza returns to the zoning board, it will also bring a positive recommendation from the Harvard Square Advisory Committee, which voted 5-3 in favor of the revised proposal Monday. The advisory committee had voted in favor of the prior version too.

At past meetings, concerns had been raised that if the zoning board voted down the fast food permit, the space would become a bank – a statement made by Gary Doyle of the Stearns family, representing the owners. Many at Tuesday’s hearing seemed about to mention this, but it only came up once, in passing.

Throughout the meeting, Sullivan, vice chairman of the zoning board, watched from the back right corner. In many ways, the vote Aug. 10 will likely come down to him, and he is clearly listening carefully to all sides, opinions and deliberations.