Swampscott Zoning Board of Appeals Meeting Review: Elm Place 40B Project (Petition 21-01)

1. Agenda

Based on the transcript, the likely agenda for the Swampscott Zoning Board of Appeals meeting concerning Petition 21-01 was:

1. Call to Order & Procedural Overview 0:56
   • Welcome and explanation of hybrid format.
   • Outline of the meeting process, including petitioner update, board questions, public comment, peer review input, potential deliberation, straw poll, and path to a final decision (approval or denial).
   • Brief overview of Chapter 40B law and the board’s jurisdiction (Health, Safety, Planning, Open Space).
2. Petitioner Update & Presentation (Winn Development) 12:56
   • Update on open peer review items since the last hearing.
   • Presentation of final proposed project changes (unit reduction, rail trail easement expansion, parking adjustments).
   • Status update on peer review responses and draft conditions.
3. Board Questions to Petitioner 28:49
   • Clarifying questions from ZBA members regarding the presented updates and existing plans (e.g., parking details, rail trail feasibility, specific building features).
4. Public Comment 38:11
   • Comments from town bodies (Swampscott Affordable Housing Trust 38:41, Historical Commission 2:12:34).
   • Comments from legal counsel representing abutters (Attorney Dan Hill 48:00).
   • Comments from residents (proponents and opponents) both in-person and via Zoom 1:54:32, 1:56:16, 2:00:49, 2:04:53, 2:07:41, 2:18:34.
5. Peer Review Consultant Input & Discussion 57:35, 1:21:17, 1:44:05
   • Responses from peer review consultants (VM Consulting - Victoria, Eileen Cahill) regarding sewer capacity, stormwater management, and CCTV review status.
   • Input from Fire Chief Graham Archer regarding fire truck access and swept path analysis satisfaction.
6. Board Deliberation & Straw Poll 2:26:57
   • Discussion among board members regarding the project, presented evidence, public input, and proposed changes.
   • Informal polling of board members to gauge support/opposition to the petition.
7. Procedural Decision & Scheduling 2:47:46
   • Discussion and motion regarding the next steps (keeping public hearing open, scheduling continuation).
8. Motion to Continue Public Hearing 2:51:23
   • Formal motion and vote to continue the hearing to a specific date and time (May 24th, 6:00 PM).
9. Adjournment 2:51:49
   • Motion and vote to adjourn the meeting.

2. Speaking Attendees

• Zoning Board Chair (Name not stated): [Speaker 1]
• Ezra (Board Consultant): [Speaker 4]
• Chris Drukos (Attorney for Petitioner): [Speaker 23]
• Zoning Board Member (Brad): [Speaker 6]
• Peter Freeman (Attorney for Petitioner): [Speaker 2]
• Angela (Petitioner Representative - Winn Development): [Speaker 5]
• Zoning Board Member (Paula): [Speaker 20]
• Gilbert Winn (Petitioner - Winn Development): [Speaker 19]
• Zoning Board Member (Dan): [Speaker 7]
• Zoning Board Member (Heather): [Speaker 17]
• Mike (Petitioner Architectural Team): [Speaker 24]
• Victoria (Peer Review Consultant - VM Consulting): [Speaker 14], [Speaker 28]
• Kim Martin Epstein (Swampscott Affordable Housing Trust Representative): [Speaker 8]
• Attorney Dan Hill (Representing Abutters/Neighbors): [Speaker 3]
• Eileen Cahill (Peer Review Consultant - VM Consulting): [Speaker 13], [Speaker 26]
• Staff/Meeting Facilitator (Marissa): [Speaker 25], [Speaker 27]
• Deb Colbert (Petitioner Consultant - Hancock Associates): [Speaker 10]
• Fire Chief Graham Archer: [Speaker 15]
• Ann Driscoll (Resident): [Speaker 21]
• Mary DiCillo (Resident): [Speaker 22]
• Aaron Beardolfi (Resident): [Speaker 12]
• Mike Wood (Resident): [Speaker 16]
• Robert Bradley (Resident): [Speaker 9]
• Justina Oliver (Historical Commission Chair): [Speaker 18]
• Terry Perry (Resident/Abutter): [Speaker 11]

3. Meeting Minutes

Meeting: Swampscott Zoning Board of Appeals (ZBA) Date: May 9, 2022 (implied) Subject: Continued Public Hearing - Petition 21-01 (Elm Place 40B Comprehensive Permit)

1. Opening and Procedure: The Zoning Board Chair opened the continued public hearing for Petition 21-01 0:56. He outlined the meeting’s hybrid format and the planned procedure, emphasizing the goal of reaching a conclusion while adhering to the statutory deadline (June 12th). He reiterated the board’s jurisdiction under Chapter 40B, focusing on health, safety, planning, and open space concerns relative to the regional need for affordable housing. He noted the requirement for a simple majority vote. Board Consultant Ezra concurred with the proposed process 6:42.

2. Petitioner Presentation: Attorney Chris Drukos introduced the petitioner’s team 14:06. Attorney Peter Freeman stated the petitioner’s preference to close the hearing tonight but acknowledged the board’s process 14:52. He highlighted that the petitioner had listened to public and peer review comments and made changes over the project’s duration.

Angela, a Petitioner Representative, detailed the latest proposed changes 19:09:

• Unit Reduction: Reduced from 120 to 114 units, aiming to maintain the affordable unit mix percentage (stated as 42% 27:23).
• Rail Trail Easement: Increased width from 10 feet to 25 feet to better accommodate potential future underpass or overpass connections. This change necessitated the unit reduction.
• Parking: Compromise on Pitman Road parking (5 spaces for project, 6 for public). Addition of 14 spaces at 27 Elm Place (via lease/easement 29:06). Total parking: 131 spaces for 114 units (1.15 ratio, up from 1.06).
• Peer Review: Asserted that all peer review items (Architecture, Traffic, Sewer/Water/Stormwater via VM Consulting) were addressed and incorporated into the updated draft conditions submitted that evening 26:53.

3. Board Questions: Board members asked clarifying questions [28:49 - 38:08]:

• Member Brad inquired about the nature of the 27 Elm Place parking agreement (lease/easement, recordable), lack of a garage door, in-unit washer/dryers (confirmed), EV spaces (4 confirmed), screening of rooftop mechanicals (commitment to screen if visible), and bike parking (increased to 39 total spaces indoor/outdoor, commitment to monitor demand).
• Member Paula asked about the location of 27 Elm Place 29:20.
• Member Dan questioned the viability of rail trail overpass/underpass options 29:56. Gilbert Winn explained the 25-foot easement allows for either option, pending MBTA/Town decision 30:29.

4. Public Comment:

• Kim Martin Epstein (Affordable Housing Trust): Read a statement supporting the project 38:41, highlighting its alignment with state (QAP) and local (HPP) affordable housing goals, community of opportunity status, and urging focus on deep affordability, sustainability, and MWBE participation.
• Attorney Dan Hill (Representing Abutters): Raised several significant objections 48:00. He noted late submission of documents (received that morning), arguing against closing the hearing to allow review time. He questioned whether peer reviewers had formally signed off, expressed concern about post-permit conditions lacking enforcement/discretion, and specifically challenged the swept path analysis plan, arguing it showed fire truck paths intersecting with buildings/parking spaces, potentially violating state fire code. He also highlighted unresolved questions regarding sewer capacity and drainage relative to groundwater. This intervention prompted significant discussion and clarification.
• Ann Driscoll (Resident): Supported Attorney Hill’s request to keep the hearing open 1:54:32.
• Mary DiCillo (Resident): Asked for clarification on the “straw vote” process and enforcement of conditions on past projects 1:56:16. The Chair explained the straw poll’s purpose and the building inspector’s role in enforcement.
• Aaron Beardolfi (Resident): Voiced strong support for the project, criticized the lengthy review process and its focus, argued the project addresses systemic issues like housing segregation, and urged the ZBA to push the Planning Board for zoning reform 2:00:49.
• Mike Wood (Resident): Opposed the project as “way too big,” citing concerns about precedent, lack of open space, indefinite rail trail plan, parking inadequacy (especially competition with Berks), and potential sewer issues 2:04:53.
• Robert Bradley (Resident): Strongly supported the project, referencing Swampscott’s Master Plan and Housing Production Plan goals 2:07:41. He commended the developer’s responsiveness (“friendly 40B”), highlighted transit-oriented development benefits, and shared a personal perspective on the need for diverse housing options.
• Justina Oliver (Historical Commission Chair): Informed the board of a demolition delay placed on 35 Pitman Road and Habitat for Humanity’s interest in relocating the house 2:12:34. She inquired about potential conditions for funding assistance. Attorney Freeman noted the petitioner requested a waiver from the local demo delay ordinance and viewed funding as outside the ZBA’s purview 2:16:38.
• Terry Perry (Resident/Abutter): Expressed appreciation for the board and petitioner’s process but maintained the project is too large 2:18:34. He reiterated parking concerns and suggested the developer should fund open space improvements like the rail trail connection as a community investment.

5. Peer Review / Official Input & Discussion:

• VM Consulting (Victoria & Eileen Cahill): Responded to Attorney Hill’s points. They confirmed satisfaction with sewer capacity based on new flow metering data and analysis 57:38, 1:22:02. They affirmed review and acceptance of the redesigned stormwater system addressing groundwater issues. Regarding the CCTV condition for sewer inspection, they clarified the intent and noted the results (recommending ~300 ft of lining) were received that day and shared with DPW Director Gino Cresta, but VM had not yet reviewed them 1:19:11, 1:21:27. Eileen Cahill explained the technical basis for the sewer capacity determination.
• Fire Chief Graham Archer: Confirmed via Zoom that the Fire Department (specifically the Deputy Chief/AHJ designee) had reviewed the swept path analysis and was satisfied with fire apparatus access 1:44:05. Addressing Attorney Hill’s specific point about path intersections, he speculated it might relate to the ladder bucket height or overhangs 1:45:13. Deb Colbert (Petitioner Consultant) added that the apparent intersection with the building footprint occurs in the open underground parking area and overhangs are accounted for in the analysis which meets state fire code requirements 1:48:07. Extensive debate occurred regarding whether “satisfied” equates to “code compliant.” Board Consultant Ezra noted the project must meet state fire code regardless and the board had expert opinions supporting compliance 1:51:04.

6. Board Deliberation (Straw Poll): [2:26:57 - 2:45:52] The Chair initiated an informal straw poll to gauge member positions before drafting a final decision.

• Member Heather: Voted YES, stating the petitioner’s final changes regarding parking ratio (1.15), rail trail easement (25’), and Pitman Road parking compromise resolved her main concerns.
• Member Dan: Indicated YES, acknowledging the project isn’t perfect and issues remain (e.g., distant parking). However, he cited the developer’s responsiveness, the lack of better sites in town, the limitations of 40B for denial, and the belief issues could be managed with conditions.
• Member Brad: Voted YES, emphasizing the critical need for affordable housing, the board’s limited jurisdiction under 40B, and satisfaction based on peer review and Fire Chief input. He noted lingering concern about bike parking and the need for measurable conditions.
• Member Paula: Voted YES, expressing dislike for the project’s size and empathy for neighbors, but acknowledging the town’s need for 40B housing and feeling the criteria were met. She expressed slight disappointment at losing affordable units in the reduction.
• Chair: Voted YES, reluctantly. He emphasized the board’s limited jurisdiction, the high likelihood of an appeal overturning a denial or unreasonable conditions, and the risk of a worse outcome. He cited the value of the rail trail connection, the significant affordable component (42%), and reliance on peer review experts. He acknowledged neighbor impacts but felt approval with negotiated conditions was the most responsible path.
• Outcome: The straw poll indicated a 5-0 consensus leaning towards approval.

7. Procedural Decision: Following discussion prompted by Attorney Hill’s request for review time and the late-breaking CCTV results, the board agreed to keep the public hearing open. The Chair determined this was necessary to allow abutters’ counsel fair opportunity to review new materials and propose condition language, and for peer review to assess the CCTV results 1:20:27, 2:24:06.

8. Continuation: The Chair moved to continue the public hearing to Tuesday, May 24, 2022, at 6:00 PM 2:51:23. The motion was seconded and approved unanimously by roll call vote (Paula-Yes, Brad-Yes, Dan-Yes, Heather-Yes, Chair-Yes).

9. Adjournment: The meeting was adjourned following a motion, second, and unanimous voice vote 2:51:49.

4. Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) held a lengthy continued public hearing on May 9, 2022, focusing on the proposed 120-unit Elm Place Chapter 40B affordable housing project (Petition 21-01). The meeting culminated in a clear signal of likely approval but stopped short of a final vote, keeping the hearing open for refinement of conditions.

Key Developments & Proposed Changes: Responding to previous concerns, the petitioner (Winn Development) presented final proposed modifications 19:09:

• Reduced Density: Project size reduced from 120 to 114 units.
• Enhanced Rail Trail Access: The proposed public easement for a future rail trail connection was significantly widened from 10 feet to 25 feet, enhancing feasibility for different connection types (underpass/overpass). This change required the unit reduction.
• Revised Parking Plan: Total parking increased to 131 spaces (1.15 spaces/unit ratio, up from 1.06). A compromise was offered for on-street parking on Pitman Road (5 spaces reserved for the project, 6 remaining for public/neighborhood use). 14 additional off-site spaces were secured via agreement at 27 Elm Place 28:49.

Major Issues & Discussions:

• Affordable Housing Need: The project’s potential contribution to Swampscott’s low affordable housing stock (currently below the 10% state mandate) was a central theme. Supporters, including the Swampscott Affordable Housing Trust 38:41 and several residents 2:00:49, 2:07:41, emphasized this critical need and the project’s alignment with town goals. Opponents and some board members acknowledged the need but primarily objected to the project’s size, density, and neighborhood impact 2:04:53, 2:18:34, 2:39:30.
• Technical Compliance (Sewer, Stormwater, Fire Access): Abutters’ counsel, Attorney Dan Hill, raised significant questions about sewer capacity calculations, stormwater design adequacy relative to groundwater, and compliance of the fire truck access plan (swept path analysis) with state fire code 48:00. The Town’s peer review consultants (VM Consulting) 57:38 and Fire Chief Graham Archer 1:44:05 provided testimony affirming the project’s compliance or the adequacy of proposed designs/conditions based on their reviews and updated data. However, very recent sewer CCTV results required further review, contributing to the decision to continue the hearing.
• Process and Conditions: Considerable discussion occurred regarding the appropriate use of post-permit conditions and procedural fairness, particularly concerning the late submission of technical documents shortly before the hearing 48:00, 1:26:03.

Board Sentiment & Likely Outcome: In an informal straw poll 2:26:57, all five ZBA members indicated they leaned towards approving the project. Common themes justifying support included the pressing need for affordable housing, the developer’s responsiveness and concessions (particularly on the rail trail and parking), reliance on the positive findings of peer review experts and town officials (like the Fire Chief), and the legal constraints of Chapter 40B which limit grounds for denial and favor approval with conditions. While expressing reservations about size and specific impacts, the board appeared pragmatically resigned to approving the project as likely the best achievable outcome under the law.

Next Steps: The ZBA voted unanimously to keep the public hearing open and continue it to Tuesday, May 24, 2022, at 6:00 PM 2:51:23. This allows time for abutters’ counsel to submit proposed revisions to the draft conditions based on the latest information and for peer reviewers to formally assess the recent CCTV results before the board takes a final vote on the comprehensive permit.

Significance for Swampscott: This project represents a significant potential increase in Swampscott’s affordable housing inventory (nearly doubling the town’s progress towards the 10% state goal, potentially moving from ~3.7% to ~5.7% 2:32:03). The debate reflects the town’s ongoing struggle to balance development pressures and neighborhood character with state mandates and regional housing needs. The final conditions placed on the approval will be critical in mitigating impacts related to parking, traffic, infrastructure, and neighborhood integration.

5. Analysis

The May 9th ZBA meeting on the Elm Place 40B project crystallized the dynamics that often define such proceedings in Massachusetts communities falling short of the 10% affordable housing threshold. The transcript reveals a board navigating complex technical issues and community opposition under the significant constraints of Chapter 40B law, ultimately signaling likely approval based on perceived compliance and developer concessions.

Petitioner’s Strategy: Winn Development and their legal team (Attorneys Freeman and Drukos) executed a strategy seemingly aimed at securing closure. Presenting substantial, last-minute concessions on key sticking points—unit count reduction linked directly to widening the rail trail easement, and a revised parking plan with an improved ratio and neighborhood compromise 19:09—appeared calculated to address the board’s most salient concerns and counter remaining opposition. Their consistent framing of responsiveness, reliance on expert reports, and willingness to accept conditions (like sewer lining contributions 1:08:01) effectively positioned them as reasonable partners working within the 40B framework. This approach demonstrably influenced board members, as noted in the straw poll deliberations 2:27:58, 2:28:09.

Abutter Representation Effectiveness: Attorney Dan Hill, representing concerned neighbors, provided a potent counter-narrative 48:00. His focused critique went beyond general opposition to size, targeting specific technical vulnerabilities (sewer modeling assumptions, drainage design details, fire code interpretation) and procedural issues (late documents, enforceability of conditions). His arguments, though ultimately not swaying the board against the project in the straw poll, were effective in forcing detailed public responses from peer reviewers and the Fire Chief 57:38, 1:44:05 and were directly responsible for the Chair’s decision to keep the hearing open for final condition input 1:20:27, 2:24:06. This represents a tactical success in ensuring final scrutiny, even if the overall outcome seems predetermined.

ZBA’s Balancing Act: The board members, particularly the Chair and longer-serving members Dan and Brad, openly grappled with their limited jurisdiction under 40B 10:00, 2:28:09, 2:33:39. Their deliberations revealed a reliance on the professional judgment of their peer review consultants (VM Consulting) and relevant town officials (Fire Chief Archer) to adjudicate complex technical disputes 59:33, 1:43:22. The unanimous straw poll outcome 2:26:57 suggests a pragmatic acceptance that, despite acknowledged imperfections and neighborhood impacts, the project likely met the legal threshold for approval, especially given the petitioner’s final concessions and the significant affordable housing component (42% 27:23). The decision to continue the hearing, spearheaded by the Chair, reflects an appropriate level of caution to ensure procedural fairness and allow final vetting of conditions, likely strengthening the eventual decision against potential appeal.

Influence of External Factors: The explicit support from the Swampscott Affordable Housing Trust 38:41 provided institutional weight favoring approval. Conversely, the consistent opposition voiced by immediate abutters 2:04:53, 2:18:34 grounded the debate in tangible neighborhood concerns. Comments highlighting systemic issues 2:00:49 and broader town planning goals 2:07:41 broadened the context but seemed less directly impactful on the board’s decision-making calculus, which remained focused on the specific 40B criteria and site-specific impacts. The discussion around the Historical Commission’s demolition delay 2:12:34 highlighted another layer of local regulation likely preempted by 40B powers, as noted by petitioner’s counsel 2:16:38.

Concluding Observation: The meeting demonstrated the power dynamics inherent in 40B: a developer leveraging state law and expert reports, a municipality constrained in its ability to deny but seeking mitigation through conditions, and neighbors utilizing legal counsel to scrutinize technical details and advocate for their interests. The likely approval reflects the high bar for denial under 40B when substantial affordable housing is proposed and expert reviews are generally positive, even if local concerns about scale and impact persist. The final phase will focus on refining conditions, a crucial step where the board, informed by continued input, can exert its remaining influence.