2023-06-13: Zoning Board Of Appeals

Click timestamps in the text to watch that part of the meeting recording.

Swampscott Zoning Board of Appeals Meeting Review - June 13, 2023

Section 1: Agenda

Based on the transcript, the likely agenda items addressed during this portion of the meeting were:

  1. Call to Order & Approval of Minutes 0:01:48
    • Approval of minutes from the previous meeting.
  2. Continuances and Withdrawals 0:02:37
    • Discussion and Vote: Continue Petition 23-03 (29 Andrew Rd - Hamilton Accessory Apartment) 0:03:10
    • Discussion and Vote: Continue Petition 23-06 (29 Essex St - Realty Investors LLC) 0:04:08
    • Discussion and Vote: Continue Petition 22-25 (53 Puritan Rd - Sneirson Accessory Structure) 0:04:08
    • Discussion and Vote: Withdraw Petition 23-04 (286 Humphrey St - Ingemi Cooler Unit) 0:04:25
  3. (Recess) 0:05:39
  4. Hearing: Petition 23-05 (0 Lodge Rd - IG Investments LLC) 0:05:59
    • Applicant Presentation (Attorney Kenneth Schutzer) 0:08:09 - Request for Dimensional Special Permit, Site Plan Special Permit, and Dimensional Variance for the construction of a single-family home. Focus on variance to establish the lot as buildable.
    • Board Discussion and Questioning 0:33:28 - Focused on variance criteria, hardship, buildable lot status, historical context, title insurance, planning board requirements, soil conditions vs. shape.
    • Applicant Consultation & Request for Continuance 1:02:19
    • Public Comment (Limited to procedural questions) 1:16:34
    • Board Vote: Continue Petition 23-05 to July 18th Meeting 1:18:25
  5. Adjournment 1:20:16

Section 2: Speaking Attendees

Based on the transcript and typical Massachusetts ZBA roles:

  • ZBA Chair: [Speaker 3] (Leads the meeting, calls votes, directs discussion)
  • ZBA Member (Legal Background A): [Speaker 5] (Asks detailed questions about variance criteria, nexus, legal process)
  • ZBA Member (Practical/Financial Background): [Speaker 2] (Raises title insurance issue, discusses precedent, lot configuration, practical implications)
  • ZBA Member (Legal Background B): [Speaker 4] (Challenges the legal basis for variance, interprets Baldacci letter, emphasizes personal hardship)
  • ZBA Member/Staff (Information Check): [Speaker 8] (Notes difficulty hearing, mentions MLS listing information, interacts during side discussion)
  • Town Staff/Clerk (likely Marissa): [Speaker 6] (Handles continuances documentation, manages online participation check-ins)
  • Applicant Attorney (IG Investments): [Speaker 1] (Kenneth Schutzer, Esq. - Presents the case for 0 Lodge Rd)
  • Applicant (IG Investments): [Speaker 7] (Ilya or Gene - Provides client perspective, mentions living in town, desire to build)
  • Town Staff/Board Member (Brief Interjection): [Speaker 9] (Minor interjections, potentially Chair or staff)
  • Town Staff/Board Member (Brief Interjection): [Speaker 10] (Minor interjections, potentially Board Member or staff)
  • Town Staff/Board Member (Brief Interjection): [Speaker 11] (Brief comment on advertised time)

Section 3: Meeting Minutes

Meeting: Swampscott Zoning Board of Appeals Date: June 13, 2023 (Inferred) Location: Swampscott Town Hall (Inferred)

1. Call to Order & Minutes Approval The Chair called the meeting to order 0:01:48. A motion was made, seconded, and unanimously approved to accept the minutes from the previous meeting.

2. Continuances and Withdrawals

  • Petition 23-03 (29 Andrew Rd): Town Staff [Speaker 6] noted the petitioner might withdraw due to changes making accessory apartments as-of-right, removing ZBA jurisdiction. Pending formal withdrawal, the Board voted unanimously to continue the petition [0:03:10 - 0:04:02].
  • Petition 23-06 (29 Essex St) & Petition 22-25 (53 Puritan Rd): Town Staff [Speaker 6] confirmed signed continuance requests were received from attorneys for both petitions. The Board voted unanimously to continue Petition 23-06 [0:04:08 - 0:04:24] and Petition 22-25 [0:04:08 - 0:04:24].
  • Petition 23-04 (286 Humphrey St): Attorney Kenneth Schutzer [Speaker 1], representing the petitioner, requested withdrawal without prejudice 0:04:48. He explained the planned outdoor cooler units would now be placed in the basement, eliminating the need for the special permit. The Board voted unanimously to allow the withdrawal without prejudice [0:05:24 - 0:05:36].

(Brief Recess) 0:05:39

3. Hearing: Petition 23-05 (0 Lodge Rd - IG Investments LLC) The hearing opened for Petition 23-05 regarding 0 Lodge Rd 0:05:59.

  • Applicant Presentation: Attorney Kenneth Schutzer [Speaker 1], representing applicants Ilya and Gene (Swampscott residents) 0:08:09, presented the request for relief to construct a single-family home. He detailed the complex history of the lot, subdivided in 1949 before subdivision control laws 0:10:25. He acknowledged a likely error in a previous title opinion based on a potentially misinterpreted 1948 zoning map, concurring with abutters that the lot, as currently understood, may not be legally buildable due to non-conformance created by the 1949 subdivision 0:14:40. Attorney Schutzer stated crucial 1949 Planning Board records explaining the subdivision rationale are missing/destroyed 0:18:00. He argued for a variance, focusing on the statutory criteria:

    • Shape, Topography, Soil Conditions: Attorney Schutzer initially dismissed shape and topography but focused on soil conditions, citing neighbor concerns about flooding and problematic soil in the area as the unique characteristic [0:22:30, 0:23:30].
    • Substantial Hardship: He argued literal enforcement would cause hardship, given the applicants purchased the lot for significant value based on prior (albeit flawed) due diligence, including a letter from the former Building Inspector 0:25:15.
    • Public Good/Bylaw Intent: He asserted granting the variance for a single-family home (scaled down from a previous two-family proposal 0:19:30) would not harm the public good or nullify the bylaw’s intent, providing needed housing on a long-vacant lot 0:22:05.
    • Planning Board: Attorney Schutzer noted the current plans show ~3400 sq ft but stated the intent is to build under 3000 sq ft to avoid mandatory Planning Board site plan review [0:33:39, 34:41]. Applicant [Speaker 7] confirmed they had been before the Planning Board previously but were directed to the ZBA first regarding buildable status 0:35:18.

  • Board Discussion: Board members engaged Attorney Schutzer in detailed questioning, revealing significant skepticism about the variance request.

    • Variance Criteria & Hardship Nexus: Member (Legal A) [Speaker 5] and the Chair [Speaker 3] repeatedly challenged Attorney Schutzer on the required nexus between the cited unique condition (soil) and the hardship (inability to build due to lot status/dimensions) [0:37:17, 0:38:00, 0:38:42, 0:40:12]. They argued the soil condition itself wasn’t causing the inability to meet zoning requirements (lot size/frontage).
    • Alternative Hardship Basis (Shape): Member (Practical) [Speaker 2] suggested the lot’s irregular shape might be a more plausible hardship basis than soil 0:40:27, though this wasn’t the applicant’s primary argument.
    • Title Insurance/Personal Hardship: Member (Practical) [Speaker 2] forcefully questioned why the applicants weren’t pursuing a claim against their title insurance or the previous attorney’s errors & omissions policy, suggesting the hardship appeared financial/personal, which is not grounds for a variance 0:40:37. Applicant [Speaker 7] acknowledged this option but expressed a desire to build 0:41:47. Member (Legal B) [Speaker 4] concurred, stating the hardship was personal and arose after purchase, not intrinsically from the land conditions 0:48:34. He also interpreted the former Building Inspector’s letter as non-binding reliance on the attorney’s supplied info 0:46:38.
    • Precedent: Member (Practical) [Speaker 2] expressed concern about setting a precedent if the variance were granted based on the presented arguments [0:43:10, 0:44:51]. Attorney Schutzer argued the situation was unique 0:44:18.
    • MLS Listing: Member/Staff (Info Check) [Speaker 8] noted the property’s MLS listing mentioned it was in a flood zone and needed a variance, suggesting the applicants had prior notice of potential issues 0:52:55.
    • Focus of Relief: Discussion clarified the core request was for a variance to deem the lot buildable, separate from specific house plans or dimensional relief [0:54:42, 0:58:53]. Attorney Schutzer offered to withdraw other parts of the petition to focus solely on the buildable lot variance 0:58:53.

  • Outcome: Faced with the Board’s clear skepticism regarding the variance criteria, Attorney Schutzer consulted with his clients 1:04:40. He then requested a continuance to the July meeting 1:16:02, indicating they might explore if any further information (e.g., geotechnical data definitively linking soil conditions to hardship) could be found, or potentially withdraw the petition then. He acknowledged the high bar set by the board regarding the soil/hardship nexus 1:19:14.

  • Public Comment: The Chair invited procedural questions from the public 1:16:34. One resident asked about the water table 1:17:06, but the Chair clarified the Board was not addressing substantive environmental concerns at this stage. No other procedural questions were raised from attendees in person or online.

  • Vote: A motion was made and seconded to continue Petition 23-05 to the July 18th meeting. The motion passed unanimously [1:18:25 - 1:18:55]. Attorney Schutzer agreed to submit any new information well in advance or inform the board if they intend to withdraw.

4. Adjournment A motion to adjourn was made, seconded, and passed unanimously 1:20:16.

Section 4: Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) meeting on June 13, 2023, addressed several petitions, with the primary focus being a complex and contentious hearing regarding a proposal to build a single-family home on a vacant lot at 0 Lodge Road (Petition 23-05).

Key Outcomes & Decisions:

  • 0 Lodge Road Continued: The ZBA heard extensive arguments from Attorney Kenneth Schutzer [Speaker 1] on behalf of IG Investments LLC, seeking a variance to declare the 0 Lodge Road lot “buildable.” The core issue stems from a 1949 subdivision that, under current understanding and zoning, may have rendered the vacant parcel (Lot B) non-conforming and unbuildable 0:10:25. The applicants argued they purchased the lot based on flawed due diligence, including a potentially misinterpreted zoning map and reliance on a letter from the former building inspector 0:25:15. Attorney Schutzer attempted to meet the strict variance criteria by citing unique soil conditions (prone to flooding) 0:23:30. However, Board members, particularly Member (Legal A) [Speaker 5], Member (Practical) [Speaker 2], and Member (Legal B) [Speaker 4], expressed strong skepticism, finding no clear link (nexus) between the soil conditions and the hardship, which they viewed as stemming from the lot’s legal status and dimensions, not its physical characteristics [0:37:17, 0:40:12, 0:48:34]. Member (Practical) [Speaker 2] also pointedly questioned why the applicants weren’t pursuing recourse through title insurance for the apparent error 0:40:37. Faced with likely denial, the applicant requested and received a continuance to the July 18th meeting to explore options, potentially including withdrawal [1:16:02, 1:18:55]. Significance: This case highlights the difficulty of obtaining variances in Massachusetts, which require proving hardship arising directly from unique land conditions, not personal circumstances or errors in acquisition. The Board signaled it adheres strictly to these criteria, even for sympathetic situations involving long-vacant lots. The missing 1949 Planning Board records add complexity but did not sway the ZBA.
  • Other Petitions Resolved Quickly:
    • 286 Humphrey St (Petition 23-04): Withdrawn by the applicant after finding an alternative solution for refrigeration units that avoided the need for ZBA relief 0:04:48.
    • 29 Andrew Rd (Petition 23-03): Continued, likely pending withdrawal due to recent Town Meeting changes potentially making the accessory apartment permissible by right 0:03:10.
    • 29 Essex St (Petition 23-06) & 53 Puritan Rd (Petition 22-25): Continued at the request of the applicants’ attorneys 0:04:08.

Journalistic Insight: The 0 Lodge Road hearing dominated the meeting, showcasing a classic ZBA dilemma: balancing strict zoning bylaws and legal precedent against a developer’s unfortunate situation on a problematic lot. The Board members demonstrated a strong grasp of variance law, pushing back hard on the applicant’s attempt to frame soil conditions as the legally sufficient hardship basis. The mention of the MLS listing warning of variance needs 0:52:55 and the pointed questions about title insurance 0:40:37 undercut the narrative of unforeseen hardship. While the applicant [Speaker 7] expressed a desire to add housing 0:41:47, the Board correctly focused on the narrow legal tests for a variance, indicating that housing need alone does not justify bypassing zoning requirements. The continuance offers the applicant a final chance to find compelling evidence or, more likely, withdraw the petition to pursue other remedies like an insurance claim.

Section 5: Analysis

This ZBA meeting was largely defined by the protracted and ultimately unresolved hearing for 0 Lodge Road (Petition 23-05). The dynamics observed highlight the Board’s adherence to strict legal standards for variances and the significant challenge faced by applicants seeking such relief, particularly when the hardship stems from historical errors or acquisition issues rather than inherent land characteristics.

Argument Effectiveness:

  • Applicant (Attorney Schutzer): Attorney Schutzer presented a detailed historical narrative [0:08:09 ff], attempting to build a sympathetic case based on flawed past processes (missing records 0:18:00, potentially misleading map/inspector letter [0:14:40, 0:25:15]). His attempt to satisfy the variance criteria by focusing on “soil conditions” 0:23:30 proved ineffective. The Board members adeptly identified the lack of nexus: the problematic soil, while potentially true, wasn’t causing the need for the variance (which stemmed from the lot’s non-conforming status/dimensions) [0:37:17, 0:40:12]. His argument shifted towards the “uniqueness” of the situation and the general benefit of housing [0:44:18, 0:49:03], but these points failed to overcome the specific legal hurdles of the variance statute. The offer to reduce house size 0:33:39 and withdraw parts of the petition 0:58:53 appeared as strategic concessions unlikely to alter the fundamental issue of buildable status.
  • ZBA Members: The Board members demonstrated a clear understanding of variance law and precedent. Member (Legal A) [Speaker 5] and the Chair [Speaker 3] effectively dissected the “soil condition” argument by focusing on the required causal link to hardship [0:37:17, 0:40:12]. Member (Practical) [Speaker 2]‘s introduction of the title insurance issue 0:40:37 was a powerful practical counterpoint, reframing the applicant’s hardship as potentially financial and insurable, thus undermining the claim of hardship arising from the land. Member (Legal B) [Speaker 4]‘s interpretation of the former Building Inspector’s letter 0:46:38 and his labeling of the hardship as “personal” 0:48:34 further solidified the Board’s position. Their collective questioning revealed a unified front unwilling to bend the stringent variance requirements, despite the applicant’s difficult situation.

Meeting Dynamics & Context:

  • Strict Interpretation: The Board consistently signaled a strict interpretation of MGL Chapter 40A, Section 10 variance criteria. Arguments appealing to sympathy, housing needs, or historical confusion were acknowledged but deemed insufficient to override the statutory requirements.
  • Due Diligence Questioned: While Attorney Schutzer framed the purchase as based on reasonable due diligence that went awry, the mention of the MLS listing potentially noting variance requirements 0:52:55 and Member (Practical) [Speaker 2]‘s pointed remarks about title insurance [0:40:37, 1:11:03 ff] implicitly questioned the thoroughness or risk assessment undertaken by the applicants or their previous counsel prior to purchase.
  • Procedural Correctness: The handling of continuances and withdrawals was efficient [0:02:37 - 0:05:36]. The Board also carefully managed public input during the 0 Lodge Rd hearing, limiting it to procedural questions once substantive arguments seemed exhausted 1:16:34.
  • Outcome - Continuance: The decision to grant a continuance rather than force a denial or immediate withdrawal 1:18:55 can be seen as a courtesy, allowing the applicant a final opportunity to either find improbable new evidence establishing the soil/hardship nexus or to withdraw without a formal denial on record, which might facilitate other remedies (like an insurance claim). However, the Board’s discussion strongly suggested the applicant faces an extremely high, likely insurmountable, burden to succeed on the merits of the variance request based on the arguments presented. The Board made its skepticism clear, particularly regarding the nexus argument 1:19:14.