2023-09-12: Zoning Board Of Appeals

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

Swampscott Zoning Board of Appeals Meeting Analysis: 7 Hillside Avenue Proposal

1. Agenda

Based on the transcript, the likely agenda for this special meeting was focused solely on the single petition:

  • 0:00:00 Call to Order & Opening Remarks (Implied, meeting starts before transcript begins)
  • 0:02:16 Petition 23-11: Swampscott Affordable Housing Trust (7 Hillside Ave / 35 Pitman Rd)
    • Request for Dimensional Special Permit, Special Permit/Finding for Nonconforming Uses/Structures, and/or Variance.
    • Proposal: Relocate historic two-family structure (Richards-Pittman House) from 35 Pitman Rd to vacant lot at 7 Hillside Ave for affordable housing.
    • Presentations by Applicant Team (Attorney, Historical Commission Chair, Affordable Housing Trust Chair, Lot Owner).
    • Board Questions & Discussion with Applicant Team.
    • Public Comment (Abutters and other interested parties).
    • Board Deliberation & Consultation with Town Counsel.
  • 2:40:00 Board Discussion on Path Forward / Potential Vote
  • 3:12:32 Motion to Continue Hearing
  • 3:13:56 Adjournment

2. Speaking Attendees

Based on self-identification and context within the transcript:

  • ZBA Chair (Name not stated): [Speaker 5]
  • Atty. Sam Vitali (Representing Swampscott Affordable Housing Trust): [Speaker 1]
  • Nancy Schultz (Chair, Swampscott Historical Commission): [Speaker 7]
  • Kim Martin Epstein (Chair, Swampscott Affordable Housing Trust): [Speaker 6]
  • Bill Demento (Owner, 7 Hillside Ave lot; Attorney): [Speaker 3]
  • Brad DEFELICE (ZBA Member - inferred based on common Swampscott ZBA membership): [Speaker 4] (Fallback: ZBA Member)
  • Mark Kornetsky (ZBA Member - inferred based on common Swampscott ZBA membership): [Speaker 2] (Fallback: ZBA Member)
  • Dante Roberto (Abutter, 36 Cherry Street): [Speaker 12]
  • Gary Francisco Tota (Abutter, 40 Hillside Ave): [Speaker 13]
  • Marissa HOLDER (ZBA Staff/Clerk - inferred based on common Swampscott ZBA staff and facilitating call/agenda discussion): [Speaker 11] (Portions facilitating call/agenda: 1:44:30, 1:54:31-1:58:21, 2:01:59, 2:07:15, 3:02:09-3:13:48) (Fallback: ZBA Staff/Clerk)
  • Cheryl Toler (Abutter, 30 Cherry Street): [Speaker 11] (Specific portion: 1:46:25-1:47:09)
  • Chris Toler (Abutter, 30 Cherry Street): [Speaker 14]
  • Robin Stein (Town Counsel - via phone): [Speaker 9]
  • Barber Betta (Marblehead Resident, Antique House Specialist): [Speaker 10]
  • Atty. Ken Shutzer (Former ZBA Member; Attorney): [Speaker 8]
  • Doug Thompson (Affordable Housing Trust Associate - inferred based on context): [Speaker 15] (Fallback: Project Representative)
  • Unidentified Speaker/Public Commenter: [Speaker 16] (Various interjections, including comments on attorneys disagreeing 0:59:46, Roberto lot garage 1:02:40, demolition timing 1:22:22, nervousness before Gary Tota spoke 1:59:37, value negotiation 3:10:55, final question 3:14:02). Note: [Speaker 16] at 2:07:55 was Atty. Ken Shutzer [Speaker 8] dealing with the microphone.

3. Meeting Minutes

Petition 23-11: Swampscott Affordable Housing Trust (7 Hillside Ave / 35 Pitman Rd)

The Chair [Speaker 5] opened the hearing for Petition 23-11 concerning the relocation of the historic Richards-Pittman House from 35 Pitman Road to 7 Hillside Avenue 0:02:16.

Applicant Presentation:

  • Atty. Sam Vitali [Speaker 1], representing the Swampscott Affordable Housing Trust (AHT), presented the zoning case 0:02:37. He emphasized the Board’s role is strictly zoning, distinguishing it from broader town policy debates. He argued the lot at 7 Hillside Ave, created via prior ZBA action (variances in 1955, potentially 1968) and Planning Board approvals, is non-conforming primarily due to frontage (60ft vs 80ft required). He asserted the proposed two-family use is permitted in the A3 zone and consistent with the neighborhood character, citing the assessor’s map. He argued the project aligns with the Zoning Bylaw’s purpose to preserve historical heritage 0:10:58 and state goals to increase housing stock. Atty. Vitali contended that denying use of the lot due to its unchangeable frontage constitutes a hardship under case law, distinct from financial hardship 0:16:05. He suggested the 1955 variance may still be valid, potentially negating the need for extensive new relief, but argued the project also meets current variance criteria.
  • Nancy Schultz [Speaker 7], Chair of the Historical Commission, presented the historical and architectural significance of the Richards-Pittman house 0:19:38. She detailed its connection to Revolutionary War veteran Joseph Richards and town founder Samuel Pittman. She highlighted original colonial framing features 0:24:15 and described the project as a “visionary partnership” combining historic preservation and affordable housing. She noted the urgency due to the impending demolition of the house at its current location and stated movers are ready if the variance is granted. The goal is renovation completion before the Rev250 anniversary in 2025 0:28:32.
  • Kim Martin Epstein [Speaker 6], Chair of the AHT, emphasized the project as an innovative, replicable model for creating affordable homeownership opportunities on infill lots in Swampscott 0:29:03. She contrasted this with typical large-scale 40B rental projects and stressed the importance of “thinking outside the box” to meet diverse housing needs. She urged the Board to focus on zoning criteria and disregard potential “NIMBYism” 0:31:56.
  • Bill Demento [Speaker 3], owner of 7 Hillside Ave, provided detailed history of the lot’s creation 0:32:53. He described Otto Friedman obtaining a variance in 1955 to split an 11,000 sq ft lot, creating the subject parcel (5,131 sq ft) and an adjacent one (5,257 sq ft), both meeting the 60ft frontage then required but non-conforming on area (6,000 sq ft required). He noted a subsequent variance obtained in 1968 by George Corso, possibly needed because the frontage requirement increased to 80ft in 1958. Mr. Demento argued strongly that the 1955 variance did not lapse due to pre-1978 rules 0:39:43 and cited a 1995/96 ZBA decision supporting this principle (26 Phillips Ave). He asserted the primary issue is frontage and cited Crosby v. Weston to support granting a variance where frontage insufficiency results from governmental action (zoning change) 0:44:12. He expressed strong personal support for affordable housing and the project, noting his original intent was to build a retirement home. He downplayed neighborhood impact, stating adjacent lots were also created via variance.

Board Questions & Discussion with Applicants:

A lengthy and detailed discussion followed, dominated by legal interpretations of past variances and current requirements.

  • Board Member Mark Kornetsky [Speaker 2] focused heavily on the legal status of the 1955 variance, questioning whether it lapsed 1:05:55. Citing the zoning manual and Hogan v. Hayes, he argued pre-1975 variances generally didn’t lapse unless specified, suggesting only a Board finding might be needed, rather than a new variance 1:09:13.
  • Board Member Brad DeFelice [Speaker 4] questioned the necessity and basis for a new variance if the 1955 one was valid 0:58:47. He probed the hardship standard, asking if affordable housing alone justifies a variance 0:52:18 and whether purchasing a known non-conforming lot constitutes self-imposed hardship 1:11:16 (Atty. Vitali strongly disagreed, citing case law 1:11:27). Mr. DeFelice also raised practical concerns about project cost, renovation details 1:19:44, timing pressure, and potential impact on the adjacent Elm Place development 1:26:01. Project proponents assured the board this project would not impede Elm Place [1:28:26, 1:33:04].
  • The Chair [Speaker 5] questioned whether prior variances were tied to specific plans 0:55:09 and expressed doubt about meeting the hardship definition 1:13:13.
  • Discussion clarified that abutting properties (Corso lot next door, Roberto lot behind) were also created/modified via variances 1:01:26, though existing structures were present on those lots when divided, unlike the subject vacant lot 1:03:47.
  • A notable dynamic was the extensive back-and-forth on legal points between Atty. Vitali and Board members, particularly Mr. Kornetsky and Mr. DeFelice, referencing specific cases (Chateau, Paulding, Lamb) and principles like non-conforming lot rights and hardship definitions [1:09:13 - 1:13:54].

Public Comment:

  • Dante Roberto [Speaker 12], an abutter, clarified his parents’ 1987 variance was for an existing mixed-use property and questioned why this lot was chosen over town-owned land 1:34:56.
  • Chris Toler [Speaker 14] and Cheryl Toler [Speaker 11], abutters, voiced strong opposition 1:46:20. They expressed frustration with the process timing, questioned the project’s cost-effectiveness, mentioned feeling pressured by proponents (“scare tactic” 1:51:09), and stated they were previously told the lot was unbuildable. Mr. Toler stated he opposed any structure on the lot 3:01:04.
  • Gary Francisco Tota [Speaker 13], an abutter, questioned how much of the house would remain historically significant after renovation 1:59:39.
  • Barber Betta [Speaker 10], from Marblehead, offered unsolicited advice on historic restoration strategy 2:02:04.
  • Atty. Ken Shutzer [Speaker 8], a former ZBA member, spoke in favor 2:06:33. He recalled being on the Board in 1991 when a variance was granted for this lot based on hardship (unbuildable lot) and neighborhood consistency, with Mr. Demento representing the owner then. He noted Mr. Demento had argued in 1991 that the lot was created illegally 2:07:14. He urged the current Board to grant the variance based on this precedent and the hardship arguments, rather than getting bogged down in the “minutiae” of the unrecorded 1955 variance 2:18:10.

Town Counsel Consultation & Further Board Discussion:

  • The Board sought legal clarification on the 1955 variance. ZBA Staff/Clerk Marissa Holder [Speaker 11] connected the Board via phone with Town Counsel Robin Stein [Speaker 9] 1:54:31.
  • Ms. Stein opined that there is a “strong argument” the 1955 area variance did not lapse (pre-1975, evidence of exercise/reliance) 2:09:44. However, because the town’s frontage requirement changed after 1955 (from 60ft to 80ft), she stated the applicants do need a new variance specifically for frontage relief [2:13:16, 2:13:55].
  • Following Counsel’s input, the Board consensus appeared to be that a frontage variance was indeed required 2:17:33.
  • The discussion then focused intensely on whether the applicant met the criteria for a frontage variance, specifically the hardship requirement. Mr. DeFelice [Speaker 4] read Swampscott Bylaw 5.5.2, emphasizing language tying hardship to “soil conditions, shape or topography” and section 5.5.2.1 stating insufficient frontage alone is not grounds for a variance 2:27:45.
  • Mr. Kornetsky [Speaker 2] noted MGL Ch. 40A, Section 10 includes “financial or otherwise” hardship, suggesting the Swampscott bylaw might be impermissibly stricter than state law 2:30:33, referencing precedent on ZBA findings (likely Murrow v. Esh Circus Arts).
  • Atty. Vitali reiterated arguments based on case law that inability to use a lot due to unchangeable dimensional non-conformity constitutes hardship 2:24:43.
  • Several board members ([Speaker 5, 2, 4]) expressed needing more time to research the cited case law and the conflict between the local bylaw and state statute regarding hardship criteria [2:40:00, 2:50:31, 3:11:25]. Board members DeFelice and Thompson [Speaker 15] indicated they were currently unpersuaded that the historic preservation aspect satisfied the hardship requirement 3:09:20.

Decision:

Recognizing the complexity and the need for further research on the legal standards for granting the required frontage variance, the Board discussed continuing the hearing. Project proponents expressed concern that a delay to the next scheduled meeting (Sept 19th) could jeopardize the project due to the house’s demolition timeline 2:41:07. The Chair [Speaker 5] made a motion to continue the hearing to the September 19, 2023 meeting, likely to be heard around 7:30 PM or later, after the regular agenda items 3:12:32. Mr. Kornetsky [Speaker 2] seconded. The motion passed by unanimous voice vote 3:13:54.

The meeting was adjourned 3:13:56.

4. Executive Summary

Proposal to Relocate Historic House for Affordable Housing Faces Zoning Hurdle

The Swampscott Zoning Board of Appeals (ZBA) held a special meeting on September 12, 2023, to review a proposal by the Swampscott Affordable Housing Trust (AHT), in partnership with the Swampscott Historical Commission, to relocate the historically significant Richards-Pittman House from 35 Pitman Road to a vacant lot at 7 Hillside Avenue. The plan involves renovating the structure into two affordable homeownership condominium units. This project matters as it seeks to address two key town priorities simultaneously: creating much-needed affordable housing and preserving a building linked to Swampscott’s earliest history, including a Revolutionary War veteran and a town founder.

Key Issue: Frontage Variance and Hardship Standard

The primary obstacle is zoning compliance for the 7 Hillside Ave lot. While created legally decades ago, subsequent changes to Swampscott’s zoning bylaws mean the lot no longer meets the minimum frontage requirement (it has 60 feet; 80 feet is now required). After extensive debate and consultation with Town Counsel Robin Stein 2:09:18, the consensus was that while a 1955 variance likely protected the lot’s undersized area, a new variance is required for the insufficient frontage.

The central point of contention became whether the applicants demonstrated the necessary “hardship” to qualify for this frontage variance.

  • Applicants’ Argument: Represented by Atty. Sam Vitali, the AHT argued hardship exists because the lot’s frontage deficiency is physically impossible to fix, preventing any reasonable use of the property if the variance is denied 0:16:05. They cited state case law supporting this interpretation and emphasized the project’s public benefits (historic preservation, affordable housing) align with zoning purposes 2:24:43. Lot owner Bill Demento recounted the lot’s history and prior ZBA approvals related to it 0:32:53.
  • Board’s Dilemma: Board members, notably Brad DeFelice and Mark Kornetsky, wrestled with the Swampscott Zoning Bylaw text, which appears to limit hardship findings primarily to issues arising from “soil conditions, shape or topography” 2:27:45, and explicitly states insufficient frontage alone isn’t sufficient grounds 2:28:34. This conflicts with broader state law (MGL Ch. 40A, Sec. 10) which allows hardship based on “financial or otherwise” criteria, and case law cited by the applicant. Some board members expressed skepticism that the historic nature of the project satisfied the hardship requirement [3:09:20, 3:09:42].
  • Neighborhood Opposition: Several abutters voiced strong opposition, citing concerns about privacy, density, project rationale, and frustration with the process timing 1:46:20. They contested the idea that the lot should be built upon at all.

Outcome: Hearing Continued Amidst Time Pressure

Facing complex legal questions about the interaction between state law, local bylaws, and case precedent, the ZBA voted unanimously to continue the hearing to their next meeting on September 19, 2023 3:12:32. This allows board members time for crucial research.

Significance for Swampscott: The delay poses a significant risk to the project’s viability, as the Richards-Pittman house faces imminent demolition at its current site 1:22:22, and proponents indicated a week’s delay might make the move impossible 2:41:07. The Board’s ultimate decision on the variance will impact not only this specific proposal but could also influence how similar requests for relief on other non-conforming lots are treated in the future, particularly regarding the definition of hardship under Swampscott’s zoning regulations. The case highlights the inherent tension between preserving neighborhood character, promoting affordable housing, protecting historic assets, and adhering to complex zoning laws in a land-constrained town like Swampscott.

5. Analysis

This Zoning Board of Appeals meeting showcased a complex interplay between legal interpretation, town policy goals, historical significance, and neighborhood concerns, all under significant time pressure.

Effectiveness of Arguments:

  • Applicants: The applicant team (AHT, Historical Commission, owner, attorney) presented a polished case effectively linking their proposal to Swampscott’s stated values of historic preservation and affordable housing. Atty. Vitali’s legal arguments, particularly regarding hardship based on the inability to use the lot due to its immutable frontage defect, were grounded in established state case law (Paulding, Chateau). His pre-emptive attempt to frame opposition as potentially lacking standing or being hypocritical (“pot calling the kettle black” 0:17:33) aimed to steer the board toward zoning fundamentals. However, this argument faced significant headwinds from the specific, apparently more restrictive, text of Swampscott’s own bylaw regarding hardship criteria. Their reliance on the urgency created by the house’s demolition deadline, while factually based, ultimately backfired by forcing the Board to choose between a potentially rushed decision on complex legal matters and jeopardizing the project. Bill Demento’s detailed history was valuable context, though Atty. Shutzer’s recollection that Demento previously argued the lot was created illegally 2:08:31 introduces an element of inconsistency.
  • Opposition: Abutters effectively conveyed strong neighborhood opposition and concerns about impact on their properties and quality of life. Their frustration with the accelerated process and feeling pressured was palpable 1:51:09. However, their arguments, while emotionally resonant, appeared less focused on directly refuting the specific zoning variance criteria (particularly the nuanced hardship arguments) and more on a general desire to keep the lot vacant or questioning the project’s overall merit and process. Their claim of having been told the lot was “unbuildable” 1:53:01 underscores the confusion surrounding non-conforming lots and unrecorded historical actions.
  • Board: The ZBA demonstrated commendable diligence in grappling with the intricate legal issues. Member Kornetsky’s detailed analysis of the 1955 variance lapse doctrine, informed by the zoning manual and culminating in seeking Town Counsel’s opinion, was crucial in clarifying that frontage relief was the key hurdle [1:05:55 onwards]. Member DeFelice consistently pushed for clarity on the legal basis for a variance under the local bylaw versus state standards and raised pertinent practical questions [0:52:18, 1:11:16, 1:19:44]. The Board’s ultimate decision to continue, despite the pressure, reflected a commitment to due process and making an informed decision based on research into conflicting legal standards – a responsible, albeit potentially fatal, move for this specific project timeline.

Key Dynamics & Context:

  • Local Bylaw vs. State Law: The core conflict revolved around the Swampscott bylaw’s seemingly narrow definition of hardship (soil, shape, topography) versus the broader MGL Ch. 40A standard (“financial or otherwise”) and related case law. This is a recurring theme in MA zoning, and the Board’s need to reconcile this (potentially requiring acceptance that the local bylaw is partly preempted by state law, as suggested by Kornetsky 2:30:33) became the central unresolved issue requiring research.
  • Precedent: The relevance of the 1991 ZBA decision granting a variance for this lot (cited by Atty. Shutzer 2:18:10) is complex. While potentially supportive, the legal landscape and interpretations may have evolved, and relying on it directly might sidestep the current conflict over hardship standards.
  • Time Pressure: The external deadline imposed by the Pittman house demolition created significant tension. It forced a special meeting and pressured the Board towards a rapid decision on issues clearly warranting more deliberation, highlighting the challenges when zoning processes intersect with external project constraints.
  • Swampscott Context: The discussion implicitly reflects Swampscott’s “land poor” status 0:27:38 and the inherent difficulties of infill development, historic preservation, and affordable housing creation in densely settled, high-value communities with many older, non-conforming lots. The reference to Elm Place underscores the ongoing major developments impacting the town.

Ultimately, the Board prioritized careful legal review over expediency. While the applicants presented strong arguments rooted in state law and town policy objectives, their inability to definitively overcome the textual hurdle of the local bylaw within the compressed timeframe led to the continuance. The fate of the project now hinges on the Board’s interpretation of the hardship standard after further research, weighed against the backdrop of neighborhood opposition and the ticking clock on the historic house itself.