[Speaker 5] (2:16 - 2:35)
I'm brought by the Swampscott Affordable Housing Trust. And this is a request for a dimensional special permit, or a finding of non-conformity uses in a structure, and if necessary, a variance. Who would like to speak on this, to open up on this petition?

[Speaker 1] (2:37 - 19:24)
I'm Attorney Sam Vitali. I've given the clerk my business card. I'm an attorney from Lynn.

My office is at 60 Andrew Street in Lynn, Massachusetts. I represent the Swampscott Affordable Housing Trust. This is an important question.

My focus is only going to be on the zoning. There are many people here more knowledgeable than I about the history of the Pittman House development of certain policies within the town. I appear in front of zoning boards of appeals, and I want to thank the Swampscott Zoning Board of Appeals for holding a special meeting.

But I think it's important that people understand that you are the Swampscott Zoning Board of Appeals. And each one of those words has meaning, especially tonight. Your responsibility is to carry out, as provided by the town bylaw, zoning bylaw, and by the state statute, the zoning ordinances and the zoning statute.

So you're going to hear a conversation tonight that may, in fact, be true or not, but it's not relevant to what the zoning matter before you is. The zoning matter before you involves a parcel of land that really came into being because of the prior zoning boards of appeals. And I'm assuming that you saw a statement that referenced two previous Swampscott Zoning Board of Appeals decisions that dealt with this property.

And there are actions by the Swampscott Planning Board with plans, approval not required plans, subdivision plans that brought about not only the creation of this lot, the adjoining lot which has a single family home, and the budding lot at the rear that has commercial uses on it. And what I brought, because I'm the guy from out of town, is I brought the portion of the assessor's map and I highlighted it. I'm certain all of you know this is one of the older neighborhoods in the town of Swampscott.

But the character of the area is reflected, I think, in the assessor's map. I've just highlighted the parcel that's before you tonight. But when you look at this overall plate that lists all the properties in that area, you'll see that the character of the neighborhood is one of like-sized lots with similar uses.

And it's obviously a residential neighborhood, an older one. And so if I might, I'll just give the, I think I've got eight copies of ten. And so that responsibility as the Swampscott Zoning Board of Appeals, what's before you is an appeal.

If everybody could do this as a matter of right, there'd be no need to come before a Board of Appeal. I think you have an understanding of that and I may have an understanding, but others don't really understand that there are existing regulations that govern land use in the town of Swampscott as well as in the Commonwealth of Massachusetts. And there are other policies that may overlap.

And one of your most prominent citizens, Governor Baker, before he left office enacted, I think in January of 2020, what he called the Smart Growth and Balance Act, which was an attempt to increase the amount of housing stock in the Commonwealth and especially affordable housing stock. And to have that responsibility shared by at least all of the MBTA communities, but it was a laudable goal to increase housing. And what we're talking about here is an increase in housing.

You can't get to goals or targets for added housing, let alone affordable housing, without either taking existing properties and increasing the number of units or taking places that don't have any existing units and putting some there. And I think the town is trying to do both. And I'm not going to spend time defining affordable, because there's a range of housing problems.

There are people who are homeless. There are people who struggle to get the funds to get a down payment to buy a single family home. I come from Lynn, 52% of the people who live in Lynn are renters.

So the affordable housing issue in the city of Lynn is about rent and tenants. But in other places, it's about the ability to have what was often the American dream, home ownership, and especially for a first-time buyer. And so what you have before you tonight goes to the first part of your title, it's Swampscar.

So you have a responsibility in considering this application, not only about the neighborhood, but about the town of Swampscar. And it's about zoning, okay? And it's about the board, that's important.

It's no one person's decision, it's not my decision, it's all of you. And what we hope to do is to persuade you. As I say, I'm going to talk about the zoning relief.

I happen to believe, as others do, that this was decided in 1955. And I think you may have had the statement that describes the history of the first of the Pittman House, but also the history of these lots. But clearly, there were prior approvals.

Now, people may disagree as to the impact of those prior approvals. But there were prior approvals. And I think it's unfortunate that, and that's why it's a good thing that people have a recall for real history, to look at the history of the lot, okay?

It came into being, and it will never get any bigger than it is now. It's got 5,000 plus square feet. It's short on the required frontage in today's ordinance.

But as you look at that assessor's plaque, it's bigger than most other lots in that area, in that neighborhood. It's a couple of hundred square feet smaller than the adjoining lot that got the benefit of the variance and had a home built on it. And the folks who live in that home don't know how they got there because that lot was created in 1955.

It was also done by a planning board who either signed off on a subdivision plan to create the lots or didn't act. And with the passage of the requisite time, that subdivision plan was approved. And I have those documents that are of record.

And so I think that the creation of the lot is evidenced by, as I say, past history. The zone district map says it's in the A3 district. It's a proposed two-family home, and among the permitted uses, so let's go through the zoning matters, it's a permitted use.

It's a residential use for a residential neighborhood, and it falls within the character. And I would suggest to you, if you look at the other uses on the table of uses in the A3, a two-family home is among the least intensive use among the permitted uses in the A3 district. And I took the liberty of looking at the Swampscot Zoning By-law purpose.

And I would suggest to you that it's excellent in that in provision D, this is article one, subparagraph D of the Swampscot Zoning By-law, and it says the following, to preserve the cultural, historical, agricultural slash maritime heritage of the community. That's one of the purposes of the Zoning By-law. And obviously, the Affordable Housing Trust is entitled to the benefit of that stated value within the purposes clause of the by-law.

And let me tell you why I think the relief that they seek is clearly within your ability to grant and why it should be granted. And I think it's important in tonight's exercise that there was a community meeting, I don't know, I know many of the people here were at that meeting. I wasn't, but people had many, many grievances, complaints, opinions, but in the world of zoning, it requires a little bit more.

And so I would hope that this evening, as we go through this, you separate fact from fiction, and zoning regulations from policy. Affordable housing in the city of Lynn is in the zone ordinance. We have an inclusionary zoning ordinance.

The town of Marblehead, where I've done a condominium development, has a special permit process, inclusionary zoning. So one way some cities and towns approach the requirement to increase affordable housing is to put specific provisions in for the approvals to get either a special permit or to get a variance. And in terms of people who may be opposed to affordable housing, if they tell you that, they're in the wrong place.

Because you didn't adopt the affordable housing policy. You're here to tell us whether we can satisfy you that we're entitled to get the zoning relief that we seek for this pre-existing, non-conforming now lot. And the only relief we really need is for frontage.

And unfortunately, the lot will never get any bigger, so we can't increase the frontage. I've seen where people are concerned about the impact of placing a dwelling on the lot. That's a permitted use.

And the proposal that you have before you places it with sufficient setbacks. It meets all of the minimums that are part of the dimensional table. So I think that we satisfy every dimension but frontage.

No, we clearly satisfy use. And the real question here is the appropriateness of a single or two-family dwelling in a three district. What's proposed is taking an existing two-family dwelling and moving it to this site and setting it within the dimensional requirements.

I think also what's proposed is ultimately to achieve, for some individuals, an opportunity. An opportunity to have home ownership, because it will be a condominium. It will be two units, which is what I would dealt with in the town of Marblehead.

There are people here who are fortunate, because mom and dad left them their property. It was really affordable, because it was a gift. Or there were people here who bought their property before the crash in 2008, or before interest rates were where they're at now.

They had an opportunity. But there are people who can fall within the legitimate categories of affordability that could, in fact, buy this and have this be their personal. And in terms of impact in the neighborhood, I suggest to you it has none.

Because as you look at that assessor's map, this lot is among the larger in the area. It's equal to or greater than most. And I know there was a petition, but I don't know how many people who signed the petition stopped and looked at it and said, hell, I live in a 3,000 square foot lot with 50 feet of frontage.

And so I'm the part calling the kettle black. And I think, as you know, what also limits you, not only is the state statute, the bylaw, but the case law. And so the law is beautiful in some ways.

There's a basic rule that says the part can't call the kettle black. If I came into existence because of a variance, who am I to stand here and say, now I got what I want and you can't have a variance? If I'm on a lot that doesn't meet the requisite requirement, how can I suggest to you, oh, it's overbearing, it's over intense.

How can you put a single family house on this lot? Well, how did you put yours on the lot next door, which is 200 square feet larger than mine? And so I think, I look at what I would call the character of the area.

I look at the requested relief. I only think there's one issue, and I think that issue is the frontage. And here's the other harsh reality.

If I can't make the frontage any larger, then what use, any use proposed for this lot is going to require that kind of relief. And so let me suggest to you, again, now we come to the next part of your exercise of power. And that is this, a property owner has a right.

And the state case law says that in every district, you gotta have at least one permitted use. So A3, you've got more than one permitted use. But it also says that you just can't tell me to plant flowers on my lot.

You can't just tell me to let the neighbors park there during a snowstorm. I have a right to use my lot. I have to use it subject to certain regulation.

The case, the rule of law says this. If you don't allow me the least intensive uses, that's a hardship. That is my hardship.

As I talked to Doug about financial hardship or otherwise, this is clearly an otherwise. I can't make the lawn bigger. It's always gonna be that size.

And if it can't be used for residential purposes, then that's a hardship. That hardship is I cannot use my property and I have a right to use my property. Yes, that right should be regulated.

Yes, that lot should be under certain levels of control. Among them is, I like to look out the window and see the flowers. You want the lot, you can buy the lot and plant flowers.

But if you own the lot and you wanna develop the lot, then you have to do it consistent with the existing regulations. That's your responsibility to determine whether you're entitled to that relief. The folks who were here tonight in support, as I say, are more knowledgeable than I about the history.

And I learned a lot from the history because it was a time in the town and in the country and in Massachusetts where a lot of people made good history. And you're at that point. Someday people will be looking back and saying, what did they do when they had an opportunity to create more housing?

The second part of it is there are people who are very closely aligned because they own the lot with its legal history as how we got here. And then there are others who are very supportive of what has been determined, not by you, the zoning board, but by those who are charged, the people who are on the affordable housing trust, the people who govern the town, the people who have already made the decisions that recognize, as Governor Baker did, that if you wanna make housing more affordable, you have to increase the housing stock. And there's more than one way to achieve that.

And one of the ways to achieve that is not to tear down existing housing, but to utilize existing housing. And so with that, I'm gonna let the people speak to the history of both the lot and of the house. And then I think we're gonna hear from some others, and then I'll be glad at the end to answer any zoning question you may have.

[Speaker 7] (19:38 - 28:55)
You can state your name and... Oh, sure. My name is Nancy Schultz, and I'm chair of the Swampscott Historical Commission.

And I wanna thank you for your time this evening. And, you know, I'm very glad to talk to you briefly about why the Historical Commission is so passionate about saving this house. We are charged with preserving the town's history, and we take that mission incredibly seriously.

So we are very excited about this visionary partnership with the Affordable Housing Trust. And we are hoping you will indulge us while we ask you to please help us save the Richards-Pittman house. Next slide, please.

Okay, so this is a view of the house from 1912. This is the side that faces Essex Street. It was a farm.

As you know, it's scheduled for demolition very soon. And we have sort of taken as our mantra the idea from the U.S. Department of Housing and Urban Development that rehabilitating historic properties to provide affordable housing is a sound historic preservation strategy. And this is a home that's now listed on the Mass Historical Commission MACRS database.

And so it is a historical property, and I'd like to just detail a little bit more about its history. Next slide. So we think the preservation of many of these older homes is just a better option.

We know that in several communities, older homes, whether they're historic or not, are being demolished to make way for structures such as a friendly 40B. 40B, and those kind of projects give residents very little control over what types of buildings are being put in their neighborhoods. So if that happens, and we know that some older homes are being raised to make way for such projects, the neighborhood and the neighbors lose control over what is going to be sited on that lot.

Next slide, please. So the house we're about to look into a little bit more belonged to two selfless American heroes, Joseph Richards and Samuel Pittman. Both were very patriotic citizens who put their town and their country over personal gain.

They were community builders, not dividers. Next slide, please. Okay, so Joseph Richards, he was an owner of this house.

He fought at the battles of Lexington and Concord. He, Joseph Richards, transported supplies to the patriots through enemy lines. He fought the British and the Hessians at Trenton and Princeton, and his compatriots described him as a man of noble presence, strong as two common men.

Next slide, please. So Joseph's ancestor, Edward Richards, settled in Swampscott in 1641, near the very site of the current house. I have the site circled.

You can see in that smaller triangle, that actually shows the original house that his ancestor lived in. And it was right off of Essex Street at the corner of Cherry, very close to this current site of the house. Next slide, please.

More research is needed on Joseph Richards. Just doing a deep dive into the newspapers, which there's certainly more we could be doing, but I did just want to post this $10 reward for his horse that wandered off his pasture inland near the site of this very house. And he offered a $5 reward for the return of the house or $10 for the horse and the thief.

So that was July 1st, 1808. So we're starting to get glimpses of who Joseph Richards was. You might think that says $10 for house and thief, which it does, but when these old newspapers are scanned, sometimes the digitization is a little bit skewed.

Next slide, please. So the main thing about this that you probably need to know is how architecturally significant this house is. When we went and pulled back the carpets, we saw the original wide wooden floors, the roof purlin at the principal rafter with wood pins.

You can see on the right-hand side, those are actually nails made of oak that are bringing the house, that are holding the house together. And one of our preservationists observed, you could teach a class, a master class on colonial framing from this house. It's that impressive.

Next slide, please. So Samuel Klune Pittman, the town founder, you may be a little more familiar with his history. We've been talking about him for the last couple of years, but the main thing to know is that he purchased Upper Swampscott Farmhouse in 1847, what we now are referring to as the Richards-Pittman House.

He bought it from the four granddaughters of Joseph Richards. So it was in their family from 1641, this area, this lot, maybe not the exact house until 1847. So that's a long Swampscott line.

And Pittman has many important roles. He played roles in separating the town from Lynn. He was the first town moderator.

He did a lot of public service. Both of these men were incredible heroes who put others before their own interests. Next slide.

Okay, so our goals are to save the historic original portion of 35 Pittman Road. We put a demo delay starting in October 18th, 2021. It was a nine-month demolition delay.

And we've been working very hard for almost two years to try to make this happen. And our partnership with the Affordable Housing Trust is incredibly important to us because as we said at the outset, Swampscott is land poor but rich in older homes. And the combination of combining historic preservation with affordable housing is a win-win for everybody.

Next slide. So there is the desired parcel for relocation at 7 Hillside Avenue, less than 2,000 feet from 35 Pittman. We have movers lined up ready to do this.

If we get this variance tonight, we're ready to go. Next slide. And our goal is to complete the renovations well before April 2025 and plan for a Rev. 250 celebration of the 250th anniversary of the shot heard around the world in honor of Joseph Richards, our patriotic Revolutionary War veteran from Swampscott, Massachusetts. Thank you.

[Speaker 6] (29:03 - 32:23)
Hi, I'm Kim Martin Epstein. I'm the chairperson of the Swampscott Affordable Housing Trust. I'm here to help punctuate this petition and illuminate a little bit more about the partnership that the Swampscott Affordable Housing Trust is working on.

I don't think I need to tell you that the vast majority of the zoning relief you're gonna be asked to consider in the world of affordable housing is not gonna be a single family or a single or two family home on a residential lot. In fact, in connection with the demo of this, you went through an arduous 40B process to create the Elm Place. So you know very well that most projects just don't look like this.

And one of the things that's really important is to, you know, in a town such as Swampscott where we are land poor is to think outside the box. It's really easy in some ways to do large, dense rental projects, especially when we are under our 10%, 40B projects are gonna be relatively easy for a developer to do, notwithstanding the process that's gonna happen. And if they're gonna happen here, they're gonna happen here.

But we wanna think outside the box a little bit. We wanna create other affordable housing products, essentially, that focus on homeownership because the nature of the town does involve a lot of single family lots. And because there are a lot of people who wanna buy their home and live here.

And we're a high price community. And there are a lot of people who already live here who, as Mr. Vitale said, either got lucky and got their homes before they would have been outpriced or people who deserve a shot to stay here or live here or to have their kids live here. So we're trying to come up with a model that is replicable that will work to preserve homes, to use single family lots and to create units to fill in this need.

And so it's quite easy, in fact. You know, the financing side of it is gonna be challenging. But once we figure that out, we're gonna have something that I think we can do.

You know, we can do it other times on lots that already have a house. And perhaps we don't have to move the house or other situations where maybe we have to move it or situations where we might add on to an existing home. But the idea of creating a product to create homeownership in infill properties in Swampsked is very important.

And I think it helps promote this really important policy goal that we've heard stated, not just from the Affordable Housing Trust, but from other committees of the town. So happy to talk more about the affordable housing financing of a project like this. But I think your job is to look at this from a zoning perspective.

I think you've been given all the information you need. I wanna make sure that I underscore that the noise around the reasons why people don't want this infill to be done may or may not be classic NIMBYism. Maybe it is, maybe it isn't.

It's irrelevant to the zoning process. And it is clearly against the public policy that we're trying to promote and make a little bit easier to do in Swampsked. Thanks.

[Speaker 3] (32:53 - 48:39)
I made it. My name is Bill Demento. I am rising as the owner of the parcel in question.

And I have owned it since the year 2000. I wanna give you a little history of the lot because I think it's important in regard to the total town and the elephant in the room from what I believe is the lot on Lodge Road where the board has been dealing with that for several months. And at first glance, you say it's the same.

It's nowhere near the same. But just to start with a little history, the Swampsked adopted zoning for the first time in 1924. And there were very few changes until 1937, minor change.

We made a major change in 1948. For the first time, they established dimensional regulations. And that's why in the then A3, now A4 zone, the first dimensional regulations in 1948 were 6,000 square feet and 60 foot frontage.

That was the law. And that was 1948. In 1955, a longtime resident who lived on Cherry Street, Otto Friedman, who owned one parcel on the corner of Cherry and Hillside.

It was approximately 11,000 square feet. He went to the Zoning Board of Appeals and requested a variance to create two lots. The Zoning Board of Appeals granted the variance to establish the two lots.

Prior to the adoption of 808, of Chapter 808 of the Acts of 1975, the law was very different. And Swampsked was struggling with a lot of communities on the new construction boom of post-war, so that they felt the need for these changes. After he went to the Zoning Board, he did everything right.

He then went to the Planning Board and requested an ANR. And as you have seen in what has been submitted to you, the Planning Board approved it and even mentioned the variance that was granted to Otto and said, it's now approved. They immediately recorded the new plan.

And the Friedmans immediately sold the lot in 1955 to a fellow by the name of George Corso. In 1955, George did nothing with it. In 1968, for some reason, probably the change in the bylaw in 1958, he went to the Zoning Board again for a variance which the 1968 request was also for lot coverage, for lot area, which was totally unnecessary.

Because the 1955 variance granted specific relief. They couldn't deal with the frontage because the lot in 1955 met, both lots met the 60. But the 1955 variance took the conforming lot of 11,000 and made them both non-conforming.

Not illegal, non-conforming. Both lots one and two are shown in the plan that you have. So why did he need a variance in 1968?

Even though it isn't part of the record that you have seen, he really probably needed it because they no longer, neither lot no longer met the frontage requirement because the frontage requirement in 1958 was changed from 60 to 80. And the area was changed from 6,000 to 10,000 where it has stayed for the last 50 or 60 years. That's what it is today.

That was something that is very important because at that point, maybe the lot needed dimensional relief depending how you read the 1955 variance. There are some lawyers among us who believe that the 55 variance cemented what was allowed on that lot and it is still good today. Today.

I don't actually know if I'm one of those people because I go back and forth on this issue. But I do know the lot size being under 10,000 feet has nothing to do with what's going on here tonight. There is one single issue.

That single issue is frontage. It has 60. The bylaw today says it needs 80.

If it had been a lot with change, any other change that affected this lot, that's what I'd be telling you about. But what here tonight to decide is this lot worthy for this great proposal? And it is a great proposal and it's something I feel strongly about on that score.

Is it worthy of a variance for that 20 feet so they can go ahead and put this on the lot? Someone may raise the issue of lapse. I had the fortune or misfortune of working in the statehouse in 1975.

And attended many meetings on the writing of chapter 808, the new state zoning law, which was commanded that had to be adopted by every city and town by July 1st, 1978. The law changed tremendously on all aspects of zoning by that act. It was a big, big change.

One of them was they adopted a lapse provision which states you have, if you get a variance, you have one year to use it. If you get a special permit, you have two years to use it or it lapses, you lose it. Since Swampscott adopted 808 on January 10th, 1978, this lot, this parcel had nothing to do with that.

That variance, all variances prior to January 10th, 1978 are valid in the town of Swampscott. And there is actually a ruling by this board in 1995 or 96 for a property at 26 Phillips Avenue in which there was a substantial question on an old variance. And the board answered that question saying, we never changed the law.

We didn't prior to January 10th, 1978. We did nothing in this town on that effect. And therefore, there is a house at that address because it was a hotly contested issue in a nice neighborhood.

And two great lawyers argued the case on that and Jim Rudolph and Kyle King from Marblehead was a great zoning lawyer. And the board found in favor of the people who wanted to build on a lot saying the variance was still good. Now, that's on the lapse issue.

A second part of that issue is, OK, it's not lapsed. But where is the right to grant a variance for frontage with the three or four, some people break it up, requirements for granting variance on the hardship public good doesn't derogate from the purpose or intent of the bylaw. But we know in this case, the public good and the intent of the bylaw really shouldn't be, in my opinion, any question.

The lot is bigger than most every lot in the neighborhood. The intent of the bylaw is not to overcrowd it over the town. That's one of the things in protecting the public health.

The lot's been sitting there for a long time. I've owned it a little over 20 years. My intention when I bought it, my wife is my law partner.

We have no children. We love Swampskate. We also love Naples, Florida.

And we spend a great deal of time, but we wanted to build something for a retirement home for when we were here in the summers. That lot sat there for that purpose. Things change, health changes.

We ended up buying a condo at Summit Estates when we sold our big house on Bayview Drive. And life moves on. My next thought was sell it to someone that wants to build something.

When Nancy first mentioned this to me, I was thrilled. I've been an advocate for 50 years in this town, at town meeting as a 52-year town meeting member of affordable housing. I strongly, strongly support the need to diversify the community and have affordable housing in the community.

And I know something about the town, having been on the school committee, having been a teacher in the town, having practiced law in the town for 43 years with a concentration on zoning and land use. So I think I know something about the values of the town. And I was thrilled that Nancy mentioned and said they'd be interested.

I didn't call the town and say, hey, I got a lot for you. They found it on their own. Margie, Nancy, whoever found it on their own came to me.

That would be a use that I'd be proud to be involved with. Now, there happens to be a case directly on that point called Crosby versus the town of Weston where they say the appeals court, Mass Appeals Court, which is 3 Mass Appeal 713, which says, hey, insufficient frontage case, if there's no fault of the landowner and this came up, if it's governmental action, that's sufficient to grant the variance. I happen to have that case with me and copies of it if you're interested.

But it's an important thing because you struggle with meeting those four conditions. I've watched the meetings and I know this board is not inclined to grant variances, but not being inclined and Chapter 48, Section 10 doesn't say don't grant them. It says variances should be granted sparingly.

If there was ever a case in my mind that a variance should be granted for the public good, taking the history, the affordable housing and the neighborhood into consideration, this is it. That's a 5,000 foot lot. I'm not, I don't want to go in there with an A4 request the zoning board to put eight units like you're facing at 29 Essex Street.

I'm not doing that. I had no intention of doing that. If this fails, I'll probably build my house that I've been talking about for 20 years on that site.

The neighborhood itself, as to what negative impact is there, there is none. The very house next door who is one of the people who have submitted information to the board is the successor owner to the man who got the variance for the lot they live on. The Abada to the rear who was here, Dante Roberto in 1987 did the same thing.

He went to the zoning board, got a variance to split 11,000 foot lot, which he did. Must've had a great lawyer, but he did it. And yet I've read the opposition's, the neighbor's concerns, don't understand them.

But because it is a 5,000 foot lot, it is something that's going to get a use. As you know, I know there are lawyers in this board. No lot is going to be told you can't use it for anything.

It's zoned for residential. Sooner or later, it'll be used for residential. What kind of residential?

I don't know, who knows. I may be gone tonight, tomorrow, who knows. Maybe my wife won't want to do it.

But the fact is that lot will be used for something because that's what the law is. So anything I can provide, any questions I can answer, I'd be more than happy to do so. Otherwise, I'll sit down and be quiet.

[Speaker 4] (48:40 - 48:43)
Thank you. I'd take a look at that if you have that case you mentioned. Sure.

[Speaker 3] (48:51 - 48:53)
I have a very bad mic, so forgive me.

[Speaker 1] (49:13 - 49:14)
Thank you.

[Speaker 3] (49:33 - 50:36)
What Nancy is giving you is an excerpt from the 2021 zoning manual for Massachusetts. Which discusses that case in question. Drosby was a lot width.

This lot is a frontage. Same thing. The town of Swampskate changed the zoning law in 1958.

Sorry about that. The town of Swampskate changed the zoning bylaw by increasing those in 1958. So that's where they're coming from.

So was the variance recorded? Of the 55? No.

We have a copy of the variance which has been submitted. And the plan which has been submitted. There was no law in effect in 1955 requiring the recording of variances.

[Speaker 2] (50:37 - 50:48)
So the resident, your opinion, the residential freeze of section 6 of 40A would protect the unrecorded variance, Grant?

[Speaker 3] (50:48 - 51:32)
Well, I don't think it's section 6. But it was section 5 before, I think. The old 40A.

Yes, and section the old 40A, chapter 40, section 15 is where the protection comes from. But that is the freeze. Meaning if you get the variance, what if they changed if he got the variance in January of 1955 and the zoning changed in April of 1955?

Is that going to impact him? The real answer is maybe. I don't think so.

But it's something that I'm not looking forward to litigating. But I wouldn't mind.

[Speaker 4] (51:32 - 51:34)
What happened in 1968?

[Speaker 3] (51:34 - 51:45)
1968, the then owner of a George Corso went to the zoning board and obtained a new variance. And he never did anything with it.

[Speaker 4] (51:46 - 51:50)
Why did he do that? What was, if he already had a variance from 1955?

[Speaker 3] (51:50 - 52:17)
He didn't know it. And in 1990... Is that because you think it wasn't recorded?

Probably. I mean, there were very, very few variances. It's very difficult to find a variance before 1975 recorded.

And because 808 said your variance isn't effective until it's recorded. So that's the only reason. But there were very few variances recorded before 75.

[Speaker 4] (52:18 - 52:33)
So for any hardship argument, could the need for affordable housing, do you think that would prevail in most cases to satisfy that requirement?

[Speaker 3] (52:33 - 53:24)
Well, it could sneak into that category. It's real. The affordable housing is really the three other elements that it doesn't delegate.

You have to show it doesn't derogate from the intent of the bylaw. So the affordable housing and the historic wipes that out. And the public good.

This isn't public good. This is public great to do this. But to bring any new housing, we only have two and a half percent.

We meet two and a half percent of the 10 percent requirement in the town of Swampskate. We're in the bottom list of this. So if you get one unit here, you're going to have two affordable units that will apply to our 40B requirements.

I don't know if I answered your question.

[Speaker 4] (53:24 - 53:41)
I guess my question was setting a precedent where if anybody wants to get a variance in a situation like this, as long as their project checks the box of affordable housing, is that your position?

[Speaker 3] (53:42 - 53:44)
Absolutely not. That is not my position.

[Speaker 4] (53:45 - 53:50)
What's different about this one from the many others that we've seen before that we'll see in the future?

[Speaker 3] (53:50 - 55:08)
Well, I don't know. I've been doing this a long time. I don't know of any that have ever been able to produce a variance and the planning board approval showing the variance that they didn't just approve the ANR without getting approval.

They did it right. And the man who did this, Otto Friedman, had been on the Swampskate Finance Committee for 30 years. Prior, he knew government.

He knew what he was doing. It was a three-member board of appeals. Paul Cochran, John Milo, and Walter Mudge back in 55.

They were good when they had a three-member board. They were a good board, but all very firm people. Decisions themselves, some were this word, granted.

That's all they said, granted. And that was it. Now, of course, you have all the requirements to meet all the standards.

Substantial hardship was a carryover from Chapter 40, in which they changed it a great deal to add the word substantial hardship.

[Speaker 5] (55:09 - 55:13)
I have a question about the previous variances. Were they tied to specific plans and specific projects?

[Speaker 1] (55:15 - 55:16)
You're asking about the prior approvals?

[Speaker 5] (55:16 - 55:20)
The variance from 1969. No.

[Speaker 1] (55:22 - 56:17)
I actually wanted to support Bill in that. Many cities and towns, searching for old records, lead you to there was the flood, or there was the fire, or the... All right?

And he and I had a discussion, and I pointed to this plan, which I think endorses what Bill was saying. This is the plan of Frank and Teresa Roberto. It's a record plan, and I'm going to give it to you in a second.

It was recorded in 1989, but the plan was done in 1987, as you'll see. But if you get better vision than I without my glasses, you'll note right down at the little bottom, it said, variance granted 12-16-87 by the Swampscot Zoning Board of Appeals. Did we find that?

I don't know where it is. I do know what the plan says, and let me get you this one.

[Speaker 5] (56:17 - 56:30)
I guess my question is, the variance that you do have record of, usually they're tied to a specific project, to specific plans, to specific flood plans. So when you say the variance continues forward and doesn't expire...

[Speaker 1] (56:30 - 56:32)
It runs with the land.

[Speaker 5] (56:32 - 56:35)
It runs with the land, exactly. For that specific project...

[Speaker 1] (56:36 - 56:37)
It's still there on the land.

[Speaker 5] (56:37 - 56:40)
Correct, but I guess it's in relation to that specific project.

[Speaker 1] (56:40 - 56:45)
They were granted, but none of them were ever sufficiently exercised.

[Speaker 3] (56:45 - 58:26)
So what happens, right, when George Bush got a variance in 1968 and never did anything with it, then there's no record of him doing nothing. Right. And he sold it.

Once he sold it, he's no longer outstanding to do anything. But there is a record of the 1991 variance, and it was tied to a plan with a permission. It was appealed, and it was appealed in something that lasted 10 years.

And at the end of the 10 years, the then owners didn't want to continue. So that's when I took it over and said, I do want to continue. And I didn't know about the 1955 variance.

I did a lot of digging and happened to find this variance in some files given to me by a retired lawyer by the name of Israel Block, who I consider the finest zoning lawyer I ever encountered. Was that after you bought the property yourself? Yes.

I always had faith in being... I always believed it should be built. And my belief was the land court is not going to say, leave it a meadow.

And I always had that faith. So that was the incentive for me to do that. The faith being that you would obtain a variance or that you wouldn't need to?

Or a court order.

[Speaker 4] (58:27 - 58:35)
In order for you to build a house on that lot, would you need a variance or could you just tomorrow start erecting a home on that lot?

[Speaker 3] (58:35 - 58:46)
I might need a variance. I think, like I said earlier, I go back and forth on that very question because the zoning bylaw from 58... So let me ask you this question.

[Speaker 4] (58:47 - 59:10)
If, in fact, you needed a variance to build a house that you were just describing, you wouldn't be building an affordable housing house there, right? I'd be building a house for my wife and myself. So the reason that I heard you say we should grant the variance in this case is because of the compelling reason of affordable housing, that it's...

[Speaker 3] (59:10 - 59:20)
Well, if I said that, no. If I said it's wonderful that it is... If I didn't say it, I meant what I'm meaning is it's wonderful at this point.

Right now...

[Speaker 4] (59:20 - 59:36)
But it's consistent with the bylaws, what you said. You said it checked three out of the four boxes. It was not good, but great, right?

It is because we're no longer going to build... But here's my question. Without that element, it doesn't check those boxes, right?

So if you were to go and try to pull a variance...

[Speaker 1] (59:36 - 59:39)
No, I think that's wrong. I think that this is a very lawful...

[Speaker 4] (59:39 - 59:42)
Just respectfully, I'm asking Attorney Demento.

[Speaker 1] (59:44 - 59:46)
Well, I'm the attorney that he said...

[Speaker 16] (59:46 - 59:48)
You said... The attorneys have disagreed.

[Speaker 1] (59:48 - 1:00:08)
I was one of those. I think that variance is valid, but I think it's a simple matter of do we meet the criteria of the current zoning bylaw, and the state statute, and the case law? And I think we do.

So I think we can check every box, whether it's affordable, luxury, non-profit, educational. I think a building can go there tomorrow.

[Speaker 4] (1:00:09 - 1:00:10)
I just want to know what your position is.

[Speaker 1] (1:00:10 - 1:00:14)
So that's your position that... Can I ask my question? Yeah.

[Speaker 4] (1:00:14 - 1:00:26)
So I understand you to say that it's not necessarily the historic nature or the affordable nature that you should be entitled to a variance, regardless of what is built on that law.

[Speaker 1] (1:00:26 - 1:02:39)
We should be entitled to a variance because you can't leave a lot with no use, number one. Number two, the case law, with respect to non-conforming lots, says that if you're a purchaser of a lot and it's non-conforming, that's not a self-imposed harm to you. Because the appeals court recognized that nobody would buy lots because virtually every lot over the period of time becomes non-conforming because they increase either the dimensions or particular dimension or they change the zone map.

And so the courts, as I said at the outset, your authority is derived from the state statute, from the bylaw, and from the cases. And there are cases that stand on the rule of law on both of those points. And I just wanted to fill in what Billy was saying.

When we search for records, okay, you know, there's the freedom of information now, okay? In 1955, whatever, this is the certificate by the then town clerk, Jack Pastor, who I happen to know at that time. But this is that, oh, the plan got filed.

In 1987. Yeah, in 1987. And here's my certificate in 1989, that 20 days has elapsed and it's approved.

This is how the Roberto plan, it didn't get an actual vote, as did other law of the Swampskip planning board. So in some instances, you have a planning board A&R approval. In others, you have no action by the Swampskip planning board.

In others, you have at least some reference to a notice of a variance. Again, in this law, there is no decision, but I just want you to see, this is a 19... That division's better than mine.

Again, this is that, they recorded it, but this is the decision of the board of appeal. Did I hear you say that the lot next door required a variance to build? No, it got created by a variance.

Okay, what about the lot in the back? The lot in the back, that's the Roberto lot. That got created by a variance as well.

In 1987, it was a variance. Okay, was there structures as part of that variance application?

[Speaker 16] (1:02:40 - 1:02:42)
It was a garage, an existing garage.

[Speaker 3] (1:02:43 - 1:03:00)
On this lot, on my lot... Oh no, the Roberto lot. The Roberto lot, there were structures, and on the first lot, when Otto had lived there for 30 years, and he went as the owner, his house was on the corner on Cherry Street, as shown on the plan.

[Speaker 1] (1:03:05 - 1:03:10)
Yeah, the 1955 plan, there's a plan that showed a garage on one lot.

[Speaker 4] (1:03:10 - 1:03:10)
Yep.

[Speaker 1] (1:03:11 - 1:03:20)
That's Bill's lot, and then it showed a dwelling sort of at the back of the lot that's now, I think, the total lot. But they needed a variance too.

[Speaker 3] (1:03:20 - 1:03:47)
The granting person, the one who sought the variance, needed a variance because they went from conformance, that's how the last house in the neighborhood was built, to non-conformance of $5,000. Therefore, they also were granted a variance for both lots. So the person who lives in that kind of house, lives there under the variance that she lives there.

That's how it was granted.

[Speaker 4] (1:03:47 - 1:03:50)
So there was already a house existing on the lot when the variance was granted?

[Speaker 16] (1:03:50 - 1:03:51)
Correct.

[Speaker 4] (1:03:51 - 1:04:02)
Okay, and same for the lot in back of your lot? Yes. Okay, so there's no new work that was undertaken as a result of the grant of either of those variances?

That is correct.

[Speaker 6] (1:04:04 - 1:05:48)
I don't think your question was answered. Could you get closer to the microphone, just because there are people watching at home. I don't think your question was answered necessarily when you were asking about the precedent set on using the creation of affordable housing as a component to make your decision.

So I thought I'd address that. I think, you know, you have a decision tree, right? You can either decide that this is a ratification, essentially, of an existing variance, and you can decide that.

You can decide whether, regardless of what kind of house is being built on this, that you have sufficient information to determine whether the thresholds met to give a variance for a house. Or you can decide in either of those cases whether the fact that a public benefit will be conferred in addition to the ratification of the law is a checkmark in the public purposes of the zoning. You can decide whether that enhances your decision or not.

We're here to hope that you will. And it doesn't set precedent, because you are, as I mentioned, you've faced all kinds of precedent with regard to zoning that prioritizes affordable housing. You have to deal with 40B applications.

We now have a new zoning by-law that you're going to see petitions for that aim to create affordable housing that will be imposed. We have 40R overlay districts that may or may not get used. This is not a case of first impression when deciding that building affordable housing as a public policy enhances the purposes that you're already making a decision on.

[Speaker 3] (1:05:50 - 1:05:54)
Thanks. So I have a question for you, Sam.

[Speaker 2] (1:05:55 - 1:06:33)
I'm just trying to get my head. So in terms of the issue of lapse for the 55 variance, I think I've got my, I see a different section of the zoning manual in 10-1 specifically addressing pre-1975 variances where it says, quote, it's section C, variances granted prior to the effective date of 1975, chapter 808, that Mr. Dementa was referring to, were not subject to lapse under the terms of old chapter 40A. It's a case cited, Hogan v.

Hayes, a 1985 case.

[Speaker 1] (1:06:34 - 1:06:54)
That's a case that's also often cited, how there's more than one way to exercise a variance. And one is recodation of a plan, a deed. There are people who think that the only way you can exercise a variance is, let's say, it says, I'm going to build this house and do this and do that.

Well, there is more than one way to exercise a variance. That's what Hogan v.

[Speaker 2] (1:06:54 - 1:07:35)
Hayes says. But Hogan also says, it goes on, accordingly, unless a deadline for exercise was specified in the municipality's ordinance or bylaw, which it wasn't at the time, or in the variance itself, and absent a material change in circumstances, such a variance could continue in force without limit of time, although not exercised. Again, citing Hogan v.

Hayes in parenthetical dictum. And then there was another case that's cited in the zoning manual, where the court didn't allow a variance, but it was because of a different doctrine of merger of title.

[Speaker 1] (1:07:36 - 1:07:38)
That goes to what's being combined.

[Speaker 2] (1:07:38 - 1:07:40)
No, I understand merger.

[Speaker 1] (1:07:40 - 1:07:40)
How you can meet the current standard.

[Speaker 2] (1:07:40 - 1:08:21)
So based on what I see, the variance itself, whatever rights were granted in the 55 variance, it appears would continue. So what I'm trying to get my hands around are the frontage issue. If in 1955, there was a variance granted, and there's nothing that I see that said it needed to be recorded, that was in the bylaw or apparently in the variance itself, how do you now need relief for frontage if it were protected by that variance from 55?

[Speaker 1] (1:08:22 - 1:09:13)
I told you, I'm one of the ones on the side that says you don't. But I understand that notwithstanding that, for the cases, the rule of law, too, that I cited to you about a non-conforming law or a law having a use, that I think we satisfy all of the criteria. And as was said here, and I have great appreciation when people aren't zoning, that they do understand that, as I said at the outset, you are the Swampscart Board of Appeals.

You are subject to that section that I read in the purposes clause. But can you find there's a substantial derogation of the intent or the purpose of the bylaw by this request? Can you find that this request is detrimental to the public good?

I mean, you've got to check off, those are the boxes you have to check off.

[Speaker 2] (1:09:13 - 1:09:54)
But why do you need, if the variance, don't you just need, if you're right in your opinion that the 55 variance is effective currently and it did not lapse because that's what the law says, it doesn't lapse unless it says it in the variance itself, in the Swampscart bylaw, at the time that it was passed, then don't you just need a finding from this board that the variance is, has not lapsed and that it is effective and not other relief unless you need some dimensional relief,

[Speaker 1] (1:09:54 - 1:11:15)
which I don't believe that you... Well, you know, those of us who are lawyers say that they, lawyers like to wear a belt and suspend us because they don't want their pants to fall. I would suggest to you that nobody put a black robe on me that said my opinion's right, okay?

I have my opinion. My opinion is the one that Bill referred to about there are some lawyers who think I'm one of those, but I'm also one of those who said that notwithstanding that, I still think we're entitled, even though maybe the town council didn't agree with me or Bill didn't agree with me or you don't agree with me, I still think we meet the requirements. And I think it's your responsibility to go through all of the criteria.

And as Bill pointed and alluded to, there's no way the lot frontage will ever be any bigger. And if every use that comes before you for that lot is going to require the current frontage, then what you're saying is there'll be no use for that lot. And what the court says is that if that's the case, that's a hardship and you have to allow.

And then they look at what's less intensive, what's more intensive. It's a residential district for a residential use. It's not overly intense.

It meets all the other dimensional requirements. We're not proposing a nuclear power plant in a residential neighborhood. We're proposing a residence.

[Speaker 4] (1:11:16 - 1:11:27)
Isn't purchasing a lot that you know in order to build on it is going to require a variance? Isn't that in and of itself a self-imposed hardship?

[Speaker 1] (1:11:27 - 1:11:30)
Absolutely wrong by rule of law. I'll cite you the cases.

[Speaker 4] (1:11:30 - 1:11:30)
Okay.

[Speaker 1] (1:11:30 - 1:11:32)
Okay. I'll leave you the cases.

[Speaker 4] (1:11:32 - 1:11:34)
I think that's why I asked the question.

[Speaker 1] (1:11:34 - 1:13:13)
Okay. No, as I think and I alluded to is this, and I thought the same thing at one point in time, but I'm never too old to learn. And what somebody pointed out to me, like, hey, don't you get it?

That if that... This is essentially what the appeals court says. They said if that was a case, there'd be no lots being built on.

There'd be no transactions because there are so many lots that are now non-conforming. The town fathers in Lynn and their judgment made essentially all of East Lynn in the zone map is single family. You've been in East Lynn?

Is it only made up of single family homes? That means that virtually every property in that area, which runs from the Hunt along the seashore to Swamp Scott, along the Salem Peabody line, that's East Lynn, is all zoned single family. Drive through it.

That means everybody has to get an approval. So if you had to say, well, you bought that lot and it was non-conforming, yeah, I did. But that doesn't preclude me from getting relief.

That's not a self-imposed hardship. Buying an existing non-conforming lot with the knowledge that it is non-conforming does not preclude seeking and granting of zoning relief. But does it entitle one to it?

No one's entitled to a variance. It's an exception, okay? So that's why it's limited and it's governed by certain criteria.

All I'm suggesting is, yeah, I think the other one was valid, but I also think we can meet the current criteria for the reasons I've outlined. Any questions on that?

[Speaker 5] (1:13:13 - 1:13:25)
Yeah, well, I was just saying that, you know, obviously, if it was our, if the lot was already developed, it would be a very different conversation. The fact is a lot hasn't been developed and I don't see it meeting the criteria for a variance.

[Speaker 1] (1:13:26 - 1:13:27)
Which criteria does it not meet?

[Speaker 5] (1:13:28 - 1:13:31)
Well, I don't think it meets our definition of a hardship.

[Speaker 1] (1:13:32 - 1:13:33)
Well, then you're wrong.

[Speaker 5] (1:13:33 - 1:13:34)
Soiled.

[Speaker 1] (1:13:34 - 1:13:54)
You're wrong and I'll give you the cases. I think it's either palding. Palding.

There's three or four cases that say if you do that, that is a hardship. You cannot leave a lot with no use. And a lot with no use is a hardship.

And that's the case law.

[Speaker 2] (1:13:56 - 1:14:02)
So I happen to think the best argument that you have is the lapse argument that it hasn't lapsed to 1955.

[Speaker 1] (1:14:03 - 1:14:05)
But I don't have the authority, you say, to see that.

[Speaker 5] (1:14:06 - 1:14:07)
You might have that authority, but I don't.

[Speaker 1] (1:14:08 - 1:14:08)
I'll get you the case.

[Speaker 5] (1:14:10 - 1:14:11)
The 1955.

[Speaker 1] (1:14:11 - 1:14:15)
Do we have the 1955? Yeah, it's part of the record here.

[Speaker 2] (1:14:15 - 1:14:16)
It's, I've got it up on my screen.

[Speaker 4] (1:14:16 - 1:14:19)
Maybe while you're looking for that, I had a practical question.

[Speaker 6] (1:14:20 - 1:14:35)
Can I just ask a question? Do you need, as the petitioner, for us to request more, you know, sort of a bifurcated request to say if you find that the existing variance is not lapsed, we would be requesting a written finding?

[Speaker 2] (1:14:36 - 1:15:04)
The application is sufficient because it requests multiple forms of relief, including the variance. The part that an applicant wants to make sure they notice to a butters is the request itself for a variance. Because if they didn't and a variance were requested or needed, it would be a notice deficiency.

I don't think you need to whatsoever.

[Speaker 5] (1:15:05 - 1:15:13)
Mark, can you explain to me how, so if a lot was divided, a lot was created non-conforming.

[Speaker 2] (1:15:14 - 1:16:44)
So the issue is when this lot was created, it was non-conforming, but permitted by variance by a predecessor to this board and that variance. Let's see the Board of Appeals, 1955. So there was notice given for the petition, June 3rd, 1955, to subdivide the present lot into two lots with a plan on file.

And then there is a record that shows on June 3rd of 1955, Otto Friedman in his petition, in the decision petition granted unanimously that all lots have approximately 5,000 square feet. And it describes lot two as having 5131, which is the same as we see on our site plan. That's the lot two area.

The other lot was 5257. Which was lot one that was created and built on. Right, I have that.

That shows the same dimensional area. And that plan was recorded with the registry July 15th, showing this lot at 5131 square feet and 60 feet of frontage.

[Speaker 4] (1:16:44 - 1:16:46)
Does it show a structure or use?

[Speaker 2] (1:16:47 - 1:17:43)
No, but it created a lot of residents. So at that time, 6,000 was required, just as Mr. Demento said. And they created two lots, 5131, 5257.

So that part, when I read in the zoning manual, the pre-1975 variances, this section, it does say that unless it said in that order of relief for the variance, that it doesn't lapse. It looks like there were actions taken with this lot subsequent. But in terms of that protection from the 1955 variance, myself, I see that there's a legal argument that it continues.

[Speaker 4] (1:17:44 - 1:17:53)
Where's the use? I understand it created... First of all, where do we see the variance?

I haven't actually...

[Speaker 2] (1:17:53 - 1:18:06)
Right, but I believe it creates a buildable lot as of 1965. So in 1975, things change because you get this lapse. If you don't make use of it within...

[Speaker 1] (1:18:07 - 1:18:08)
You have to exercise it.

[Speaker 2] (1:18:08 - 1:18:09)
You have to exercise it.

[Speaker 1] (1:18:09 - 1:18:16)
You have to record it to make it effective. And you have to exercise it within one year. The board has the authority to extend, I think, for six months.

But this predated that one.

[Speaker 2] (1:18:16 - 1:18:34)
This predated. This is such a... We haven't seen this because we haven't had a 19...

That I recall, and I don't recall specifically looking at the pre-1975 variance section of the zoning manual.

[Speaker 4] (1:18:35 - 1:18:39)
Where's this easement from if it's not recorded? Where did we...

[Speaker 2] (1:18:39 - 1:18:42)
Well, the plan got recorded.

[Speaker 1] (1:18:42 - 1:18:53)
Yeah, the plan got recorded in 1987. Is that... No, no, in 1955.

That's the one I just handed out. It's this one. It shows the two lots.

So... There's a plan of record in 1955.

[Speaker 2] (1:18:53 - 1:19:08)
We have the plan, Bill. We have the 55 plan here. I have the grant too that's in the record.

I was looking at the...

[Speaker 3] (1:19:12 - 1:19:12)
Go ahead.

[Speaker 2] (1:19:13 - 1:19:24)
Right. So the... Well, the...

But there was no...

[Speaker 4] (1:19:24 - 1:19:35)
In 1955, there was no requirement for recording in our bylaw. Well, I'm also thinking of... I need to be able to trust the documents that we've seen here.

Yeah.

[Speaker 2] (1:19:35 - 1:19:44)
Oh, yeah. Oh, no, I'm just selling what I've seen so far. I don't...

I haven't formed an opinion. I haven't heard what the abutters have to say.

[Speaker 4] (1:19:44 - 1:19:59)
Can I ask a couple of questions about some of the historic? So just so I understand, how long has this house, the house, how long has it been unoccupied? Historic house.

Yeah.

[Speaker 7] (1:19:59 - 1:20:44)
It's not been unoccupied. It's been a rental for the last 40 years and it was clad in vinyl and it's just been a very unnoticeable house until we started, really until we got the request for the demolition permit. That's what triggers our process.

We have to look at any property that's 75 years older and answer two questions. Did someone historically significant live there or did something historically significant happen? And when we started looking into it, we found Pittman.

And so that was why we imposed the demolition delay for further research.

[Speaker 4] (1:20:44 - 1:20:47)
Is it the house or the location?

[Speaker 7] (1:20:47 - 1:21:12)
Well, I think it's the house because I mentioned it's a very special type of colonial framing. There's a lot of details in the structure. A lot of the historic details from the living space have been stripped over the years and it's been modernized.

But these buildings from the 18th century are very solidly built.

[Speaker 4] (1:21:13 - 1:21:31)
So my understanding was there was going to be a pretty extensive renovation to the interior. Are all of these historic details of the framing, are those all being preserved? Or how is it?

Is it being rebuilt according to historic dimensions?

[Speaker 7] (1:21:32 - 1:21:55)
We, our plan is to restore the exterior to some of its original 18th century look. There's actually a really interesting surround on the front door that we hope to restore. And we want to have a plaque, but the inside of the house would be modernized.

It would really be preserving the exterior.

[Speaker 4] (1:21:55 - 1:21:58)
When was the demolition permit, when was that issued?

[Speaker 7] (1:21:58 - 1:22:03)
October 21st, 2021.

[Speaker 4] (1:22:05 - 1:22:22)
So, okay. Because I know timing is an issue here, obviously. Was there any reason it took so long to come before the board?

Or do we know why? I mean, because this is scheduled to be raised like... This week.

[Speaker 16] (1:22:22 - 1:22:23)
So, yeah.

[Speaker 4] (1:22:23 - 1:22:31)
So if this was of such, you know, historic significance, and why wasn't this issue raised previously?

[Speaker 7] (1:22:31 - 1:23:56)
We were looking for a lot. We tried to see if we could keep it on the original lot. And that's, we've been told that's not possible.

We had an attempt at a partnership with Habitat for Humanity, which was, took up a long time. And we worked with them, but I think the issue for them was, even in their original plan, which was for four units, they were going to pursue a friendly 40B. And the complications of moving a historic house for the amount of units they were going to get, I think in the end, they just decided that their efforts had to go elsewhere to size projects that they normally work on.

So we have spent a lot of time looking for a lot. We've looked at some town-owned lands. You know, the issue with moving it, of course, the railroad tracks are very close by.

It's a problem to get it over that bridge. It kind of has to be a lot on that side of Essex Street. So we have been looking very diligently for a long time.

And we identified Mr. Demento's lot as kind of an ideal location. And our house movers see a very clear route to move to that.

[Speaker 4] (1:23:57 - 1:24:16)
So has there been an estimate of the all-in cost that would be incurred to move, to renovate? As I understand it, the street has to get ripped up. There's currently no water or sewer that's on that lot.

So I would think there's quite a bit of infrastructure work that has to happen. Has there been an accounting provided?

[Speaker 7] (1:24:17 - 1:24:43)
Yes, we do have a budget. And I think either Kim or Doug could speak to that budget. But we have a plan that would basically, when we sell the house, we would break even or even make some money and be able to pay the Affordable Housing Trust back for their loan.

But I'm not a budget person. So I would let Doug or Kim add to that.

[Speaker 4] (1:24:43 - 1:24:52)
I'm just curious, because I saw in some of the opposition papers, there's been some references to the cost. So I was curious on that.

[Speaker 6] (1:24:53 - 1:26:01)
Affordable housing is a terrible budget exercise. They're never good. The only reason they work is because somebody comes, some agency, whether it's a local agency or the state, comes in with subsidy.

So you hate the numbers. They're terrible. The acquisition cost, the moving cost, the renovation cost.

And then you want to sell it at a considerably reduced level, because the whole point is to sell it to somebody who's earning probably 80% or lower of the area median income. Somebody who can qualify for a mortgage for a house that's less than what the market is driving. So the budget looks like a typical affordable housing project in the sense that it doesn't work without subsidy.

So we would love to get some of the costs, the costs of the uses down, because that makes what we need to raise for the sources a little bit less onerous. But in all other respects, it kind of has the same pressures that any other affordable housing project has.

[Speaker 4] (1:26:01 - 1:26:33)
Thank you. What about if, and I don't know who would be answering this question, but I'm sure someone will. So let's say that whichever way we decide here, there's an appeal.

And I think someone mentioned the last time this property went into the court system, it took about 10 years for it to get resolved. What happens to the house, and more importantly, what happens to the Elm Place project in the meantime? Does this need to get demolished in order for that project to go forward?

[Speaker 6] (1:26:33 - 1:27:10)
This house, the house right now is on the property that's owned by Bruce Paradise and part of the Wynn-Bruce Paradise partnership. We can't stand in their way. We've gotten some grace period from them understanding that we're trying to do the same thing they are, which is build affordable housing.

And so to the extent that we cannot confound the Elm Place project, we're not planning on confounding it, but we're hoping for as much time to deal with this as we can get. And I guess at some point, it'll be obvious whether that's going to work or not.

[Speaker 4] (1:27:10 - 1:27:27)
But we're not- And you're in a tough position because on one hand, this is a potential house for two affordable units. But on the other hand, you have 114 units at Elm Place with residents that I'm sure, I mean, I think 114, I don't know, I don't remember the number.

[Speaker 6] (1:27:27 - 1:28:11)
The Elm Place train left the station. We're not having, you know, this isn't going to affect Elm Place in any way. It's not a need at all.

Right, right. Well, no, but is it a delay? No, no, no, no, no.

We've only had conversations with the Wynn team to understand what their real timeline is. I mean, I happen to know because the Affordable Housing Trust is also putting financing into Elm Place. I know exactly what their schedule is, and I know when they're likely to close on their financing, which is in the next few weeks.

And so I know how much time we're likely to have based- How much is that? I mean, if I were guessing, and this is a guess, if they close on the financing in the next two weeks, I think they'll continue their site mobilization, and I don't know that we'll get much beyond mid-October.

[Speaker 4] (1:28:11 - 1:28:24)
But that would be my guess. If this goes into the courts and it's held up, and your attorney goes in and gets an injunction to enjoin, you know, the raising of this structure.

[Speaker 6] (1:28:26 - 1:28:28)
We're not going to stand in the way of Elm Place.

[Speaker 1] (1:28:28 - 1:30:45)
I have a question about whether it gets held up. I go back to your most distinguished citizen, Governor Baker, put in one of the provisions about frivolous lawsuits and people who seek to have justice delayed and justice denied. You have to post a bond.

And the other part of this, and I want to end, and I don't want to be preaching and teaching school, but I read the letters that you have, okay? And I can understand. And I told these people this.

Owning a home is like an American dream. And I get opposed by homeowners all the time. And I think they have an absolute right to say what they want, to argue to protect their home, but that doesn't mean they're right, okay?

A man's home or a woman's home could be a castle, okay? You can stand up there and articulate. But in the world of zoning, which we're all under, you have to be a person to grieve.

You have to be an abutter, an abotter to an abutter. It's a rebuttable presumption whether you're an aggrieved person. But all the things I read, do you see anywhere in that petition with 50, 60 signatures that anybody said, because it's a specific harm or injury to my home if this lot has less than the required frontage?

It doesn't say that on the petition. Read the letters. Read the letters that are in opposition.

Nobody articulates how they are harmed by this lot having less than the required frontage. They talk about drainage. Well, you can't build a house anywhere in Massachusetts unless you get a building permit.

You can't get a building permit unless you satisfy the stormwater management. So my question, though, was about the, you know, I would, if anybody brought a lawsuit on this, let me just give you two prompts. I think when people understand the two letters I read, when they understand that they are calling the plot black because they exist because of the variance, the case goes back to like 1948, Cleveland Circle, Grove versus whatever.

You don't have standing. But there are more recent cases, and because it's been troubling, but the criteria is this. And so when people get up and say, oh, parking, that's a community interest.

Traffic, that's a community interest. Density, that's a community interest. So you've got to have a specific harm or injury.

So if somebody brought an appeal, I would attack their standing immediately.

[Speaker 4] (1:30:46 - 1:30:54)
Okay, so why don't we talk about if you are the one that has to appeal? Okay, let's say that we don't, you know, find in your favor and you need to proceed.

[Speaker 1] (1:30:54 - 1:30:58)
Well, then that gives me an opportunity to talk to my two cases, and then I'm going to get the hell out of the way.

[Speaker 6] (1:30:58 - 1:31:07)
But I think it's not. I mean, I think you're asking us to give a roadmap to what happened, to other people and what they can do. Excuse me.

[Speaker 1] (1:31:07 - 1:31:13)
It's your decision, it's your call, but you're bound by these cases. Okay, enough, all right.

[Speaker 5] (1:31:14 - 1:31:20)
What Brad is asking is, in what way do you see this project holding up Elm Place?

[Speaker 6] (1:31:20 - 1:31:26)
I just said we do not see this project holding up Elm Place. We have no right to hold up Elm Place. We have no intention of holding up Elm Place.

[Speaker 7] (1:31:26 - 1:31:27)
It's absolutely irrelevant.

[Speaker 6] (1:31:27 - 1:31:43)
And if we would either, we don't own the building. We don't own the site that it's on. We have, I mean, other than the fact that we're putting money into Elm Place, which is terrific, this is, it would be great if we could do both, but we have no rights whatsoever to have this project affect Elm Place in any way.

[Speaker 4] (1:31:44 - 1:32:16)
Okay, I preface my question. It would be nice if I speak or Heather speaks or a member of the board speaks that you don't, okay? I would also say that to the extent that we have a practical question here, you know, this is a specially noticed meeting.

This was not a regularly noticed meeting. We are doing our best to hear a lot of information and we're being expected to digest 80 years of history of variances and the like. So it'd be nice to give us a bit of leeway to ask questions.

[Speaker 1] (1:32:16 - 1:32:18)
I'm sorry, and I apologize, but I didn't provide.

[Speaker 5] (1:32:18 - 1:32:21)
You're doing it again, you're doing it again.

[Speaker 4] (1:32:21 - 1:32:49)
I prefaced my question by saying it was a practical one. And my practical question was, if in fact you lose and you don't get the variance, and if you can't answer this question, then you can't answer it. Is there a potential that it could have a detrimental impact on Elm Place if in fact you appeal it and it goes into court because the house is going to get knocked down, right?

That's my question.

[Speaker 1] (1:32:52 - 1:32:58)
No. That was a good answer. Okay.

No. No, absolutely.

[Speaker 15] (1:32:58 - 1:33:00)
As Kim said, I'm just reiterating.

[Speaker 5] (1:33:00 - 1:33:01)
So you have to say, yeah, I don't know.

[Speaker 15] (1:33:01 - 1:33:02)
Doug Thompson.

[Speaker 5] (1:33:02 - 1:33:02)
Sorry.

[Speaker 15] (1:33:04 - 1:33:10)
Absolutely, positively not. We're working cooperatively with WIN. This is not going to affect my project.

[Speaker 4] (1:33:11 - 1:33:12)
Thank you.

[Speaker 2] (1:33:14 - 1:34:15)
So I'm just wondering about, I think we've heard the position. First, I'd love to hear if we had anyone, any of the partners that wanted to address the legal issues, and then we can get to, because I think that's like a threshold issue, is whether that legal issue that I raised, or I think that the petitioners raised, as to whether or not they need relief, whether other than a finding, they, in my view, if that were found by this board, that the 1955 variance is effective, it hasn't lapsed, and the lot is buildable, and so long as it's dimensionally conforming, the structure could be located there. If that were the finding of this board, I don't know that you'd get to any of the variance criteria, my thought. So I'm just wondering first, if anybody wanted to address the legal issue, and then if we maybe have some discussion about that issue.

[Speaker 5] (1:34:15 - 1:34:17)
You want to do that before we hear from the abutters?

[Speaker 2] (1:34:17 - 1:34:24)
I think here, if any of the abutters, I don't know if they have counsel, or if they're, if they don't have counsel, if anybody wants to address the legal issue.

[Speaker 5] (1:34:28 - 1:34:55)
So we'd like to hear from the abutters, and we would like, do you have one representative that's, have something to say? So if you have, so if you would like to speak about the legal issues of the lot, then. Okay, then please raise your hand and be recognized, and then when you come to the microphone, when you come to the microphone, please state your name and address.

[Speaker 12] (1:34:56 - 1:35:39)
My name is Dante Roberto. I live behind 7 Hillside, and they mentioned my parents' subdivision of 36 Cherry Street back in 87. I just happen to have the plot plan, and I just want to make sure you people understand that that was a mixed-use property with two existing buildings.

My father ran his business in the garages, and he rented, and then eventually sold the house. That's the reason that subdivision. It has nothing to do with what they're trying to do.

That was number one. The other thing they mentioned, he says every lot has to be built on by Trinity Vitality. Can you help me build on 114 Foster Road?

It's been sitting here for 50 years. Maybe you can help me.

[Speaker 13] (1:35:40 - 1:35:41)
Maybe I can.

[Speaker 12] (1:35:41 - 1:35:42)
Yeah, maybe you can.

[Speaker 13] (1:35:43 - 1:35:44)
All right.

[Speaker 12] (1:35:45 - 1:35:47)
Did you people get the letter with my attachments?

[Speaker 5] (1:35:47 - 1:35:48)
We did, yes.

[Speaker 16] (1:35:48 - 1:35:48)
Thank you.

[Speaker 12] (1:35:49 - 1:35:50)
Is there any questions you'd like to ask me?

[Speaker 2] (1:35:51 - 1:36:00)
Well, so how long have you been in a barter there? Were you there?

[Speaker 12] (1:36:00 - 1:36:13)
Parents purchased the property, I want to say right around when I graduated, 75, 74, 75. They moved to a barter, and I currently exist. I currently do that.

I run a business.

[Speaker 2] (1:36:14 - 1:36:21)
So the litigation that happened in the 80s, that went on for about 10 years, were your parents a part of that, or who was?

[Speaker 12] (1:36:21 - 1:36:23)
All they did was split the property in half.

[Speaker 2] (1:36:24 - 1:36:28)
Right, but I mean, there was litigation concerning this law. Nothing to do with that.

[Speaker 16] (1:36:28 - 1:36:28)
It was in the 90s, yeah.

[Speaker 12] (1:36:31 - 1:36:33)
Attorney Demento represented us at the time.

[Speaker 1] (1:36:34 - 1:36:34)
Mr. G.

[Speaker 12] (1:36:38 - 1:36:54)
Basically, I mean, I don't know what I have to reiterate on here. We represent 70 people who signed. If they don't want it, I stated the reasons why I don't want it.

And I mean, any questions you may have, if you want to take.

[Speaker 2] (1:36:54 - 1:39:39)
Right, well, I've read your petition, and I understand all about the issues that are raised in the petition. And I do think if we got to this, first, I see, in my opinion, I'm one member of the board, I see that we have a legal issue in my mind on this whole issue of the 1955 variance. The relief that's been requested encompasses also, if needed, a request for a variance now for this law.

If there's an analysis of that request for relief that's done by this board, there's a list of all the different factors that we would need to consider. Although the petitioner has said there's questions of standing, it appears to me there's definitely a butters to this lot who could likely demonstrate the issue of standing. I understand that generally in the area, that the butters that are perhaps not immediate butters, but are in the neighborhood, appear to just largely and actively be opposed to the petition.

So that's clear to me. The question I have, I'm not here to decide a popularity contest, because clearly if it were, this would be an unpopular petition amongst the people that are in the room. But I see first that there's a legal issue that I think should be addressed, because you may not get to that step two that weighs that criteria that needs to be considered if a variance is needed.

I think the first issue is the 1955 variance and whether or not it's lapsed and whether another variance is now needed or just a finding that it hasn't lapsed. So my thought is that we should have a discussion amongst our board to see whether people agree with that or not. And then if we need outside opinion on that, perhaps asking Margie about any discussion about that that's occurred with town council and then moving from there.

That's my thought.

[Speaker 5] (1:39:39 - 1:39:53)
Yeah, I do think that if you have anything, because you know the history of the property and because you've lived there so long, if you have anything about the history of the previous variances that you would like to share.

[Speaker 12] (1:39:53 - 1:39:58)
No, pretty much what they said and what I told you. It's a mixed-use property.

[Speaker 5] (1:39:59 - 1:40:05)
Not your variance, sorry. Your variance is not relevant to this at all. We're not concerned about your variance.

[Speaker 12] (1:40:06 - 1:40:21)
That these people, the historical record reflects. I've never opposed. My parents have never opposed.

We have nothing to do with it. I just want to know why they're not going to Stetson Street. Town owns the property.

Why are we?

[Speaker 2] (1:40:22 - 1:41:52)
Well, I think that's not a question for our board. Our board isn't the one to determine. We have an application in front of us that says, okay, first thing is...

Affordable housing is applying to the petitioner. I understand that. I understand that, but we decide a zoning issue.

We decide whether or not 40A or the predecessor statute under Massachusetts law, which governs zoning across the state, when looked at with the Swanscot bylaw, as it has been amended from the time it was in 1955 to the present. That's what governs our analysis and the case law that's interpreted it. And we need to first see, okay, what happens with this petition that's in front of us?

And in terms of other options that the town may have, well, I think that's a question for, number one, for the town or for the petitioner, in terms of how it impacts us. If we get to that step two of our analysis, if this board were to find that that variance has lapsed or that the variance from 1955 requires additional relief, then perhaps we get to those types of factual questions. But I think there's a preliminary legal issue that we need to determine.

It's a hurdle, I guess.

[Speaker 7] (1:41:52 - 1:41:52)
Right.

[Speaker 2] (1:41:52 - 1:42:14)
I think that's it. So my thought is if we get to that second step, then I think all those factual questions that we need to determine the facts to make findings because a variance requires findings by the board, then we would get to that. But I think we first should, you know, that's just my thought.

[Speaker 12] (1:42:14 - 1:42:17)
I mean, in the ordinary- You got to crawl before you walk. You got to walk before you run. I get it.

[Speaker 4] (1:42:17 - 1:42:44)
But in the ordinary course, if this came before us and we weren't under this time schedule because of the wrecking ball that, you know, apparently- That's why I said I didn't go to Stetson. They wouldn't have this for- Well, my point is I would want the abutters or anyone really that's opposed to the project, you know, to have the opportunity to look into, like, the questions that Mark is presenting, which are the right questions.

[Speaker 2] (1:42:44 - 1:42:46)
Race count, how to engage counsel.

[Speaker 4] (1:42:46 - 1:43:24)
Yeah, or even for the board to be able to consider, you know, the issue further. And so I think you could still, at the end of the day, potentially wind up with a variance, which, you know, it could be a project that's built with the exact structure that's being proposed now, but it wouldn't necessarily be this structure. So, in other words, the historic nature of this structure, to the extent that is driving this process, I'm struggling with separating that from all of these legal issues as to whether or not that piece of land can be built on for a variance, right?

[Speaker 5] (1:43:25 - 1:43:58)
So- I see it as regardless. We have to look at the piece of property regardless of what's being built on it or the time, you know, the time constraint isn't ours. And if someone wanted to just build a single family or build a two-family house that wasn't affordable, do we see this as a buildable lot?

And that all goes back to that, to the variance. And to be honest, I'm just kind of now understanding where that history is and how that, you know, case law is presented, that I would want to talk to town council about it. Before I could make that sort of decision.

[Speaker 2] (1:43:58 - 1:44:29)
Well, so what I was gonna ask, Margie, I was gonna ask you a question if- Thank you so much. Thank you. Did you have a- did you know if town council looked at the issue specifically of the 1955 variance not last lapsing because of the case law and- Yes, we did request town council opinion on this matter prior to coming to you.

[Speaker 11] (1:44:30 - 1:44:47)
And Robin Stein, the attorney that we spoke to, did opine that it was her opinion that the decision did lapse and that we would- the petitioners would need to seek a variance from the relief of the fundage.

[Speaker 8] (1:44:48 - 1:44:50)
Yeah, so I think we really got to go back to Robin.

[Speaker 2] (1:44:50 - 1:44:51)
I don't think it lapsed.

[Speaker 11] (1:44:51 - 1:44:52)
Okay.

[Speaker 2] (1:44:52 - 1:44:56)
But I would love to get an opinion from town. I think we're all, you know, I'm looking right in the zoning manual.

[Speaker 11] (1:44:56 - 1:45:03)
Hang on, hang on, hang on. Can we just, we were just, sorry, can you just give us a chance? We can't, you can't.

[Speaker 5] (1:45:05 - 1:45:08)
If you need to leave and talk, that's fine, but Mark's speaking now.

[Speaker 2] (1:45:08 - 1:45:56)
What I was thinking, what I was, what I think is, I don't, I know the whole process has been very accelerated because of the need to get a relief or a decision before the record ballot comes, but we have a meeting next Tuesday. I really think we should just continue this to our agenda next Tuesday and ask Robin to specifically look at what I was pointing out to everyone about the pre-1975 variance and whether or not that is- I agree, I agree completely because this is all very new that I haven't researched yet.

[Speaker 5] (1:45:56 - 1:45:58)
I don't think anybody else on the board has researched yet.

[Speaker 14] (1:45:58 - 1:46:05)
If I may, this has been on the books for two years and we found out 24 hours before the meeting last Thursday.

[Speaker 5] (1:46:06 - 1:46:20)
Thank you, yeah, if you'd like, if you'd like to- I was going to say, based on the nature of their discussions, I would encourage you to let them have some time. Yeah, I agree, I agree. Yes, please, just say your name and your address.

[Speaker 14] (1:46:20 - 1:46:23)
Chris Toler, this is Cheryl Toler. We live at 30 Cherry Street.

[Speaker 5] (1:46:23 - 1:46:24)
We're not lucky.

[Speaker 11] (1:46:25 - 1:46:32)
We've worked damn hard our whole lives. We don't get a house from my parents. I'm a chemo nurse.

I've been getting chemotherapy all day long.

[Speaker 14] (1:46:32 - 1:46:33)
For the first time, homeowners.

[Speaker 11] (1:46:34 - 1:47:09)
I've been out since 4 a.m. All our lives, we've struggled. We are not lawyers, but everything about this- Or have been. Smelled since we first heard about it.

Why are they paying double the cost of that value going on to that man? Why? We would buy it.

He would buy it. We're not buying it at double the cost. We buy it and we use it.

Doesn't make any sense. Why did he represent somebody on 50 Cherry Street to get a variance going against the Zoning Board and lose the case a few years ago? Why did that happen?

That's a conflict of interest.

[Speaker 2] (1:47:09 - 1:48:51)
Those aren't issues. With all due respect- No, I get it. And I appreciate your frustration.

The lack of time that you've had, we share some of that frustration too because it's been accelerated for because of different interests that different people that are in this room have. What I'm suggesting is, I do see a preliminary issue which I think needs to be addressed. It needs to be addressed by town council for us to have an opinion to rely upon because right now, the way I see it, personally, just myself, it looks like all they need is very minor relief from this board.

But I don't want to rush to that decision. I want to make sure I am not mistaken. So I want to send it back to town council to specifically look at the issue that I raised and then return here with an opinion and we're likely to adopt the opinion of town council.

And then if town council agrees with what I think initially, then this board has limited jurisdiction. It just has to find whether or not there was no lapse. But if town council, in her earlier apparent opinion, believed that it did lapse, she can tell us why she thinks that.

And then we would get to the analysis of a variance, the factual analysis. That's where everybody gets to state why they oppose and the specific reasons and how it hurts them and affects them and impacts the use of their property and enjoyment. And we would hear all of that.

[Speaker 5] (1:48:51 - 1:49:27)
How it would affect the community. So the difference between the finding and the variance, the finding would basically be the board saying, yes, you're correct that 1955 variance is still valid. And we're making sort of no decision.

We're saying you have that right. That right goes with the property. And we can't, we don't have the authority to negate it.

That would be what a finding would be. A variance would be a whole nother burden of proof for them. So if town council tells us that, no, that variance doesn't, you know, has expired or has lapsed, then they need to convince us that they qualify for a variance.

And that would be...

[Speaker 2] (1:49:27 - 1:49:28)
It's a substantial difference.

[Speaker 5] (1:49:28 - 1:49:29)
Substantial difference, yes.

[Speaker 2] (1:49:29 - 1:50:09)
In these two issues. One, the legal issue of, do they just need a finding or not? Because that is straightforward for this board to determine if they don't, if the variance has lapsed, then it's a much more factually intensive review by this board with hearing testimony and a very difficult burden for the petitioner to meet.

So that's my thought. I think we should continue the meeting either to another special meeting or to our agenda next week. I'm sorry, if I may.

[Speaker 14] (1:50:09 - 1:50:16)
Yes. We sat down and listened to team four for like an hour and a half. I'd like to say a little bit more.

[Speaker 5] (1:50:16 - 1:50:17)
I agree, I actually, I agree.

[Speaker 14] (1:50:17 - 1:50:19)
I agree.

[Speaker 5] (1:50:20 - 1:50:54)
Hold on a second. Yeah, no, I gotcha. I agree that I want to hear just a preliminary of what the neighbors are thinking and it can kind of guide our conversation for the next meeting.

So we have your letter. So we know a little bit and we've all read it. But if you have something to add now and understanding that really what we're trying to decide for next meeting is if that previous variance is still good, everything you say is irrelevant.

And I don't mean that to, you know, that's just the facts. So just so that you're clear.

[Speaker 14] (1:50:55 - 1:51:26)
Since those letters, I would like to say that since those letters and a couple of times tonight, but since those letters, two people from, call them the opposing team for lack of a better term, have stopped by our house and told us why we should be for that. And both of these people here, here this evening, by the way, have used the same thing that a couple of people from the legal team have done, which is kind of a scare tactic saying, if you don't accept this, the zoning board will screw you really hard later on down the line.

[Speaker 5] (1:51:26 - 1:51:38)
And you're going to get a lot worse. Yeah, pardon my language. So I mean, I don't appreciate that tactic.

It's a tactic we see in front of this board right in front of us all the time. And I don't appreciate it. I'm not accusing anybody of anything.

But what...

[Speaker 14] (1:51:39 - 1:51:42)
It's funny. It's not as funny as your flowers joke in front of my wife.

[Speaker 5] (1:51:42 - 1:51:46)
But yeah. Okay, please don't talk to each other. I'm getting a little...

So we understand...

[Speaker 2] (1:51:46 - 1:51:53)
No one's going to... The only person that's going to speak here is the person who's recognized, which right now is you or the chair.

[Speaker 5] (1:51:53 - 1:52:15)
Or the chair. So I understand that strategy. And obviously anything that comes before us to determine whether or not this is a buildable lot is the same, whether they're doing this project or a different project in the future.

The only way that changes is if 40B comes into play. When 40B comes into play, the board is just a review board and we don't have as much as much say. So that's...

[Speaker 11] (1:52:15 - 1:52:22)
So if this 1955 variance is okay, then can anything go in Swampspot again?

[Speaker 5] (1:52:23 - 1:52:41)
On that property. So that was just... That property was divided in 1955.

And if that has not lapsed and that was deemed to be a buildable lot at the time of division, and that variance has not lapsed, and that's what town council advises us, then that is a buildable lot.

[Speaker 2] (1:52:42 - 1:52:52)
If it's just a buildable lot, that means it has to comply with... Yeah, we're at that with the case. We have to comply with all the setbacks and whatever is permitted in that zoning district at the time.

[Speaker 5] (1:52:53 - 1:52:54)
Yeah, it doesn't mean they can do anything.

[Speaker 14] (1:52:54 - 1:53:10)
When we bought this, our first house, by the way, when we bought this was we were told that not only was that an unbuildable lot, but there was a zoning law in place to protect that from ever being built upon. Because my wife and I, we like our privacy, but we like our outdoor space.

[Speaker 5] (1:53:10 - 1:53:24)
So... Yeah, no, I understand. Unfortunately, I don't know who told you that or what, but there...

And we had trouble even seeing this variance wasn't recorded. So that's what we have to do some more research on that as well.

[Speaker 4] (1:53:24 - 1:54:22)
Right, I mean, to me, if there are people in the town who have these permission slips basically in their basement and they haven't recorded them, and you, when you buy your house, go to the registry of deeds or, you know, you look and see, is there any restriction? You look at the zoning bylaws and you make a decision based on that. In fact, I think the current owner of that property, likely knowing his penchant for, you know, this zoning law probably did the same and probably thought if I built...

In fact, he said, if I need to build something here, I'm probably going to have to get a variance. So he was fooled, it sounds like, as well until somehow this mystery variance appeared, which I'd like to know, frankly, one of my asks is, where did this come from? Where, you know, I need...

This is a very important piece of paper. And, you know, I'd love to see the original. I'd love to see some record of it other than, you know, what's been provided.

But anyway.

[Speaker 5] (1:54:22 - 1:54:25)
So that's research that we can collect between now and the next meeting.

[Speaker 14] (1:54:25 - 1:54:28)
We will be notified when the next follow-up meeting will be.

[Speaker 5] (1:54:28 - 1:54:29)
We will tell you at the end of this meeting.

[Speaker 14] (1:54:30 - 1:54:31)
Thank you very much. Yes, thank you.

[Speaker 11] (1:54:31 - 1:54:48)
So I actually... I've seen her at the Town Council, Robin Stein, on the phone. Okay.

So then I'm not sure, Robin, if you can hear us and then I can put you closer to the speaker and she would say that the variance did not last, but that maybe Robin can restate. Okay.

[Speaker 10] (1:54:48 - 1:54:49)
Yeah, that'd be great.

[Speaker 11] (1:54:50 - 1:54:55)
I can't... I can hear you, Marge. I can't hear anything else that anyone else is saying.

[Speaker 9] (1:54:56 - 1:54:58)
Okay. So I haven't heard the discussion at all.

[Speaker 11] (1:54:59 - 1:55:18)
All right. So could you just... I have you...

I'm in front of the ZBA and I have you, the cell phone, close to the speaker. The question was whether or not the 1955 variance lapsed. And that's something that the ZBA was looking for an opinion.

[Speaker 2] (1:55:18 - 1:56:45)
I can tell her what I'm specifically addressing. Can she hear me? Hi, Robin.

It's Mark Kornetsky. Hi, Mark. Hi.

So I see the 1955 variance and when I look in the zoning manual, section 10-1, there's a section for pre-1975 variances. Sure. And it says variances granted prior to the effective date of 1975, MAS Act C-808 were not subject to lapse under the terms of old chapter 40A and it cites Hogan v.

Hayes and Hunter's Brook Realty. And it says accordingly, unless a deadline for exercise was specified in the municipality's ordinance or bylaw or in the variance itself and absent of material change in circumstance, such a variance could continue in force without limit of time, although not exercised. And then it cites Hogan again.

So my thought was, well, doesn't that tell me that the 1955 variance is effective to determine that this is a buildable lot because there's nothing in the variance that I read that shows me it's limited. I certainly think that there's a strong argument that the 1955 variance did not lapse.

[Speaker 9] (1:56:45 - 1:57:01)
However, ultimately, if that's challenged, only a court can decide that. I'm not sure that answers your question anyway. We look at lapse now, we look at exercise and certainly it was relied upon to divide the lapse with the area we took granted.

[Speaker 2] (1:57:02 - 1:57:06)
Right, there was an A&R recorded in 1955 to create the lot.

[Speaker 9] (1:57:07 - 1:57:28)
Right, so there's certainly, even under modern standards, there's evidence of exercise, but unless there's something on the face of the variance that limited the time, I certainly think there's a strong argument that it didn't lapse. Again, obviously only a court could determine that on a challenge, but yes, I agree with you that there's a strong case that the variance is still good for the lot area that we took granted.

[Speaker 2] (1:57:30 - 1:57:35)
Okay, all right. Well, let me just ask if anyone else had any questions about that for you, if that's okay.

[Speaker 5] (1:57:35 - 1:57:36)
I didn't hear it, sorry.

[Speaker 11] (1:57:36 - 1:57:38)
Yeah, I think we all have a lot of trouble hearing.

[Speaker 5] (1:57:39 - 1:57:44)
Yeah, I think this isn't really working. I'm sorry.

[Speaker 2] (1:57:46 - 1:57:49)
Is there any way you can think of how we can, so that everyone can hear on Zoom?

[Speaker 11] (1:57:49 - 1:57:51)
If she can log on to the team's meeting, yeah.

[Speaker 2] (1:57:53 - 1:57:58)
Robin, any chance you could log on to the team's meeting if Marissa sent you the invite?

[Speaker 11] (1:58:00 - 1:58:17)
You can join via phone, Robin. If I give you the number to call into the team's meeting, you can call in by phone. There will be no camera.

It'll just be you on your phone. Yeah, I can text it to you. Yep, I'll do that right now.

[Speaker 2] (1:58:17 - 1:58:19)
I've got her number right here. You can text too.

[Speaker 11] (1:58:20 - 1:58:21)
Okay, let me just pull it up.

[Speaker 2] (1:58:21 - 1:58:25)
Thank you, Robin. You're the best. This is amazing town council right here, I'll say.

[Speaker 9] (1:58:26 - 1:58:28)
I'll hang up and just when I get that, I'll pop on the team's.

[Speaker 2] (1:58:28 - 1:58:37)
All right, great. Thank you so much. Got to get Marissa back her phone.

[Speaker 5] (1:58:42 - 1:58:44)
I'm not having it. I'm not able to get on.

[Speaker 15] (1:58:45 - 1:59:18)
At the risk of being a skunk at the party, I just want to inform the board that having been immersed in the details of this, it's very, very difficult for me to understand how a continuation of this meeting would lead to anything else but this project not going forward. And I hesitate to say that because I know you guys, we rushed to do this to begin with.

[Speaker 2] (1:59:18 - 1:59:24)
I don't know. We talked about a continuance, but that was before Margie got Robin to give us her opinion.

[Speaker 15] (1:59:25 - 1:59:26)
I just want to provide that context.

[Speaker 2] (1:59:27 - 1:59:30)
And I think our abutters are getting very upset.

[Speaker 5] (1:59:31 - 1:59:37)
Yeah, yeah, which understandably, because they haven't had a chance to say. Please, Gary. I'm a little nervous.

[Speaker 16] (1:59:37 - 1:59:38)
I'm nervous.

[Speaker 13] (1:59:39 - 2:00:39)
Just state your name and your address. I'm Gary Francisco Tata. I live at 40 Hillside.

I'm trying to understand the significance of this historic house. I just moved here three years ago. I moved from Los Angeles to here.

And I'm trying to figure out what the significance of the house is. Because she mentioned that they're going to gut it out, change a bunch of stuff on the inside of the house. What percentage of the house makes it historic?

Because if we're just talking about moving a historic house, how much of it is going to be historic once the move is actually done? So I looked it up online. Service is terrible.

It's one out of four. What are the four? Can you guys look that up to find out what the percentage is of actual historical house?

Because just moving a house over just to move a house over, it's just going to cost everybody a ton of money. So it's like, why move a house over? There's just no reason for that.

Like, why historic? What was the one out of four? What was that?

I don't even, I couldn't keep going with it because I was...

[Speaker 7] (2:00:39 - 2:00:41)
There's one out of four. One out of four.

[Speaker 13] (2:00:41 - 2:01:00)
There's one out of four reasons that makes it a historical house. What are the four criteria and how much is going to be left over after the house is going to be picked up, moved, dropped, re-gutted out, the outside, the siding is going to get redone at some point, the roof is going to probably have to get redone because if you're doing an entire new house...

[Speaker 5] (2:01:02 - 2:01:28)
I think those are all great questions for planning a project like this. But in my mind, the historic nature of the home doesn't affect whether or not this lot is buildable. In my mind, they're two sort of separate issues.

The project is interesting because there's a historical house involved, but it's legally, in my opinion, doesn't change how I see it.

[Speaker 4] (2:01:28 - 2:01:29)
There's no variance.

[Speaker 5] (2:01:32 - 2:01:50)
So the historical nature of the house is sort of, to me, it's interesting, and it makes for an interesting project, and I'm sure that's why they're doing it, and they're saving a house, and that's important. But it doesn't really affect our board's decision as to whether or not this lot is buildable. If that helps at all.

[Speaker 8] (2:01:50 - 2:01:52)
Yes, please. Is Robin here yet or not?

[Speaker 5] (2:01:52 - 2:01:52)
Not yet, no.

[Speaker 8] (2:01:52 - 2:01:53)
Thank you.

[Speaker 10] (2:01:58 - 2:01:59)
Can I take this one?

[Speaker 11] (2:01:59 - 2:02:03)
Yeah, just hold it. I'm Italian, so I have to speak with my hands.

[Speaker 10] (2:02:04 - 2:02:32)
Okay. Is this your name and address? Yes.

Barber Betta. I'm an outsider, Marblehead. I'll give you an outsider's perspective on this as an antique house sort of specialty.

Okay. But it does relate. Just hold on for a second.

Well, we're trying to try to limit it to the legal issue of the variance right now.

[Speaker 2] (2:02:32 - 2:02:33)
We're waiting for town council. All right.

[Speaker 10] (2:02:34 - 2:03:28)
And I understand that. So here's a consider. I'm going to give you a strategy, and you guys decide it.

Because in Marblehead, if this was significant, whether it gets moved or it was built there, if you can get this lot, zone it as a historic site. Okay. The key is Mr. How do you pronounce his name?

The key is this house. It's a two-family house. Okay.

That looks like abandoned. I've been to the site. You really need to see this would be a perfect affordable house.

It's easy to renovate. And the consideration is once you got the Pitman house, you're right. It doesn't really make it historic as the gentleman said.

Also, we don't have jurisdiction. I understand that.

[Speaker 2] (2:03:28 - 2:03:29)
We're not the planning board.

[Speaker 10] (2:03:29 - 2:03:30)
I understand.

[Speaker 2] (2:03:30 - 2:03:37)
We're not the planning department. We're not the select board. We only decide.

Variance. Whether there's a variance or there's a finding.

[Speaker 10] (2:03:37 - 2:03:37)
Okay.

[Speaker 2] (2:03:38 - 2:03:39)
That's not before us.

[Speaker 10] (2:03:42 - 2:05:59)
Yeah, just bear with it. Because I think you can preclude a lot of this legal stuff. Okay.

Because we have to deal with it in Marblehead all the time. So, first of all, if the idea is that you're moving a house, you don't have to build it. Because you can build this.

You can move this house. It can be built without a foundation. Because you're going to build it on a slab.

So, you folks have a grant and you don't need the frontage. Okay. Because you can move this thing around.

And you're not, you know, you don't have to do all of the ordinances. Because you're moving a house. Okay.

And that, the quote on this house being historic is the way it was built. So, you folks have a chance to move a historic house on this lot. And if you gut it, when I say gut it, I mean pull all of the non-historical parts of it.

You guys can have a historic, almost like a museum quality structure. It's a first period house. I've seen it.

I took the photograph of the the trunnels and so forth. I'm, excuse me, the dress as I was building a fireplace in a 1729 house in Marblehead. So, my specialty is antique houses.

If you folks want to make it a real historic. And this is, I think, Nancy's point. Is you ought to consider moving it.

I've got prices on moving it, renovating the house. You need to strip it back to 17, the original construction of the house. And then you folks will have a really nice historic piece of Swampskate.

[Speaker 5] (2:06:00 - 2:06:02)
So, that is what they're trying to do. They're trying to move the house to that lot.

[Speaker 10] (2:06:03 - 2:06:19)
Yeah, I understand. But I think your key is get this property. We're not in the position, you understand, of hiring the builder.

Yeah, no, no, no, no. Or getting another piece of property. Yeah, or getting another piece.

But that's the consideration. I'll help you folks for zero.

[Speaker 2] (2:06:19 - 2:06:20)
That's not what we do, though.

[Speaker 10] (2:06:20 - 2:06:24)
No, I understand. But I just want you to consider it, okay?

[Speaker 11] (2:06:24 - 2:06:24)
Oh, thank you.

[Speaker 5] (2:06:29 - 2:06:33)
I mean, I think we have to.

[Speaker 8] (2:06:33 - 2:07:12)
I wish to be recorded in favor of the application. But I just want to give you some background information. In 1991, I was a member of the Zoning Board of Appeals.

And at that time, I have a copy of the petition. Mr. Demento was representing the abutter. I'm not representing the owner of the property.

He was not the owner of the property at the time. In his submission, by way of an addendum, he indicates the following. The lot was created illegally in 1955, when divided, as shown in the subdivision plan, attached to it, too.

Now, I can only imagine.

[Speaker 2] (2:07:12 - 2:07:14)
I can't hear you that well, Ken. If you could speak up a little bit more.

[Speaker 8] (2:07:14 - 2:07:15)
Oh, I'm sorry.

[Speaker 11] (2:07:15 - 2:07:16)
Is this not amplifying my?

[Speaker 8] (2:07:16 - 2:07:20)
I'm not sure. It doesn't seem to be. It doesn't seem like it is.

Does this help?

[Speaker 7] (2:07:20 - 2:07:20)
Yeah.

[Speaker 8] (2:07:20 - 2:07:55)
Okay, I got to push the button. I just got to read the directions. For the record, I'm not here entitled to selflessly endorsing this application.

I was referred to. Pardon me. You muted the mic.

I'm pushing the button. No, you only have to press it once. Oh.

And it's green. You're good. Oh.

Okay. All right. Now, it's bleeding.

It's bleeding right now. It's bleeding the whole time. Oh, my God.

All right. Sorry, everybody. I'm going to have to be on that, too.

Give it one more shot.

[Speaker 16] (2:07:55 - 2:07:56)
Are we okay now? Yep.

[Speaker 8] (2:07:56 - 2:08:42)
All right. For the record, my name is attorney Ken Schultz with offices at 152 Linway, Lynn Ness. I was referred to as the elephant in the room because I, too, have a very similar petition.

I also wanted to speak in favor of the application. I want to give this board some background. The reason I speak in favor is because in 1991, I was a member of the board the same way you are tonight.

We were presented with the same issues. At that time, Mr. Demento was representing the then owner of the property, a gentleman by the name of Vincent Delisio. At that time, Mr. Demento, in his addendum, indicated the following. The lot was apparently created illegally.

[Speaker 5] (2:08:42 - 2:08:47)
Ken, can we just pause for a second? Because Robin's available, and we'd like to hear her opinion.

[Speaker 8] (2:08:47 - 2:08:49)
You're going to get a chance, Ken.

[Speaker 2] (2:08:49 - 2:08:53)
We fathered Robin. She's been gracious enough. All right.

[Speaker 8] (2:08:55 - 2:08:59)
Hi, Robin.

[Speaker 5] (2:09:00 - 2:09:09)
Hello. Can you hear me okay? Yep, we can hear you.

Oh, it's not possible to raise the volume.

[Speaker 15] (2:09:10 - 2:09:11)
Thank you.

[Speaker 5] (2:09:16 - 2:09:17)
Okay, Robin, try again.

[Speaker 9] (2:09:18 - 2:09:21)
So what's the question you have for me at this point?

[Speaker 5] (2:09:21 - 2:09:23)
I'm going to have Mark ask the question.

[Speaker 2] (2:09:24 - 2:09:44)
So, Robin, I think people weren't able to hear what you were telling me about your opinion that the way I understood it, that it's really for a court to decide, but there's an argument to be made that the variance has not lapsed and is still effective.

[Speaker 9] (2:09:44 - 2:10:29)
So, I mean, ultimately, obviously, ultimately, you know, we can only give opinions. I think, in my opinion, there is a strong argument that the variance has not lapsed. It's a pre-1975 variance, so there's no statutory lapse.

I don't have it in front of me, but I don't recall there being any language in there about the time to use the variance. So, I mean, that's something you would have in front of you. And there was exercise of the variance, right?

Land was divided in reliance on it, and ultimately, one house was built. So I think that the, you know, like I said, my opinion is that there is a strong argument that the area relief is still extant.

[Speaker 4] (2:10:30 - 2:10:34)
Can I ask a question? Sure. No, you want to finish your question?

[Speaker 2] (2:10:34 - 2:10:37)
No, I'm good. I was going to ask about it. That's my complete answer.

[Speaker 4] (2:10:39 - 2:10:52)
Okay, Robin, it's Brad. If I could just ask a question. So the language that Mark read, there was in there, it said, absent a material change in circumstances.

You remember that? Are you familiar with that?

[Speaker 9] (2:10:52 - 2:10:53)
I don't recall that, no.

[Speaker 13] (2:10:53 - 2:10:55)
I can read it again if you want.

[Speaker 2] (2:10:56 - 2:11:15)
This is from the zoning manual. It says, accordingly, unless a deadline for exercise was specified in the municipality's ordinance or bylaw or in the variance itself, and absent a material change in circumstances, such a variance could continue in force. Without limit of time, although not exercised.

Hogan D. Hayes.

[Speaker 4] (2:11:16 - 2:11:41)
So my question on that material change in circumstances, could, you know, the change be something with respect to the plan that was in place for whatever the property or the lot was going to be used for? Could it be a change in ownership? Could it be a change in, you know, the opposition or support of a project?

Could those be the kind of changes?

[Speaker 9] (2:11:42 - 2:12:24)
I don't think that's what they mean, but I'll be honest, I don't know exactly what the zoning manual is referencing when it says material change in circumstance, but ordinarily you don't tie variances to ownership. So I don't think that that would constitute a material change in circumstance. I don't recall if the variance itself was tied to a specific plan.

I don't believe it was. I believe it didn't say a lot. But the other thing from that quote is it talks about a material change in circumstance in an absence of exercise.

And like I said, I do think in this case there's evidence of exercise. The variance was granted, the lot was divided, and a house was built. There's evidence of exercise.

[Speaker 5] (2:12:26 - 2:12:41)
The house was existing before it was divided. Oh, it was? Yeah, the house and garage were both existing and then the lot was divided.

And then they were conveyed into separate ownership, correct? Correct. One with the garage and one with the house.

Gotcha.

[Speaker 9] (2:12:42 - 2:13:14)
So, I mean, there is, again, there's some evidence of what we look to for exercise, just in the fact that there was a division and then there was a change in ownership, which someone could argue is, you know, reliance on the variance. But, you know, again, if there's a challenge, the court's going to determine the issue. My opinion is that there's an argument that the area relief, which is what that variance granted, is still present.

And part of that relates to the fact that it impacts both lots.

[Speaker 16] (2:13:15 - 2:13:16)
Sorry.

[Speaker 5] (2:13:16 - 2:13:31)
So if it was for area relief and then since then a substantial change, could that be that the frontage zoning changed and so it no longer met the frontage? I think that's a reason why...

[Speaker 9] (2:13:31 - 2:13:38)
Would that be a substantial change? I don't know that I would call it a substantial change as much as that's a reason why it needs additional relief.

[Speaker 5] (2:13:40 - 2:13:54)
So it would need... So this variance would... So if the variance is valid from 1955, they would still require an additional variance for frontage because that variance only gives relief for size.

[Speaker 9] (2:13:55 - 2:14:06)
So it's my understanding that's the application that's before you, but I haven't seen the specific application. But the reason they're there is to get frontage relief because the variance only granted area relief.

[Speaker 4] (2:14:07 - 2:14:13)
So the variance only granted area 5131. It didn't give...

[Speaker 9] (2:14:13 - 2:14:17)
Because the frontage at the time was 60 feet and a lot to conform.

[Speaker 2] (2:14:18 - 2:14:20)
So it didn't give use relief? Well...

[Speaker 5] (2:14:20 - 2:14:22)
It didn't need use relief.

[Speaker 2] (2:14:22 - 2:14:24)
The frontage relief was 60 feet.

[Speaker 4] (2:14:24 - 2:14:26)
What was required at the time...

[Speaker 5] (2:14:26 - 2:14:29)
Relief wasn't required, but it is now.

[Speaker 4] (2:14:30 - 2:14:40)
So the variance was for at the time... The time it was the area. It was how large or how small a single lot could be.

[Speaker 5] (2:14:41 - 2:14:41)
Yes.

[Speaker 4] (2:14:41 - 2:15:06)
And it's varied from that in creating... 6,000 to 5131. So, Robin, when you say that...

And thank you, by the way, for being placed on the spot like this. When you say that a court could decide or would have to ultimately decide... So whichever way this board rules, it could be appealed, correct?

[Speaker 9] (2:15:09 - 2:15:52)
There's an application for a variance before you. And I'm not sure if that's the case. I don't know if you're also being asked to take a position on the area.

It probably makes sense that you do. That you either say, we agree or we don't. Although I don't exactly know what's before you.

But certainly, if you grant the frontage relief, somebody could appeal that. If you deny the frontage relief, somebody could appeal that. On the spot, I think it probably makes sense for you to be explicit that you do or don't think the additional area relief is needed.

Because frankly, if you do, you probably should make a decision on that as well.

[Speaker 4] (2:15:53 - 2:16:45)
But again, you guys are calling me cold on this. Okay. So just the reference...

My overriding concern here is the timing and is Elm Place. And I know there's been a representation that there's nothing that we decide tonight or don't decide tonight that's going to affect or impact that. And I'm just concerned that either way we go here, if the abutters take an appeal...

And I know there was a representation that there would be a challenge to standing. But even that takes some time and runs a course and is unpredictable. It's not black and white.

And I think that there was some consideration from the board as to whether or not they do have standing. This could conceivably go into the courts and stay there for quite a while.

[Speaker 9] (2:16:47 - 2:16:59)
You know, I can't... Everyone is entitled to appeal zoning board decisions under 40 to 17. I can't speak to how long it would or wouldn't take for that to be resolved.

[Speaker 4] (2:17:00 - 2:17:04)
Okay. Thanks.

[Speaker 16] (2:17:05 - 2:17:07)
But I do think it probably makes sense...

[Speaker 9] (2:17:07 - 2:17:17)
Okay. Decision to be clear about what relief the board believes is already in place and what relief it's explicitly granting and to make that clear.

[Speaker 5] (2:17:19 - 2:17:28)
Okay. Is there any more questions for Robin? All right.

Thank you, Robin. All right. Everyone have a good night.

Thanks, Robin. Okay. Bye.

[Speaker 2] (2:17:33 - 2:17:59)
Well, I can say that changed my opinion a bit. Because I think that legally they have enough for the lot to be a protected lot except where the frontage did change. In 1955, it was 60 feet.

Now it's more. So I think there's an argument that they need a variance for the frontage.

[Speaker 5] (2:18:00 - 2:18:01)
I agree.

[Speaker 4] (2:18:06 - 2:18:09)
Ken, you still... If I'm still permitted to...

[Speaker 5] (2:18:09 - 2:18:10)
Oh, yes. Ken, you may finish.

[Speaker 8] (2:18:10 - 2:24:15)
Thank you very much. Just to sort of maybe truncate my remarks and not be quite as loquacious as some of the other people here, which puts me at a slight disadvantage. I just have the following observation to make.

In 1991, as I was saying, it was Mr. Demento's opinion that the lot was apparently created illegally in 1955 when divided as shown on the subdivision plan attached here too. With that in mind, the board that I sat on at that time granted the variance. And it was granted primarily on the following basis.

And what I'm going to ask you to do is decide the criteria, not on this question of this variance, by the way, which is the best evidence rule. I couldn't find it either. And I have the same problem on Lodge Road.

They don't exist. What I do have is a subdivision plan, which is of record. But there's a solution to this problem.

And actually, the planning board in its 1949 town report addressed that because they were trying to solve these problems. But I have a better suggestion. And my suggestion is what the board did in 1991.

And we approved the variance. And it was for the following reasons. And this is really in conjunction to what Mr. Vitale said. You don't want to have a lot sitting there unbuilt on for a very limited purpose. And this is what Mr. Dementor wrote. It would create a hardship for the petitioner if the variance were denied because such a parcel of land has no other reasonable use, period.

It would not derogate from the intent of the bylaw, nor would it cause substantial detriment to the public good as the neighborhood homes were constructed on similar-sized lots with similar dimensions for similar uses, period. Additionally, the dwelling unit will create an affordable dwelling with unit without public subsidy and by local person with construction experience. Now, we voted on that.

And my decision, the decision that I voted in favor of speaks to those issues. It's very consistent with the argument that I'm hearing from Mr. Vitale. What we didn't want to create was a lot that was going to sit in perpetuity unused.

We understood that a subdivision plan was done simply because that existed. What we didn't have the benefit of is this newly discovered variance, which I couldn't find, which the board couldn't find. And apparently, Mr. Dementor couldn't find it in 1991, but now has it. That's the situation. So I would prefer that the board act on the variance that's requested. And I think it can.

I think we did it. I think we set a precedent in 1991. And we upheld that decision, I think, in 1997 when it was referred back or amended back by the courts to the board of appeals who re-endorsed the decision and said that, yes, we have that authority to grant the variance.

I think that takes away all of the complications with regard to this mysterious variance, which is not of record because there is, in fact, a recorded A&R plan. Now, the only other difference was that in 1955, the subdivision control law was in existence and it set standards. Prior to that, which in our case in 1949, there wasn't one.

But the planning board understood that. And in 1949, in their town report, indicated that they wanted to clear this matter up. And they were working with local landowners to do that.

I think there's an overriding concern, which is to appreciate what was attempted to be done. Clearly, it was not done in a way that left no stone unturned because there are many stones that are left unturned. We wouldn't be here tonight.

But I think it's clear what the intent was. And I think our board in 1991 understood that. I think Mr. Demento understood that. And that's why he appeared before our board, seeking the relief that we granted in 1991, that we re-supported in 19... Whatever that other year was. 1979.

No, whatever the year. 97. Thank you very much.

So I would ask this board to vote. I would ask this board to vote on the requested variance based upon what was done in 91, the argument that was strongly made, which I would endorse by Mr. Vitale, which you can grant a variance. These are unique circumstances for which you have the benefit of a recorded document, which is the subdivision plans.

They were recorded. They could not have been recorded, nor would they have been endorsed by the planning board, if it didn't have the authority to do that. And I'd also indicate that on those...

My subdivision plan, and I think similarly on the subdivision plan on this particular lot, it's not endorsed with language that says that the decision of the planning board has no effect upon zoning. And that's what they do today. They do it because they want to make sure that it's clear.

But it wasn't endorsed on these plans because it was the intent to create a buildable lot. And for those reasons, I think this is a buildable lot. I think Mr. Demento understood there were issues. I think he addressed them when he came before the board in 91. I think the board responded to that favorably and granted the relief that he sought. I would ask that you not be tied up on the minutiae of this best evidence rule on what constitutes a variance when it's not recorded, and just go to the criteria, which is a lot clearer, a lot less open to supposition, which is do you have the authority, which I believe you do.

And yes, I would ask this board to vote to grant the requested variance that's sought by the applicant. Thank you.

[Speaker 5] (2:24:19 - 2:24:40)
Well, I think, I mean, the problem that we have there, I don't think this is minutiae at all. Under 5.5.2.1 circumstances, a lot lacking sufficient frontage is not eligible for a variance based solely on the fact that it has insufficient frontage. That's going to be a tough hurdle.

[Speaker 1] (2:24:43 - 2:27:01)
I hope that doesn't say anything. Ken understands. I understand.

Of course, there are reported cases in the Supreme Court of Massachusetts and the appeals court that understand that you can't leave a law. You may not like that rule, but that's what the Supreme Court said. I'll give you the names of the cases.

First, the gentleman who asked about a non-conforming law. A parcel of land left without any allowed uses has a hardship as a matter of law. Okay, that's Chateau versus the Board of Appeals of Milton.

348 Mass 237 at page 245. It's a Massachusetts Supreme Court case. But the case I knew, and I'm certain Kenny knew, Paulding versus Burns, 18 Mass Appeals Court, 707 at pages 710 to 712.

Stands for the same principle. You can't leave a lot with no use. If you do, that's the hardship.

It has no visible use. How do you increase the frontage of that lot? It's a physical impossibility.

So every proposal that would come before you would have the same question. Well, you don't have the frontage. So is the answer then no use?

And the court said, no, you can't do that. And then the purchase of a non-conforming use does not by itself preclude zoning relief. And that is Lamb versus the Zoning Board of Appeals of Taunton.

That's 76 Mass Appeals Court 513. That's a 2010 case. I said at the outset, you have the bylaw, you have the state statute, and you have the cases interpreting it.

These are complex questions. That's why when the courts wade into this, they look at it because unfortunately, the world of real estate or the world of zoning is not static. It's dynamic.

What was a sufficient lot size in 1950 may not be a sufficient lot size in 2023. But the lot's not going to change.

[Speaker 4] (2:27:01 - 2:27:09)
So what are the existing circumstances related to soil conditions, shape or topography?

[Speaker 1] (2:27:09 - 2:27:18)
Yeah, keep reading, all right? That create a financial hardship or otherwise, because even they recognized that there could be otherwise. I'll give you an otherwise.

[Speaker 4] (2:27:19 - 2:27:20)
That's not what our bylaw says.

[Speaker 1] (2:27:20 - 2:27:22)
That's 4810 that governs variances.

[Speaker 4] (2:27:22 - 2:27:26)
Okay, I'm reading from, I think, the bylaws of the town of Swanscot.

[Speaker 1] (2:27:26 - 2:27:40)
Well, the bylaw follows 4810, which is the variance statute that says, circumstances owing to soil conditions, topography, slope or the shape of the land that create a substantial financial hardship or otherwise.

[Speaker 5] (2:27:41 - 2:27:42)
We don't say financial hardship.

[Speaker 1] (2:27:42 - 2:27:45)
That's not what ours says. Well, that's what the state statute says.

[Speaker 4] (2:27:45 - 2:28:34)
Okay, well, our local zoning bylaws don't. It says variances shall only be granted upon a finding that owing to circumstances related to the soil conditions, shape or topography of such land or structures, and especially affecting such land or structures, but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this bylaw would involve substantial hardship. And that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such bylaw.

And then it continues in 5.5.2.1 and says, a lot lacking sufficient frontage is not eligible for a variance based solely on the fact that it has insufficient frontage.

[Speaker 1] (2:28:34 - 2:30:12)
And I think I said to you that the key word is the word solely. Okay, there are other factors. Uniqueness, the historic position how this law came into existence, the factual reality that it can never get larger frontage.

There was an exception, and I think Attorney Schutzer knows about, if I bought this lot and then I bought somebody sold me the adjoining lot, I'd have what they call merger by deed. Now I'd have the ability to be forced to meet the current requirement because I got more land. This lot sits there.

It will sit there forever vacant if that were to be the literal interpretation. We went through what's the substantial detriment or derogation to the public purpose. There's a specific purpose and the general purpose is the first section of the zone ordinance that I read to you that says preserving historic structures.

What's the detriment to the public good? To build a residence in a residential district in a town that has recognized it needs more residences. So it's not black and white.

It is a question of what weight you give to various factors, but I don't agree that there's only one factor. If you can't meet that one factor, it isn't a subject to one factor. It's a subject to, as you I thought alluded to in the town council, about what are the circumstances.

When you look at the totality of the circumstances in this case, I don't think you can come to any other conclusion that this is not only a solution that ought to be done, but it has other benefits, other public benefit. It's like getting two or three benefits for one step.

[Speaker 4] (2:30:13 - 2:30:24)
But the circumstances have to be related to either soil conditions, shape, or topography of the land or structures. So that's what I'm trying to understand.

[Speaker 3] (2:30:24 - 2:30:25)
Read the next paragraph.

[Speaker 4] (2:30:26 - 2:30:29)
Yeah, right. I mean, I just did. I read the entire thing.

Substantial thing.

[Speaker 1] (2:30:29 - 2:30:33)
Yeah, the statute says what I said it says.

[Speaker 2] (2:30:33 - 2:32:00)
So I would suggest that our bylaw can't go further than what the state statute states. So 48 section 10 for variances does provide specifically where such permit granting authority specifically finds that owing to circumstances related to the soil condition, shape, topography of such land or structures, and especially affecting such land or structures, but not affecting generally the zoning district, which is located to enforce the provisions of the ordinance or bylaw would involve substantial hardship, comma, financial or otherwise, comma, to the petitioner applicant, comma, and that desirable relief may be granted without substantial detriment to the public good without nullifying or substantially derogating from the intent or purpose of such ordinance. So our bylaw does go further than mass law, which is not correct as we found out when we got that whole analysis of the findings that we've been doing with changes to one in two family houses with what's the case? Yes.

Yes. So, but that's the analysis. I was just wondering, can we take a two minute break?

[Speaker 5] (2:32:00 - 2:32:00)
Yeah.

[Speaker 1] (2:32:26 - 2:32:27)
Yeah.

[Speaker 11] (2:32:38 - 2:33:09)
They're still there. I mean, they seem to be okay. Not sure when Lloyd's gonna run out of money, but they're still there.

Don't worry about it. I totally understand.

[Speaker 16] (2:33:13 - 2:33:14)
Yeah.

[Speaker 10] (2:33:33 - 2:33:33)
Okay.

[Speaker 11] (2:33:34 - 2:33:42)
Not yet. Okay. No, it's interesting, but it's just, it seems like there's so many...

[Speaker 1] (2:33:46 - 2:33:47)
It's always been a new show.

[Speaker 11] (2:33:47 - 2:33:52)
And there is. And you can go back and go back, and if something wasn't decided...

[Speaker 1] (2:33:52 - 2:33:54)
Yeah. 49.

[Speaker 13] (2:33:54 - 2:34:03)
And like they said, the thing that I was shocked by when they first started the music was how many things did ended in there was a flood of time, but we didn't have records. I just wanted to say hi, I've never shaken a councilman's hand.

[Speaker 11] (2:34:03 - 2:34:05)
Oh yeah. We're not that fancy.

[Speaker 13] (2:34:05 - 2:34:08)
We got mics, yeah.

[Speaker 11] (2:34:09 - 2:34:10)
We're not fancy.

[Speaker 15] (2:34:18 - 2:34:26)
Wow, okay. And they didn't tell me about special meetings. It was going until 11.30, until like the first five meetings.

[Speaker 16] (2:34:27 - 2:34:36)
Two minutes in and out. Yeah. It's a lot of emotion.

Okay, I mean you can understand why.

[Speaker 7] (2:34:36 - 2:34:38)
It's okay. Yeah.

[Speaker 11] (2:34:41 - 2:34:54)
Oh, this was my question. Yeah, it's the case, right? Yeah.

Right here.

[Speaker 2] (2:34:54 - 2:34:56)
Right here, so...

[Speaker 11] (2:34:56 - 2:34:56)
Right here.

[Speaker 2] (2:34:58 - 2:35:00)
So it's...

[Speaker 13] (2:35:00 - 2:35:00)
Yeah, I know.

[Speaker 11] (2:35:01 - 2:35:06)
If there was to be change, anything left alone would be like a shooting.

[Speaker 2] (2:35:07 - 2:35:14)
I'm just wondering if that frontage is protected on the job in our plan that's recorded.

[Speaker 11] (2:35:14 - 2:35:20)
I'm thinking it, right? He's going to come and say that.

[Speaker 16] (2:35:21 - 2:35:22)
I don't know. All right.

[Speaker 5] (2:35:25 - 2:35:31)
Is that about him? He's listing off like a bunch of... I don't know if we'll get an answer.

[Speaker 11] (2:35:44 - 2:35:48)
We've all heard the words unbuildable. Right?

[Speaker 16] (2:35:51 - 2:35:51)
Yeah.

[Speaker 11] (2:36:12 - 2:36:13)
Right, yeah.

[Speaker 16] (2:36:17 - 2:36:18)
You still look good.

[Speaker 11] (2:36:19 - 2:36:22)
You didn't miss that, huh? It's been too long.

[Speaker 10] (2:36:26 - 2:36:27)
Do you need more time?

[Speaker 5] (2:36:33 - 2:36:39)
I can't even get... I need water. Is there water in this building?

[Speaker 4] (2:36:41 - 2:36:43)
It's still warm. It's not just me.

[Speaker 5] (2:36:43 - 2:36:47)
No, hey, I'm of that age where everything's warm and this is even worse.

[Speaker 16] (2:36:47 - 2:36:50)
I don't have AC in my house, so I'm actually really...

[Speaker 5] (2:36:51 - 2:36:55)
not being comfortable. Temperature-wise...

[Speaker 11] (2:37:09 - 2:37:12)
It's Tuesday.

[Speaker 5] (2:37:23 - 2:37:33)
Everyone's engaged in a lot of time. I'm not saying you're not going to be able to speak. I'm saying that I'm going to...

I'm going to poll the board as to what our next step is.

[Speaker 8] (2:37:40 - 2:37:46)
We do, yeah.

[Speaker 5] (2:37:48 - 2:38:09)
It's not physically printed out, but we have it. I think they're both in there. The 91 case very specifically says...

It says... They're kicking us out. It very specifically is attached to the...

[Speaker 11] (2:38:09 - 2:38:11)
Let's call. Let's call.

[Speaker 5] (2:38:17 - 2:38:43)
Do you think we all left? That's what he says. That doesn't mean it's true.

We have to research it. I can't read five Supreme Court cases right now on my phone.

[Speaker 4] (2:39:01 - 2:39:02)
...

[Speaker 5] (2:39:22 - 2:39:27)
Are you ready, Mark? Yeah.

[Speaker 16] (2:39:27 - 2:39:28)
Okay.

[Speaker 5] (2:39:29 - 2:39:34)
Do you have something you want to share, Mark? Did you look something up? I'm still researching.

[Speaker 2] (2:39:34 - 2:39:56)
I'm trying to figure out... I've got a separate case I've been working on. I'm just wondering about that ANR plan that was recorded.

If that protects it. My memory is that there's an issue about whether or not it's my grandfather's that lot or not.

[Speaker 5] (2:39:57 - 2:39:57)
Okay.

[Speaker 2] (2:39:57 - 2:39:59)
I'm still researching it.

[Speaker 5] (2:40:00 - 2:40:58)
I think one of the issues I have is that I've just been given a ton of information and I can't research it in real time. That, for me, is a problem. I don't feel like I could make a good decision with all this new information.

You gave me several court cases I have to read now that is heavy reading for me. From my point of view, I don't think I could be prepared to make a decision today, but I'm only one person on the board. If the rest of the board feels differently and feels prepared to make a decision, but I feel like we have a lot of...

There's a fly over here. I feel like we have a lot of contradictory information and I'm not prepared to make a final decision without doing a little more research. I understand that that puts you guys in a tough spot because of the demolition, but you were saying you think you probably have until mid-October.

We have a meeting next week.

[Speaker 2] (2:40:59 - 2:41:00)
Brad won't be here next week.

[Speaker 5] (2:41:00 - 2:41:05)
Brad won't be here next week, which is a bit of a problem. But... Yes.

[Speaker 15] (2:41:07 - 2:41:29)
That's when the House needs to be moved by. A decision like... If you wanted to come up with something like a meeting in a day or two, that might, but literally a week is basically makes it impossible to achieve getting it off the lot in time so that we do not disrupt Elmwood's...

[Speaker 5] (2:41:29 - 2:41:36)
I understand that. The reality is, what are the odds of getting a meeting in 30 days anyway?

[Speaker 11] (2:41:37 - 2:41:39)
Is there for an appeal?

[Speaker 15] (2:41:40 - 2:41:41)
That's part of the timing.

[Speaker 5] (2:41:41 - 2:41:42)
That's part of the timing, yeah.

[Speaker 11] (2:41:43 - 2:41:44)
So...

[Speaker 4] (2:41:50 - 2:41:50)
Realistically...

[Speaker 5] (2:41:50 - 2:41:54)
I can't do Wednesday, Thursday, or Friday. And I can't research it by tomorrow.

[Speaker 4] (2:41:54 - 2:43:20)
I feel like it's so squeezed. This is not to suggest for a minute that I don't fully support the mission of historic, but that is, in my opinion, what is making this really difficult because that entire time crunch is created not whether or not a variance should be granted because I think that should have time. I think the abutter should have time.

I feel like this is, if we're going to deviate from our bylaw based on the state law, that's something that I would like to look into and consider, and I feel like all of this time pressure is based on historic. And I'm wondering, you know... So I feel like the decision that we're being faced with is whether or not we agree with the historic piece of this.

Because if the answer to that is no, or we might, but we're not ready immediately to make that call, then why are we rushing this? Why not give everybody a chance to fully digest, metabolize, understand, and make a good decision for all of the residents and other interests in Swanstown? And that's the issue I'm feeling is you know, are there any other...

I appreciated the presentation about the historic nature of the house, but boy, the timing on this is really a challenge for me to get to.

[Speaker 7] (2:43:21 - 2:43:22)
It's a challenge for you.

[Speaker 4] (2:43:23 - 2:43:27)
No, I know you guys have put a ton of work into it, and you wish this was two months ago.

[Speaker 5] (2:43:27 - 2:43:34)
I know Mark is feverishly researching right now, but does... Is there a feel the board is...

[Speaker 2] (2:43:34 - 2:45:07)
Well, I can tell you one thing. So I recall, I've been on this board so long, I've been on, I don't know, 15 plus years, and I remember this is what I was thinking of. So there was a change in our bylaw, and I'm sure Mr. Demento remembers, I'm sure Mr. Schutzer remembers, in which there was a rush with some of these lots that were existing throughout town to come before this board for relief because there was a change and you had, I believe it was a period of time to act, I want to say it was five years or two years, I can't remember what it was, and a bunch of lots came before our board because I was thinking, oh, there is depending on what your bylaw says, there's some protection on that frontage and that may have been a way to protect this lot, but this lot didn't come before the board while I've been on it when these other ones did. So I'm not sure if I'm correct about that, but I think I am. So I don't think, that was my last area of concern, that is there a legal issue that protects this lot, and my memory was sometimes as faulty, is that when we changed the bylaw, it was probably around 2010 would be my guess, because I started on the board in 07, and there was a rush of lots that came before us for protection that were undersized and that lacked frontage and we were able to grant relief at that time, and this lot didn't come.

[Speaker 5] (2:45:07 - 2:45:08)
And that time span expired.

[Speaker 2] (2:45:09 - 2:45:11)
I bet you Mr. Dementor remembers the section.

[Speaker 3] (2:45:14 - 2:45:25)
Just one second. It doesn't apply, Mark, because it dealt with people that held lots in common ownership. That was the difference.

And we gave them time, we.

[Speaker 2] (2:45:27 - 2:45:27)
Bylaw.

[Speaker 3] (2:45:28 - 2:45:38)
The town gave them time to divest it. So they didn't merge. And then confirm that with the board, and a lot of people did it.

[Speaker 4] (2:45:40 - 2:45:52)
Are you concerned at all if you apply for the variance and let's say it was denied, you would have a waiting period before you would be able to.

[Speaker 15] (2:45:52 - 2:45:53)
We would withdraw before.

[Speaker 4] (2:45:54 - 2:46:10)
You would. Okay. I see this as sort of a expression, but no win, because if we allow the variance and these folks appeal, then that October date is going to come and go, and there's the chance it starts to bleed in, and I know that's the last thing you guys.

[Speaker 15] (2:46:11 - 2:46:18)
That's our issue to deal with, and we have ways to deal with that, so the decision is the critical first step.

[Speaker 3] (2:46:19 - 2:46:51)
You know, it is in everything. I'm sure I don't know many of the members of this board. Let me mark.

Really. Usually a board will give a petitioner an opportunity. Thanks.

Getting old. Usually a board would give a petitioner the opportunity of getting a sense of the board prior to the vote to give them an opportunity to withdraw it if necessary. So that's why I wasn't concerned.

Okay. That's our custom as well.

[Speaker 6] (2:46:51 - 2:47:33)
Yes, it is. Just as a point of clarification, based on the idea that if you are denied, you cannot, you know, does that also apply to a new petition under 40B? For example, if this is ultimately denied, let's just say we didn't withdraw.

I understand we would likely do that. If we didn't withdraw and it was denied, does that preclude a new petition under 40B in a shorter time frame because it's a different type of petition? Do you know the answer?

[Speaker 1] (2:47:33 - 2:47:34)
I don't know the answer either.

[Speaker 5] (2:47:40 - 2:47:41)
Under 40B.

[Speaker 1] (2:47:48 - 2:47:57)
You can come back, but you have to demonstrate that the petition that got denied and the one that's now being proposed is a material change.

[Speaker 6] (2:47:58 - 2:48:37)
What I'm getting at, what I'm getting at, if it's not obvious, is that it is very likely that there would be a follow-on petition by somebody, probably not the Affordable Housing Trust as the petitioner, to do additional which would definitely fall into the criteria because it would be a material change. It would be more units under 40B. It might even aim to use Mr. Zletz's parcel. There's other land there that in theory could be used. I just want to understand what the time frame would be before this came before you again, kind of dealing with this same lot.

[Speaker 5] (2:48:38 - 2:48:40)
I think a 40B would be a material change. That would be my opinion.

[Speaker 6] (2:48:40 - 2:48:44)
Material change? One year.

[Speaker 8] (2:48:45 - 2:48:48)
On a 40B, you have to wait to reapply.

[Speaker 5] (2:48:48 - 2:48:51)
They're not applying for a 40B.

[Speaker 8] (2:48:51 - 2:48:57)
The question I thought, the question was asked by the chairperson of the Housing Trust.

[Speaker 6] (2:48:57 - 2:49:03)
Just to understand what a follow-on services could look like.

[Speaker 8] (2:49:04 - 2:50:30)
If I could just, I have one last thought. Thank you. It appears to me that there's a concern that was raised by at least two members of the Board of Appeals with regard to their interpretation of the reading of our zoning bylaw.

There are a number of cases that were cited by Mr. Vitale which I would subscribe to, which I would ask that he provide to this board because I think it would clarify for them, at least I hope it would, that there is a way of viewing this in a much more open-minded, rather than being constrained by the wording itself because clearly there's case law that defines zoning bylaws and there clearly is case law that I think identifies variances and under what circumstances they can be granted.

It would be impossible for you, based solely upon Mr. Vitale's representation of what a case stands for, that you're being given an opportunity to read them. I think that could be done. I think you could get them probably to you, I don't want to speak for Mr. Vitale, but probably by tomorrow. And I think it would give you an opportunity for you, if you felt comfortable, because you know something? We felt comfortable in 1991 that we had that authority. I still think you do, but apparently this board thinks, at least two members, I believe think otherwise.

I would like this board to have the opportunity of reading those cases.

[Speaker 5] (2:50:31 - 2:50:37)
I think the reality of getting the cases, reading them, and getting a meeting this week is getting us all in one place again.

[Speaker 8] (2:50:37 - 2:50:45)
Well, the other possibility, Ms. Chairperson, would be that you'd get an opinion from Robin Stein, who is clearly well-versed.

[Speaker 5] (2:50:45 - 2:50:54)
That's true. I guess you'd still have to gather everybody for another meeting, and I think doing that before next week. This is a volunteer board, everybody has jobs and lives.

[Speaker 8] (2:50:54 - 2:51:24)
No, but you're going to be on the 19th, a week from today, as I understand, your meeting. Yes. It'll give you a week to review these decisions, speak to Ms. Stein, hopefully agree that the decision we made in 1991 was supported not by a capricious argument on the part of the Board of Appeals, but because we as a board understood, appreciated, and addressed the concerns that were being raised by this board.

[Speaker 5] (2:51:25 - 2:51:36)
I'm going to speak to the petitioner real quick, because I guess the question is, does if this is postponed to next week, my understanding is it's a no-go. There is no option for you there.

[Speaker 6] (2:51:38 - 2:52:32)
So, just to be clear, the Affordable Housing Trust is supporting this petitioner, or is supporting this project, because in order to develop this, the money is needed and we want to do affordable housing. The timing pressure is on historic preservation. It's really the Historic Commission's project in a sense, because it's tied to this one house.

So, I mean, I think that it's likely, you know, we might have a wiggle, I don't know for sure, but we could get a little wiggle room, but, you know, you're right, there's a 30-day appeal window that we still have to deal with. There's an appeal window that is more weeks, so, you know, we'd be running up, we're already running up again. To say we're dead in the water, I mean, I don't know if I believe that, but I would say it becomes increasingly likely we're, you know, we get there.

[Speaker 5] (2:52:32 - 2:53:02)
I mean, I can say as, if I can be convinced that something's grandfathered, then I can be swayed, and that would be, you know, I would need research and I would need help with that research, but if this is to create a new variance, I probably can't be swayed. I think it's nice for you to know where we are so you can make decisions. I don't know how everybody else feels.

Mark, do you want to share how you feel or is Mark still reading?

[Speaker 2] (2:53:03 - 2:55:09)
Well, so the provision in our bylaw that I was thinking of, 2.3.5.0, talks about unimproved lots grandfathered or undersized lots, which says any unimproved lot that does not conform to the lot area or frontage requirements of this section, 2.3.0.0, shall be governed by the provisions of 48 Section 6, the Zoning Act, Paragraph 4. And then when you look at the Zoning Act at Paragraph 4, it talks about that, about that common ownership. Any increase in area frontage, width, yard, or depth requirements of a zoning ordinance or bylaw shall not apply to a lot for single or two-family residential use, which at the time of recording or endorsement, so that we have here, whichever occurs sooner, was not held in common ownership with any adjoining land.

So it was at the time of recording, it was held with, but then it was conveyed out and had less than the proposed requirement, but at least 5,000 square feet of area and 50 feet of frontage. Then it goes on, any increase in area frontage, width, yard, or depth requirement of a zoning bylaw shall not apply for a period of five years from its effective date, or five years after January 1, 1976, whichever is later, to a lot for single or two-family residential use, provided the plot, provided the plan for such lot was recorded or endorsed, and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January 1, 1976, and had the 5,000 square feet of area and 75 feet of frontage there, which it doesn't have.

So... I think I've exhausted my... I do think that for the frontage, I do think that a variance is required.

[Speaker 8] (2:55:09 - 2:55:56)
So I think we've got to go through that analysis. That's my thought. So my suggestion earlier was that maybe you can get an opinion from Town Council, not with regard necessarily to the lapse of variance, but to the question of your authority to grant a variance based and predicated solely upon case law, which I would suggest Mr. Vitale has and would be more than willing to share with you. Because as I was saying, and I'm just going to repeat this one last time, we found back in 1991 that desirable relief may be granted without nullifying or substantially derogating from the intent or purpose of the zoning bylaw. We also indicated that denial of the requested variances would cause petitioner financial hardship by leaving him with an unbuildable lot. That clearly is the situation we find ourselves in.

[Speaker 5] (2:55:56 - 2:56:01)
The petitioner is not being left with an unbuildable lot. The petitioner doesn't own the lot.

[Speaker 1] (2:56:05 - 2:56:07)
We have standing...

[Speaker 8] (2:56:07 - 2:56:29)
They have standing for that purpose. My point being was this decision hasn't been challenged since 1991 successfully. It still stands for the proposition that we made the right decision.

If your board were to take a position contrary to that, I guess you're saying that we made a mistake.

[Speaker 4] (2:56:29 - 2:56:33)
It was challenged, though. Wasn't that the decision that you appealed?

[Speaker 8] (2:56:33 - 2:56:49)
It was remanded back to the Board of Appeals and we subsequently substantiated the decision as being appropriate. That decision was not appealed. That decision is still valid, as far as I can tell.

The one you just read.

[Speaker 4] (2:56:49 - 2:56:53)
That was in 1991. That was challenged and then it was remanded.

[Speaker 6] (2:56:56 - 2:56:59)
Can I just... So we can move along.

[Speaker 8] (2:56:59 - 2:57:01)
All I'm saying is...

[Speaker 5] (2:57:02 - 2:57:04)
I feel like we've heard a lot of all these have to say.

[Speaker 8] (2:57:04 - 2:57:06)
I've been given little and no consideration.

[Speaker 5] (2:57:07 - 2:57:12)
All I want you to do... Excuse me, Ken. You have been given a lot of consideration.

You've been talking this whole time.

[Speaker 11] (2:57:13 - 2:57:13)
I have?

[Speaker 5] (2:57:13 - 2:57:19)
I would love the petitioner to speak and clarify how she would like to move forward.

[Speaker 6] (2:57:19 - 2:58:23)
The petitioner understands that you need... She's got one. She's got two.

And I also have a really loud voice. The petitioner understands that you need time to digest this situation. I just want to make sure I understand that your decision that you're going to digest and meet again on is whether or not the petition meets the criteria.

I understand you probably all believe at this point that we need a variance and that the matter on the table is to determine whether we have met that this petition meets the criteria for granting the variance. And we are hoping you will use all of the tools at your disposal including, but not limited to, the case law and the facts and understanding what's relevant and necessary and including past decisions of the Board of Appeals, as Mr. Schutzer has mentioned. But we understand that you need more time to do that.

And we're willing to... Obviously, we're agreeing that you need to do that.

[Speaker 2] (2:58:24 - 2:58:51)
One thing I would say, the argument that they're making about a financial hardship being grounds for a variance, that's what the state statute does say. Our bylaw goes too far. I do think that the language provides for that to be criteria.

I would think everybody should read 48, section 10. I can send around or submit a copy to Marissa so she can upload it to the file.

[Speaker 5] (2:58:53 - 2:58:58)
No one right now is claiming a financial hardship as grounds for a variance.

[Speaker 2] (2:58:58 - 2:59:24)
Well, I think that they are. They're saying because they can't make use of the land that it's a financial hardship. So it's just part of our analysis.

Whether or not they even have... That's what you often get when you're looking for a variance from the petitioner's side. It's, well, how do you prove your hardship?

And if they can't prove the hardship, it's like, well, you're not going to get your variance. So, Mr. Vitale, is that suggesting we've got a financial hardship, which is enough?

[Speaker 4] (2:59:24 - 3:00:13)
Can I ask a question of the abutters? Is there any... Take the historic, this Richard's, you know, Joseph Richard's Pittman House, and I appreciate, you know, that he was, you know, shot ducks that morning on the sea and rushed to be at Lexington.

I know the whole story about it, and that's admirable. He was with, I think it was Admiral Farrington in his regiment. But I'd like to know, take that out of the equation, is there any structure?

Is there any house? Is there any kind of dwelling that you as abutters would be okay with? Or is it your position that it absolutely has to remain a vacant lot?

[Speaker 14] (3:00:13 - 3:00:33)
I'm not familiar with what kind of structures you're talking about. I was, again, two-story... I'm sorry.

I don't know what type of structures you're talking about specifically, but I was opposed to a two-story structure that's supposed to be on a giant lot seven and a half feet away from my property line.

[Speaker 7] (3:00:36 - 3:00:38)
Of course it is.

[Speaker 4] (3:00:39 - 3:01:04)
Okay, thank you. I just was curious if it was an absolute, you just don't want any structure there, because I think we've been considering the structure that's part of this plan, but I think the question would be if the mission here is to add affordable housing and that lot is something that could be used for that purpose in a way that wouldn't be as infringing on your perception of your privacy and things like that, that's just not something that I'd want to know.

[Speaker 14] (3:01:04 - 3:01:08)
Okay, I'd like to say no. There's no structure that I would like in there.

[Speaker 5] (3:01:12 - 3:01:38)
So I just want to ask the board quickly, do you feel that you would be able to make a decision on whether or not they qualify for a variance today? If we are in agreement, or I should ask that first. Are you in agreement that one is required?

I think Mark is. That a variance is required. That the old one, are they needed for frontage?

[Speaker 2] (3:01:38 - 3:01:43)
If the variance did not lapse, I think it's there, but that's just for the lot. Yeah, it's for frontage.

[Speaker 5] (3:01:44 - 3:02:06)
Okay, so that's a consensus. And then I guess the consensus is, do you feel, would you feel comfortable voting on, or stating your opinion on that here now to give the petitioner some information or do you want to go back and research and continue and come through next week when we're already here, but unfortunately Brad is not.

[Speaker 11] (3:02:09 - 3:02:11)
I'm here, but I'm virtual.

[Speaker 5] (3:02:11 - 3:02:11)
Okay.

[Speaker 2] (3:02:12 - 3:02:14)
So, just give me one second.

[Speaker 11] (3:02:14 - 3:02:16)
I'm here, but I'm virtual. I'll be here, but I'll be away.

[Speaker 5] (3:02:17 - 3:02:18)
So we'll have a quorum.

[Speaker 4] (3:02:20 - 3:02:23)
You'll be sad. Yeah, unless my plans somehow change.

[Speaker 2] (3:02:24 - 3:02:26)
Or if you could join by Zoom too, I suppose.

[Speaker 7] (3:02:26 - 3:02:27)
Yeah, I'll be Zooming in.

[Speaker 2] (3:02:29 - 3:02:42)
I just wanted to make sure we cover the criteria for variance. I just want to look at our bylaw.

[Speaker 11] (3:02:45 - 3:02:47)
I'm even confused as to what a buildable lot is now.

[Speaker 5] (3:02:48 - 3:02:55)
I need to do a lot of reading. I agree with the claim that every lot, I mean, there has to be eventually.

[Speaker 11] (3:02:56 - 3:02:57)
I think every lot is a buildable lot.

[Speaker 6] (3:02:59 - 3:03:07)
Well, I mean, it's a term of art at this point, right? So you can do what's in your purview. You make it buildable, right?

You have tools and you make it buildable.

[Speaker 7] (3:03:08 - 3:03:08)
I guess.

[Speaker 6] (3:03:08 - 3:03:12)
Is there no such thing as an unbuildable lot? I mean, you know.

[Speaker 11] (3:03:13 - 3:03:13)
Yes, there is.

[Speaker 6] (3:03:14 - 3:04:04)
There are things that should not get built, like buildings that are so small that you couldn't be in it. That would, if a lot was so small that the only thing you could build on, it wouldn't be fit for habitation. I mean, I guess that might actually be unbuildable, but I think if you can put something on it that's fit for habitation and you have the tools, the existing tools to allow for it, then it can become buildable.

This is a 5,000 square foot, I mean, my house is on a 5,000 square foot lot. Every house in my neighborhood is nonconforming. I had to build a porch.

I had to come to you guys just to rebuild my rotting back porch. So this is swamps guy. You have the tools to handle this question, and none of us and all of us have buildable lots.

There is a difference between a developed lot and an undeveloped lot. This is in a neighborhood with similar lots with houses on them.

[Speaker 5] (3:04:05 - 3:04:18)
I did my poll, but I didn't feel like I got a lot of information. Are people comfortable with hang on one second, are people comfortable with, would people prefer to continue and do more research, or are people prepared to make a decision? I'd like to continue.

[Speaker 2] (3:04:19 - 3:04:21)
I just needed one more second.

[Speaker 12] (3:04:21 - 3:04:23)
Go ahead, you had a question?

[Speaker 5] (3:04:24 - 3:04:25)
The microphone.

[Speaker 12] (3:04:26 - 3:04:36)
There's plenty of structures on 5,000 or less. I have 6,800 square feet, and I can't get a building permit for 114 Foster Road, so I don't know what she's talking about.

[Speaker 5] (3:04:37 - 3:04:50)
No, I mean, pre-existing. There's a lot of pre-existing undersized lots in town, and there's a lot of lots to protect those properties that are pre-existing, that are already built, that can help people do additions, but when a lot is vacant, it becomes a different ballpark.

[Speaker 6] (3:04:50 - 3:04:56)
But you're asking what makes it buildable or not, and I'm saying it's the tools you have that make it buildable.

[Speaker 11] (3:04:56 - 3:04:57)
And the laws we have.

[Speaker 6] (3:04:57 - 3:04:59)
Do you have a couple more minutes?

[Speaker 2] (3:05:00 - 3:06:07)
I'm done. I think we've heard what the petitioner has argued for their criteria for proving their hardship, or demonstrating their hardship, arguing that it's financial. Solely, I would suggest, being able to use the lot and also for preserving a historic structure, that it provides an opportunity for that.

And I think the analysis is, just as it states in the state statute and in our bylaw, that it can be done without substantial detriment. And what I don't think we've heard, though, is if there's any of the other abutters who want to opine as to what their unique detriment would be for fact finding, so I think we would need to hear that as well before we would be in a position to make findings.

[Speaker 5] (3:06:07 - 3:06:17)
I agree. And what about the I understand that their hardship is the if their hardship is financial, but is the cause of that hardship?

[Speaker 2] (3:06:18 - 3:06:19)
Self-created?

[Speaker 5] (3:06:19 - 3:06:21)
Yes. Soil conditions, shape, or topography.

[Speaker 2] (3:06:21 - 3:06:34)
Well, I don't think they meet the but I think our bylaw goes further than 48 section 10 permits for variances because 48 section 10 has a specific factor, financial or otherwise.

[Speaker 5] (3:06:36 - 3:06:45)
I know you just read it out loud to me, I don't have it in front of me, but I thought it still stated that one of these conditions has to cause a financial hardship. Has to be the trigger for that financial hardship.

[Speaker 4] (3:06:45 - 3:06:48)
That was my understanding. What about the topography or the soil conditions?

[Speaker 2] (3:06:50 - 3:06:53)
Well, let me just look at it again and get it up here.

[Speaker 11] (3:07:02 - 3:07:04)
Yeah, tonight you did.

[Speaker 2] (3:07:04 - 3:08:00)
We have the authority to find that owing to the circumstances relating to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a little enforcement of the provision of the ordinance would involve substantial hardship financial or otherwise. So I would agree with you that it's based on those factors. Soil conditions, shape, topography of such land or structures.

So, they've applied under both lots and I think that their argument would be that they're going to lose a historic structure if this isn't granted, that that's their hardship. That this presents an opportunity to preserve or restore. I'm not saying that that carries the day, but I think that's the argument.

[Speaker 12] (3:08:00 - 3:08:05)
They have a place to store it. They won't lose it. They can go to the valleys, lock them in storage.

[Speaker 13] (3:08:06 - 3:08:22)
They won't lose it. It still poses the question of how much is going to be restored afterwards. We're just trying to first decide about the...

[Speaker 2] (3:08:22 - 3:09:19)
No, no, no, no, but we're just trying to decide what the analysis will be, whether there needs to be additional evidence. That would be appropriate evidence, but it's a question of whether or not... So we've heard that testimony.

So, the question is number one, whether the argument that the preservation of the historic structure, the ability to do it here, there's arguments whether they are able to store it factually, but whether or not that's enough to prove a hardship that would let us then get to the analysis of whether it can be done without substantial detriment. And whether or not we grant that.

[Speaker 4] (3:09:20 - 3:09:25)
Yeah, I mean, I for one am unpersuaded by the historic piece satisfying that.

[Speaker 2] (3:09:26 - 3:09:41)
Okay. Anybody else had a comment on that, about whether or not you can meet the criteria for proving your financial hardship or otherwise by the historic structure preservation?

[Speaker 15] (3:09:42 - 3:09:47)
I agree with Brad. I don't think I'm swayed by the historic piece leading to the variance.

[Speaker 2] (3:09:50 - 3:09:59)
Well, actually we haven't. We've got six members here, right? So we have...

There would be five...

[Speaker 5] (3:09:59 - 3:10:05)
Yeah, I'll constitute the board as the five regular... Minus Brad.

[Speaker 4] (3:10:05 - 3:10:11)
I'm not a regular member anymore. And then if the vote doesn't happen tonight...

[Speaker 5] (3:10:11 - 3:10:12)
Then we can redo it.

[Speaker 2] (3:10:13 - 3:10:22)
Well, my point is that if you have two no's amongst those, you need four votes for the variance.

[Speaker 4] (3:10:24 - 3:10:35)
But that's just with respect to the historic piece. There might be other elements that they tried to present that would sway people. But I think that's solely the...

[Speaker 2] (3:10:35 - 3:10:42)
I think that's the argument as to how they bootstrapped to get to a finding that...

[Speaker 8] (3:10:42 - 3:10:46)
And they have a lot of the bill value now. That's what they're trying to suggest.

[Speaker 4] (3:10:47 - 3:10:55)
Well, I don't know that I agree with a lot of the bill value. I heard that there was already an offer to buy it from someone. So I'm not sure that's right.

I think that means there's value, right?

[Speaker 16] (3:10:55 - 3:10:56)
Someone will negotiate too.

[Speaker 4] (3:10:56 - 3:10:58)
Someone will lie.

[Speaker 2] (3:11:00 - 3:11:20)
I don't know that I... And I can't say that I've looked at those cases that have been cited by Attorney Vitale on that. I'm familiar with the analysis of the variance under 4810 where the language I've read.

[Speaker 5] (3:11:22 - 3:11:25)
Okay. Would you like to have time to read those?

[Speaker 2] (3:11:25 - 3:11:27)
I would read those, absolutely.

[Speaker 5] (3:11:40 - 3:11:53)
All right. So from that, I would also like to review. I would like to give Mark the chance to review.

Which would mean that we would request to continue to...

[Speaker 2] (3:11:54 - 3:11:56)
To the next hearing? Is that the plan?

[Speaker 5] (3:11:57 - 3:11:58)
I mean, unfortunately.

[Speaker 2] (3:11:59 - 3:12:01)
And that's a week from tonight.

[Speaker 5] (3:12:01 - 3:12:02)
That's a week from tonight.

[Speaker 2] (3:12:08 - 3:12:10)
What else do we have on that night, pretty much?

[Speaker 11] (3:12:11 - 3:12:19)
Excuse me. We have an awning special permit for a business Humphrey Street, 434. In addition...

Sorry, no.

[Speaker 5] (3:12:19 - 3:12:22)
It'll be at the high school. Right over here at the high school.

[Speaker 11] (3:12:23 - 3:12:25)
The same building, but...

[Speaker 5] (3:12:25 - 3:12:26)
Yes, exactly.

[Speaker 11] (3:12:26 - 3:12:29)
You go and you go down the corridor. Yeah.

[Speaker 5] (3:12:29 - 3:12:30)
Okay.

[Speaker 2] (3:12:30 - 3:12:32)
So it sounds like we could probably get to this too.

[Speaker 5] (3:12:32 - 3:12:45)
It should otherwise be a light night. It should be? Okay.

All right. So I'm going to make a motion to continue to our... September 19th.

September 19th meeting. Do I have a second?

[Speaker 2] (3:12:45 - 3:12:49)
Second. I would just say, why don't we do it after our regular agenda, because it's probably going to take some time.

[Speaker 5] (3:12:49 - 3:12:51)
Yes. It will be last on the agenda.

[Speaker 2] (3:12:52 - 3:12:55)
Right. So it'll probably be on our agenda say 730 or after.

[Speaker 5] (3:12:55 - 3:12:58)
That makes sense. So 730 or after.

[Speaker 2] (3:13:00 - 3:13:02)
Unless other things drop off.

[Speaker 5] (3:13:03 - 3:13:20)
I guess check the agenda in case we try to keep straight to the agenda. So if things finish quickly we won't start until that 730 date, but if people withdraw their petitions between now and next week and we rearrange that agenda. So just check the agenda that day.

[Speaker 2] (3:13:21 - 3:13:24)
So we should continue to 7pm, but more likely we'll be at 730 or so.

[Speaker 5] (3:13:25 - 3:13:27)
And the agenda we'll say.

[Speaker 11] (3:13:27 - 3:13:48)
For the most accurate, you know, check the agenda just a couple hours before the meeting, because it is up right now. But obviously I haven't been able to reflect this continuance, so I will amend the agenda tomorrow and resubmit it to the town clerk. But again, as Heather said, if people, you know, elect to withdraw their petitions or continue it to the October meeting in the meantime, more amendments will be made.

[Speaker 5] (3:13:48 - 3:13:52)
So for the most accurate reading of the agenda, check just a couple hours before the meeting starts.

[Speaker 10] (3:13:53 - 3:13:54)
I'll second that motion.

[Speaker 5] (3:13:54 - 3:13:55)
So second. All in favor?

[Speaker 10] (3:13:55 - 3:13:56)
Aye.

[Speaker 5] (3:13:56 - 3:13:57)
All right, I'm going to move to adjourn.

[Speaker 10] (3:13:58 - 3:13:58)
Second.

[Speaker 5] (3:13:58 - 3:14:00)
All in favor? Aye.

[Speaker 16] (3:14:02 - 3:14:05)
Are we going to be discussing it at all or no?