Select Board to weigh 40B plan for Lodge Road lot town called unbuildable

← All news · September 21, 2026

The owners of 0 Lodge Road have filed a four-unit Chapter 40B application with MassHousing, putting the Select Board on record about the same vacant lot the ZBA spent 2022 and 2023 treating as unlawfully created and unbuildable.

The Select Board on Sept. 23 is scheduled to take up a four-unit apartment project at 0 Lodge Road, the narrow vacant lot town boards treated in 2022 and 2023 as unlawfully created and unbuildable.

The board is not being asked to approve or reject the project. Under item E.6, it is being asked to comment to the state because the owners have filed a Chapter 40B application with MassHousing. One of the four units would be affordable.

Chapter 40B, the state’s affordable-housing law, is the route around the local zoning problem that defeated the owners’ earlier petitions. It is also the route their attorney named on the record in October 2023: after litigation and title-insurance claims, he told the ZBA, “then it’s obviously the 40B, which is available under any circumstances.”

The parcel, 24-73-0, is a 0.15-acre lot zoned A4, assessed at $270,300 with no building on it. IG Investments LLC of Brookline bought it on Feb. 11, 2022, for $255,000 from Adele M. Ruthman.

Why boards called the lot unbuildable

The dispute goes back to a March 1948 zoning bylaw that set the town’s first dimensional minimums: 60 feet of frontage and 6,000 square feet of area. In August 1949, the Planning Board endorsed a division of a larger holding into two lots: Lot A, 8 Lodge Road, which has a 1915 house and is now owned by the Grasso Realty Trust, and Lot B, the vacant parcel now in question.

Lot B has the area but only about 52 feet of frontage, eight feet short of the 1948 minimum. Swampscott did not adopt subdivision control until 1952. The boards’ reading was that the two parcels were in common ownership when the 1948 bylaw took effect, so the bylaw merged them, and the 1949 division carved out a nonconforming lot the bylaw no longer allowed to be created. On that reading, the lot was invalid for zoning purposes unless some record of relief could be produced. None could.

The owners had one document on their side: a February 2022 letter from Building Commissioner Rich Baldacci to the buyer’s then-attorney, Paul Lynch. Read into the Planning Board’s record that September, the letter found the parcel to be a grandfathered lot on which “a building permit … can be issued for the construction of a single or two family dwelling.”

The boards did not accept the letter. At the Planning Board’s October 2022 post-mortem, the chair said its dates “were all off.” At the ZBA that November, the board’s chair noted that the map the letter relied on bore a 1959 Attorney General approval, a decade after the division it was meant to justify. The building department’s own representative that night, heard on the recording as “Steve,” told the board the letter cited a 5,000-square-foot, 50-foot standard that “wasn’t even a requirement back then” and “I really think it was written in error.” Baldacci did not appear at any of these hearings, and the town’s record holds no answer from him.

The town bylaw also blocked the ordinary variance route. Section 5.5.2.1 bars a variance sought solely because a lot lacks frontage, and 5.5.2.2 requires that any hardship arise from soil, shape, or topography. On Nov. 15, 2022, the owners withdrew their two-family petition without prejudice rather than press it.

When the owners returned in 2023 seeking a single-family house, new counsel Kenneth Shutzer, who had replaced Lynch, did not defend the Baldacci letter. “I would concur with the opinion of Attorney Demento and the opinion of the abutter, Mr. Longfellow,” he told the board; the lot is “an unbuildable piece of land, and that … is uncontroverted.” He pleaded the wet soil as hardship, and the board identified the problem: the hardship that needed relief was the undersized lot itself, not its soil. Town Clerk Jared Liberty, Shutzer reported, had no records answering a request for the lot’s 1948-49 zoning history.

No formal denial was ever filed. The 2022 petition was withdrawn; the 2023 petition was continued to Dec. 5, 2023, with no later ruling in the town’s record. The town’s record of the lot as unbuildable rests on a withdrawal and a concession. Retired land-use attorney Bill Demento, the Precinct 6 Town Meeting member who opened the fight and helped the abutter Longfellow write the opposition, had his reading ratified at every stage without holding a town seat.

Flooding remains part of the case

The neighbors’ objection was never only frontage. It was water. William Savino, who told the board he had lived at 20 Lodge Road since 1970, described cellars taking on water; a resident of nearby Muriel Road said he lost a car in three feet of it; the prior owner reportedly said she would never build there.

That testimony is neighbor account, not a town engineering finding. But flooding and site conditions matter more in the 40B review than the frontage defect that drove the earlier zoning fight.

Select Board can comment to MassHousing

The Sept. 23 item is the town’s comment window, not a permit hearing. Under 760 CMR 56.04, once MassHousing receives a Project Eligibility application it notifies the municipality’s chief executive officer, which the state’s own definition presumes to be the Select Board unless a town charter names another office. MassHousing then opens a 30-day review, conducts a site visit the town’s boards may attend, and takes written comments it must weigh before deciding whether to certify the project.

The board’s letter feeds that state decision. It does not make it. MassHousing, not the town, rules on eligibility, and the comment cannot block the project.

The board can address the finding the statute asks MassHousing to make: whether the site is “generally appropriate for residential development.” Flooding and other site conditions can bear on that finding. The local zoning defect is different. Chapter 40B is designed to let eligible affordable-housing projects seek relief from local zoning, including frontage, density, dimensions, and use rules.

ZBA review if MassHousing certifies

If MassHousing certifies the project, the owners can file a single comprehensive permit with the ZBA in place of the usual local approvals. What the ZBA can do with it turns on one number.

On the state’s Subsidized Housing Inventory, current as of Sept. 30, 2025, Swampscott stands at 4.07 percent: 255 subsidized units against 6,262 year-round units. That is well below the 10 percent that would let the town turn a 40B away on housing grounds alone. Neighboring Marblehead sits at 3.84 percent, Nahant at 2.98, and Lynn above the line at 11.74. Veterans Crossing’s 41 units are not yet on this table.

Below 10 percent, the board cannot claim a safe harbor and cannot deny the project on ordinary zoning grounds: density, use, dimensions, or the frontage shortfall that killed the variance. Its review narrows to health, safety, design, environment, and open space. A denial or an unworkable condition can be appealed to the state Housing Appeals Committee.

That does not mean the ZBA is powerless. A denial can still be upheld where genuine health, safety, or environmental concerns outweigh the need for housing. It means frontage no longer decides the case, while flooding remains an issue the board can weigh.

One turn sits atop the whole affair. Rich Baldacci, who wrote the disputed February 2022 buildability letter during his first tenure as Building Commissioner, is once again in that seat. The lot now returns to the town on an instrument that does not depend on the determination his letter tried to make.

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