Zoning Board Narrowly Approves Condos at Cap'n Jack's Inn Site

The Zoning Board of Appeals Wednesday night voted four to one to approve the 15-unit condominium project where the stands on Humphrey Street now.

But the board was highly fractured over the project, spending more than half an hour arguing, at times in anger, over whether chairman Marc Kornitsky had the right to disqualify board member Harry Pass, a potential opponent of the project, as a voting member on this project.

Four votes from the five-member board were required to approve the project. Had the board included Pass as the fifth vote, the project would likely have been postponed, pending more revisions to the design of the building.

Carl Goodman, an attorney for neighbors to the project, told the board that “there is likely to be a test whatever vote is taken.” He meant that he or other opponents of the project might appeal the board's vote, which could tie the project up in court and possibly force a reconsideration of the project by the zoning board.

Questions and Conflicts

Goodman said there were other issues besides the voting membership, including whether the had ever been merged into one parcel. If not, the site would be limited to only eight condos, not 15.

Pass, an attorney, who said he expects the project to come back to the zoning board on appeal, said at the time of the vote that he would have voted to delay the project until further revisions were made to the design. He objected to the size and scale of the condominium building and that it did not have a central view corridor for the public to see the harbor. He praised the developer, Bruce Paradise, as a “good builder.”

Two alternates voted for the project. Voting for the project was Kornitsky, Board member Peter Spellios and Board alternates Doug Dubin and Andrew Rose. Voting against the project was Board member Daniel Doherty.

Responding to statements that there were conflicts on the board, Dubin said he filed a letter with the Board of Selectmen Wednesday stating that he has no conflict of interest in voting on the project. He said his company does rent space from Paradise, but he does not believe that constitutes a conflict.

Rose said Paradise built his house 10 years ago and their daughters played on the same basketball team. “I don't think that is a conflict,” he said.

Tensions High

The vote came after Kornitsky proposed that the developers, Parturk, a partnership owned by Paradise and Barry Turkanis, agree to pay up to $50,000 to the town for additional sidewalk improvements, lighting upgrades or benches along Humphrey Street. “It (the payment) will help me get to a yes vote,” Kornitsky said.

The payment was designed to mitigate any negative impact the project has on the surrounding neighborhood.

Rose called the proposal “extortion,” words that he later said were ill-chosen.

But attorney Bill Demento, who said he “has no dog in this fight,” agreed with that characterization of the proposal. He said it was illegal for the zoning board to require the additional payment.

“You can't do it,” he said, referring to the case law that prohibits the board from requiring additional cash payments in advance of approving the project. “It is an embarrassment to this town.”

Swampscott, he said, has enough money that it does not need “its reputation sullied by this extortion.”

Spellios, an attorney, said the case law on the issue was not “so black and white.”

Paradise initially objected to the $50,000 payment, saying there was no plan for improvements to Humphrey Street. “There is nothing we could give the money to,” he said.

But after talking with his partner, he agreed to a revised proposal that the project contribute $3,333 per unit within 18 months of completing the residential units for a total of $50,000.

He said the project would make the donation voluntarily. The board appointed Paradise and Town Administrator Andrew Maylor and asked them to pick three others to form a five-person board to decide how to spend the $50,000.

Kornitsky said he had disqualified Pass last month because he had missed one half of a meeting on the project. He said he could not reverse his decision now that it was known how each member, including Pass, would vote.

Pass disagreed, saying the law requires only that he certify before the vote that he had reviewed the minutes and audio tapes of the meeting he missed. Doherty, also an attorney, agreed with Pass, saying it would be illegal and invite an appeal for Kornitsky not to include Pass in the vote because he was a full board member, not an alternate.

An angry Kornitsky said Doherty was questioning his integrity.

“A child would have known there were four positive votes,” Doherty said of the voting board members Kornitsky chose. “Why did you work so hard to block him?”

Spellios, who came to Kornitsky's defense, accused Doherty and Pass of being disingenuous in their fight to get Pass on the board. In the seven or eight years they have served on the board together, he said he had never heard either of them fight to keep one member on the board.

Spellios said they were only fighting to keep Pass because they wanted to vote down the project.

Asked how he was feeling after the vote, Kornitsky joked that he has "had better nights.”