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THE SOMERVILLE FILES: PART 3: RAGE AGAINST THE MACHINE

Posted on July 10, 2013 by CHRIS FARAONE AND TOM NASH AND ADAM VACCAROEmail

There are a few reasons that a Somervillian might have to brave the Zoning Board of Appeals. Most likely, they’re a homeowner hoping to add something like a loft over their garage, or maybe they’re a contractor framing from scratch. Whatever you wish to change, if you’re before the ZBA Machine it means you want to do something that requires you to bend or break existing zoning ordinances.
As the body that decides who receives such favors, the ZBA is by some measures the most powerful appointed board in Somerville. Meeting every other Thursday in the aldermanic chambers—an echoey old beige room on the second floor of City Hall—the ZBA’s five members and two alternates serve as a de facto steering wheel for the city.
Under the leadership of Mayor Joe Curtatone, development in Somerville has advanced on two tracks. First, as part of a comprehensive 20-year plan called SomerVision, which addresses transportation and cultural improvements but also includes large-scale expansion of the city’s residential and commercial tax bases. That’s the long game, quarterbacked by Curtatone’s Office of Strategic Planning and Community Development. Complementing those efforts, another, less streamlined approach is also underway, in which small hotels, condominiums, and other vertical dreams are aggressively courted by city officials.
As Somerville expands upward, a pattern has emerged in which preferred developers appear to win indiscriminate approval. One builder, for example, has been permitted to keep working in the city despite leaving behind a trail of litigated money pits. At the same time, contractors are fattening the war chests of important politicians. Of the 45 biggest projects that the ZBA approved between 2010 and 2011— their case load minus small-scale residential applications — all but nine were for applicants who donated, either directly or by proxy, to Curtatone.
As DigBoston has revealed over the past month, certain companies can seemingly build anything in Somerville if the proper levers are aligned, and the appropriate cogs are greased.

This week, we lift the hood and take a hard look at the machine that makes it possible.

Photo credit: Derek KouyoumjianIllustrations by Carlos Montilla

FIXER-UPPERS

To redraw zoning maps in Somerville, it helps to work with people who are wired into the municipal woodwork. One such all-star is local real estate attorney Richard DiGirolamo. With DiGirolamo’s guidance, several applicants appear to have manipulated the ZBA, which typically rewards approval to even his most controversial and unscrupulous clients.
With its rubber stamps, the ZBA has advanced projects that violate state law and city ordinances. In the event that neighbors push back against these violations—and against developers with awful track records—they’re left to face a relentless city legal department. Some homeowners have prevailed in court; even in those situations, the city still seems to favor builders over residents. A city spokesperson says that Somerville has an “excellent track record,” with only 15 decisions appealed in the past decade. Those who have contested rulings, however, tell a different story.
Officials appear to use the zoning board as a favor bank for friends and colleagues. ZBA Chairman Herb Foster even votes on cases that are brought before the board by DiGirolamo, who served as his real estate attorney for years. Asked about a potential conflict of interest, Foster has claimed that there is none—

even though DiGirolamo, who faces the ZBA several dozen times a year, helped the chairman win board approval for a condo conversion in 2003.

In one instance, Foster raised ethical issues for accepting $1,600 in donations for the charity he runs from former Alderman Sean O’Donovan, and then voting in favor of a highly contested condo conversion of O’Donovan’s that DiGirolamo brought to the ZBA. The chairman also beckoned watchdogs by—after recusing himself—successfully appealing his own board for a special permit that effectively increased the value of a property he owned on Cross Street.
Then there’s the curious case of Sal Querusio, a sometimes city contractor and former ZBA member who gave $250 to Foster’s daughter for her 2005 run for an alderman seat. In 2008, Querusio applied to build a private senior housing complex on Park Street. But when he proposed squeezing 89 units onto a lot permitting less than half that many—seeking new zoning that reduced the minimum square footage of for-profit senior units—abutters whipped into a frenzy. After activists revealed that he neglected to disclose that he had served with the majority of sitting ZBA members—a violation of state law—Querusio withdrew his plan.
Curtatone, who appoints the board, has only furthered the perception that the ZBA is an old boys club for cronies. Earlier this year, the mayor caught flack for nominating Donald Norton—a local real estate agent and owner of the Somerville News—to the ZBA. A city spokesperson says Norton was “nominated due to his extensive background in real estate and his broad knowledge of the community.” But Norton’s newspaper, where one of the Dig reporters on this story previously worked, has made nearly $100,000 from city contracts since 2011. The relationship gets more personal: the News publisher, who regularly praises the Curtatone administration in his paper, sold the mayor his home in the Ten Hills neighborhood.

Less than two weeks after being nominated, following critical press from the Somerville Journal, Norton withdrew himself from the selection process.

DO IT FOR DILBOY

Private First Class George Dilboy may be the toughest guy to ever call Somerville home. According to military records, on July 18, 1918, Dilboy’s U.S. Army regiment advanced on the Germans just outside of Paris, where he charged into a bullet shower while attempting to defend comrades. Dilboy died from fatal injuries, but not before trudging toward the enemy with half of his leg severed, and gunning down a pair of rival riflemen.
The Dilboy legacy is strong in Somerville, with a bust of the Medal of Honor recipient prominently placed at City Hall, a stadium bearing his name, and a Veterans of Foreign Wars post in Davis Square named for the hero. So it’s fitting that the warrior’s tradition has been channeled in the battle over his namesake veteran’s facility, which developers are angling to move half a block down Summer Street and into a residential zone.

The rift began in 2002, when businessmen Roberto Arista and Marc Daigle purchased a small parcel at 353 Summer St. Since the area is zoned for seven apartments, the partners raised concerns with their proposing to build twice that many units there. First, an orthodontist who lives next door sued their company, then known as Emerald Development Group, saying the plans called for digging underneath his building. The neighbor lost, but Emerald—which changed its name to Dakota Partners—soon ran into another hurdle when the city stopped them from removing a tree. Arista and Daigle then sued Somerville for blocking their development, and in 2009 were granted an economic “hardship” extension by the ZBA. Abutters then grew even more suspicious after the mysterious disappearance of tape from a past ZBA meeting in which Assistant City Solicitor Shapiro told members that applicants couldn’t keep returning for extensions. In response, neighbors sued the city, arguing that the board’s reasoning was bogus. The court agreed.

By 2011, the pair had once again changed the name of their company, this time to Strategic Capital Partners, and devised a new strategy for Summer Street. To help push the initiative—an updated plan that called for 31 condos—they again enlisted DiGirolamo to shepherd their design through the zoning board.
For their scheme to work, Arista and Daigle also shored up backing from the Dilboy VFW, which owns the parking lot at 351 Summer St. between their hall and the property that developers were trying to finagle. With a facility that couldn’t meet state fire codes, veterans were happy to help the developers, who enticed them with the promise of a flashy new hall in their expanded structure.

The new arrangement was bulletproof. At the ZBA, DiGirolamo had an approving City Hall on his side; Somerville’s planning director at the time, Monica Lamboy, went so far as to tout the project as a desperately needed “mixed use” development that could help veterans. In turn, the city pitted abutters against veterans. Arista and Daigle finally had leverage, and a parcel more than double the size of what they started with. Their neighbors, however, were more dismayed than ever, as the new 8,300 square foot VFW building—designed to hold up to 355 people at up to 180 non-member party rentals a year—would be moving in next door.
There were other issues. The zoning process calls for the results of environmental tests to be disclosed to the board. Arista and Daigle had commissioned such tests on their lot—the site of a former gas station—with some results indicating possible contamination. Those reports, however, were kept concealed until residents spoke out at a ZBA hearing. Despite an apparent violation, the board voted to allow Daigle and Arista to withdraw their plans without prejudice, and to re-submit their application soon after. Tension only heightened after residents discovered that officials undercharged the builders for application fees.
With DiGirolamo still representing them, Strategic continued ZBA proceedings with the gusto of Dilboy himself. Nothing would impede them this time—not even their old Summer Street nemeses, who had also discovered that the licensed site professional who was hired to conduct environmental tests had been recently suspended by the state board that certifies waste cleanup workers.

After hammering at eco issues, abutters called attention to the basement where veterans hung out, which by code permitted zero occupancy. Furthermore, members lacked necessary entertainment and common victualer licenses. Under pressure, Somerville fire inspectors temporarily closed the post in late 2011. It didn’t matter though. In the end, the ZBA approved the plans in December of that year—on the anniversary of the bombing of Pearl Harbor. Chairman Foster, whose father joined the Dilboy post after surviving that Day of Infamy, took a sentimental tone in approving.
“I’m proud to vote for the veterans,” the chairman said. “This is the only way they’re going to get a new post.”
A lawsuit over the ruling is still pending. In April, a Middlesex Superior Court judge denied Strategic Capital its motion to dismiss claims against neighbors. To abutters like Nancy Iappini, the decision’s pointed wording brought relief, but only reaffirmed what they’ve told city hall for years: the Dilboy proposal “would move a substantial source of noise . . . much closer to their home;” more importantly, the “ZBA’s decision does not explain why the new VFW function hall and bar . . . constitutes a ‘[p]rivate, non-profit club’ that may be sited in [a residential] district . . . rather than a ‘dance hall’ or ‘entertainment facility’ that is not permitted.”

CODE RED GREEN LIGHT

During the ordeal on Summer Street, Arista and Daigle continued doing other business in Somerville, and completed four buildings with an unusual number of code defects. A property of theirs on Broadway in West Somerville had a lien placed on it after a county judge found that condominiums they built and sold there had crossed gas lines, buckling floors, improperly functioning furnaces, and an improperly installed roof. According to court documents, two of Arista’s and Daigle’s buildings on Osgood Street also needed repairs costing tens of thousands of dollars—conditions included a leaky roof, and windows that had not been installed properly.
A similar fate nearly befell a complex in South Kingstown, Rhode Island. There, Jeffrey O’Hara is the official who enforces building codes. He has a thick folder of documents that cite a range of code issues at an active adult development that Dakota built in his town.
In 2009, control of the South Kingstown property was given to a bank after O’Hara—citing problems ranging from moldy materials to cut trusses—refused to approve the complex.

Arista blamed the economy for the bankruptcy. O’Hara tells a different story.

“I deal with building code and building code only,” the Rhode Island inspector said in 2011. “Personally, I wouldn’t hire them to shingle a dog house.”
Arista and Daigle have had more luck in Somerville. In defense of their flawed condominiums, Arista has maintained in interviews that owners failed to properly report problems. The developers have also said that buyer issues were less serious than alleged, noting that inspectors had not flagged their properties.
Perhaps not unrelated, Arista and Daigle’s projects were greenlit by a department whose superintendents lacked proper certification. George Landers, who served in the position from 2004 to 2010, never passed state tests to become a certified building commissioner. Ed Nuzzo, who replaced Landers, fared even worse, earning as low as 16 percent on the first of five required state exams. Furthermore; both oversaw senior inspector Paul Nonni, who signed off on Arista and Daigle’s buildings.

Officials deny that there has ever been an ISD problem. According to a city spokesperson, Somerville “has satisfied the requirements of the state Department of Public Safety regarding conditional appointments to the position of ISD Superintendent pending certification.” They cite a 2010 internal analysis of its inspectional services; but while that report threw low-level employees under the bus, noting that some workers dressed sloppily, there was no mention of Landers. As for Nuzzo; after failing three times, last year he was transferred to a higher paying city job.
In prior email correspondence with the Dig, a city spokesperson denied that the mayor’s administration manipulates the rules for anyone. Still, the zoning wars rage on—over a new high rise on Broadway, about plans to build a hotel in Davis Square, which Curtatone has publicly defended in bold terms. Considering the course that other projects have taken, residents don’t stand much of a chance against the city, not to mention its lawyers, the ZBA, and inspectors.
On Summer Street, abutter Nancy Iappini is relatively positive considering her situation. In her pending lawsuit, a judge has so far questioned the board’s approval of the VFW hall. After a long war with the city, developers, and Dilboy members, Iappini hopes that the courts will validate the claims she’s shouted on deaf and unhelpful municipal ears for years.

“The board didn’t enforce its own rules,” she says. “What is the public supposed to do?”

In the next installment, the Dig explores the future of Somerville politics, and the shifting landscape underneath the Curtatone administration.