Swampscott Zoning Board of Appeals Meeting Review (Based on 1/17/2022 Transcript)

Section 1: Agenda

Based on the transcript, the likely agenda for the meeting was as follows:

Call to Order & Procedural Matters 0:07
- Note Member Time Constraint (Andy leaving at 7:45 PM)
- Note Board Composition (Four members present)
Approval of Prior Meeting Minutes 1:40
Petition 22-25: 53 Puritan Rd (Jerry Sneirson c/o James Cipoletta, Esq.) 1:57
- Request for Special Permit (Nonconforming Uses/Structures), Appeal of Building Inspector Determination, Dimensional Variance (Accessory Structure Height).
- Action: Discussion and motion to seek Town Counsel opinion and continue the hearing.
Petition 22-26: 429 Paradise Rd (Pacific Dental Services) 9:59
- Request for Use Special Permit (Dentist office in ground-floor commercial space).
- Action: Presentation, Discussion, and Vote.
Petition 22-27: 6 Burpee Ter (Dana Fraser) 15:05
- Request for Special Permit (Nonconforming Uses/Structures) to convert single-family to two-family on a nonconforming lot.
- Action: Presentation, Discussion, Petitioner Withdrawal.
Board Business 41:37
- Appointment of New ZBA Chair.
Unscheduled Item: MILR Endorsement (Wind Development - 40B Project) 43:06
- Request for endorsement of a Mylar plan related to lot consolidation.
Adjournment 42:49

Section 2: Speaking Attendees

Based on the transcript and contextual knowledge of Swampscott government:

ZBA Chair (Name not stated, stepping down): [Speaker 1] - Leads the meeting, makes motions, explains procedures, announces transition.
Andy (ZBA Member): [Speaker 2] - Participates in discussions, discloses potential conflict, notes time constraint.
Dana Fraser (Petitioner, 6 Burpee Ter): [Speaker 3] - Presents and discusses petition for 6 Burpee Terrace.
Building Inspector (Name not stated): [Speaker 4] - Provides input on permitting process, history, and interpretations, particularly regarding 6 Burpee Terrace; mentions KP Law opinion.
Heather (ZBA Member, Incoming Chair): [Speaker 5] - Participates in discussions, appointed as the next Chair.
Ben Starr (Representative for Petitioner, Pacific Dental Services): [Speaker 6] - Presents the petition for 429 Paradise Road on behalf of Pacific Dental Services.
Jacob Lemieux (Hancock Associates, representing Wind Development): [Speaker 7] - Calls in late regarding MILR endorsement for a 40B project.
Paula (ZBA Member): [Speaker 8] - Participates in discussions, seconds motions, assigned to write Pacific Dental decision.
Unidentified Attendee: [Speaker 9] - Makes brief comments and seconds two motions late in the meeting. Role unclear but participates like a member.
Marissa (ZBA Staff/Clerk, inferred): [Speaker 10] - Provides administrative support, checks dates, manages remote participation.
Unidentified Attendee: [Speaker 11] - Makes brief comment during Burpee Terrace discussion.

Section 3: Meeting Minutes

Call to Order & Procedural Items The ZBA Chair called the meeting to order after 7:00 PM 0:07. The Chair noted that ZBA Member Andy had to leave by 7:45 PM and that only four members were present, impacting voting thresholds (requiring unanimity for approvals needing four votes).

Approval of Minutes The Chair moved to approve the minutes distributed earlier via email 1:40. The motion was seconded and approved unanimously (4-0).

Petition 22-25: 53 Puritan Rd The Chair opened the hearing for 53 Puritan Rd 1:57. Citing the complexity of issues related to the pre-existing nonconforming accessory structure, similar issues previously sent to Town Counsel regarding the principal structure, the limited board membership, and Member Andy’s time constraint, the Chair proposed seeking an opinion from Town Counsel before substantive discussion 2:17. The Chair invited legal representatives for the petitioner (Attorney Cipolletta) and abutters (Attorney Schutzer mentioned) to submit additional materials or suggested questions for Town Counsel via ZBA Staff Marissa 6:22. After discussion confirming the next meeting date as February 28th 5:40, the Chair moved to authorize the request to Town Counsel and the collection of submitted materials. The motion passed unanimously (4-0) 7:43. The Chair then moved to continue the public hearing for Petition 22-25 to February 28th. The motion passed unanimously (4-0) 7:52.

Petition 22-26: 429 Paradise Rd (Pacific Dental Services) The Chair called Petition 22-26 9:59. Member Andy disclosed a potential conflict but stated he could be impartial; Petitioner Representative Ben Starr, present with Amy Daniels (representing the property owner, Kimco), stated he had no issue with Member Andy’s participation 10:13. The Chair noted this was the first petition under the revised bylaw concerning ground-floor commercial uses 10:42. Mr. Starr presented the proposal for a Pacific Dental Services office, arguing it fits modern shopping center merchandising, meets a community need for accessible dental care (potentially 7 days/week), and is a use not easily replaced by online services [10:50, 11:58]. The Chair inquired about meeting community needs 12:39. No questions were raised by the board or public (online participants were prompted) 12:55. The Chair moved to approve the Special Permit, finding the criteria met and the use not substantially more detrimental than other retail uses 13:27. Member Paula seconded 14:09. A roll call vote was taken: Paula (Yes), Andy (Yes), Heather (Yes), Chair (Yes). The petition was approved unanimously (4-0) 14:11. Member Paula was assigned to write the decision. The Chair informed the applicant about the 20-day appeal period after filing with the Town Clerk 14:22.

Petition 22-27: 6 Burpee Ter (Dana Fraser) The Chair called Petition 22-27 15:05. The Chair informed Petitioner Dana Fraser about the four-member board requiring unanimous approval and offered the option to continue or proceed with the understanding she could withdraw without prejudice if needed 15:37. Mr. Fraser expressed unfamiliarity with the process 16:41. The Chair suggested opening the hearing for presentation and potential abutter input, noting time constraints would likely necessitate a continuance anyway 16:53. The Chair read from a letter of opposition submitted by Kevin and Karen Donahuer (28 Burpee Road), raising concerns about density, recent/upcoming nearby developments (Michon School, Elm Street project), and questioning the validity of the original 2007 permit for the single-family home on the non-conforming lot, alleging lack of proper notification 17:42. This introduced unforeseen complexity regarding the property’s permitting history. Member Andy advised engaging with neighbors 20:01. Mr. Fraser noted the Donahues were not direct abutters 21:17. The Board advised Mr. Fraser to investigate the 2007 permitting record at the Building Department 21:25.

A detailed discussion ensued among the Board, Mr. Fraser, and the Building Inspector regarding the nature of the request and the underlying zoning. Mr. Fraser explained the addition over the garage was completed in 2020 23:25 and the intent for the conversion to a two-family was for future flexibility (aging in place, caregiver, family use – currently occupied by daughter) rather than immediate rental income [25:08, 27:58]. Parking for three cars was stated as available 25:08.

The core of the debate focused on whether ZBA relief was required at all 29:41. Members and the Building Inspector discussed if converting the existing structure to a two-family was permissible “as of right” in the A3 zoning district, given the existing non-conforming lot status 30:30. The Building Inspector mentioned receiving a somewhat confusing opinion from KP Law and expressed uncertainty about the correct procedure (ADU Special Permit vs. Two-Family by right) [33:03, 33:44]. Board members leaned towards the interpretation that if the original single-family dwelling and subsequent addition were legally permitted, converting the use to a two-family (allowed in A3) might not require a Special Permit from the ZBA, as no dimensional changes were proposed [31:04, 32:18]. The Building Inspector raised a question about whether lot size requirements would differ if building a two-family from scratch today 37:20, but the Board generally maintained the view that the existing structure’s legality was key.

Given the Board’s emerging opinion that ZBA relief might be unnecessary, contingent on verifying the 2007 and 2020 permits, the Chair outlined the option for Mr. Fraser to withdraw the petition without prejudice 38:37. The Chair stated the Board’s non-binding opinion that the use appeared permitted as of right, directing Mr. Fraser to pursue a standard building permit, while cautioning this path could still face appeal [39:22, 40:20]. Mr. Fraser agreed to withdraw 40:20. The Chair moved to accept the withdrawal without prejudice, seconded (by Speaker 9), and approved unanimously (4-0) 41:06.

Board Business: Chair Appointment The Chair announced it was his last meeting as Chair and that he was becoming an associate member 41:37. He nominated Member Heather as the next Chair. The motion was seconded (by Members Andy and Speaker 9 noted) and approved unanimously by acclamation 42:11.

Unscheduled Item: MILR Endorsement (Wind Development) Jacob Lemieux (Hancock Associates for Wind Development) called in regarding endorsement of a Mylar/MILR plan for lot consolidation related to the Elm Street 40B project, which was apparently added to an amended agenda 43:06. The Chair noted this requires ZBA endorsement under 40B. Member Andy was recused 43:56. The Chair confirmed three members present would sign, with staff coordinating the fourth required signature later. The plan was confirmed as consistent with the project’s approval 44:28. Mr. Lemieux confirmed no questions 44:22.

Adjournment A motion to adjourn was sought and presumably passed around 42:49.

Section 4: Executive Summary

This Swampscott Zoning Board of Appeals (ZBA) meeting addressed several key petitions and internal board matters. Here are the highlights relevant to residents:

Puritan Road Accessory Structure Decision Delayed: The hearing for proposed work on a non-conforming accessory structure at 53 Puritan Rd was continued to February 28th 7:52. Citing complex legal and historical issues, the ZBA voted to seek a formal opinion from Town Counsel before proceeding 7:43. Significance: This delays a decision on a potentially contentious neighborhood issue and underscores the ZBA’s reliance on legal guidance for intricate zoning interpretations involving pre-existing structures.
New Dental Office Approved for Vinnin Square Area: The ZBA unanimously approved a special permit allowing Pacific Dental Services to open a dental office in the ground-floor commercial space at 429 Paradise Rd (Stop & Shop plaza) 14:11. Significance: This represents the first approval under a recently revised bylaw intended to manage ground-floor uses in commercial areas. It allows a new healthcare service perceived to meet a community need and be compatible with the shopping center environment.
Burpee Terrace Two-Family Conversion Withdrawn, Path Forward Clarified: A homeowner at 6 Burpee Terrace seeking to formally convert the property into a two-family residence withdrew their ZBA petition without prejudice 41:06. This followed extensive discussion where the ZBA indicated a preliminary opinion: if the original house (built 2007) and a 2020 addition over the garage were properly permitted, converting the use to a two-family might be allowed by right in the A3 zone without needing ZBA approval 39:22. An abutter had raised concerns about density and the validity of the 2007 permit 17:42. Significance: The outcome highlights the complexities of modifying properties on non-conforming lots. While the ZBA offered a potential path forward via the Building Department, it hinges on verifying past permits and doesn’t resolve neighbor density concerns. This case touches upon broader town issues of housing flexibility, density, and navigating zoning regulations.
ZBA Leadership Transition: The current ZBA Chair announced he was stepping down to become an associate member, and the Board appointed Member Heather as the new Chair 41:37. Significance: This marks a change in leadership for the volunteer board responsible for interpreting zoning bylaws and ruling on requests for variances and special permits.
Elm Street 40B Project Advances: The ZBA provided an administrative endorsement for a plan (MILR) related to lot consolidation for the Wind Development 40B housing project on Elm Street 43:06. Significance: This is a necessary procedural step allowing the large, previously approved affordable housing project to continue moving forward.

Section 5: Analysis

This ZBA meeting transcript reveals a board navigating procedural constraints, complex zoning interpretations, and community concerns, grounded strictly in the discussion recorded.

Chair’s Pragmatism: The outgoing Chair demonstrated effective meeting management, particularly navigating the limitation of having only four members and one member’s early departure 0:07. His approach to the Puritan Rd petition—deferring for Town Counsel opinion based on complexity and precedent 2:17—showed prudence, prioritizing legal soundness over expediency on a potentially controversial matter. Similarly, his guidance steered the Burpee Terrace discussion toward a pragmatic, albeit potentially complex, resolution via withdrawal and direction to the Building Department 38:37.
Burpee Terrace: Zoning Ambiguity and Interdepartmental Roles: The lengthy debate on 6 Burpee Terrace [15:05 - 41:06] was the most revealing dynamic. It exposed significant interpretive challenges in applying Swampscott’s zoning bylaw to the incremental modification and change of use on a pre-existing non-conforming lot. The interaction highlighted a degree of uncertainty, even from the Building Inspector [33:03, 33:44], regarding the correct permitting path (ZBA Special Permit vs. Building Permit by right). The Board’s eventual consensus leaning towards “by right” [31:04, 35:41] appeared driven by the fact that two-family use is permitted in the A3 district and no new dimensional nonconformities were being created. However, this interpretation hinges entirely on the unverified legality of the 2007 and 2020 permits, a point raised effectively, albeit only in writing, by an abutter 17:42. The resolution effectively shifted the determination burden back to the Building Department, reflecting the sometimes-blurry line between ZBA purview and standard building code/permit review. The Petitioner, Dana Fraser, appeared caught in this complexity, seeking flexibility but facing procedural and historical hurdles [16:41, 25:08].
Pacific Dental: Bylaw Implementation: The swift, unanimous approval of the Pacific Dental petition 14:11 contrasted sharply with the Burpee Terrace discussion. It demonstrated the ZBA efficiently applying a specific, recently revised bylaw section where the use clearly fit the established criteria and location context (commercial plaza). The petitioner’s representative effectively framed the proposal within the bylaw’s intent 11:58. The smooth handling of Member Andy’s potential conflict 10:13 also reflected procedural diligence.
Reliance on Process and Counsel: Across multiple items, the Board showed deference to established process and legal counsel. The Puritan Rd deferral 2:17 and the careful parsing of potential “as of right” allowances versus Special Permit triggers for Burpee Terrace underscore a focus on adhering to the legal framework defined by bylaws and statutes (like MGL Ch 40A, implicitly).
Administrative Functions: The late addition of the MILR endorsement 43:06 illustrates the ZBA’s role extends beyond adjudicating disputes to include necessary administrative actions related to significant town projects like the Elm Street 40B development. Handling this efficiently, despite the recusal 43:56 and unscheduled nature, showed adaptability.