Swampscott Zoning Board of Appeals Meeting Review - July 19, 2022

Section 1: Agenda

Based on the transcript, the likely flow of the meeting followed this agenda:

Call to Order & Opening Statement 0:06:30
- Acknowledgement of hybrid format per Governor’s order.
Approval of Minutes 0:06:53
- Review and approval of the June 21, 2022 meeting minutes.
Petition 22-06: 80 MIDDLESEX AVE (Jennifer Simon) 0:08:28
- Request for Dimensional Special Permit for roof overhang over pre-existing front porch (Continued from May).
- Outcome: Continued to September 20, 2022, pending Town Counsel opinion.
Petition 22-11: 8 DENNISON AVE (HANOVER COURT LLC) 1:08:53
- Request for Dimensional Special Permit and Site Plan Special Permit for addition.
- Outcome: Continued to September 20, 2022 (per staff update).
Petition 22-12: 24 CROSMAN AVE (ANDREW BROUGHTON) 1:09:22
- Request for Special Permit for Nonconforming Uses/Structures and Site Plan Special Permit for two-story addition.
- Outcome: Approved.
Petition 22-13: 55 KENSINGTON LN (PAUL EDDOWES) 1:15:47
- Request for Dimensional Special Permit for deck construction.
- Outcome: Approved.
Petition 22-14: 1 HILLCREST CIR (JOHN BARNES) 1:22:51
- Request for Special Permit for Nonconforming Uses/Structures to add dormers.
- Outcome: Finding made that no relief is necessary under Belalta case, contingent on GFA limit.
Petition 22-15: 12 HIGHLAND ST (DANA KENCH) 1:37:35
- Request for Dimensional Special Permit to expand deck and related enclosures.
- Outcome: Finding made permitting alterations with modifications to maintain 5-foot side yard setback.
Petition 21-26: 12-14 PINE ST (PINE STREET DEVELOPMENT, LLC) 2:08:48
- Continued hearing for Use Special Permit, Dimensional Special Permit, Site Plan Special Permit for mixed-use development (revised plan).
- Outcome: Approved via variance finding for story height and associated special permits.
Adjournment 3:11:55

Section 2: Speaking Attendees

Mark (ZBA Chair): [Speaker 1]
Andy Rose (ZBA Member): [Speaker 3]
Dan (ZBA Member): [Speaker 4]
Jennifer Simon (Petitioner, 80 Middlesex Ave): [Speaker 5]
T.J. Hutchings (Contractor/Rep for 80 Middlesex & 12 Highland St petitioners): [Speaker 6]
Heather (ZBA Member): [Speaker 7]
Rob (Builder for 24 Crosman Ave petition): [Speaker 8]
Paul Eddowes (Petitioner, 55 Kensington Ln): [Speaker 9] (First instance)
John Kelty (Attorney for 1 Hillcrest Cir petition): [Speaker 9] (Second instance)
Steve Cummings (Building Commissioner): [Speaker 10] (Third instance, speaking officially)
Rick Dexter (Abutter, 33 Crosman Ave): [Speaker 10] (First instance)
Anthony (Abutter, 12 Highland St, husband of Justina): [Speaker 10] (Second instance, speaking for Justina) & [Speaker 12] (Third instance, speaking for Justina)
Marissa Meaney (Board Staff/Admin): [Speaker 14] (Likely primary staff)
Board Staff/Admin (Likely remote tech support): [Speaker 11]
Associate/Co-Petitioner for 55 Kensington Ln: [Speaker 12] (First instance)
Cesar Pena (Abutter, 27 Pine St): [Speaker 12] (Second instance)
Board Staff/Admin: [Speaker 13] (First instance, handling files)
Marcia Stolten (Abutter, 37 Pine St): [Speaker 13] (Second instance)
Paula (ZBA Member): [Speaker 15]
Bill Quinn, Esq. (Attorney for Pine St. Development): [Speaker 2]
Peter Pittman (Architect for Pine St. Development): [Speaker 8] (Speaking during Pine St. discussion)
Cindy Cavallaro (Resident/Precinct 3 Town Meeting Member): [Speaker 11] (Speaking during Pine St. discussion)

(Note: Some speaker tags are used by multiple individuals depending on the context/petition being discussed. The list attempts to capture each unique role/person identified.)

Section 3: Meeting Minutes

1. Call to Order & Opening: The meeting was called to order by Chair Mark at approximately 7:00 PM 0:06:30, noting the hybrid format permitted by the Governor’s order. Roll call confirmed members Dan, Heather, Paula, and Andy Rose were present (some in person, some remote).

2. Approval of Minutes: Chair Mark moved to approve the June 21, 2022 meeting minutes 0:07:48. Member Dan seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Paula-Y, Andy Rose-Y) 0:08:14.

3. Petition 22-06: 80 Middlesex Ave (Jennifer Simon) Discussion began on the continued petition for a dimensional special permit for a roof over an existing front porch 0:08:28. Petitioner Jennifer Simon attended remotely. Chair Mark noted new sketches were submitted showing the proposed roof. Member Dan immediately pointed out the drawing lacked the necessary dimension from the front lot line to the roof edge 0:09:28. Ms. Simon argued the roof wouldn’t extend the existing footprint closer to the lot line, citing bylaw section 2.3.6.0 0:09:55. Member Rose countered that adding a roof fundamentally changes the structure’s calculable nonconformity (lot coverage, etc.) even if the footprint doesn’t change 0:10:54. Chair Mark then initiated an extensive and detailed debate regarding the applicability of MGL Chapter 40A, Section 6 and the Belalta case, referencing a prior opinion from Town Counsel Robin Stein 0:11:14. He explored whether Belalta might allow the alteration via a Section 6 finding (“not substantially more detrimental”) rather than requiring a dimensional special permit or variance, which the ZBA has historically denied for such encroachments. Member Rose argued forcefully against applying Belalta here, distinguishing between pre-existing nonconforming structures protected by statute and permitted structures (like decks/porches allowed by bylaw) [0:15:18, 1:05:12]. He expressed strong concern that allowing the roof would effectively nullify setback bylaws and set a dangerous precedent [0:17:02, 0:35:30]. Member Dan echoed concerns about a “slippery slope” and potentially undermining other ordinances 0:32:25. Member Heather raised the point that if the roof were allowed, future enclosure or additions might follow under the same Belalta logic 0:33:27. Discrepancies between submitted plans (plot plan vs. rendering) and the actual current structure (notably, a filled-in “notch” on the porch) were identified and discussed [0:21:44 - 0:28:14]. Ms. Simon confirmed the porch was rebuilt under a prior permit, including filling the notch 0:28:21. The lack of clear, current dimensions on the submitted plans was a recurring issue [0:38:15, 0:48:13]. Ms. Simon expressed significant frustration with the lengthy process, mounting costs, and perceived shifting requirements, emphasizing the lack of neighbor opposition and the aesthetic conformity with other houses [0:42:09, 0:47:13]. Chair Mark acknowledged the history but reiterated the board’s longstanding practice and the need for clarity on jurisdiction 0:43:50. Member Dan noted the board had been clear about concerns in May 0:34:26. The board discussed the possibility of granting relief only up to the standard 16-foot setback line (20% dimensional relief), but Ms. Simon deemed a roof only covering ~7 inches impractical [0:45:43 - 0:46:41]. An older plot plan showing a “9.6 feet” dimension, possibly indicating the extent of the stairs/stoop into the setback, was found but its origin and accuracy were unclear 0:55:01. Ultimately, the board agreed to seek a formal opinion from Town Counsel Robin Stein on whether Belalta applies and if the ZBA has jurisdiction to grant the requested relief beyond the standard 20% dimensional special permit 0:48:02. Ms. Simon agreed to continue the petition. Motion: Chair Mark moved to continue the petition to September 20, 2022 1:08:04. Member Dan seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:08:19.

4. Petition 22-11: 8 Dennison Ave (Hanover Court LLC) Board staff reported that this petition was requested to be continued by the applicant’s attorney 1:09:01. Motion: Chair Mark moved to continue the petition to September 20, 2022 1:09:08. Member Paula seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:09:18.

5. Petition 22-12: 24 Crosman Ave (Andrew Broughton) The petitioner and builder Rob presented the request for a special permit (Section 6 finding) and site plan special permit for a two-story addition 1:09:22. The addition increases gross floor area beyond 15% but maintains existing setbacks. Discussion was brief. Abutter Rick Dexter (33 Crosman) spoke in support 1:11:12. No opposition was noted. The board noted similarity to a prior approval on the street. Motion: Chair Mark moved to close the public hearing 1:13:15. Member Dan seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:13:43. Motion: Member Dan moved to approve the petition for special permit and site plan special permit, condition to plans submitted 1:13:45. Chair Mark seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:14:39.

6. Petition 22-13: 55 Kensington Ln (Paul Eddowes) Petitioner Paul Eddowes and an associate presented the request for a dimensional special permit to construct a 12x16 foot deck 1:15:47. The deck requires relief for the front yard setback (proposed 16.3 feet where 20 feet required), which is within the board’s standard 20% relief authority (allowing down to 16 feet). Other setbacks were conforming. An abutter reviewed the plans during the hearing but raised no objections 1:17:19. No other comments were received. Motion: Chair Mark moved to close the public hearing 1:21:22. Member Dan seconded. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Paula-Y, Andy Rose-Y) 1:21:35. Motion: Member Heather moved to approve the petition for a dimensional special permit for the deck as described 1:21:54. Chair Mark seconded. Vote: Approved 5-0 via roll call (Heather-Y, Mark-Y, Dan-Y, Paula-Y, Andy Rose-Y) 1:22:29.

7. Petition 22-14: 1 Hillcrest Cir (John Barnes) Attorney John Kelty, representing the homeowners, presented the request for a special permit to add dormers over an existing covered porch 1:23:08. He stated the work would not extend the existing footprint or increase nonconformity. Initial confusion arose because architectural plans were not included with the initial filing provided to the board 1:26:24. Member Dan noted the application’s deficiency, particularly the missing gross floor area (GFA) calculation 1:28:48. No abutters or members of the public commented. Chair Mark proposed resolving the matter by applying the Belalta analysis 1:32:01. Since the proposed work did not appear to increase the nonconforming nature of the structure (setbacks unchanged), he argued that under Belalta, no relief (special permit or variance) was necessary, only a finding to that effect, provided the GFA increase was below the 800 sq ft site plan review trigger. Attorney Kelty agreed this approach worked 1:35:29. Motion: Chair Mark moved to close the public hearing 1:35:46. Seconded by Member Dan. Vote: Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:36:00. Motion: Chair Mark moved to make a finding that there is no increase in the nonconforming nature of the existing structure, thus no relief is required per Belalta, contingent on the GFA increase being below 800 sq ft 1:36:06. Member Dan seconded. Vote: Finding Approved 5-0 via roll call (Mark-Y, Dan-Y, Heather-Y, Andy Rose-Y, Paula-Y) 1:37:06.

8. Petition 22-15: 12 Highland St (Dana Kench) Petitioner representative T.J. Hutchings presented the request to replace and expand an existing deck, relocate stairs, enclose part of an existing front porch, and convert an existing enclosed rear porch to a screened porch 1:38:18. Discussion focused primarily on the proposed deck expansion’s compliance with side yard setbacks. The existing deck encroached to 5’9” from the side lot line. The proposal sought to extend the deck further into the setback, reaching 3.5 feet in one area 1:39:02. Board members, particularly Chair Mark and Member Dan, noted that bylaw 2.3.8.2 allows unroofed porches/decks within setbacks under specific conditions, including projecting no more than 10 feet from the foundation and maintaining a minimum 5-foot setback from all lot lines [1:39:50, 1:50:49]. Since the existing deck was already 9’3” from the foundation 1:56:14, it could extend only another 9 inches (to 10 feet from foundation) and could be no closer than 5 feet from the side lot line. The board determined it lacked authority to grant relief beyond the mandatory 5-foot setback for this type of structure. The proposed 3.5-foot setback was therefore not permissible. The petitioner agreed to modify the plan to maintain a 5-foot setback along the entire side affected by the deck 2:04:18. The enclosure of the front porch section and conversion of the rear porch were deemed not to increase nonconformities. Neighbor Anthony (representing Justina Sanchez) stated they had seen the plans and supported the required relief 2:06:00. Building Commissioner Cummings offered clarification on potential extensions beyond the 10-foot foundation line 1:58:11. Motion: Chair Mark moved to close the public hearing 2:06:51. Member Paula seconded. Vote: Approved 5-0 via roll call (Mark-Y, Heather-Y, Dan-Y, Andy Rose-Y, Paula-Y) 2:07:07. Motion: Chair Mark moved to make findings permitting the front porch enclosure, rear screened porch conversion, and deck alterations, provided the deck maintains a minimum 5-foot setback from the side lot line and extends no more than 10 feet from the foundation wall along that setback 2:07:08. Member Heather seconded. Vote: Finding Approved 5-0 via roll call (Mark-Y, Heather-Y, Dan-Y, Andy Rose-Y, Paula-Y) 2:08:47.

9. Petition 21-26: 12-14 Pine St (Pine Street Development, LLC) Attorney Bill Quinn, representing the developer, presented revised plans for the mixed-use project 2:10:23. Key changes since the last hearing included reducing units from 22+ to 21, reducing GFA by over 3,000 sq ft, pulling the building back slightly from Pine and Erie Streets, and eliminating all variance requests. Special Permits were still sought for use, height (36’2” vs 35’ limit), parking (29 spaces vs 32 required), building coverage (under 77%), and site plan review. The design aimed for 2.5 stories. Architect Peter Pittman described the design changes, including removing 10 feet from one end and redesigning a dormer 2:12:37. He detailed the strategy to achieve a “half-story” designation for the ground-floor garage level by structurally lowering the ceiling height to below 7’3” (the threshold for GFA calculation under the bylaw) over more than 50% of its area, while meeting the 7-foot building code minimum 2:14:23. Building Commissioner Steve Cummings confirmed this approach (using a structural dropped ceiling) was discussed and potentially viable under code/bylaw interpretation 2:17:54. A significant board discussion ensued regarding the validity of classifying the ground floor as a “half-story” 2:19:13. Member Heather and Member Dan expressed skepticism, viewing the ceiling lowering as an “artificial” measure designed solely to circumvent the story limit, questioning the linkage between GFA height definitions and the story definition [2:19:55, 3:00:21]. They felt a true 2.5-story building was feasible and the proposal was essentially 3 stories. Chair Mark acknowledged the ambiguity but initially suggested the board wasn’t being asked to grant relief for the story definition itself 2:19:33. Public commenters Cindy Cavallaro, Marcia Stolten, and Cesar Pena raised continued concerns about density (still too many units), parking (loss of 3 spaces exacerbating existing street parking issues), traffic impact/line of sight, construction/demolition impacts (asbestos, safety), lack of affordable housing details (though Attorney Quinn confirmed 3 units would be provided per bylaw), and lack of detail/late submission of revised plans [2:26:14, 2:29:08, 2:36:56]. Building Commissioner Cummings assured the public of oversight via required construction/demolition plans 2:34:33. Attorney Quinn and Architect Pittman addressed traffic/line of sight concerns, noting the building setback and removal of obstructions [2:30:38, 2:33:08]. Following public comment closure 2:56:29, the board deliberated. Chair Mark and Member Rose argued that the unique site conditions (floodplain preventing below-grade parking) created a hardship justifying relief, pivoting to propose granting a variance for the third story rather than accepting the contested “half-story” interpretation [2:42:53, 2:57:54, 2:59:31]. This approach aimed to avoid setting a potentially problematic precedent on the story definition. Member Rose emphasized the traffic reduction compared to the existing 25,000 sq ft commercial building potential 2:54:40. Member Heather indicated she could support a variance based on the site hardship but not the artificial ceiling lowering 2:58:46. Member Dan maintained his opposition to a variance, arguing the hardship standard wasn’t met as a conforming 2.5-story building was possible, albeit less profitable for the developer 3:00:21. Member Paula expressed support for the project as the best use of the site and seemed willing to accept prior precedent on ceiling adjustments, though unsure on the specific story definition 3:05:03. Motion: Chair Mark moved to grant a variance finding the floodplain/soil conditions constitute a unique hardship preventing below-grade parking, allowing a three-story structure, and to grant the requested special permits for use, height (36’2”), building coverage (76.9%), parking (29 spaces), floodplain use, and site plan approval, contingent on construction per revised plans and Building Commissioner oversight 3:05:47. Member Andy Rose seconded 3:09:16. Vote: Approved 4-1 via roll call (Mark-Y, Andy Rose-Y, Dan-N, Paula-Y, Heather-Y) 3:10:38. Attorney Quinn agreed to provide a draft decision.

10. Adjournment: Motion: Chair Mark moved to adjourn 3:11:55. Seconded by Member Dan. Vote: Approved unanimously by voice vote 3:12:10.

Section 4: Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) held a lengthy meeting on July 19, 2022, addressing several petitions, highlighted by significant debate on zoning interpretation for projects at 80 Middlesex Ave and 12-14 Pine St.

Key Outcomes & Decisions:

12-14 Pine Street Mixed-Use Project Approved (4-1 Vote): After extensive revisions eliminating previous variance requests, the 21-unit residential and ground-floor parking project was approved 2:08:48. The central issue became the building’s height classification. Developers proposed lowering internal garage ceiling heights to meet the technical definition of a “half-story,” making it a 2.5-story building under the bylaw. Several board members found this “artificial” [2:19:55, 3:00:21]. Ultimately, the board approved the project by granting a variance for a third story 3:05:47, citing the unique hardship of the site’s floodplain location which prevents required parking from being built below grade 2:59:31. Special permits for use, height (36’2”), parking (29 spaces instead of 32), building coverage, and site plan review were also granted. Public comments focused on density, parking impacts, traffic, and construction concerns [2:26:14, 2:29:08, 2:36:56].
- Significance: This approval allows a major redevelopment of a long-underutilized commercial property. The debate and variance pathway highlight the challenges of interpreting Swampscott’s zoning bylaw on constrained sites and the board’s differing views on flexibility versus strict adherence. The project promises needed housing, including 3 affordable units, but neighborhood concerns about parking and density persist.
80 Middlesex Ave Porch Roof Continued: A homeowner’s request to add a roof over an existing front porch that sits within the front yard setback generated considerable debate 0:08:28. The core issue was whether state law (MGL Ch. 40A, Sec 6 / Belalta case) allows such modifications to non-conforming structures via a simple finding, or if it requires a dimensional special permit/variance, which the ZBA has historically denied for such encroachments 0:11:14. Citing conflicting interpretations and concerns about setting precedent [0:15:18, 0:32:25], the ZBA voted to continue the hearing pending a legal opinion from Town Counsel 1:08:04.
- Significance: The outcome of the Town Counsel review could establish important precedent for how Swampscott handles additions or alterations to existing structures that already encroach on required setbacks, potentially affecting many properties.
Routine Approvals: The ZBA approved additions and decks under standard procedures for:
- 24 Crosman Ave: Two-story addition approved via Section 6 finding (“not substantially more detrimental”) 1:14:39.
- 55 Kensington Ln: Deck approved via dimensional special permit for front setback relief within the standard 20% allowance 1:22:29.
- 1 Hillcrest Cir: Dormer additions approved via a Belalta finding that the work didn’t increase non-conformity, contingent on Gross Floor Area limits 1:37:06.
- 12 Highland St: Deck expansion/enclosures approved with modifications ensuring compliance with the minimum 5-foot side yard setback required by bylaw for unroofed decks 2:08:48.
- Significance: These demonstrate the typical process for common home modifications needing ZBA review, applying established practices for dimensional relief and findings under state law. The Highland St discussion reinforced specific bylaw limitations.
Continuance: The petition for 8 Dennison Ave was continued to September 1:09:18.

Overall: The meeting showcased the ZBA grappling with complex zoning interpretations, balancing property owner requests with bylaw requirements, precedent, and neighborhood concerns. The Pine Street and Middlesex Avenue cases, in particular, highlighted differing philosophies on the board regarding flexibility and the application of state law versus local bylaws.

Section 5: Analysis

This ZBA meeting transcript reveals a board deeply engaged with the technicalities of zoning law, conscious of precedent, and occasionally divided on interpretation and application, particularly when faced with complex or long-standing issues.

The Belalta Conundrum (80 Middlesex & 1 Hillcrest): The discussion surrounding 80 Middlesex Ave [0:11:14 onwards] exposed a significant point of tension: how to apply the Belalta court case and MGL Ch. 40A, Sec. 6 regarding modifications to pre-existing non-conforming structures. Chair Mark appeared willing to explore Belalta as a potential path for relief historically denied under dimensional special permits, referencing prior Town Counsel advice. Conversely, Member Rose mounted a strong defense of the traditional interpretation, arguing Belalta doesn’t apply to structures permitted by bylaw (like setback-encroaching porches) and warning against undermining the zoning code [0:15:18, 0:35:30]. Member Dan shared this concern about precedent 0:32:25. The decision to seek a formal Town Counsel opinion underscores the board’s uncertainty and the perceived high stakes of this interpretation. The relatively swift application of a Belalta finding for 1 Hillcrest 1:32:01, where the work clearly didn’t extend existing non-conformities, suggests the board is comfortable with Belalta in straightforward cases but struggles with its boundaries, especially where it conflicts with established local practice.
Pine Street - Pragmatism vs. Purity: The 12-14 Pine St discussion [2:08:48 onwards] was a masterclass in zoning maneuvering and philosophical differences. The applicant’s strategic shift to eliminate variance requests by proposing a technically compliant “2.5 story” design via lowered garage ceilings 2:14:23 effectively forced the board to confront the definition’s nuances. Attorney Quinn’s arguments effectively framed the project’s benefits and contextualized the design choices within the site’s unique constraints (floodplain) 2:47:08. However, Member Heather and Member Dan viewed the ceiling solution as an “artificial” workaround, prioritizing strict interpretation of the bylaw’s intent over the technical loophole [2:19:55, 3:00:21]. Chair Mark and Member Rose ultimately navigated this impasse by pivoting to a variance argument 3:05:47, grounding the relief in the undeniable site hardship (floodplain preventing below-grade parking) rather than endorsing the contested “half-story” definition. This was a strategically effective move, appealing to the board’s desire for a positive outcome on a blighted site while satisfying (most) members’ concerns about bylaw integrity or precedent. The 4-1 vote reflects the success of this framing, though Member Dan’s dissent highlights the persistent tension between achieving a desired outcome and rigorous adherence to variance standards (specifically the hardship element).
Enforcement of Bylaw Specifics (12 Highland): The handling of 12 Highland St [1:37:35 onwards] demonstrated the board’s willingness to enforce specific, sometimes restrictive, bylaw provisions. The debate over the 10-foot projection limit and mandatory 5-foot setback for unroofed decks (Bylaw 2.3.8.2) 1:50:49 showed attention to detail and resulted in a modification of the petitioner’s request to ensure compliance 2:04:18. This contrasts somewhat with the broader interpretive debates in the Middlesex and Pine St cases, suggesting the board finds more consensus when dealing with clearer, prescriptive bylaw language.
Board Dynamics: Chair Mark actively sought pathways to approve projects, often initiating discussions on legal interpretations (Belalta, variance hardship) that might enable relief [0:11:14, 2:42:53]. Member Andy Rose consistently acted as a guardian of traditional zoning principles and precedent, often providing detailed counterarguments based on historical practice and potential impacts [0:15:18, 0:35:30, 2:54:40]. Member Dan similarly emphasized careful adherence to bylaws and skepticism towards novel interpretations or perceived loopholes [0:32:25, 1:28:48, 3:00:21]. Member Heather raised critical questions about implications and consistency [0:33:27, 2:19:55]. Public comment, while heard, appeared secondary to the board’s internal debate on technical/legal grounds in the major cases. The Building Commissioner’s input provided valuable practical context [1:58:11, 2:17:54, 2:34:33].