2022-11-15: Zoning Board Of Appeals

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Swampscott Zoning Board of Appeals Meeting Review: November 15, 2022

Section 1: Agenda

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

  1. Administrative Matters / Old Business ([HH:MM:SS] 2:52)
    • Discussion and Vote on Withdrawal Request for a previously continued petition (Butter property, architect Chandel Bacal).
  2. Public Hearing: Petition 22-23 - 135 Galloupes Point Rd (McDonald) ([HH:MM:SS] 4:44)
    • Request for Dimensional Special Permit and Special Permit for Nonconforming Uses/Structures for construction of an addition connecting the principal dwelling with the carriage house.
    • Presentation by Applicant (Attorney Ken Schutzer, Architect Bridget Fortin).
    • Public Comment.
    • Board Deliberation and Vote.
  3. Public Hearing: Petition 22-24 - 970 Paradise Rd (Chase Bank) ([HH:MM:SS] 51:05)
    • Request for Sign Special Permit for installation of a free-standing business sign.
    • Presentation by Applicant (Heather Dudco, Philadelphia Sign).
    • Public Comment.
    • Board Deliberation and Vote.
  4. Public Hearing: Petition 22-21 - 0 Lodge Rd (IG Investments LLC) ([HH:MM:SS] 1:05:18)
    • Request for Dimensional Special Permit and/or Dimensional Variance for construction of a two-family home on a vacant lot with insufficient frontage (Referred from Planning Board).
    • Presentation by Applicant (Attorney Paul Lynch).
    • Discussion on Lot Buildability (Grandfathering/Variance).
    • Public Comment.
    • Board Deliberation / Petitioner Request to Withdraw.
  5. Approval of Minutes (Mentioned in Metadata Agenda, but not discussed in transcript)
  6. Adjournment ([HH:MM:SS] 2:12:08)

Section 2: Speaking Attendees

  • Dan Rakowski (Chair): [Speaker 1]
  • Attorney Ken Schutzer (Representing Petitioner McDonald): [Speaker 3]
  • Bridget Fortin (Architect for Petitioner McDonald): [Speaker 9]
  • Property Owner (McDonald Petition): [Speaker 20]
  • Alice Goldsmith (Abutter, Galloupes Point Rd): [Speaker 15]
  • Andy Minton (ZBA Member, Remote): [Speaker 4]
  • Heather Roman (ZBA Member): [Speaker 6]
  • Brad Schwartz (ZBA Member): [Speaker 5]
  • Paula Bensaquin (ZBA Member): [Speaker 18], [Speaker 19]
  • Mark D’Angelo (Associate ZBA Member): [Speaker 14]
  • Marissa Meaney (Town Staff/Planner): [Speaker 13]
  • Steve Mscisz (Building Inspector): [Speaker 11]
  • Heather Dudco (Philadelphia Sign, Representing Petitioner Chase Bank): [Speaker 10]
  • Attorney Paul Lynch (Representing Petitioner IG Investments): [Speaker 2]
  • Billy Savino (Resident/Abutter, 20 Lodge Rd): [Speaker 8]
  • John Spagnoli (Resident, Gates Rd): [Speaker 12]
  • Resident/Abutter (21 Muriel Rd): [Speaker 16]
  • Bill Demento (Public Commenter, Remote): [Speaker 7]
  • Michael Walsh (Public Commenter, Remote): [Speaker 17]
  • Unidentified Speaker: [Speaker 21]

(Note: Speaker identities are inferred based on context, self-identification, how others address them, and typical roles in Swampscott ZBA meetings. Some assignments, particularly for less frequent speakers or those only identified by first name/role, carry a degree of uncertainty inherent in transcript analysis.)

Section 3: Meeting Minutes

Call to Order & Administrative Matters: The meeting commenced with brief discussion regarding board membership status, confirming Member Roman would be sworn in as a full member soon ([HH:MM:SS] 2:10). The Board addressed an administrative matter concerning an old, inactive petition related to the Butter property. Attorney Ken Schutzer provided context regarding the petition languishing ([HH:MM:SS] 3:27). Following brief discussion confirming the petitioner’s representative (an architect, not attorney) signaled intent to withdraw ([HH:MM:SS] 3:07), Chair Rakowski moved to deem the petition withdrawn. The motion was seconded and approved unanimously ([HH:MM:SS] 4:34).

Petition 22-23: 135 Galloupes Point Rd (McDonald) Chair Rakowski introduced the petition ([HH:MM:SS] 4:44). Attorney Ken Schutzer, representing homeowners Gregory and Nora McDonald, presented the request for special permits to construct an addition connecting the main house (a former caretaker’s house) to a significantly larger, pre-existing, nonconforming carriage house ([HH:MM:SS] 5:19). Architect Bridget Fortin presented the design, explaining the addition would house a new kitchen and entryway, making better use of the existing structures and improving flow ([HH:MM:SS] 9:39). Attorney Schutzer noted the lot’s history as part of a larger estate, the conforming nature of the lot itself, and the nonconformities stemming from the carriage house’s proximity to lot lines ([HH:MM:SS] 6:40, 8:26). He presented evidence of support from abutting property owners ([HH:MM:SS] 13:36) and mentioned a similar project was approved but never built in 2000 ([HH:MM:SS] 14:50).

A significant discussion ensued regarding the zoning implications of connecting the structures ([HH:MM:SS] 18:00). Chair Rakowski raised concerns based on a prior case, questioning whether the connected carriage house should retain its “accessory structure” status via condition to prevent future unintended expansion (like adding habitable space or a second story) ([HH:MM:SS] 18:00, 24:12). Member Roman questioned the calculation of addition square footage if the accessory structure’s use changed ([HH:MM:SS] 21:07, 22:30). Attorney Schutzer argued the addition was only the new 440 sq ft connector, and changing the use of the existing carriage house (partially from garage/storage to living space) didn’t trigger site plan review thresholds based on new construction ([HH:MM:SS] 22:43, 25:43). He argued converting garage bays to living space made the property more conforming by reducing the excessive number of garage bays ([HH:MM:SS] 25:43).

Public comment was heard from abutter Alice Goldsmith, who spoke strongly in favor, calling the project “great” and noting the carriage house was currently an “eyesore” ([HH:MM:SS] 27:25). No opposition was voiced in person or via Zoom ([HH:MM:SS] 28:16).

Board deliberation focused heavily on the appropriate condition. Member Minton (remote) initially supported the “deem accessory” condition for consistency with the prior case ([HH:MM:SS] 28:45). Attorney Schutzer strongly resisted this “legal fiction,” arguing a connected structure is definitionally part of the primary structure ([HH:MM:SS] 35:04, 38:39) and proposed instead a condition requiring ZBA approval for any future exterior changes ([HH:MM:SS] 40:26). Building Inspector Steve Mscisz expressed concern that deeming a connected structure “accessory” would create confusion for future building permit reviews ([HH:MM:SS] 39:37). Town Planner Marissa Meaney noted that adding features like a second egress (required for an ADU) would trigger review anyway due to exterior modification ([HH:MM:SS] 41:33). Member Roman and Associate Member D’Angelo voiced support for avoiding the confusing “accessory” designation, given the unique nature of the property ([HH:MM:SS] 45:36, 45:56). The board ultimately reached consensus around conditioning future changes. Member Schwartz suggested conditioning changes in use as well as structure ([HH:MM:SS] 48:52).

The public hearing was closed ([HH:MM:SS] 49:10). Chair Rakowski moved to approve Petition 22-23, conditioned upon any change in either the structure or use being subject to further special permit relief from the ZBA ([HH:MM:SS] 49:12). The motion was seconded by Member Roman and passed unanimously ([HH:MM:SS] 50:26).

Petition 22-24: 970 Paradise Rd (Chase Bank) Chair Rakowski introduced the petition for a sign special permit ([HH:MM:SS] 51:05). Heather Dudco from Philadelphia Sign, representing Chase Bank, presented the request for a 58 sq ft, 17-foot tall, internally illuminated freestanding sign at the entrance of the new bank branch under construction ([HH:MM:SS] 51:50). She provided renderings and site context ([HH:MM:SS] 52:36).

Member Schwartz immediately raised concerns about the 17-foot height, questioning if it was necessary and noting the high traffic and visual sensitivity of the Vinnin Square area ([HH:MM:SS] 54:48, 56:47). Member Minton (remote) suggested conditioning the height to be no greater than the median or average height of the adjacent freestanding signs (Citizens Bank, Five Guys) to ensure proportionality ([HH:MM:SS] 57:53). This suggestion was quickly embraced by the board ([HH:MM:SS] 58:33). Ms. Dudco indicated acceptance of such a condition ([HH:MM:SS] 59:46). Member Schwartz confirmed the sign placement wouldn’t obstruct sightlines ([HH:MM:SS] 54:48).

No public comment was offered for or against ([HH:MM:SS] 1:02:04). The public hearing was closed ([HH:MM:SS] 1:02:29). Member Schwartz moved to approve Petition 22-24, conditioned that the sign height not exceed the median height of the signs on the two directly abutting properties (Citizens Bank and Five Guys/Dunkin Donuts lots), and otherwise be constructed per submitted plans ([HH:MM:SS] 1:02:47). The motion was seconded by Chair Rakowski and passed unanimously ([HH:MM:SS] 1:03:54).

Petition 22-21: 0 Lodge Rd (IG Investments LLC) Chair Rakowski introduced the petition, noting it sought a dimensional special permit and/or variance for a two-family home on a vacant lot with insufficient frontage ([HH:MM:SS] 1:05:05). Attorney Paul Lynch, representing IG Investments, explained the complex history: the lot was created in a 1949 Planning Board-endorsed plan after the 1948 zoning change requiring greater frontage/area, raising grandfathering questions ([HH:MM:SS] 1:06:08). The Planning Board had previously reviewed a site plan request but referred the zoning/buildability question to the ZBA ([HH:MM:SS] 1:05:18). Attorney Lynch argued the lot should be considered buildable due to reliance on a prior Building Inspector’s letter affirming buildability ([HH:MM:SS] 1:09:26), continuous separate ownership since 1949 ([HH:MM:SS] 1:20:57), and the assumption that lost town records might have contained necessary relief granted in 1949 ([HH:MM:SS] 1:07:38). He requested relief for the 8-foot frontage deficiency (52 ft vs required 60 ft at the time) ([HH:MM:SS] 1:20:29).

A detailed legal discussion ensued. Chair Rakowski questioned the buildability, noting the lot was created after the zoning change made it nonconforming, was held in common ownership when zoning passed (implying merger), and lacked evidence of a variance ([HH:MM:SS] 1:13:07, 1:16:13). He pointed out the 1948 zoning bylaw explicitly prohibited creating such nonconforming lots ([HH:MM:SS] 1:16:13). Member Minton and Chair Rakowski highlighted that frontage relief typically requires a variance, not a special permit, and questioned whether the hardship standards for a variance could be met ([HH:MM:SS] 1:24:59). Member Schwartz pointed to specific Swampscott bylaw language stating insufficient frontage alone is not grounds for a variance ([HH:MM:SS] 1:28:18). Attorney Lynch argued the hardship stemmed from the lot’s unique shape/circumstances and lack of alternatives, not solely frontage ([HH:MM:SS] 1:28:35, 1:35:23).

Building Inspector Steve Mscisz intervened to clarify that the prior Building Inspector’s letter referenced by Attorney Lynch appeared based on incorrect historical zoning requirements (5000 sq ft/50 ft frontage, which wasn’t applicable), suggesting the letter was issued in error ([HH:MM:SS] 1:40:37). Member Roman and Chair Rakowski discussed MGL Ch. 40A, Sec. 6 regarding protections for certain lots, but concluded the grace periods had long expired and didn’t apply favorably here ([HH:MM:SS] 1:45:27, 1:51:15).

Public comment was extensive and strongly negative. Billy Savino (abutter, 20 Lodge Rd) described significant, recurring flooding issues on the lot and adjacent properties, damage to his home, and concerns that development would worsen the water table problems ([HH:MM:SS] 1:53:48). John Spagnoli (Gates Rd) corroborated the high water table issues in the area ([HH:MM:SS] 1:58:14). A resident from 21 Muriel Rd (abutting rear) also described severe flooding, including losing a car, and stated the previous owner knew the lot wasn’t buildable due to water issues ([HH:MM:SS] 1:58:57). Bill Demento (remote) argued forcefully that the lot was illegal, the variance standard couldn’t possibly be met, the proposed structure was too large, and the prior Building Inspector’s assessment was flawed ([HH:MM:SS] 2:02:19). Michael Walsh (remote) suggested the petitioner’s situation stemmed from a failure of due diligence rather than a hardship justifying ZBA relief ([HH:MM:SS] 2:08:03).

Member Minton floated a complex idea involving a land swap with the abutting Lot A to potentially make Lot B conforming, but this involved multiple assumptions and conveyances not immediately feasible ([HH:MM:SS] 1:41:28, 1:43:20).

Faced with significant legal hurdles raised by the Board and strong, consistent neighbor opposition focused on flooding, Attorney Lynch requested to withdraw the petition without prejudice to allow time to regroup and potentially discuss issues with neighbors ([HH:MM:SS] 2:10:41). Chair Rakowski moved to approve the withdrawal request without prejudice. The motion was seconded and passed unanimously ([HH:MM:SS] 2:11:30).

Adjournment: The meeting adjourned following a motion ([HH:MM:SS] 2:12:08).

Section 4: Executive Summary

This Swampscott Zoning Board of Appeals (ZBA) meeting addressed three property petitions, resulting in two approvals with conditions and one withdrawal amid significant concerns.

1. Galloupes Point Addition Approved, Enhancing Historic Property: The ZBA unanimously approved ([HH:MM:SS] 50:26) the request for 135 Galloupes Point Road to construct an addition connecting the main house to its large, historic carriage house. Significance: This allows the owners to modernize and make practical use of a unique property feature, improving its utility and potentially its aesthetics, as supported by an abutter ([HH:MM:SS] 27:25). The approval was conditioned ([HH:MM:SS] 49:12) that any future changes to the structure or its use must return to the ZBA for review, addressing board concerns about potential overdevelopment while avoiding confusing zoning classifications.

2. Chase Bank Sign Approved with Height Restriction: A new freestanding sign for the Chase Bank branch under construction at 970 Paradise Road was approved ([HH:MM:SS] 1:03:54). Significance: Responding to board member concerns about visual impact in the busy Vinnin Square area ([HH:MM:SS] 54:48), the approval was conditioned ([HH:MM:SS] 1:02:47) to limit the sign’s height to be proportional to its immediate neighbors (Citizens Bank, Five Guys). This balances the new business’s need for identification with maintaining the visual character of the commercial district.

3. Controversial Lodge Road Two-Family Proposal Withdrawn: The proposal to build a two-family house on a vacant lot at 0 Lodge Road was withdrawn by the applicant’s attorney without prejudice ([HH:MM:SS] 2:11:30) after facing significant challenges. Significance: This project faced major hurdles. Legally, the ZBA expressed serious doubts about whether the lot was buildable at all, as it appeared to have been created with insufficient frontage after zoning laws changed in 1948, likely rendering it illegally nonconforming ([HH:MM:SS] 1:16:13). Obtaining a necessary variance seemed highly unlikely under state law and the town’s bylaw ([HH:MM:SS] 1:25:16, 1:28:18). Compounding these issues was strong, unified opposition from neighbors ([HH:MM:SS] 1:53:48 ff), who provided compelling testimony about severe existing flooding problems on and around the lot, fearing development would exacerbate the situation. A prior letter from a former Building Inspector suggesting the lot was buildable was called into question by the current Inspector as likely based on incorrect information ([HH:MM:SS] 1:40:37). The withdrawal allows the applicant to reconsider, but the fundamental legal and environmental issues remain significant obstacles.

Overall: The ZBA navigated complex zoning history and neighbor concerns, demonstrating a willingness to find pragmatic solutions (Galloupes Pt condition, Chase sign height) while upholding zoning principles and giving weight to resident testimony regarding potential impacts (Lodge Rd).

Section 5: Analysis

This ZBA meeting showcased the board navigating a spectrum of zoning challenges, from relatively straightforward aesthetic considerations to deeply complex questions of historical zoning errors and environmental impacts.

Galloupes Point: Pragmatism over Precedent? The lengthy discussion surrounding the 135 Galloupes Point petition revealed a tension between adhering strictly to zoning definitions and facilitating a practical, aesthetically sensible project. Attorney Schutzer effectively argued for the project’s merits and the functional absurdity of a massive, underutilized carriage house ([HH:MM:SS] 19:08, 20:24). The initial push by Chair Rakowski and Member Minton to impose the “deemed accessory” condition ([HH:MM:SS] 18:00, 28:45), based on a prior case, highlighted a concern for setting precedent. However, the Building Inspector’s practical warning about future confusion ([HH:MM:SS] 39:37), coupled with Attorney Schutzer’s persistent advocacy against the “legal fiction” ([HH:MM:SS] 35:04, 45:26) and support from other members ([HH:MM:SS] 45:36, 45:56), led to a more tailored condition focusing on future changes ([HH:MM:SS] 49:12). This outcome suggests the board prioritized a workable solution for this unique property over rigid adherence to a potentially confusing precedent, demonstrating flexibility. The unanimous approval, despite the debate, indicated strong underlying agreement on the project’s value.

Chase Bank: Efficient Problem Solving: The Chase Bank sign petition demonstrated the board’s capacity for efficient resolution when concerns are clearly articulated and solutions readily available. Member Schwartz’s pointed questions about height and context ([HH:MM:SS] 54:48, 56:47) effectively framed the issue, and Member Minton’s immediate proposal to tie the height to neighboring signs ([HH:MM:SS] 57:53) offered a practical, easily agreeable compromise. The applicant’s quick acceptance ([HH:MM:SS] 59:46) facilitated rapid consensus, reflecting a smooth process for standard commercial zoning requests where impacts are manageable through conditions.

Lodge Road: A Convergence of Obstacles: The 0 Lodge Road petition presented a near-insurmountable convergence of legal and environmental challenges. Attorney Lynch’s case relied heavily on interpreting historical ambiguity (lost records [HH:MM:SS] 1:07:38), arguing reliance on a now-questioned town letter ([HH:MM:SS] 1:09:26), and framing the situation as a hardship ([HH:MM:SS] 1:22:53). However, these arguments appeared relatively weak against the Board’s interpretation of zoning history (post-zoning creation of nonconformity [HH:MM:SS] 1:16:13), the high bar for variances under Chapter 40A and local bylaws (esp. re: frontage [HH:MM:SS] 1:28:18), and the damning correction from the current Building Inspector regarding the basis of the prior letter ([HH:MM:SS] 1:40:37). The public testimony was particularly powerful; the detailed, personal accounts of significant flooding by multiple direct abutters and nearby residents ([HH:MM:SS] 1:53:48 ff) provided compelling, real-world context that transcended theoretical legal arguments. This testimony appeared to carry significant weight, solidifying the impression that developing this specific lot posed tangible risks to the neighborhood. Attorney Lynch’s eventual withdrawal ([HH:MM:SS] 2:10:41) seemed an acknowledgment that the combined force of legal/variance difficulties and the deeply felt, evidence-based community opposition made proceeding untenable at that time. The Board effectively managed a contentious issue by allowing thorough presentation of legal arguments and extensive public input, leading to a resolution (albeit temporary via withdrawal) grounded in both zoning law and demonstrable neighborhood concerns.