Swampscott Zoning Board of Appeals Meeting Review (May 9, 2023)

1. Agenda

Based on the transcript and provided metadata, the likely agenda for the meeting was:

Call to Order (Implied start before 12:29)
Approval of Minutes (Prior meetings) 12:29
Petition 23-05 (0 Lodge Rd - IG Investments LLC): Request for Continuance 12:29
Petition 22-25 (53 Puritan Rd - Jerry Sneirson): Confirmation of Existing Continuance 14:28
Petition 23-04 (286 Humphrey St - Arthur Ingemi): Humphrey Street Special Permit Request (Outdoor Cooler Unit) 13:28
- Discussion on Board Member Attendance / Quorum / Voting Requirements
- Petitioner Presentation (Attorney Ken Schutzer)
- Board Discussion on Jurisdictional Authority (Buffer Zone Requirements)
- Public Comment Period
- Motion for Continuance
Adjournment 1:11:37

2. Speaking Attendees

Attorney Ken Schutzer (Petitioner’s Representative): [Speaker 1]
Mark (ZBA Member): [Speaker 2]
Moira Farrell (Abutter): [Speaker 3]
Chair (ZBA): [Speaker 4]
Dan Grimes (Abutter): [Speaker 5]
Town Staff/Planner: [Speaker 6]
Dan (ZBA Member): [Speaker 7]
ZBA Member 1: [Speaker 8]
ZBA Member 2: [Speaker 9]
Public Attendee 1: [Speaker 10]
Public Attendee 2: [Speaker 11]

(Note: The identification of “Mark” and “Dan” as ZBA members is inferred from context within the transcript [33:37-33:39]. The Chair’s specific name is not stated but their role is clear from procedural actions. Town Staff/Planner role is inferred from managing meeting logistics and providing bylaw information.)

3. Meeting Minutes

Call to Order & Preliminaries: The meeting commenced with the Chair welcoming attendees 12:29. Approval of minutes for prior meetings was moved and approved (vote details not fully captured).

Continuances:

Petition 23-05 (0 Lodge Rd): The Chair moved to continue this petition to the June meeting, subject to receiving a signed continuance form from the applicant 12:29. Member Mark seconded the motion. The motion passed unanimously 13:28. Town Staff confirmed contact had been made with the applicant 13:17.
Petition 22-25 (53 Puritan Rd): Board members confirmed that a signed continuance for this petition was already on file [14:34 - 15:08].

Petition 23-04 (286 Humphrey St - Dockside Restaurant Cooler):

Quorum & Voting Discussion: Attorney Ken Schutzer, representing the applicant, requested waiting for a fifth board member, noting the requirement for four affirmative votes (a supermajority) for a special permit 13:54. With only four members present, this would necessitate a unanimous decision. The Chair and Attorney Schutzer discussed the implications and the possibility of a fifth member reviewing the recording later under the “Mullen Rule” if a continuance occurred due to a split vote [14:02 - 21:21]. This discussion highlighted the procedural complexities and risks for the petitioner with only four members present.
Petitioner Presentation: Attorney Schutzer presented the request for a Humphrey Street Special Permit for a bump-out structure housing a walk-in refrigerator unit at the former Zest Friends/Wynn’s location 22:52. He emphasized the property’s location in the B1 zone and the Humphrey Street Overlay District, arguing the unique rules of Section 4700 applied. He referenced Planning Board design review approval and focused the ZBA’s task on the buffer zone relief needed next to the abutting residential property. Attorney Schutzer cited Section 4760D (“Exceptions”) as granting the ZBA broad authority to modify dimensional requirements, including the buffer 25:06. He described the cooler as necessary for the restaurant’s fresh food concept (primarily fish), arguing it aligns with the Town’s Master Plan encouraging restaurants on Humphrey Street. He also asserted the bump-out would improve screening and reduce patio space [25:06 - 30:15].
Jurisdictional Debate: A significant discussion ensued regarding the ZBA’s authority to grant relief from the 10-foot buffer required between the commercial property and the abutting residential district (Section 4764B).
- The Chair 30:28 and Member Mark 31:14 expressed the view that the exception clause (4760D) cited by the petitioner likely only applied to dimensional requirements in 4761A and not the mandatory buffer requirement (“must provide a buffer”) in 4764B.
- Member Dan concurred 33:39, adding that since the base side-yard requirement was zero, the exception couldn’t grant more relief than zero anyway. He emphasized the mandatory nature of the buffer language intended to protect residential abutters.
- Attorney Schutzer countered, arguing the exception language was broader and that a buffer (plantings) was a lesser restriction than dimensional setbacks, suggesting the ZBA was not barred from granting relief [32:02, 37:56]. He also argued the structure itself would act as a buffer [35:38, 36:07].
- The board members maintained their interpretation that the bylaw explicitly required the 10-foot buffer, preventing them from allowing a structure within it [33:00, 34:18, 39:14]. Member Mark characterized building in the buffer as a “slippery slope” 39:44 and suggested negotiating an easement with the abutter might be a path forward, though outside the ZBA’s purview 37:23. This interpretive disagreement became the central obstacle.
Petitioner Reassessment: Faced with the Board’s consensus on lacking authority, Attorney Schutzer acknowledged the problem and requested time to confer with his client [41:09 - 44:13]. He noted that without the need for buffer relief, ZBA approval wouldn’t be required 42:24.
Public Comment: 50:23
- Dan Grimes (Abutter, 292 Humphrey St): Expressed support for the restaurant concept but raised concerns about patrons blocking his adjacent driveway for takeout pickups, an issue experienced with previous establishments 50:50. He also mentioned concerns about late operating hours discussed at the Planning Board (acknowledged as outside ZBA jurisdiction). He emphasized the need for good faith cooperation but also worried about setting precedents 54:35. The Board discussed signage (DPW jurisdiction) and potential voluntary signage by the petitioner [53:08 - 56:33].
- Moira Farrell (Abutter, 16 Blaney Circle - behind): Stated strong objections 56:36. She referenced Planning Board hesitation on the bump-out and takeout window. Her concerns included: late-night activity associated with takeout, sidewalk cleanliness/pests (citing issues with G’s, Popo’s, Mission, and past issues at 286 Humphrey), existing noise pollution (HVAC hum, cooking smells, oven roar from Zest Friends), and the potential added noise from the new refrigeration unit 59:22. She expressed significant distrust based on past experiences with development promises not being kept town-wide (citing Plotka’s, Captain Jack’s, Concordia) and urged the Board to strictly enforce zoning, including buffer requirements [59:36 - 1:02:17]. She also contested the petitioner’s claim about prior outdoor table use in the specific area of the proposed bump-out 1:01:59.
Board/Petitioner Response to Public Comment: Member Mark addressed Ms. Farrell’s concerns about enforcement, explaining the process involving the Building Inspector and the importance of conditions being written into ZBA decisions [1:02:18 - 1:07:06]. He specifically recalled noise conditions (decibel levels) being placed on a previous iteration of the restaurant at this location. Attorney Schutzer responded that many of Ms. Farrell’s concerns related to general restaurant operations, not the specific ZBA relief sought, but pledged cooperation 1:08:00. He reiterated his belief that the new cooler would be quiet 1:09:47.
Continuance: Given the Board’s position on lacking authority for the buffer relief, Attorney Schutzer requested a continuance to the next meeting 1:07:13, allowing time to evaluate options (redesign, withdraw). The Chair moved to continue Petition 23-04 to June 13th 1:10:37. The motion was seconded and passed unanimously 1:10:54. Attorney Schutzer confirmed he would sign the continuance form.

Adjournment: A motion to adjourn was made 1:11:37 and presumably passed shortly thereafter.

4. Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) met on May 9, 2023, primarily focusing on a controversial proposal for the new Dockside restaurant at 286 Humphrey Street (formerly Zest Friends).

Key Issue: Humphrey Street Restaurant Proposal Stalled by Buffer Rule The applicant sought a Humphrey Street Special Permit (Petition 23-04) to construct a “bump-out” housing a walk-in refrigerator. This structure would encroach into the 10-foot buffer zone required by the Humphrey Street Overlay District zoning bylaw where the commercial property abuts a residential lot 25:06. The petitioner’s attorney, Ken Schutzer, argued the project supports the town’s Master Plan goals for restaurants and that a specific bylaw exception clause granted the ZBA authority to modify the buffer requirement [25:06-30:15].

However, ZBA members (Chair, Mark, Dan) reached a consensus that the bylaw’s language mandating the 10-foot buffer next to residential districts (“must provide a buffer”) overrides the general exception clause they believed applied elsewhere [30:28-35:37, 41:38]. Significance: This interpretation strongly signals the ZBA’s commitment to upholding specific residential protections within the overlay district, potentially impacting future similar requests. The Board indicated they lacked jurisdiction to grant the relief as requested.

Abutter Concerns Highlight Commercial/Residential Tensions Public comment from neighbors underscored existing quality-of-life issues. Dan Grimes (abutting owner) raised concerns about restaurant patrons blocking his driveway 50:50. Moira Farrell (resident behind the property) voiced strong objections, citing past problems with noise (HVAC, cooking odors, late-night activity), garbage, pests, and a general distrust stemming from previous development projects where promises were perceived as unkept [56:36-1:02:17]. Her specific concern about noise from the proposed refrigeration unit 59:22 directly related to the petition. Significance: These comments reflect ongoing friction along Humphrey Street and emphasize the importance residents place on mitigating impacts like noise and parking congestion from commercial uses, particularly restaurants.

Outcome: Petition Continued Facing the Board’s jurisdictional stance, the applicant requested and was granted a continuance for Petition 23-04 to the June 13th meeting 1:10:37. This allows the applicant time to potentially redesign the project to comply with the buffer requirement (e.g., relocating the cooler 42:48), negotiate an easement with the abutter 37:23, or withdraw the request.

Other Business: Petition 23-05 (0 Lodge Rd) was also continued to June 13:28, and Petition 22-25 (53 Puritan Rd) was confirmed as previously continued. Minutes from prior meetings were approved 12:29.

5. Analysis

This ZBA meeting revolved almost entirely around the interpretation of the Humphrey Street Overlay District bylaw concerning Petition 23-04, revealing key dynamics and strategic considerations.

Dominance of Bylaw Interpretation: The core of the meeting was a legalistic debate over jurisdictional authority. The ZBA members present (Chair, Mark, Dan) presented a unified and seemingly firm interpretation of Section 4764B, asserting the 10-foot buffer requirement adjacent to residential districts was mandatory and could not be modified by the exception clause (4760D) the petitioner relied upon [30:28-35:37]. Their argument, emphasizing the specific mandatory language (“must provide”) versus discretionary language elsewhere, appeared decisive in the context of the meeting. This interpretation prioritized the explicit residential protection embedded in the overlay district rules over the petitioner’s desire for operational flexibility.

Petitioner’s Strategy and Obstacles: Attorney Schutzer initially demonstrated strategic awareness by highlighting the need for a fifth member to avoid the high bar of unanimity with only four present 13:54. His substantive argument attempted to leverage the bylaw’s exception clause and frame the project’s benefits (Master Plan alignment, fresh food focus, potential screening) [25:06-30:15, 35:38-37:20]. However, this line of reasoning proved ineffective against the Board’s consistent reading of the mandatory buffer language. The suggestion by Member Mark of pursuing an easement 37:23 offered a potential alternative path, implicitly acknowledging the ZBA couldn’t grant the requested relief directly. The petitioner’s eventual request for a continuance 1:07:13 was a pragmatic acceptance of the Board’s position during the hearing.

Public Comment as Context, Not Decider (on Buffer): While the jurisdictional issue seemed dispositive before extensive public comment, the input from abutters Dan Grimes and Moira Farrell was significant dynamically. Mr. Grimes’ parking concerns 50:50 and Ms. Farrell’s passionate testimony about noise, pests, and broken promises [56:36-1:02:17] powerfully illustrated the real-world impacts and resident anxieties that likely informed the creation of the buffer requirement itself. Ms. Farrell’s deep-seated distrust 59:36 reflects a broader challenge for developers and town boards in areas undergoing intensification. While her points didn’t change the Board’s legal interpretation at this meeting, they reinforced the political and community sensitivity surrounding such proposals, particularly regarding noise 59:22 from equipment like the proposed cooler.

Board Dynamics: The apparent consensus among the Chair, Member Mark, and Member Dan on the core legal point 33:39 was crucial. Their consistent interpretation left the petitioner with little room to maneuver during the hearing. Member Mark’s engagement with Ms. Farrell on enforcement mechanisms 1:02:18 served both to address her concerns and subtly underscore the limits of ZBA authority (enforcement rests with the Building Inspector) while highlighting the importance of clear conditions in ZBA decisions.