2023-07-18: Zoning Board Of Appeals

Click timestamps in the text to watch that part of the meeting recording.

Swampscott Zoning Board of Appeals Meeting Review: July 18, 2023

1. Agenda

Based on the transcript, the likely agenda items discussed were:

  1. 0:05:06 Approval of Minutes: Review and approval of minutes from a previous meeting.
  2. 0:05:18 Petition 23-07: Michael Nguyen, 434 Humphrey St: Request for a Use Special Permit for a nail salon in the Humphrey Street Overlay District.
  3. 0:12:07 Petition 23-08: Ralph Perelis, 5 Tupelo Rd: Request for a Finding on Nonconforming Lot and/or Structure for an addition. (Handled under acting chair due to Chair’s recusal).
  4. 0:16:29 Petition 23-06: Realty Investors, LLC, 29 Essex St: Request for continuance.
  5. 0:18:19 Petition 23-05: IG Investments LLC, 0 Lodge Rd: Request for continuance.
  6. 0:21:04 Administrative Matters: Discussion of August meeting schedule, joint meeting with Planning Board, status of bylaw updates, introduction of new member.
  7. 0:31:10 Petition 22-25: Jerry Sneirson, 53 Puritan Rd: Continued hearing regarding Special Permit, appeal of Building Inspector determination, and Dimensional Variance for accessory structure height.
  8. 0:51:46 Adjournment.

2. Speaking Attendees

  • Chair (Name not stated, recused from Tupelo Rd petition): [Speaker 1]
  • Andy [Surname?] (ZBA Member, recused from Humphrey St petition): [Speaker 2] (at 0:05:43)
  • Attorney Ken Schutzer (Representing abutter on Puritan Rd petition; likely also representing petitioner on Lodge Rd petition): [Speaker 2] (from 0:18:50 onwards)
  • Mark [Surname?] (ZBA Member, acted as Chair for Tupelo Rd petition): [Speaker 3]
  • Attorney James Cipoletta (Representing Jerry Sneirson): [Speaker 4]
  • Marissa [Surname?] (Town Planner/Staff): [Speaker 5]
  • Michael Nguyen (Petitioner, 434 Humphrey St): [Speaker 6]
  • Building Inspector (Name not stated): [Speaker 7]
  • ZBA Member (Name not stated): [Speaker 8]
  • Jerry Sneirson (Petitioner, 53 Puritan Rd): [Speaker 9]
  • ZBA Member (Name not stated / Possibly Andy after recusal?): [Speaker 10] (Note: Participated in administrative discussion/banter)
  • Ralph Perelis (Petitioner, 5 Tupelo Rd): [Speaker 11]
  • Jonathan Lehman (Historical Commission Vice Chair): [Speaker 12]
  • Susan Sinerich (New ZBA Member): [Speaker 5] (Introduced at 0:27:35, though tag is Speaker 5 - likely an error in tagging, context indicates a new person speaking) / Also ZBA Member (Name not stated): [Speaker 13] (Note: Voted, seconded motions, participated in banter - could be Sinerich or another member)
  • Associate of Petitioner Sneirson (Name not stated): [Speaker 14]

(Note: Based on context, Speaker 13 is likely the new member Susan Sinerich actively participating after introduction. Speaker 10’s identity remains less certain but acted as a board member.)

3. Meeting Minutes

1. Call to Order & Approval of Minutes The Chair called the meeting to order. Minutes from the previous meeting were distributed (0:05:06). A motion to approve the minutes was made by Member Mark (0:05:15), seconded (0:05:18), and passed unanimously (0:05:18).

2. Petition 23-07: Michael Nguyen, 434 Humphrey St (Nail Salon)

  • Recusal: Member Andy recused himself, citing a close personal relationship with the petitioner (0:05:43). The Chair noted this left four voting members, requiring a unanimous vote for approval (0:05:58).
  • Presentation: Petitioner Michael Nguyen presented his plan to open a nail salon, citing 25 years of experience in Winthrop (0:06:28).
  • Discussion: The Chair explained the petition was necessary due to a bylaw requiring ZBA approval for ground-floor service businesses in the commercial district, aimed at maintaining diverse uses (0:07:37). The Board noted other nail salons exist, but also that previous spas at or near this location had closed. Mention was made of emails from another party interested in the space, but the Chair clarified the ZBA decision relates only to the use, not the lease agreement (0:08:38, 0:09:56).
  • Decision: Finding no further questions or concerns (0:10:33), a ZBA Member moved to approve Petition 23-07 for the Use Special Permit (0:11:07). Member Mark seconded (0:11:28). The motion passed unanimously (4-0) (0:11:29). The public hearing was implicitly closed upon approval (acknowledged oversight at 0:11:51).

3. Petition 23-08: Ralph Perelis, 5 Tupelo Rd (Addition)

  • Recusal: The Chair recused herself as an abutter (0:12:00). Member Mark chaired this item (0:12:07).
  • Presentation: Petitioner Ralph Perelis, accompanied by architect Ernie DeMaio, explained the property is on a pre-existing nonconforming lot (area and frontage) (0:12:47). He stated the proposed renovation/addition complies with all other dimensional requirements (setbacks, height, coverage) and does not increase any nonconformity (0:13:48).
  • Discussion: Acting Chair Mark confirmed the proposed work creates no new nonconformities (0:13:51). The board identified this as requiring a straightforward finding under M.G.L. c. 40A, § 6 (often associated with the Bellotta case principle) that the work doesn’t intensify existing nonconformities (0:14:17).
  • Decision: Acting Chair Mark moved to approve the petition and make the finding that the proposed work does not increase any existing nonconformity and is protected under Section 6 (0:15:38). ZBA Member [Speaker 13] seconded (0:15:58). The motion passed unanimously (0:16:02).

4. Petition 23-06: Realty Investors, LLC, 29 Essex St (Development)

  • Continuance: Town Planner/Staff Marissa confirmed a continuance form was received from the petitioner’s attorney (0:16:47). The Board discussed scheduling the next meeting (see Admin Matters) and agreed on August 22.
  • Decision: The Chair moved to continue Petition 23-06 to the August 22 meeting (0:17:04, 0:18:11). Member Mark seconded (0:18:18). The motion passed unanimously (0:18:19).

5. Petition 23-05: IG Investments LLC, 0 Lodge Rd (Single-Family Home)

  • Continuance: Attorney Ken Schutzer, representing the petitioner, requested a continuance to allow the owners time to consult with counsel (0:18:50). Discussion ensued about notifying neighbors if further continuances are needed (0:20:07).
  • Decision: The Chair moved to continue Petition 23-05 to the August 22 meeting (0:20:37). Member Mark seconded (0:20:45). The motion passed unanimously (0:20:47).

6. Administrative Matters

  • August Meeting: The Board confirmed availability and scheduled the next ZBA meeting for August 22nd, noting virtual attendance is possible (0:17:15 - 0:18:16).
  • Joint Meeting: Town Planner/Staff Marissa announced a potential joint virtual meeting with the Planning Board for August 1st at 7:00 PM to vote on updated procedural guidelines reflecting recent bylaw changes (0:21:16). Quorum for ZBA might be an issue, but the vote could occur at the August 22 ZBA meeting if needed (0:22:33).
  • Bylaw Updates: Discussion occurred regarding the status of Town Meeting-approved bylaw changes, which are pending approval from the Attorney General’s office (expected by ~Sept 1st) (0:24:15). Until approved, new bylaws are not officially posted, and applicants proceeding under them do so “at risk” (0:24:54). Board members requested updated printed copies once finalized (0:23:33).
  • New Member: Town Planner/Staff Marissa introduced new ZBA member Susan Sinerich (0:27:35).
  • Meeting Pause: The Board paused (0:21:02) until the scheduled 7:30 PM start time for the final petition, engaging in informal conversation.

7. Petition 22-25: Jerry Sneirson, 53 Puritan Rd (Accessory Structure)

  • Background: The hearing, continued from February, concerned relief for a pre-existing, nonconforming accessory structure (garage). The Chair noted receipt of a Historical Commission letter referencing plans showing a previous height of 17 feet (0:31:10).
  • Petitioner Position: Attorney James Cipoletta, representing petitioner Jerry Sneirson, confirmed Mr. Sneirson agreed to return the structure’s height to 17 feet (0:32:18). He argued that returning to the prior height and footprint meant no ZBA relief (finding or variance) was required (0:32:45). He confirmed the footprint had not increased and wall height remained the same (0:34:13). Mr. Sneirson expressed frustration with the lengthy process (0:46:56).
  • Abutter Position: Attorney Ken Schutzer, representing abutter Lawrence Bethel, argued that simply agreeing to 17 feet didn’t resolve all issues (0:36:29). He stated no plans reflecting the 17-foot proposal were submitted, questioned the procedural standing due to a revoked permit and untimely appeal, and asserted that additional relief might be needed under the Floodplain Overlay District and potentially Site Plan review, none of which was applied for (0:37:17).
  • Building Inspector Input: The Building Inspector clarified that the original permit application contained discrepancies (incorrectly stating not historic, not in floodplain) and included plans for living space in the garage, which is disallowed in the VE flood zone (0:42:34). He stated a new or amended, properly completed building permit application would be required (0:43:27). He indicated that while 17 feet seemed acceptable based on evidence, proper documentation (ideally pre-demolition) was lacking (0:43:53, 0:44:17).
  • Historical Commission Input: Vice Chair Jonathan Lehman stated the Historical Commission requires review because the building, deemed historic, was almost entirely demolished without prior Commission approval, contrary to the initial permit application (0:45:11). This review is separate and outstanding.
  • Board Discussion & Decision: The ZBA Chair emphasized the Board’s jurisdiction was limited to the variance requested for the height (0:48:38). Since the petitioner agreed to the original 17-foot height, the variance was no longer sought. Attorney Cipoletta formally requested to withdraw the petition without prejudice (0:50:49). The Chair closed the public hearing (0:51:10), then moved to approve the withdrawal without prejudice (0:51:19). Member Mark seconded (0:51:35). The motion passed unanimously (0:51:37). Observation: The discussion was complex, involving interplay between ZBA, Building Inspector, and Historical Commission jurisdictions, complicated by prior procedural steps and conflicting information. The abutter’s attorney played a key role in highlighting unresolved issues beyond the specific ZBA petition. The ZBA appropriately confined its action to the matter before it.

8. Adjournment The Chair moved to adjourn (0:51:49), Member Mark seconded (0:51:51), and the motion passed unanimously (0:51:51).

4. Executive Summary

This Swampscott Zoning Board of Appeals (ZBA) meeting on July 18, 2023, addressed several petitions, resulting in approvals for smaller projects, continuances for larger ones, and the withdrawal of a contentious, long-running case involving multiple town departments.

Routine Approvals Granted:

  • A Use Special Permit was granted for a new nail salon at 434 Humphrey Street (0:11:29), operated by Michael Nguyen. This decision applied a specific bylaw regulating ground-floor service businesses, deemed acceptable in this instance. Significance: Allows a new small business to open, filling a potentially vacant storefront, while demonstrating the ZBA’s application of overlay district rules.
  • A finding was approved for an addition at 5 Tupelo Road (0:16:02), allowing Ralph Perelis to proceed because the work on the nonconforming lot did not increase any nonconformities. Significance: Standard application of zoning law (MGL c.40A s.6 / ‘Bellotta’) allowing homeowners to renovate properties with pre-existing nonconformities under specific conditions.

Major Projects Delayed:

  • Decisions on two significant development proposals were postponed until the August 22nd meeting: the eight-unit dwelling project at 29 Essex Street (0:18:19) and a single-family home on a vacant lot at 0 Lodge Road (0:20:47). The Lodge Road continuance was requested by Attorney Ken Schutzer for the owners to seek legal counsel (0:18:50). Significance: Delays potential new housing construction. The Lodge Road continuance hints at underlying complexities or potential reassessment by the property owners.

Puritan Road Garage Dispute Resolved (at ZBA), but Project Stalled:

  • The most substantial discussion involved 53 Puritan Road. Petitioner Jerry Sneirson, represented by Attorney James Cipoletta, withdrew his request for a height variance for a rebuilt garage after agreeing to restore it to the historically documented 17-foot height (0:50:49, 0:51:19). Significance for ZBA: This resolves the specific issue before the ZBA.
  • Broader Significance: Despite the withdrawal, the project faces significant hurdles. The Building Inspector stated a new, corrected permit application is required due to inaccuracies in the original and disallowed plans for living space in a flood zone (0:42:34). The Historical Commission Vice Chair (Jonathan Lehman) confirmed separate review is needed because the historic structure was largely demolished without prior approval (0:45:11). Abutter Attorney Ken Schutzer effectively highlighted these outstanding procedural and regulatory issues (0:36:29). Overall Impact: The ZBA action removes one obstacle, but the project cannot proceed without satisfying requirements from the Building Inspector and Historical Commission, illustrating the complex interaction between town boards and regulations, especially concerning historic properties and flood zones.

Board Business:

  • The ZBA scheduled its next meeting for August 22nd (0:18:11) and planned a joint virtual meeting with the Planning Board on August 1st to update procedures (0:21:16). New member Susan Sinerich was welcomed (0:27:35). The Board noted recent Town Meeting bylaw changes await Attorney General approval before full implementation (0:24:15). Significance: Demonstrates routine board function, coordination between land use boards, and the multi-step process for local bylaws to take effect.

5. Analysis

The July 18, 2023, Swampscott ZBA meeting demonstrated a board functioning capably on routine matters while navigating significant complexity in a long-standing dispute.

Efficiency and Procedure: The Board efficiently processed straightforward applications (Nguyen nail salon 0:05:18, Perelis addition 0:12:07) and continuances (0:16:29, 0:18:19), adhering to procedural requirements like managing recusals (0:05:43, 0:12:00) and explaining the basis for decisions (Humphrey St bylaw 0:07:37, Bellotta finding 0:14:17). The discussion around the joint meeting (0:21:16) and AG review of bylaws (0:24:15) showed awareness of administrative processes and inter-board coordination.

Dynamics of the Puritan Road Case (Petition 22-25): This petition revealed significant inter-departmental friction and the limitations of ZBA authority.

  • Petitioner’s Strategy: Attorney Cipoletta’s tactic of conceding the height issue (0:32:18) to withdraw the ZBA petition (0:50:49) was effective only in removing the immediate ZBA obstacle. His arguments attempting to minimize further issues (0:32:45, 0:41:05) appeared insufficient against the specific procedural failures raised by the Building Inspector and Historical Commission. Petitioner Sneirson’s expressed frustration (0:46:56) highlighted the personal cost of navigating this protracted process.
  • Abutter Representation: Attorney Schutzer proved highly effective in derailing any notion that conceding the height resolved the matter (0:36:29). His intervention, focusing on alleged procedural missteps (permit revocation, appeal timing) and substantive requirements (Floodplain, Site Plan, Historical), successfully framed the situation as far from resolved, likely strengthening the abutter’s position in future proceedings before other bodies.
  • Town Officials’ Impact: The Building Inspector’s direct refutation of the idea that only height was at issue (0:42:34) and confirmation that a new, corrected application was essential was pivotal. Similarly, the Historical Commission Vice Chair’s clear statement regarding the need for separate review (0:45:11) reinforced the multi-jurisdictional nature of the problem. These interventions provided critical factual context that shaped the ZBA’s understanding and likely the outcome (withdrawal).
  • ZBA’s Role: The Chair and Board effectively managed the complex discussion by strictly defining and adhering to their limited jurisdiction – the height variance (0:48:38, 0:49:49). They allowed all parties (petitioner, attorneys, town officials) to present relevant information but correctly concluded that once the height variance request was moot due to the petitioner’s concession, the ZBA’s role in this specific petition was over. Approving the withdrawal without prejudice (0:51:19) was the appropriate procedural step, acknowledging the petitioner’s changed position while not precluding future applications or actions before other boards.

Overall: The meeting showcased the ZBA performing its duties on standard zoning relief requests while also serving as a forum where complex, multi-faceted disputes involving other town entities (Building Dept, Historical Comm.) surface. The Puritan Road case serves as a clear example for residents of how development/renovation, particularly involving nonconforming structures, historic assets, or sensitive environmental zones (floodplain), can require navigating a complex web of regulations and potentially facing significant opposition and procedural challenges. The ZBA, in this instance, acted appropriately within its defined statutory role.