2023-09-19: Zoning Board Of Appeals

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

This document provides a summary and analysis of the Swampscott Zoning Board of Appeals (ZBA) meeting, likely held on September 18, 2023 (discrepancy noted with metadata date of Sep 19), based on the provided transcript.

1. Agenda

Based on the transcript, the likely order of discussion was:

  1. Continuances: 0:08:55 Motion to continue Petitions 23-06 (Realty Investors, LLC - 29 Essex St) and 23-05 (IG Investments LLC - 0 Lodge Rd) to October 24th.
  2. Administrative Extension: 0:09:58 Petition 21-07 by Daniel Dunbar (6 Connelly Ave) - Request to extend a special permit previously granted on September 20, 2022.
  3. New Petition: 0:13:05 Petition 23-12 by CVS Pharmacy (419 Paradise Rd) - Request for a Use Special Permit for conversion of retail space to a Health and Wellness area.
  4. New Petition: 0:35:15 Petition 23-13 by Kacy Jauron (434 Humphrey St) - Request for a Sign Special Permit for a new awning (Use Special Permit request withdrawn).
  5. New Petition: 0:41:34 Petition 23-14 by MD Islam c/o Lewis Colton, AIA (27 Curry Cir) - Request for Dimensional Special Permit and Special Permit for Nonconforming Uses/Structures for addition to a nonconforming structure/lot.
  6. Continued Petition: 0:54:32 Petition 23-11 by Swampscott Affordable Housing Trust (35 Pitman Rd / 7 Hillside Ave) - Continued discussion regarding Special Permits/Variance for relocating a historic structure. Deliberation and Withdrawal.
  7. Approval of Minutes: 1:09:49 Approval of minutes from August 22, 2023, and September 12, 2023 meetings.
  8. Adjournment: 1:11:01

(Note: The meeting began by addressing items originally listed later in the provided metadata agenda and included an administrative extension not initially recalled by the Chair but listed as item 2 in the metadata).

2. Speaking Attendees

Based on roles demonstrated, statements made, and context within the transcript:

  • Heather (ZBA Chair): [Speaker 1], [Speaker 18] (Likely inferred name based on common Swampscott ZBA composition, acting as Chair)
  • Marissa (ZBA Staff/Administrator): [Speaker 9] (Provides administrative support, clarifies procedures, confirms petitioner presence)
  • Mark (ZBA Member): [Speaker 2] (Actively participates in legal discussions, seconds motions, makes motions, presents legal research on Hillside petition)
  • Tony (ZBA Member/Alternate): [Speaker 3] (Actively participates in zoning/legal discussions, explains Bellata/Section 6 findings, makes motions)
  • Unidentified Speaker: [Speaker 19] (Brief interjection)
  • Susan (ZBA Member/Alternate): [Speaker 17] (Participates in voting, brief interjections, confirmed as board member during constitution)
  • Brad (ZBA Member/Alternate): [Speaker 21] (Brief comments, confirmed as board member during constitution)
  • Zach (Petitioner Representative for 21-07): [Speaker 14] (Identified from Pittman and Bordley, speaks on Dunbar extension)
  • Bob Dementor (Attorney for Hillside Petitioner): [Speaker 10] (Likely inferred identity - Discusses Curry Circle zoning details, refers to self representing another matter 34:50, is referred to by name regarding the Hillside petition 1:08:48)
  • Chris Ruckus (Attorney for CVS): [Speaker 7] (Identifies self, presents CVS petition)
  • Jeff Kern (Architect for CVS): [Speaker 8] (Identified, presents CVS plans)
  • Ryan Keough (VP, CVS Health): [Speaker 6] (Identified, answers operational questions for CVS)
  • Ken Schutzer (Attorney/Resident): [Speaker 13] (Likely identity based on [Speaker 3] mention 23:16 and nature of questions during CVS public comment)
  • CVS Team Member (Unspecified): [Speaker 20] (Brief comment during CVS discussion)
  • Paula (ZBA Member/Alternate): [Speaker 12] (Makes motion for Humphrey St, identified by name, participates in Hillside withdrawal discussion)
  • ZBA Member (Unspecified): [Speaker 15] (Asks questions during CVS and Curry Circle discussions)
  • Casey Jauron (Petitioner for 23-13): [Speaker 11] (Identified, presents Humphrey St awning request remotely)
  • Mary DiCello (Resident/Public Commenter): [Speaker 16] (Identifies self, asks about Humphrey St awning bylaw)
  • Lewis Colton (Architect/Rep for 23-14 Petitioner): [Speaker 4] (Presents Curry Circle petition)
  • Dan (ZBA Member/Alternate): [Speaker 5] (Participates actively in Hillside legal discussion, confirmed as board member during constitution)

3. Meeting Minutes

Continuances: The meeting began with Chair Heather moving to continue Petitions 23-06 (29 Essex St) and 23-05 (0 Lodge Rd) to the October 24th meeting 8:55. Member Mark seconded 9:11, and the motion passed unanimously 9:14.

Petition 21-07 (Dunbar Extension - 6 Connelly Ave): ZBA Staff Marissa reminded the Chair of the administrative extension request for Petition 21-07 9:31. Zach, representing the petitioner (Pittman and Bordley Architects), explained the need for the extension, citing delays partly due to COVID 11:32. No public concerns were raised 11:54. Chair Heather moved to approve a one-year extension 12:11, Member Mark seconded 12:18, and the motion passed unanimously 12:48.

Petition 23-12 (CVS - 419 Paradise Rd): Attorney Chris Ruckus presented the petition for CVS Pharmacy 13:08, accompanied by Architect Jeff Kern and CVS Health VP Ryan Keough. They requested a Use Special Permit to convert approximately 3,100-4,500 sq ft of retail space into a health and wellness clinic offering urgent and primary care services 13:13. Architect Kern detailed the proposed layout, staffing (four additional employees initially 18:52), and hours (9 AM - 7 PM clinic, 9 AM - 5 PM primary care 18:52). Discussion clarified the zoning as B3 and confirmed the need for a Special Permit for an “outpatient medical center or clinic” under section C7 [19:45 - 22:12]. Public commenter Ken Schutzer (?) asked about the nature of the facility and potential overlap with existing urgent care 23:31. VP Keough addressed this, stating analysis showed demand and noting a partnership with Carbon Health 23:58. The board discussed potential impacts, with VP Keough stating parking/traffic effects should be nominal 26:25 and Attorney Ruckus submitting a traffic study supporting this 27:01. Member Tony raised the question of needing a finding related to recent Vinnin Square zoning changes; the consensus was that a finding of need was appropriate 25:17. Member Mark moved to approve the Use Special Permit pursuant to 2.2.0.0 (likely 2.2.3.0 C7) and 2.2.5.0, with a finding of adequate need for the use 33:40. Member Tony seconded 34:43, and the motion passed unanimously 34:43. Observation: The discussion clarified zoning requirements and explored potential impacts, concluding relatively quickly with approval.

Petition 23-13 (Jauron Awning - 434 Humphrey St): Chair Heather noted the Use Special Permit portion was withdrawn 35:28. Petitioner Casey Jauron presented the request for a Sign Special Permit for a new awning remotely 36:02. Public commenter Mary DiCello questioned if the proposed white lettering on black/navy fabric complied with Humphrey Street Overlay District bylaws regarding black and gold signage 36:46. ZBA Staff Marissa clarified that the Planning Board had reviewed the design, approved navy blue as an option, and did not require gold lettering for awnings 37:00. Discussion ensued regarding whether the approval should be for black or navy blue; the petitioner preferred navy 39:21. Member Brad (?) questioned matching the navy color to a nearby awning, but the board agreed exact matching wasn’t feasible or necessary 39:41. Member Paula moved to approve Petition 23-13 for a Sign Special Permit for a navy blue awning with business name/logo per the submitted design 40:51. Member Tony seconded 41:08, and the motion passed unanimously 41:15. Observation: Discussion centered on compliance with specific overlay district design guidelines and deference to Planning Board review.

Petition 23-14 (Colton/Islam Addition - 27 Curry Cir): Architect Lewis Colton presented the request for a Dimensional Special Permit and Section 6 finding for a first and second-floor addition to a nonconforming single-family home on a nonconforming (triangular) lot 42:30. He explained the addition was needed for extended family and kept under 800 sq ft 44:10. He noted pre-existing nonconformities and submitted a petition signed by neighbors supporting the project 45:17. Board discussion focused on the increase in nonconformity, specifically the rear yard setback 47:17. Attorney Dementor (?) and Member Tony noted plan discrepancies regarding the exact setback dimension, particularly concerning a covered deck area (47:49-48:40). Member Tony led a detailed discussion on the applicable legal standard, referencing the “Bellata case” (MGL Ch 40A, Sec 6), arguing that because the work increases an existing nonconformity on a single/two-family home, the board should determine if the change is “substantially more detrimental” rather than applying strict dimensional requirements 48:54. Factors supporting this approach included the lot’s unique shape, the abutters (VFW, dispensary 49:51), and neighbor support 51:19. Member Tony moved, based on a Section 6 finding, that the proposed work increases the rear setback nonconformity but is not substantially more detrimental to the neighborhood than the existing nonconformity, and therefore granted the special permit per the plans dated 8/21/23 52:35. Member Mark seconded 53:29, and the motion passed unanimously 53:32. Observation: Significant discussion focused on applying the correct legal standard for additions to nonconforming structures, utilizing the Section 6 finding based on site specifics and lack of negative impact.

Petition 23-11 (Affordable Housing Trust - 7 Hillside Ave): This continued petition involved relocating a historic house from 35 Pitman Rd to a vacant lot at 7 Hillside Ave. Chair Heather recused herself (55:06) and Member Dan certified having watched the previous meeting video 55:11. The Chair commented on the lack of decorum at the prior meeting 55:22 before recapping: the board previously found the lot’s 1955 area variance likely remained valid, but a frontage variance was required 56:01. After confirming board members reviewed case law provided by the petitioner’s attorney, Chair Heather moved to close the public hearing 57:01, which was seconded by Member Mark and approved unanimously 57:03. The board was constituted with regular members plus Member Tony 57:11-57:46. Chair Heather initiated deliberation, stating her review of case law and discussion with Town Counsel suggested that while lack of reasonable use can be a hardship, the frontage deficiency itself wasn’t caused by soil, shape, or topography, referencing bylaw 5.5.2.1 57:46-59:21. Member Mark concurred, citing Sagronis, Raya, and Warren cases, emphasizing that insufficient frontage alone isn’t hardship related to soil/shape/topography and that creating a nonconforming lot doesn’t automatically create hardship 59:21-1:01:48. Member Dan agreed a variance wasn’t warranted because the hardship didn’t meet the statutory tests (soil/shape/topography and especially affecting the land) 1:01:51. He discussed the Hogan D. Hayes case regarding the 1955 variance but ultimately felt the change in frontage requirements since 1955 necessitated a new frontage variance, which couldn’t be granted based on the evidence 1:03:54-1:05:52. Member Tony and Member Mark further discussed why the 1955 area variance didn’t cover the frontage issue created by later bylaw changes 1:06:19-1:08:01. Seeing a consensus against granting the variance, Chair Heather offered the petitioner (represented by Attorney Dementor and Paula ?) the opportunity to withdraw the petition without prejudice 1:08:18. The petitioner’s representative accepted 1:09:07. Chair Heather moved to allow withdrawal of Petition 23-11 without prejudice at the petitioner’s request 1:09:17. Member Tony seconded 1:09:37, and the motion passed unanimously 1:09:45. Observation: The decision hinged on a detailed legal analysis of Massachusetts variance law (MGL Ch 40A, Sec 10), with the board concluding the specific statutory criteria for hardship related to frontage were not met.

Approval of Minutes: Member Mark moved to approve the minutes from August 22, 2023, and September 12, 2023 1:10:30. Member Tony (?) seconded 1:10:55, and the motion passed unanimously 1:11:00.

Adjournment: Member Paula moved to adjourn 1:11:09. Member Mark seconded 1:11:11, and the motion passed unanimously 1:11:12.

4. Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) meeting on September 18, 2023, resulted in several key decisions impacting development and services in town.

CVS Health Clinic Approved: The ZBA granted CVS Pharmacy (419 Paradise Rd) a Use Special Permit to convert part of its existing retail space into a health and wellness clinic 13:13. This clinic plans to offer urgent care and some primary care services 18:52. Significance: This approval paves the way for a new healthcare option in Swampscott, potentially increasing access to urgent care but also competing with existing providers. The Board found sufficient need for the service 34:27, and CVS representatives stated expected traffic and parking impacts would be minimal 26:25.

Affordable Housing Trust Petition Withdrawn: Following extensive legal discussion continued from the prior meeting, the Swampscott Affordable Housing Trust withdrew its petition (23-11) to relocate a historic home from 35 Pitman Road to a vacant lot at 7 Hillside Ave 1:09:17. The core issue was the lot’s insufficient frontage, requiring a variance. Significance: The ZBA concluded, after reviewing case law (59:21, 1:01:51), that under state law and local bylaws, the hardship caused by lack of frontage did not meet the strict legal requirement of being related to the lot’s soil conditions, shape, or topography 57:46. This outcome highlights the significant legal hurdles for developing nonconforming lots, even for community-supported projects like historic preservation and affordable housing. Withdrawing without prejudice allows the Trust to potentially explore alternative solutions.

Curry Circle Addition Approved via Section 6 Finding: The Board approved a first and second-floor addition to a home at 27 Curry Circle (Petition 23-14) 53:32. The property is a nonconforming structure on a nonconforming lot. Significance: Instead of requiring strict compliance with dimensional setbacks, the ZBA applied a provision of state zoning law (MGL Ch 40A, Sec 6, often called the “Bellata finding”) 52:35. They determined the addition, while increasing the nonconformity, would not be “substantially more detrimental” to the neighborhood, considering the lot’s unique triangular shape, the nature of abutting properties (VFW, dispensary 49:51), and strong neighbor support 45:17. This demonstrates the board’s ability to grant relief for nonconforming properties based on specific site context.

Other Actions:

  • An administrative extension was granted for a previously approved special permit at 6 Connelly Ave (Petition 21-07) 12:18.
  • A Sign Special Permit was approved for a new navy blue awning at 434 Humphrey St (Petition 23-13), following discussion about compliance with overlay district guidelines 40:51.
  • Two other petitions (23-06 for 29 Essex St and 23-05 for 0 Lodge Rd) were continued to October 24th 8:55.

5. Analysis

This ZBA meeting showcased the board navigating a range of zoning issues, from routine sign permits to complex variance law interpretations.

Meeting Dynamics & Management: The Chair (Heather) effectively managed the agenda flow, though she required prompting from staff (Marissa) on one item (9:31). Her opening remarks regarding the continued Hillside Ave petition, referencing prior meeting “chaos” and urging “professional behavior” 55:22, signaled an attempt to assert control over potentially contentious discussions. The board largely adhered to procedural norms.

Strength of Arguments & Deliberation:

  • CVS (Petition 23-12): The petitioner’s team (Attorney Ruckus, Architect Kern, VP Keough) presented a clear case, effectively addressing board questions on zoning classification, operational details, and potential impacts (13:13-32:12). The board’s discussion was pragmatic, focusing on confirming the correct permit type and the need for the service, leading to a swift consensus.
  • Curry Circle (Petition 23-14): Architect Colton’s emphasis on family need and neighbor support (42:30, 45:17) provided a sympathetic context. However, the critical turning point was Member Tony’s persuasive application of the MGL Ch 40A, Section 6 (“Bellata”) standard (48:54-50:55). His argument that the “substantially more detrimental” test, rather than strict dimensional compliance, was appropriate for modifying this nonconforming single-family home, resonated with the board, especially given the unique lot shape and abutters. This demonstrated effective use of statutory flexibility based on specific site conditions.
  • Hillside Ave (Petition 23-11): This deliberation was dominated by legal interpretation. The arguments presented by Members Mark 59:21 and Dan 1:01:51 against the frontage variance were compelling and decisive. They effectively marshaled specific case law (Sagronis, Raya, Warren) and statutory language (MGL Ch 40A, Sec 10; Bylaw 5.5.2.1) to demonstrate that the hardship (inability to build due to frontage) did not stem from the required grounds (soil, shape, topography). While Member Dan explored the nuances of the 1955 variance and the Hogan case 1:03:54, the consensus strongly formed around the insufficiency of the current frontage variance request under established law. The Chair’s mention of consulting Town Counsel 57:46 likely bolstered this interpretation. The petitioner’s attorney (Bob Dementor?) seemed to lack a counter-argument strong enough to overcome the board’s reading of the law. The offer and acceptance of withdrawal 1:08:18 reflected the clear trajectory of the board’s legal analysis.

Overall Effectiveness: The board demonstrated a capacity for both efficient handling of straightforward petitions and deep dives into complex legal standards. The Curry Circle decision showcased context-sensitive application of zoning relief, while the Hillside Ave outcome underscored the stringent, often inflexible, nature of Massachusetts variance law, which heavily constrains ZBA discretion even for seemingly worthwhile projects. The explicit referencing of case law and statutory sections during the Hillside debate points to a board (or at least key members) engaging seriously with the legal framework governing their decisions.