Swampscott Zoning Board of Appeals Meeting Review - October 24, 2023

Section 1: Agenda

Based on the transcript, the likely agenda for the Swampscott Zoning Board of Appeals meeting on October 24, 2023, was as follows:

1. Approval of Minutes 0:05
   • Motion to approve minutes from the previous meeting.
2. Petition 23-15: 48 Norfolk Ave 0:39
   • Applicant: Keith Thompson (represented by Attorney Ken Shutzer)
   • Request: Dimensional Special Permit and Section 6 Special Permit (Nonconforming Structure) to construct a one-story sunroom addition on a pre-existing, nonconforming structure/lot.
   • Discussion Points: Definition of “principal building” vs. “structure,” distance to accessory structure (garage), impact on nonconforming building coverage, application of Peralta case precedent.
3. Petition 23-16: 69 Cherry St 14:03
   • Applicant: Alex Early (represented by Derek Thomas or associate)
   • Request: Section 6 Special Permit (Nonconforming Structure) to demolish and reconstruct a pre-existing, nonconforming detached garage within the existing footprint and setbacks.
   • Discussion Points: Change in massing/volume due to dormers, vertical expansion of nonconformity, application of Peralta precedent, determination of “not substantially more detrimental.”
4. Petition 23-17: 12 Eureka Ave 27:02
   • Applicant: Kevin Martin (representing himself)
   • Request: Section 6 Special Permit (Nonconforming Structure) to demolish and reconstruct a pre-existing, nonconforming detached garage, adding a second floor and connecting it to the main house via a breezeway.
   • Discussion Points: Creation of one principal structure, implications for height restrictions, impact on nonconforming setbacks (principal structure vs. accessory), concern about creating two principal structures via breezeway “fiction,” potential alternatives, neighbor consultations, application of “not substantially more detrimental” standard.
5. Petition 23-06: 29 Essex St (Continued Item) [~56:30]
   • Applicant: Realty Investors, LLC (represented by Attorney Chris Drucas)
   • Request: Various Special Permits and potential Variance for an eight-unit dwelling construction.
   • Action: Continued to December 5, 2023 meeting.
6. Petition 23-05: 0 Lodge Rd (Continued Item) [~59:03]
   • Applicant: IG Investments LLC (represented by Attorney Ken Shutzer)
   • Request: Dimensional Special Permit, Site Plan Special Permit, Dimensional Variance for single-family home construction on a vacant lot.
   • Action: Discussion regarding lack of historical town records related to zoning relief, applicant request for a formal decision (anticipated denial) to allow appeal, board agrees to continue to December 5, 2023 meeting for deliberation and drafting of findings/decision.

(Note: Agenda items derived from transcript flow; Petition 23-06 handled briefly before 23-05).

Section 2: Speaking Attendees

Based on the transcript and typical MA ZBA roles/context:

• ZBA Chair: [Speaker 2] (Opens meeting, guides discussion, calls votes, constitutes the board)
• ZBA Member 1: [Speaker 1] (Actively engages in technical zoning discussions, questions interpretations, makes motions)
• ZBA Member 2: [Speaker 6] (Seconds motions, raises concerns about precedent/bylaw interpretation, votes)
• ZBA Member 3: [Speaker 4] (Makes motions, uses hypothetical scenarios to analyze proposals, engages actively)
• Attorney Ken Shutzer: [Speaker 3] (Represents applicants for Petitions 23-15 and 23-05)
• Petitioner Representative (for 23-16): [Speaker 5] (Presents the petition for 69 Cherry St)
• Applicant (Kevin Martin, for 23-17): [Speaker 7] (Presents the petition for 12 Eureka Ave, answers questions about intent)
• ZBA Staff/Admin: [Speaker 8] (Reports received comments, manages online participation logistics, provides procedural information like past attendance)
• Applicant Representative (Mark Thompson, for 23-15): [Speaker 9] (Calls in remotely to support petition 23-15)
• Applicant Associate/Applicant (for 23-16): [Speaker 10] (Provides clarifying details for 69 Cherry St petition alongside Speaker 5; potentially Alex Early)
• Neighbor/Abutter (Scott Howie, for 23-17): [Speaker 11] (Calls in remotely to express support for 12 Eureka Ave petition)
• Neighbor/Abutter (Nelson Knutson, for 23-17): [Speaker 12] (Calls in remotely to express support for 12 Eureka Ave petition)
• Meeting Technical Support: [Speaker 13] (Assists with managing remote participant audio)

(Note: Specific names for ZBA members are not stated in the transcript; generic roles are used. Representatives/Applicants are identified based on context and metadata where possible.)

Section 3: Meeting Minutes

Swampscott Zoning Board of Appeals - Meeting Minutes (Unofficial) Date: October 24, 2023 (Inferred)

1. Call to Order & Approval of Minutes 0:05 The ZBA Chair called the meeting to order. A motion was made and seconded to approve the minutes from the previous meeting. Vote: Approved unanimously (Aye: [Speaker 6], others implied).

2. Petition 23-15: 48 Norfolk Ave (Thompson/Shutzer) 0:39 Attorney Ken Shutzer presented the petition requesting relief to add a one-story sunroom/screen porch (20’x12’) onto an extended deck of a pre-existing nonconforming structure on a nonconforming lot. Relief was sought under Section 6, requiring a finding that the change is not substantially more detrimental.

• Discussion:
  • The ZBA Chair questioned the distance between the proposed structure (including deck extension/stairs) and the existing detached garage, referencing a 10-foot separation requirement in bylaw section 2.3.3.1 3:21.
  • Attorney Shutzer argued that the bylaw specifies “principal building,” not “structure,” and the stairs encroaching within 10 feet are not part of the principal building 3:43. ZBA Member 1 noted the stairs are 6.8 feet away but the deck itself is uncovered 5:20.
  • Attorney Shutzer argued the specific wording “principal building” in the bylaw was intentional and distinct from “structure” used elsewhere 5:36.
  • The applicant, Mark Thompson (appearing remotely), explained the desire to replace a worn deck and add a permanent screen house 7:13. Attorney Shutzer noted abutters were notified and no opposition was received; ZBA Staff/Admin confirmed receipt of a supportive comment from neighbor Tracy Harrington [8:21 - 9:17].
  • The ZBA Chair referenced the Peralta case regarding the side setback (7-foot line extension) and agreed with Attorney Shutzer’s interpretation regarding the principal building vs. deck stairs 9:17. ZBA Member 2 suggested conditioning approval on the deck extension remaining unenclosed 9:44. Attorney Shutzer confirmed the submitted plans show an open deck extension 9:51.
  • ZBA Member 1 raised the issue of increasing nonconforming building coverage (existing 30.1%, 0.1% over limit) 10:25. Attorney Shutzer conceded this also required relief under Section 6 / Peralta 10:30.
  • The Board discussed findings: the side yard addition along the existing line is acceptable (Peralta), the deck extension/stairs do not violate the 10-foot separation from the accessory garage (interpreting “principal building” narrowly), and the increase in building coverage is not substantially more detrimental [11:40 - 12:22]. ZBA Member 1 summarized the necessary findings 12:22.
• Public Comment: Called for 6:20; Applicant Mark Thompson spoke 7:08; Neighbor Tracy Harrington submitted support (reported by Staff) 9:09.
• Motion: ZBA Member 3 moved to approve Petition 23-15 as presented by Attorney Shutzer, based on submitted plans and findings discussed 13:03. Seconded.
• Board Constitution: ZBA Chair constituted the board as all members present except one (identified as “Heather”) 13:49.
• Vote: Approved unanimously by the constituted board 14:03.

3. Petition 23-16: 69 Cherry St (Early/Representative) 14:03 A Petitioner Representative presented the request for a Section 6 Special Permit to demolish and reconstruct a pre-existing, nonconforming detached garage within the existing footprint and setbacks 15:18. The existing garage has setback issues (approx. 1 foot side setback) and is being rebuilt due to poor condition (“burned out 80 years ago”).

• Discussion:
  • The ZBA Chair questioned if the massing was changing, noting proposed dormers 16:31. The Representative confirmed existing dormers but acknowledged the proposed design might increase volume/second-floor space [16:41, 19:02].
  • ZBA Member 2 noted a discrepancy where elevation C seemed to show the second floor extending beyond the first-floor footprint, possibly due to roof overhang interpretation [19:42 - 20:43]. The representative clarified height and footprint corners remain identical, but acknowledged dormers increase volume 21:55.
  • The ZBA Chair suggested the dormers might represent a vertical extension of the nonconformity under Peralta 22:51. ZBA Member 1 agreed and suggested making a finding that it does increase the nonconformity, but then finding it not substantially more detrimental, to be safe from appeal 22:57.
  • The Petitioner Representative/Associate mentioned positive engagement with direct neighbors who seemed to have no issues [24:11 - 24:41].
  • The Board consensus appeared to be that while the dormers technically increase the nonconforming volume, this increase is not substantially more detrimental given the existing structure’s significant setback nonconformity 23:46.
• Public Comment: Called for 23:16; None offered.
• Motion: ZBA Member 1 moved to find that the work increases the nonconforming nature, but that this increase is not substantially more detrimental, and therefore grant the Section 6 Special Permit for Petition 23-16 25:39. Seconded 26:57.
• Board Constitution: ZBA Chair constituted the board (details not fully audible, assumed same as previous vote) 25:39.
• Vote: Approved unanimously by the constituted board 26:57.

4. Petition 23-17: 12 Eureka Ave (Martin) 27:02 Applicant Kevin Martin presented the request for a Section 6 Special Permit to demolish and reconstruct a detached garage, adding a second floor for living space, and connecting it to the main house via a breezeway, all on the same footprint 28:02.

• Discussion: A notably detailed discussion ensued regarding the implications of this proposal.
  • The ZBA Chair highlighted key differences from the previous petition: increased height (one to two stories) and the addition of a breezeway connecting to the principal structure 27:02. The Chair expressed concern that this transforms a nonconforming accessory structure setback issue into a nonconforming principal structure setback issue 28:37.
  • ZBA Member 2 strongly objected, viewing the breezeway as a “fiction” used to circumvent the bylaw prohibiting two principal structures on one lot. They cited a previous case handled by Attorney Shutzer (Gloops Point) where maintaining the accessory character was crucial 29:29. This member stated they could not support the proposal 31:19.
  • ZBA Member 1 questioned the impact on Gross Floor Area (GFA) if connected, concluding it would add to the principal structure’s GFA and worsen its nonconformity due to the garage’s close side setbacks (2.4’ and 4.6’) [31:35 - 33:45].
  • The board explored alternatives: ZBA Member 1 asked about the analysis without the connection 34:02. The Chair noted height restrictions (15ft max for accessory) would prevent the second story 34:06. The existing garage height (13ft) is conforming, making relief for height increase difficult if kept separate 34:12.
  • ZBA Member 3 proposed a hypothetical: attaching the new garage directly to the house within conforming setbacks 34:56. ZBA Member 1 suggested this might be possible under Peralta if it didn’t increase existing nonconformities 36:02. ZBA Member 3 argued this alternative could result in a larger, potentially less desirable structure, suggesting the applicant’s proposal might be comparatively better [36:40, 38:21]. The ZBA Chair acknowledged this point about potentially encouraging larger structures 38:45.
  • Zoning details were clarified: the 2.4’ setback is adjacent to a neighbor’s property over which the applicant has right-of-way access, not a paper street [39:41 - 40:34]. ZBA Member 3 felt the right-of-way context lessened the severity of the 2.4’ setback in practical terms, though legally distinct 44:48.
  • The applicant, Kevin Martin, explained the need for space (office, guest room) due to a growing family 41:38. He confirmed speaking positively with neighbors [42:29, 51:56].
  • ZBA Staff/Admin referenced a past case (Stone Street) involving a breezeway connection prompted by an addition reducing garage separation 40:38. ZBA Member 1 distinguished it, noting the height increase here is key 40:59.
  • ZBA Member 1 framed the decision under Section 6: the connection makes it one principal structure, increasing nonconformities (setbacks, potentially height depending on interpretation). The question is whether this change is substantially more detrimental 46:07. They argued it might not be, considering the alternative could be a larger attached addition built closer to the main house 48:48. ZBA Member 3 agreed the proposed layout looked more balanced 49:04.
  • ZBA Member 3 raised a concern about the potential for creating an Accessory Dwelling Unit (ADU) later, suggesting a restriction 47:20. The Chair noted ADUs are allowed by right 47:52. ZBA Member 1 suggested a condition restricting further footprint expansion 47:56.
  • ZBA Member 2 maintained their opposition, believing it derogates from the bylaw 48:19.
• Public Comment: Called for 49:29. Neighbor Scott Howie (8 Eureka) spoke in support 50:07. Neighbor Nelson Knutson (adjacent, inferred 8 Eureka?) spoke, stating no major issues 51:17. Applicant confirmed speaking with neighbors at 14 Eureka who seemed supportive 51:42.
• Motion: ZBA Member 1 moved to grant a Section 6 Special Permit for Petition 23-17. The motion included findings that connecting the structure increases nonconformities (side setbacks primarily), but this change is not substantially more detrimental than the existing nonconformity. A condition was proposed to prohibit future increases to the building footprint 53:28. Seconded 56:06.
• Board Constitution: ZBA Chair constituted the board as everyone except Paula (assumed member not present/recused) 52:42.
• Vote: Approved, 4 Yes, 1 No (ZBA Member 2 presumably dissenting) 56:06.

5. Petition 23-06: 29 Essex St (Realty Investors/Drucas) [~56:30] This continued petition for an 8-unit development was discussed briefly.

• Action: A motion was made by the ZBA Chair 1:00:00 and seconded 1:00:05 to continue Petition 23-06 to the December 5, 2023 meeting, apparently at the request or agreement of the applicant’s representative (Attorney Drucas, inferred) to allow for a potential cancellation of the November meeting 57:54.
• Vote: Approved unanimously 1:00:07.

6. Petition 23-05: 0 Lodge Rd (IG Investments/Shutzer) [~59:03] Attorney Ken Shutzer addressed the board regarding this continued petition for relief to build a single-family home on a vacant lot. The previous hearing indicated likely denial.

• Discussion:
  • Attorney Shutzer reported on efforts to find historical records from 1948-49 related to potential zoning relief granted prior to a 1949 subdivision plan approval, which might have grandfathered the lot 1:01:33. He submitted a response from the Town Clerk stating no responsive records were found 1:01:33.
  • Attorney Shutzer argued logically that a planning board wouldn’t subdivide a buildable lot into questionable lots without prior zoning relief, but acknowledged lack of direct proof due to missing town records 1:02:30. He compared the situation to the “Pittman property issue” 1:03:44.
  • Given the lack of new evidence and the board’s previous stance, Attorney Shutzer requested the board issue a formal decision (implicitly, a denial) rather than allowing withdrawal without prejudice, to provide a basis for potential future action (appeal, litigation against other parties like title certifier/insurer, 40B application) [1:03:44 - 1:05:10]. He noted he would not be the attorney of record going forward 1:05:15.
  • ZBA Member 1 noted they had missed the previous hearing on this item and hadn’t reviewed the recording 1:00:31. ZBA Staff/Admin confirmed Member 1 and another member (“Susan”) were not present/appointed for the prior hearing, leaving only four current members who heard it 1:00:50.
  • The ZBA Chair expressed reluctance to make a motion for denial without adequate preparation and review, especially given the expectation of appeal 1:06:27.
  • Attorney Shutzer, as a courtesy given the short notice of his request for a decision, consented to a continuance if the board preferred 1:07:09.
• Action: ZBA Member 1 suggested Attorney Shutzer could submit proposed positive findings, but Shutzer declined, stating it made no sense to draft findings supporting relief he expected to be denied [1:07:45 - 1:08:20]. A motion was made by the ZBA Chair to continue Petition 23-05 to the December 5, 2023 meeting 1:08:20. Seconded.
• Vote: Approved (details not stated, assumed unanimous).

7. Adjournment: (Not explicitly stated in transcript)

Section 4: Executive Summary

The Swampscott Zoning Board of Appeals (ZBA) met on October 24, 2023, approving three petitions for modifications to nonconforming properties and continuing two complex cases to December.

Homeowner Modifications Approved: The Board approved three requests from homeowners seeking to modify existing nonconforming structures, finding in each case that the proposed changes would not be “substantially more detrimental” to the neighborhood than the existing nonconformities (the standard under Zoning Bylaw Section 6 and influenced by the Peralta court case):

• 48 Norfolk Ave (Petition 23-15): Approved the addition of a one-story sunroom/screen porch 0:39. Key discussion points involved interpreting whether deck stairs count as part of the “principal building” regarding separation from a garage 3:43 and acknowledging a minor increase over the allowed building coverage 10:25. Neighbor support was noted 9:09. Significance: This approval shows the Board applying flexibility for modest additions on nonconforming lots, relying on specific bylaw language (“principal building”) and the Peralta precedent for setback and coverage relief. Approved 4-0 14:03.
• 69 Cherry St (Petition 23-16): Approved the demolition and reconstruction of a severely nonconforming detached garage (approx. 1 ft from property line) on its existing footprint, but with new dormers increasing the volume 14:03. While acknowledging the dormers increased the nonconformity vertically 22:51, the Board found this change wasn’t substantially more detrimental 25:39. Significance: Indicates the Board’s willingness to allow improvements to existing nonconforming accessory structures, even with minor massing increases, provided the footprint doesn’t change and the impact is deemed minimal. Approved unanimously 26:57.
• 12 Eureka Ave (Petition 23-17): Approved, after significant debate, the demolition and reconstruction of a detached garage with an added second story and a breezeway connecting it to the main house 27:02. This was contentious because connecting the structure effectively makes the highly nonconforming garage setbacks (2.4’ and 4.6’) apply to the principal structure and allows greater height than typically permitted for accessory structures. One member strongly dissented, arguing the breezeway was a “fiction” undermining the bylaw against two principal structures 29:29. Proponents argued the alternative (a potentially larger, conforming addition attached directly to the house) could be worse [36:40, 48:48], and neighbors supported the plan [50:07, 51:17]. Significance: This decision highlights a major point of interpretation and potential precedent regarding how connected structures are treated, particularly concerning nonconforming setbacks and height limits. It suggests a majority willingness to weigh the practical impacts and alternatives over strict interpretation in specific contexts, albeit with dissent. Approved 4-1 56:06.

Major/Complex Cases Continued: Two significant petitions were continued to the December 5th meeting:

• 29 Essex St (Petition 23-06): This proposal for an eight-unit residential development was quickly continued without substantive discussion 1:00:00. Significance: Indicates this potentially impactful development requires further review or awaits applicant readiness.
• 0 Lodge Rd (Petition 23-05): This case involves building a single-family home on a vacant lot whose legal buildable status is questioned due to lack of historical town zoning records from the time of its subdivision (1949) 1:01:33. Attorney Ken Shutzer, anticipating denial based on prior hearings, requested a formal decision to facilitate appeals or other actions 1:03:44. The Board, citing the complexity and need for careful deliberation (especially as some members missed prior hearings 1:00:31), opted to continue the matter to draft findings for the December 5th meeting 1:08:20. Significance: This case underscores the challenges arising from incomplete historical town records and sets the stage for a formal ZBA decision on a contentious lot development, likely leading to further legal proceedings.

Overall: The meeting demonstrated the ZBA grappling with common Swampscott issues: nonconforming lots/structures and balancing homeowner desires with zoning regulations, often relying on the “not substantially more detrimental” standard and interpretations of the Peralta case. The Eureka Ave decision revealed differing philosophies among board members regarding bylaw interpretation and precedent.

Section 5: Analysis

This Zoning Board of Appeals meeting showcased the complexities inherent in applying Swampscott’s zoning bylaws to properties developed long before current standards, particularly regarding nonconformities. The Board’s decisions and discussions, grounded solely in the transcript, reveal several key dynamics:

1. Pragmatism vs. Precedent on Nonconformities: The approvals for 48 Norfolk Ave 14:03 and 69 Cherry St 26:57 suggest a generally pragmatic approach when modifications marginally increase existing nonconformities (setback encroachment, building coverage, volume). The Board frequently invoked the Peralta standard (“not substantially more detrimental”), using it to permit changes deemed minor in impact, especially when supported by narrow interpretations of bylaw language (e.g., “principal building” vs. “structure” at 48 Norfolk 5:36) or neighbor acquiescence.

2. The Breezeway Divide: The 12 Eureka Ave case 27:02 exposed a significant fault line in the Board’s interpretation. ZBA Member 2’s forceful argument against the breezeway as a “fiction” 29:29 represents a stricter adherence to the bylaw’s intent to prevent multiple principal structures. Conversely, the majority’s approval, influenced by ZBA Member 1 and Member 3’s arguments about potentially worse alternatives [36:40, 48:48] and the visual appeal 49:04, prioritized a site-specific solution over the broader precedent concern. This 4-1 split decision 56:06 could signal future contention on similar proposals connecting accessory structures to gain height or circumvent limitations. The effectiveness of the applicant’s direct neighbor outreach [50:07, 51:17] likely played a role in bolstering the majority position.

3. Navigating Historical Ambiguity: The 0 Lodge Rd discussion 59:03 highlights a critical vulnerability: the absence of historical town records. Attorney Shutzer’s logical argument about the unlikelihood of the 1949 Planning Board approving a subdivision creating non-buildable lots 1:02:30 is compelling contextually but lacks the required legal proof without records. His strategic request for a formal denial to enable appeal or litigation 1:03:44 indicates an acceptance of the ZBA’s likely position based on current evidence (or lack thereof). The Board’s decision to continue for deliberation 1:08:20, particularly with members needing to review past proceedings [1:00:31, 1:06:27], shows appropriate caution before issuing a decision likely headed for further legal scrutiny.

4. Member Roles and Dynamics: The transcript reveals distinct roles. The ZBA Chair effectively managed the meeting flow. ZBA Member 1 consistently focused on the technical application of zoning sections and case law (Peralta), often framing the necessary findings [12:22, 22:57, 46:07]. ZBA Member 2 acted as a guardian of perceived bylaw intent and precedent 29:29. ZBA Member 3 utilized hypothetical comparisons to weigh the relative impacts of proposals versus alternatives [34:56, 47:20]. This interplay, particularly the detailed debate on 12 Eureka Ave, suggests a board capable of thorough, albeit sometimes divided, deliberation.

Overall Effectiveness: The Board processed routine Section 6 requests efficiently (48 Norfolk, 69 Cherry). However, the deep dive and split vote on 12 Eureka Ave, alongside the careful handling of the legally fraught 0 Lodge Rd case, indicates the Board grapples significantly with proposals that push the boundaries of bylaw interpretation, nonconformity allowances, and historical uncertainty. Their reliance on the subjective “not substantially more detrimental” standard allows flexibility but, as seen in the Eureka Ave debate, can lead to differing conclusions based on individual members’ interpretations and priorities.