2025-04-15: Zoning Board Of Appeals

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

Swampscott Zoning Board of Appeals Meeting Review: April 15, 2025

Section 1: Agenda

Based on the transcript, the likely agenda for the Swampscott Zoning Board of Appeals meeting on April 15th, 2025, was as follows:

  1. Call to Order & Opening Remarks (Implied start before transcript begins)
  2. Approval of Past Minutes 0:01:26
    • Action: Deferred to the next meeting.
  3. Petition 25-01: 44 New Ocean Street 0:01:56
    • Board Constitution
    • Discussion regarding previously requested building permit information
    • Review of submitted permit details
    • Public Comment/Abutter Input (Steve Gatman)
    • Board deliberation focusing on DeVol/Volalta precedent
    • Motion and Vote on Findings
  4. Petition 25-03: 49 Bayview Drive 0:19:16
    • Petitioner Presentation (Arthur Sims)
    • Board deliberation focusing on DeVol/Volalta precedent
    • Discussion regarding neighbor notification/impact
    • Board Constitution (Chair recusal)
    • Motion and Vote on Findings
  5. Adjournment 0:30:17
    • Motion and Vote

Section 2: Speaking Attendees

Based on the transcript and typical Massachusetts ZBA roles:

  • ZBA Chair (Name not stated): [Speaker 1] - Leads meeting, calls items, constitutes board, asks questions, explains DeVol. Recuses from Petition 25-03.
  • ZBA Member (Name not stated): [Speaker 2] - Provides detailed legal analysis (DeVol), makes motions, discusses precedents and Town Counsel advice, offers to write decisions.
  • Arthur Sims (Petitioner for 25-03): [Speaker 3] - Presents petition for 49 Bayview Drive.
  • ZBA Staff/Support (Name not stated): [Speaker 4] - Provides permit details, explains DeVol context from staff perspective, clarifies appeal process. Likely Town Planner or ZBA Administrator.
  • Steve Gatman (Abutter to 44 New Ocean St): [Speaker 5] - Voices concerns regarding Petition 25-01 impact and process.
  • ZBA Member (Name not stated): [Speaker 6] - Comments on DeVol implications, asks about mitigation for 25-01, notes geometry of 25-03.
  • Petitioner for 25-01 (Name not stated): [Speaker 7] - Provides petitioner’s perspective on the permit process for 44 New Ocean St.
  • Co-Petitioner/Representative for 25-03 (Name not stated): [Speaker 8] - Speaks alongside Arthur Sims regarding 49 Bayview Drive, discusses alternatives and neighbor contact.
  • ZBA Member (Name not stated): [Speaker 9] - Asks clarifying questions, confirms involvement in writing past decisions.
  • ZBA Member (Name not stated): [Speaker 10] - Asks about voting requirement, votes, questions DeVol application, seconds motion.
  • ZBA Member (Name not stated): [Speaker 11] - Asks about property line features for 25-03.
  • ZBA Member (Name not stated): [Speaker 12] - Asks clarifying question about plan submission timing for 25-01.
  • Acting Chair / ZBA Member (Name not stated): [Speaker 13] - Speaks briefly, calls the vote for adjournment (likely acting Chair after Speaker 1 recused).

Section 3: Meeting Minutes

Meeting: Swampscott Zoning Board of Appeals Date: April 15, 2025 (as per meeting title)

1. Call to Order & Minutes: The meeting was called to order by the ZBA Chair. Approval of past minutes was deferred to the next meeting 0:01:26.

2. Petition 25-01: 44 New Ocean Street

  • Board Constitution: The Chair constituted the board as all members present except for one (“Susan,” not identified by a speaker tag) 0:01:56. Members confirmed they had reviewed the video from the previous meeting.
  • Permit Discussion: The Chair inquired about the original building permit requested at the last meeting 0:02:24. The Petitioner for 25-01 stated it was submitted 0:02:55. ZBA Staff/Support located and presented the permit information 0:03:50, noting it was issued by former Building Commissioner Steve Cummings on January 25, 2024, for work including remodeling the basement and adding approximately six feet to an enclosed mudroom.
  • Abutter Comment: Steve Gatman, identifying himself as an abutter whose property is 12 feet away 0:07:03, stated he spoke to the former building inspector who allegedly indicated plans were required but never submitted before construction began. Mr. Gatman expressed shock at the size of the addition upon seeing it and felt it should have triggered a special permit process before construction. He reiterated feelings of being “closed in” by the structure [0:07:03 - 0:08:40].
  • Board Deliberation: The Chair initiated discussion on the DeVol/Volalta precedent 0:08:46, suggesting the addition continues a pre-existing nonconformity (zero setback) but is not more nonconforming, as it angles away from the property line. A ZBA Member provided a detailed explanation of the DeVol two-step analysis 0:09:18, concluding that since the work doesn’t increase the nonconforming nature (it cannot physically encroach further without crossing the property line), the Board does not reach the “more detrimental” special permit analysis. Several board members concurred that their hands were tied by this precedent [0:10:40, 0:10:45].
  • Procedural Issues & Conditions: A ZBA Member raised the issue of the work being done before proper ZBA review and asked about mitigation 0:11:53. Another Member acknowledged the fairness concern but questioned if mitigation was within the ZBA’s role under DeVol 0:12:17. There was considerable discussion about the fact that a permit exists but lacks the necessary plans, which normally would be reviewed before permit issuance and ZBA referral [0:12:45 - 0:15:33]. The Petitioner for 25-01 expressed understanding that they needed to go through the special permit process with plans 0:13:42. The Board discussed conditioning any finding upon the petitioner submitting all required plans and documents to the current Building Inspector 0:15:34.
  • Motion and Vote: A ZBA Member moved to make a finding that the work at 44 New Ocean Street does not increase the non-conforming nature of the existing non-conformity (zero side-yard setback) consistent with the DeVol/Volalta case, conditioned upon the petitioner submitting any plans or drawings required by the Building Inspector 0:17:21. The motion was seconded 0:18:29 and passed unanimously by the constituted board (Aye votes heard) [0:18:30 - 0:18:41]. The Chair informed the petitioner of the conditional nature of the relief 0:18:44.

3. Petition 25-03: 49 Bayview Drive

  • Presentation: Petitioner Arthur Sims presented the request to construct an addition along an existing non-conforming side-yard setback line of 5.9 feet 0:19:49. He noted the lot’s odd shape and explained the proposed addition would maintain the existing 5.9-foot distance. Mr. Sims argued this design was preferable for neighbors compared to extending further back into the buildable area 0:22:52.
  • Board Deliberation: Board members immediately identified this as another DeVol/Volalta situation [0:21:23, 0:21:35]. The Chair acknowledged that while adding bulk could arguably create more non-conformity in spirit, precedent and Town Counsel advice confirmed that maintaining the existing setback line does not trigger further review under DeVol [0:21:50, 0:22:30, 0:24:34]. ZBA Staff/Support clarified this protection applies to single and two-family homes 0:25:20. A Board Member noted the design cleverly maintains the 5.9-foot setback despite a slight angle change in the wall 0:23:49.
  • Neighbor Input/Context: The petitioners stated they spoke to the abutter behind them but not the abutter on the side affected by the setback, though they rarely see that neighbor [0:25:57, 0:26:05]. ZBA Staff/Support confirmed legal notice was sent and no one contacted the office 0:26:19. The petitioners confirmed no trees would be removed 0:27:43.
  • Motion and Vote: The Chair recused from voting on this petition 0:27:50. A ZBA Member moved to make a finding that the proposed work at 49 Bayview Drive will not increase the non-conforming nature of the existing 5.9-foot side-yard setback non-conformity, consistent with DeVol/Volalta 0:28:26. The motion was seconded 0:29:04 and passed unanimously by the remaining members (Aye votes heard) [0:29:05 - 0:29:14].
  • Process Explanation: ZBA Staff/Support explained the 20-day appeal period following the decision filing with the Town Clerk and the subsequent need to record the decision at the Registry of Deeds before obtaining a building permit 0:29:30.

4. Adjournment: A motion to adjourn was made 0:30:17, seconded, and approved unanimously [0:30:25 - 0:30:28].

Section 4: Executive Summary

This meeting of the Swampscott Zoning Board of Appeals (ZBA) primarily addressed two petitions for residential additions involving pre-existing non-conforming setbacks. Both petitions were ultimately approved based on findings related to state case law, specifically the DeVol/Volalta precedent.

Key Outcomes & Significance:

  1. Petition 25-01 (44 New Ocean Street - Addition): Approved Finding, Conditioned. The ZBA determined that an addition built/proposed at this property, which sits on the property line (zero setback), does not legally increase the non-conformity under the DeVol standard 0:17:21. This finding was made despite vocal objections from an abutter, Steve Gatman, concerning the addition’s impact and procedural irregularities 0:07:03, including the fact that a building permit was issued by the previous Building Commissioner before ZBA review and apparently without full plans 0:05:41.

    • Why it Matters: This case highlights how the DeVol precedent significantly limits the ZBA’s discretion on additions to non-conforming single/two-family homes if the addition doesn’t worsen the dimensional non-conformity (e.g., move closer to the lot line). Even with neighbor concerns and procedural questions surrounding the initial permit, the legal standard under DeVol prevailed. The approval is conditional upon the homeowner submitting all required plans to the current Building Inspector for review 0:17:21, an attempt to ensure proper documentation after the fact.

  2. Petition 25-03 (49 Bayview Drive - Addition): Approved Finding. The ZBA approved an addition proposed along an existing 5.9-foot non-conforming side setback 0:19:49. Applying the same DeVol logic as in the first petition, the Board found that because the addition maintains the existing 5.9-foot setback and does not encroach further, it does not increase the non-conformity and therefore does not require a special permit 0:28:26.

    • Why it Matters: This reinforces the significant impact of DeVol in Swampscott. Homeowners with existing non-conforming setbacks on single or two-family lots can generally extend structures along that existing non-conforming line, as long as they do not encroach further into the setback. The ZBA’s role in such cases shifts from granting a special permit (weighing detriment) to making a finding of fact about whether the non-conformity is increased.

Overarching Theme: The meeting demonstrated the controlling influence of the DeVol/Volalta case law on ZBA decisions regarding additions to non-conforming single and two-family residences. The Board consistently applied this standard, finding that additions maintaining or receding from existing non-conforming setback lines do not “increase” the non-conformity, thus precluding the need for a special permit review based on neighborhood detriment for that specific dimensional aspect.

Section 5: Analysis

This ZBA meeting provides a clear illustration of the practical impact of the DeVol/Volalta court decisions on local zoning administration in Massachusetts, particularly in established towns like Swampscott with many non-conforming properties.

  • Dominance of Legal Precedent: The discussions reveal a Board well-versed in, and arguably constrained by, the DeVol precedent. Members repeatedly referenced the two-step analysis 0:09:18 and acknowledged that their “hands are tied” 0:10:45 once a project meets the DeVol standard for not increasing a dimensional non-conformity on a single/two-family home. Arguments regarding aesthetics, neighborhood impact (voiced strongly by abutter Steve Gatman for 25-01 0:07:03), or even procedural fairness seemed secondary to the legal determination of whether the dimensional non-conformity was technically increased. The reference to prior consultation with Town Counsel [0:22:30, 0:24:34] further underscores the Board’s reliance on established legal interpretation.

  • Effectiveness of Arguments:

    • Petitioners: Both petitioners were successful largely because their plans fit the DeVol criteria. The petitioner for 44 New Ocean St (25-01) faced challenges due to the project’s history (permit issued pre-ZBA, lack of plans [0:05:41, 0:07:03]) but ultimately prevailed on the DeVol finding. The petitioner for 49 Bayview Dr (25-03) presented a straightforward case that clearly aligned with the precedent 0:19:49.
    • Abutter (25-01): Steve Gatman’s testimony 0:07:03 effectively conveyed the negative impact perceived by an immediate neighbor and highlighted legitimate concerns about the process. However, his arguments were ultimately ineffective against the legal shield provided by DeVol for the dimensional setback issue. This demonstrates the limitations abutters face when challenging projects protected by this specific case law related to pre-existing non-conformities. His points about the procedural failings (lack of plans, permit timing) were acknowledged by the board but did not alter the core finding under DeVol.
    • Board Members: Board members effectively applied the DeVol analysis. The discussion around conditioning the approval for 25-01 0:15:34 shows an attempt to reconcile the legal finding with practical code enforcement needs (ensuring the Building Inspector receives proper plans). The brief debate on whether adding “bulk” constituted increasing non-conformity 0:21:50 was quickly resolved by referencing established precedent and counsel advice 0:22:30, showing adherence to the prevailing legal interpretation.

  • Procedural Anomaly (25-01): The situation with 44 New Ocean St, where construction apparently proceeded based on a permit issued without full plans and prior to ZBA review [0:05:41, 0:07:03, 0:13:42], stands out. While the ZBA addressed the zoning relief aspect via DeVol, the initial permitting process described in the hearing appears irregular compared to standard procedure (where ZBA review typically precedes permit issuance for non-conforming situations requiring relief). The Board’s decision to condition its finding on future plan submission to the Building Inspector 0:17:21 was a pragmatic solution within its purview but doesn’t fully address the apparent process breakdown that occurred earlier.

  • Meeting Dynamics: The Board operated efficiently, moving through both petitions with focused discussion centered on the controlling legal standard. Consensus on the application of DeVol was reached relatively quickly in both cases, indicating this is a familiar scenario for the Swampscott ZBA.