[Speaker 1] (1:26 - 1:56)
Hi, welcome to the April meeting of the Swampscot Zoning Board of Appeal. The first item on our agenda is to approve past minutes. Do we have?

I'll defer those to next month. I'll defer those to next month. All right, so moving forward with Petition 2501, I'm gonna constitute the board as everyone except for Susan.

Two of us watched the video from the last meeting, and so we're all up to date.

[Speaker 2] (1:57 - 2:12)
How do you think, did you, let me take a minute to get everybody on until it's time to talk to the board later, in case some conflict or anything develops during the hearing. Right, did everybody watch?

[Speaker 1] (2:12 - 2:22)
Yeah. I think it's, I don't think I'm just gonna keep it up. Everyone except for Susan.

Okay. There's no sort of, where someone's leaning from the conversation.

[Speaker 2] (2:22 - 2:24)
That's fine.

[Speaker 1] (2:24 - 2:54)
Disrupting, yeah. This way, it's before the conversation happens. Since all three of us were the ones who watched the video.

All right. So we have the petitioner here. Hi.

Hi. From the last meeting, the question was, did you have the original building permit? Did you?

So is that something that you've submitted? I didn't see it on the file.

[Speaker 7] (2:55 - 3:02)
Yeah, I'm not sure if they put it in the file. I just submitted it. Okay.

[Speaker 1] (3:04 - 3:04)
Okay.

[Speaker 2] (3:19 - 3:20)
Science fair.

[Speaker 1] (3:20 - 3:26)
Yeah. So did we get that building permit?

[Speaker 4] (3:28 - 3:29)
Did we get the building permit?

[Speaker 1] (3:29 - 3:29)
Yeah.

[Speaker 4] (3:30 - 3:31)
What do you mean?

[Speaker 1] (3:31 - 3:34)
Was it, he said he submitted the building permit.

[Speaker 4] (3:34 - 3:35)
I can hold it up.

[Speaker 1] (3:35 - 3:36)
Oh, do you have it? Okay.

[Speaker 4] (3:36 - 3:36)
Yeah.

[Speaker 1] (3:37 - 3:40)
Thank you. That was the only thing that was kind of missing from last meeting.

[Speaker 4] (3:50 - 5:30)
One second. Okay. So, there was two.

So there was one for a deck, which is currently on hold. And then, this is the one we submitted January 25th, 2024. So this one, remodel basement, seven foot six inch ceiling height, add bathroom basement, remodel bathroom second floor, add approximately six feet to enclosed mudroom, replace existing windows.

So this is all of the information. Really, there are no attachments in the file. The permit was issued.

It says inspections are ongoing.

[Speaker 1] (5:32 - 5:41)
So it does, it does mention that he's adding onto that space. Yeah. Yeah.

So, and that was approved by the building inspector, the building commissioner.

[Speaker 4] (5:41 - 6:25)
Let me tell you who issued it. I don't know. If it was January, 2024, I would imagine that it was probably Steve Cummings.

Yeah. I had to guess. There, we don't, oh, John Jackson is the applicant.

That's what it is right there. I can tell you, it doesn't say, oh, Stephen Cummings, Steve Cummings approved, approval step building department review. So, so it was Steve Cummings that issued the permit, our former commissioner.

[Speaker 1] (6:29 - 6:55)
All right. Does anybody on the board have further questions from, that weren't answered last meeting or further research? I know we had new pictures that Tony sent us.

But does anybody have any, does the petitioner have anything to add to last meeting? Is anybody else here to speak on that petition?

[Speaker 4] (6:59 - 7:00)
Hold on.

[Speaker 5] (7:03 - 8:40)
Hi, Steve Gatman. I abut the property. My fence is actually only 12 feet from my house.

The permit that is on record, I spoke to the former building inspector about that because I did see it, but he said that he was supposed to submit plans before he went ahead and built anything. He never submitted plans to go ahead and build that, and he didn't know that he was gonna put that up. And then when he came to the house, he came out to the house to look, and he was shocked when he saw the size of it, because he had no plans for it.

And then when the plans were submitted, some of the measurements were wrong on the plan. And even if he submitted a plan to begin with, being that close, it should have went for a special permit, and we should have had this meeting before he even put the building up, that piece up. I said before, I mean, I know you've watched the video, so I don't wanna repeat anything, but we feel closed in in our own backyard.

It's like looking up at a wall. I don't know what to say that I didn't already say, except we do, like I said, we do feel closed in in our own backyard and we feel trapped back there.

[Speaker 1] (8:46 - 9:17)
All right, my understanding of this is that it does fall under the Volalta. I think where, my feeling is that this is continuing a preexisting nonconformity, and that it is also, but it is not more nonconforming than the preexisting nonconformity. In fact, it's less nonconforming as it recedes away from the property line as the first sort of checkpoint for the Volalta.

Does anybody else on the board have thoughts about that?

[Speaker 2] (9:18 - 10:39)
I have some thoughts. I see it as clearly Volalta, that it's a preexisting nonconforming structure, that the side yard setback is nonconforming with a zero setback. It's protected under 48-6, and the first question under Volalta is the work increasing the nonconforming nature of any nonconformity, and because it's not bringing it, it can't possibly increase it beyond zero without encroaching on the neighbor's yard physically.

So if the answer is no, then the next analysis is the step two, which is making the finding that it does not increase the nonconforming nature of the existing nonconformity. If the answer was yes, that it was increasing the nonconforming nature, then you would get to a section six special permit analysis about whether it's more detrimental to the neighborhood, but I think unless you can find that the work is increasing the nonconforming nature, we don't get to that analysis, so I see it too.

[Speaker 6] (10:40 - 10:44)
So you just say our hands are tied, really, whether you like it or you don't like it, your hands are tied.

[Speaker 2] (10:45 - 10:46)
I think hands are tied.

[Speaker 1] (10:46 - 11:06)
Yeah, we don't have jurisdiction, because Volalta makes it clear that if it's a preexisting nonconformity and you're continuing that, I mean, if this house was angled differently towards the lot, it would be even closer, but because it's angled away, it's actually slowly becoming less nonconforming.

[Speaker 2] (11:07 - 11:28)
Right, if it was running parallel and it went in just an inch more into the side yard, then I think it would trigger that second step, but I don't think it does. Does anybody see that first question differently on the board, that it is increasing the nonconforming nature in any way?

[Speaker 11] (11:28 - 11:33)
And it's only that small section that they need to remove.

[Speaker 2] (11:33 - 11:35)
It's the red, the red's new.

[Speaker 1] (11:35 - 11:38)
But not even, because the majority of the red is conforming.

[Speaker 2] (11:39 - 11:40)
Okay. Right, it's conforming.

[Speaker 1] (11:40 - 11:47)
It's only that one little section that is technically not, it's really, I mean, they could build, the majority of this they could build as a right.

[Speaker 2] (11:47 - 11:49)
It would be a conforming addition.

[Speaker 1] (11:49 - 11:53)
It's a conforming addition. It's that one little section that's nonconforming, the majority of the addition.

[Speaker 6] (11:53 - 12:17)
So the idea of place Solomon is a penalty, because it really should have been discussed before it was built. And talk to the neighbor who's supremely offended. Is there any mitigation, because you built this, you shouldn't have been building this, we should be having this discussion with it, not built.

Or do we just fold our tent and say, look, there's nothing we can do? Or do we ask him, is there some mitigation?

[Speaker 2] (12:17 - 12:43)
I think that was, I understand mitigation. My thought on it is the building inspector issued a cease and desist, because it wasn't, he didn't get his plans or wanted to come here. But I don't know that we have, do I think that would be the equitable and fair thing to do, to have some type of mitigation?

Absolutely. But I don't know that that's our role, quite frankly, my thought. I'm just one voice.

[Speaker 1] (12:45 - 12:55)
And could we have this, that the plans do need to be submitted as part of the record for this building permit before work continues?

[Speaker 2] (12:57 - 12:57)
Yeah.

[Speaker 1] (12:57 - 13:03)
I know this is part of our, but these aren't plans, this is just- But isn't that the building inspector's jurisdiction, not our jurisdiction?

[Speaker 6] (13:04 - 13:05)
It's not for us to say. Right, this should be conforming plans.

[Speaker 1] (13:05 - 13:22)
Except that he did put the, he put the hold because it wasn't submitted, and then it came to us. So if we allow it without his approval of the plans, we could allow it pending that everything's properly submitted to the building inspector.

[Speaker 6] (13:22 - 13:26)
Well, that's how we allow everyone. You know, everybody comes here.

[Speaker 1] (13:27 - 13:40)
Yeah, I guess. But except that this, I guess because this permit is already in existence and he physically has it, versus a permit that hasn't been pulled yet and hasn't been, right? And he has a permit.

Yeah.

[Speaker 7] (13:42 - 14:43)
We're talking about- Sorry, hold on, let me get you a mic. Thank you. So we're talking about the, when we first applied for the permit, we had Steve, who's approved it, and the contractor didn't fill all the request and plans on it on the time.

So Steve told me that to move ahead, we have to have survey done, drawing with all the measurements, and go for a special permit. So that's what I thought we're gonna do in here. And I'm not sure if he, in that case, guys have to go back on him and ask again for approval.

Do I have to submit all these plans to him first before I come back in here? That's what you're talking about?

[Speaker 1] (14:43 - 15:33)
Yeah, well, typically what would happen is you would apply for the permit. The building inspector would not issue a permit. They would say, they would look at what you have, like your plans.

If you didn't submit plans, they'd ask you to submit them and then you'd submit them all. And then they would review it. And if they thought it needed a special permit, they would send you here before ever issuing a building permit.

But you have a building permit that was issued without this step. So I guess we're trying to just clarify where the paperwork should be between here, that we have this plot plan now, but the building inspector, it's not part of the building permit, and there are no, we still don't have plans for the work. We only have the plot plan.

We don't have drawings or plans. And because there's the roof change, there are other changes that the building inspector might wanna see and should have the opportunity to review.

[Speaker 2] (15:34 - 15:57)
Could we make our finding subject to finding that it's not increased the non-conforming nature of the existing non-conformity and conditioned upon any required documents or plans that the building inspector requires as part of his permit process being submitted?

[Speaker 1] (15:58 - 16:10)
Yeah, that's what I would wanna do. Only because he has a permit that doesn't have all that submitted. Does anybody else have any questions or concerns with the inspector?

[Speaker 9] (16:15 - 16:23)
Is whatever these plans show, will they have the ability, excuse me, to impact the decision?

[Speaker 1] (16:25 - 16:44)
I guess from the building inspector's point of view, yes, but not from the encroachment point of view, from the special permit for the encroachment. But if the building inspector sees something in the plans that weren't properly represented to us or that are somehow different and create a new non-conformity.

[Speaker 12] (16:46 - 16:53)
Do we wanna know that before we approve this permit? Does that matter?

[Speaker 2] (16:53 - 17:05)
I think we're okay because we're gonna include as part of the decision, reference the Hancock plan that shows the dimensions and our issues are really dimensional.

[Speaker 9] (17:05 - 17:07)
Okay, okay, thank you.

[Speaker 1] (17:08 - 17:20)
Wanna make that motion? Contingent on filing any requests with the?

[Speaker 2] (17:21 - 18:26)
I'll make a motion on it. I'll make a motion on petition 2501, 44 New Ocean Street to make a finding that the property has an existing non-conformity and that the proposed work, the work that has been completed, or also the proposed work as shown on the Hancock survey dated 11-5-24, does not increase the non-conforming nature of the existing non-conformity consistent with the Bellotta case, Bellotta case, and conditioned upon the petitioner submitting any plans or drawings that the building inspector requires to fulfill his duties and the requirements under the building code and our zoning bylaw.

[Speaker 1] (18:28 - 18:29)
Second?

[Speaker 2] (18:29 - 18:30)
Second.

[Speaker 1] (18:30 - 18:32)
All in favor? Aye.

[Speaker 10] (18:34 - 18:36)
Do I have to vote on this one?

[Speaker 1] (18:36 - 18:37)
Yeah.

[Speaker 10] (18:37 - 18:37)
Do I have to have all of them?

[Speaker 1] (18:38 - 18:38)
Yeah.

[Speaker 10] (18:41 - 18:41)
Yeah, aye.

[Speaker 1] (18:44 - 18:54)
All right, so you have your relief, but it is conditioned on meeting with the building inspector and getting all the proper paperwork submitted to the building inspector for final review.

[Speaker 7] (18:54 - 18:56)
All right, thank you very much.

[Speaker 1] (19:16 - 19:27)
Thank you. So we're moving on to petition 25-03. Are you here to speak on that petition?

What's your name on it, sorry? Arthur Sims. All right.

[Speaker 4] (19:28 - 19:30)
Just, if you want to grab that mic that's right behind you that way.

[Speaker 1] (19:31 - 19:33)
Yeah, there you go. Me? I'm you.

[Speaker 3] (19:39 - 19:39)
Thank you.

[Speaker 1] (19:40 - 19:44)
All right, welcome. If you'd like to run through your petition for us.

[Speaker 3] (19:49 - 20:57)
Essentially, we'd like to put an addition on that is gonna be within the 7.5 foot setback as the, well, first of all, the lot is kind of an odd shape. It's more of a triangle than a square shape and the main house and the garage are not square to each other, which is causing us a few design problems. The existing garage, a corner of it is actually, I believe it says 5.8 feet or 5.6 feet from the property line. And we would like to keep that 5.8 or whatever it is. 5.9. 5.9 and stay the same distance from the, 5.9 feet all the way down for the addition. And we're asking, seeking relief to do that if we need relief.

[Speaker 1] (21:23 - 21:34)
Well, it's a similar situation because it's already, it's already 5.9. Yeah, so it's similar in the sense that we're falling into the.

[Speaker 6] (21:35 - 21:37)
That's like, that case is taking off.

[Speaker 1] (21:37 - 21:40)
It's taken over every special permit, yeah.

[Speaker 6] (21:41 - 21:46)
Yeah, I'm non-conforming so I just can, as long as I don't go outside my non-conformity.

[Speaker 1] (21:46 - 21:46)
Yeah.

[Speaker 6] (21:46 - 21:49)
I can build all over.

[Speaker 1] (21:50 - 22:29)
Yeah, I mean, an argument could be made that putting more building in that, I mean, the other one was unique in the sense that it was going away from it, so it was actually becoming less non-conforming as it went back. In this one, an argument could be made that you are putting more bulk of building in that setback and therefore are you, like, creating more non-conformity by putting more bulk in that space, whereas the other one were kind of, it was going away from the, it was going away, but it can be, it seems, it just, it's a, there's a little bit of interpretation, but I think that.

[Speaker 2] (22:30 - 22:47)
Yeah, I think it, because we had it on Bellevue, we had it on Middlesex, and we asked the question of Robin, and she came back on both saying, if it, that, because I thought at the same time, you're adding more mass, but I was wrong.

[Speaker 13] (22:47 - 22:47)
Yeah.

[Speaker 2] (22:48 - 22:50)
So there's no discussion.

[Speaker 3] (22:52 - 23:44)
I can say a few things. We've looked at several options here. Without going into that setback, and our feeling is that the best for the neighborhood, I think, and for the neighbors, would be expanding into that within the 7.5 foot setback, as opposed to extending further back into the, into the buildable zone, so to speak. I don't know how you want to phrase it. Again, we've looked at numerous different options. I think this would be the best for the neighbors.

I think they would agree from what little we've talked to them, as far as sight lines and all that are concerned.

[Speaker 8] (23:45 - 23:47)
Because the alternative is going back for it.

[Speaker 1] (23:48 - 23:49)
Yeah, and you don't have a rear yard setback.

[Speaker 6] (23:49 - 24:12)
The interesting thing is, he's keeping the five foot nine, but there's a crook in the building wall, so that his five foot nine is parallel. It's not like he's shooting that line straight, and it would be then making a five foot nine less than five foot nine. He's saying, okay, I've got five foot nine over here, so I'll stick with my five foot nine.

It gives me a little connage in my wall, so to speak.

[Speaker 1] (24:13 - 24:17)
Yeah, that that wall won't be totally straight. It's going to have an ever so slight angle.

[Speaker 6] (24:17 - 24:19)
Yeah, you don't have anything to say, so.

[Speaker 1] (24:20 - 24:24)
Well, and if it was straight, yeah, you wouldn't be able to do it, because then it would be encroaching more into the sight line.

[Speaker 10] (24:26 - 24:34)
And why is, I guess, why can't the argument be made that it's creating more of a nonconformity? You said that there's a precedent that.

[Speaker 1] (24:34 - 24:46)
Yeah, it's just because of precedent, and we've talked to our town council about it, and the precedent, the state precedent. So, our zoning bylaw is more restrictive than the state. Yeah, okay.

So.

[Speaker 2] (24:46 - 24:47)
In the law.

[Speaker 1] (24:48 - 24:51)
Yeah. Yeah. So, and this is.

Nonconforming.

[Speaker 2] (24:52 - 24:54)
Our bylaw is nonconforming.

[Speaker 13] (24:54 - 24:54)
Everything.

[Speaker 1] (24:54 - 25:15)
This is something where previously, they would have had to move it in to six feet, so that just point one foot in, and then they'd have to, then we'd give them a special permit for the difference, if it makes sense for the project. But now, we allow it as is, because we. So, this is at five knot, okay.

Because of the wall to gate.

[Speaker 6] (25:15 - 25:19)
So, this is going out like this. Can't you see that little bend?

[Speaker 4] (25:20 - 25:28)
This only applies, though, to single and two family nonconforming structures, anything else, then that would be subject to the same protections. Yeah.

[Speaker 6] (25:28 - 25:30)
So. He didn't go straight through.

[Speaker 4] (25:30 - 25:44)
But it is, we had one case that kind of just brought all of this to light a few years ago, and we got this literature from town council that explained all these protections that we didn't necessarily know existed beforehand. So. It's clever.

[Speaker 6] (25:44 - 25:48)
Yeah. I mean, it's nestled back there, it's fine.

[Speaker 1] (25:48 - 25:56)
All right. So. What's that?

Yeah, have you spoken to your neighbors? Have you shown them the plans?

[Speaker 8] (25:57 - 26:01)
Yeah, one of the abutters we did, we talked to them and explained how, you know, the other scenarios.

[Speaker 6] (26:01 - 26:05)
Which one? The one across the street, or the abutter on that wall?

[Speaker 8] (26:05 - 26:17)
Unfortunately, this person here, we rarely see them, been there for over a year. We saw them five times, and we told them that we were looking for an addition, but these specific plans, we haven't seen them since we put these plans on paper. Okay.

[Speaker 4] (26:17 - 26:18)
I mean, they've been notified.

[Speaker 3] (26:18 - 26:19)
The abutter that.

[Speaker 4] (26:19 - 26:20)
They've been notified, nobody reached out to me.

[Speaker 3] (26:21 - 26:27)
The abutter we see is directly behind us, and not on the side that the. Extension zone. Yeah.

[Speaker 11] (26:30 - 26:35)
What's on the property line? Is there trees, a fence between you and.

[Speaker 3] (26:35 - 27:14)
There are shrubs and trees, and the property line, obviously, we had it surveyed. So what exists there is not, some of it's, some of the abutter's kind of encroached on us, like six inches or a foot. Nothing to be, for me to be concerned about.

The house, his home is essentially side by side with the garage, and extending back. So the addition that's being proposed doesn't even go as far back as his home goes a little further.

[Speaker 8] (27:15 - 27:39)
Yeah, he has a patio back there that, again, if we stayed in the buildable zone to get the square footage that we were looking for, at that point, we would be covering parts of his patio. This way, we don't do that. And then, to answer your question of what's there, is there's the, beyond the setback, there's the shrub stone wall, and then like a mulch area of about five feet, and then there's a little bit of a side yard on their end.

[Speaker 1] (27:40 - 27:43)
Thank you. And are you taking down any trees to do this?

[Speaker 8] (27:43 - 27:48)
No. All right.

[Speaker 1] (27:50 - 28:09)
I can, I'll constitute the board as everyone but me. Do we have a motion for this? We have a lot of examples of this type of thing to write, so there's a pretty easy template.

[Speaker 4] (28:09 - 28:11)
I'm happy to do it. For any templates or anything.

[Speaker 2] (28:11 - 28:15)
I'm happy to make the motion if somebody else wants to sign up for.

[Speaker 9] (28:15 - 28:20)
I had to write Tony's last time, so Tony should write. You did? Yeah.

[Speaker 1] (28:21 - 28:21)
She did.

[Speaker 9] (28:22 - 28:23)
It was confusion.

[Speaker 1] (28:23 - 28:26)
It wasn't your, it wasn't your fault, but you're up.

[Speaker 2] (28:26 - 29:03)
I'll write this one. All right, do you want me to make the motion? I'll make a motion for petition 2503 at 49 Bayview Drive to make a finding that the existing, the proposed work will not increase the non-conforming nature of the existing non-conformity, which is the 5.9 foot side yard setback. And that's really it. It's very simple with the, oh.

[Speaker 1] (29:03 - 29:04)
Do you have a second?

[Speaker 10] (29:04 - 29:04)
Second.

[Speaker 1] (29:05 - 29:14)
All in favor? Aye. Aye.

Aye. All right, so you have your relief that will be written up, and it's a finding rather than a special permit.

[Speaker 8] (29:14 - 29:15)
Thank you.

[Speaker 3] (29:16 - 29:19)
So what do we, what should we do next, I guess?

[Speaker 1] (29:19 - 29:24)
So the, that will be submitted within, how many days?

[Speaker 2] (29:26 - 29:28)
I'm sure we'll get it done soon. I'm gonna do the first one tonight.

[Speaker 4] (29:30 - 29:59)
And Marissa will contact them. Yeah, what happens is we'll, the board will submit the decision, hopefully within the next, I would say by the end of next week, and then that has to stay with the town clerk for 20 days that it runs through an appeal period. Anybody can come forward and appeal the decision.

And then at the end of that appeal period provided, nobody came forward. Then it gets released to you, and it just has to get recorded at the registry of deeds, and then submit that to the building department, show that it's been recorded, and then you can pull your permit.

[Speaker 3] (29:59 - 30:03)
So we should wait for all this before going to the building department?

[Speaker 4] (30:03 - 30:14)
Yeah, because once the paperwork is filed by the board with us, then it is, the appeal period kicks in, and you can't do anything during that period because anybody could come forward. You're less than a month. Yeah.

[Speaker 10] (30:14 - 30:16)
All right. Thank you very much. Thank you for your time.

[Speaker 4] (30:17 - 30:24)
Thank you. All right, thank you guys. Can we get a motion to adjourn?

Motion to adjourn.

[Speaker 13] (30:25 - 30:28)
All right, all in favor? Aye. Aye.

Aye.