Zoning Board Opening Door To Freezer Point House Proposal

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By: James Kinsella
Published: 09/16/11

Members of the Barnstable Zoning Board of Appeals on Wednesday said they were prepared to grant a use variance to allow a Barnstable developer to build a personal residence on Freezer Point in Barnstable Village. But the board did not yet vote on the issue.

The board reviewed draft findings for the use variance, which would apply to the property at 153 Freezer Road. Board members also discussed a number of possible conditions for the variance.

A board decision on the use variance is scheduled for its October 26 meeting.

Stuart Bornstein, general partner of Stuborn Limited Partnership, is seeking to build a six-bedroom, single-family home on the property, which is in the Marine Business B zoning district.

Single-family homes are not a principal permitted use in the district.

Mr. Bornstein wants to build a 9,902-square-foot dwelling with an attached guest house at the site.

The site covers 7 acres, with a total upland area of 3.18 acres.

A dilapidated house now exists on the site.

Mr. Bornstein said he plans to keep the original part of the residence deemed historic and demolish the rest of the house.

At Wednesday’s meeting, a number of board members questioned whether the property, which abuts Barnstable Harbor, could be used for a marine business.

A key concern was whether Freezer Road, designated a scenic road by the Cape Cod Commission, could even support such a business.

John Kenney, the Centerville attorney representing Mr. Bornstein, said the road is 14 feet in width.

Also, board member William C. Newton noted that the marine zoning district has been in effect since 1965, yet no marine business has been operated on the site in that period of time.

“I would be in favor of a use variance,” Mr. Newton said.

Even if a marina could be placed on the property, board member Michael Hersey said he would not want to see such a business there.

“I don’t want to see head boats run out of there,” Mr. Hersey said. “I think this is the best single use of the property.”

In early 2009, Mr. Bornstein, who has owned the property since 1999, proposed a 50-slip marina at the property.

Agencies such as the Cape Cod Commission and the state Office of Coastal Zone Management responded with the regulatory requirements such a project would face.

Mr. Bornstein did not pursue the marina proposal.

The latest plan for the site shows a garden shed and a shed for boating supplies.

Neither would be outfitted for human occupancy, according to Mr. Kenney.

The plan also includes a new dock to replace the existing dock at the property. Mr. Kenney said the dock would be for the personal use of family and guests.

The dock likely will be subjected to a condition by the zoning board.

Jo Anne Miller Buntich, director of growth management, said the condition could regulate the use of the dock, such as the prohibition of any commercial use.

Another condition probably will bar any rentals of the residential structures on the property, or any commercial use on the entire property.

Mr. Kenney said the applicant will be open to a conservation restriction to prohibit any further building on land not used by the proposed personal residential construction or the sheds.

To get a use variance from the zoning board, Mr. Bornstein must pass a three-prong test, including showing that literal enforcement of the zoning ordinance would constitute a hardship, and that desirable relief may be granted without substantial detriment to the public good.

Even if the variance passes the test, however, the zoning board still has the discretionary power to grant or not grant the variance.

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