Board Grants Variance for Freezer Point Residence

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By: James Kinsella
Published: 10/28/11

The Barnstable Zoning Board of Appeals on Wednesday voted 5-0 to grant a use variance to allow a Barnstable developer to build a personal residence on Freezer Point in Barnstable Village.

“We’re happy we got it,” developer Stuart Bornstein said following the board’s decision on the variance for his property at 153 Freezer Road.

Mr. 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, so he needed a variance.

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 2.82 acres.

A dilapidated house is 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.

Despite Wednesday’s vote, Mr. Bornstein is not yet out of the zoning regulatory woods.

Two of the conditions require positive votes from the Barnstable Town Council before any construction can move forward.

The conditions pertain to conservation restrictions and reciprocal private covenants that will be placed on the property.

Before he can move forward, Mr. Bornstein will need the town council to sign off on a plan detailing the conservation restriction, and another plan detailing the reciprocal private covenants.

The restriction and covenants are being sought by Mr. Bornstein to ensure the property is used only for a single-family residence and related structures.

They would close out the possibility of other kinds of residential projects being built at the property, such as a Chapter 40B affordable housing project.

According to the conditions approved Wednesday by the zoning board, the conservation restriction shall require that the area covered by the restriction will remain undeveloped for a term of at least 99 years; that no structures shall be erected, constructed, or moved onto the subject area; and that the area shall only be used for purposes consistent with preservation and conservation.

The reciprocal private covenants, which will cover another section of the property containing the residence, will limit development of the site to the building footprints shown on the proposed site plan and the conditions contained in the decision for a term of at least 99 years.

Members of the zoning board questioned why the board could not sign off on the conservation restriction and the reciprocal private covenants itself, thereby completing the zoning decision.

But Barnstable Town Attorney Ruth J. Weil said the power to grant the restriction and the covenants lay with the municipality’s legislative body: in this case, the town council.

If the town council says no to one or both of the plans, Mr. Bornstein will be forced to return to the zoning board for a modification of the decision, according to the chairman of the zoning board, Laura F. Shufelt.

At Wednesday’s meeting, Mr. Bornstein, after consulting with his attorney, John W. Kenney of Centerville, decided to request the zoning board vote anyway.

Mr. Kenney told the board that the permitting process, which has involved other regulatory boards, has been a long, arduous process.

The more hurdles that Mr. Bornstein gets out of the way, he said, the better.In the subsequent unanimous roll call vote, board members Ms. Shufelt, Michael P. Hersey, Craig G. Larson, William H. Newton and George T. Zevitas all voted in favor of granting the variance.

Should Mr. Bornstein get the green light from the town council on the conservation restriction and private covenants, he will commence construction on the house.

He estimates construction will take eight months, and hopes to complete the project sometime next year.

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