HomeMy WebLinkAboutSR-2023-034 Bayridge Realty LLC 900 Old Stage Road CENT Comp Permit 40B WITH FINDINGS AND CONDITIONS 4 10 24
Town of Barnstable
Planning and Development Department
Elizabeth Jenkins, Director
Staff Report
Special Permit No. 2023-034 – Bayridge Realty, LLC
MGL Chapter 40B, Sections 20-23 and 760 CMR 56.00
To construct 14 units in 4 buildings on 3.95 acres
Date: October 31, 2023 REVISED March 7, 2024, April 4, 2024,
April 9, 2024, April 10, 2024
To: Zoning Board of Appeals
From: Anna Brigham, Principal Planner
Applicant: Bayridge Realty, LLC
Property Address: 900 Old Stage Road, Centerville, MA
Assessor's Map/Parcel: 192/001
Zoning: Residence C (RC)
Filed: September 29, 2023 Hearing: November 8, 2023 Decision Due: ___________
Copy of Public Notice
Bayridge Realty, LLC has applied for a Comprehensive Permit pursuant to MGL Ch. 40B §20, 21, 22,
and 23. The Applicant proposes to construct 14 housing units (24 bedrooms) within 4 detached
buildings and associated parking and site improvements on 3.95 acres for rental purposes in
accordance with MGL Ch. 40B, 760 CMR. The unit mix shall consist of 6 one-bedroom units, 6 two-
bedroom units, and 2 three-bedroom units. 4 of the units will be restricted as affordable for low- or
moderate-income persons. The subject property is located at 900 Old Stage Road, Centerville, MA as
shown on Assessor’s Map 192 as Parcel 001. It is located in the Residence C (RC) Zoning District.
Background
Bayridge Realty, LLC pursuant to MGL Chapter 40B Section 21 is for a Comprehensive Permit to
construct a new high quality multi-family residential development with 14 rental units on 3.95 acres
addressed as 900 Old Stage Road, Centerville. Four of the 14 rental units will be affordable to
households earning up to 80% of Area Median Income “AMI” in accordance with state requirements for
low to moderate income housing.
On May 25, 2023 the Mass Housing Finance Agency (MassHousing) issued a Project Eligibility/Site
Approval letter under the New Egland Fund (NEF) Program of the Federal Home Loan Bank of Boston.
In accordance with the Comprehensive Permit Regulations, the Project Eligibility Letter (PEL) is a
written determination of project eligibility by MassHousing acting as the Subsidizing Agency before
submitting its Project Eligibility application, the Applicant met with Town Staff and/or department heads
on November 9, 2022 for informal Site Plan Review to review the project.
The property is currently vacant, partially treed with significant open and disturbed area to the
north/northwesterly portion of the site which is a dedicated electric easement. The original property
consisted of 5.72 acres and was subdivided through an Approval Not Required “ANR” process to yield
the site locus. The property has frontage and access from Old Stage Road, Centerville.
Application & Request
In accordance with the ZBA Rules and Regulations for review of Comprehensive Permits, Bayridge
Realty, LLC submitted an application, preliminary site development and utility plans, a review of the
conditions in the surrounding area, preliminary architectural drawings, a tabulation of proposed
buildings, and a list of requested waivers.
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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Development
Bayridge Realty, LLC is seeking a Comprehensive Permit to construct 14 housing units (24 Bedrooms)
within 4 detached buildings and associated parking and site improvements on 3.95 acres for rental
purposes. The unit mix shall consist of 6 one-bedroom units, 6 two-bedroom units, and 2 three-
bedroom units. Four of the units will be restricted as affordable for low or moderate income persons.
Building #1 has 4 units within 4,696 gsf, Building #2 has 4 units within 5210 gsf, Building #3 has 4 units
within 5164 gsf, and building #4 has 2 units and 4 enclosed garage bays within 1,393 gsf for a gross
total of 16,463 gsf of new building area with total building lot coverage of 8,928 square feet. An onsite
resident open space amenity area with a Tot Lot play area will also be provided at the northerly portion
of the site as well as an enclosed dumpster and recycling area. The northeasterly corner of the site will
include a paved area to allow for the turnaround space for emergency vehicles.
Four (4) garage bays in the detached Building #4 will be provided in conjunction with 23 surface
parking spaces, inclusive of two handicapped accessible spaces, for a total of 27 spaces, which is in
excess of the 23.1 spaces required under local zoning. The density of the project will be a modest 3.54
units per acre, with the proposed building improvements using 5.2% of the property and the parking
and paved driveway areas using 9.7% of the property, for a total impervious area of 14.9% leaving
85.1% of the property as open space.
A single shared innovative alternative wastewater sewage disposal system will be provided below the
driveway and parking area. All stormwater runoff will be contained onsite and recharged through the
use of graded bio-retention areas and a subsurface recharger system.
Landscaping improvements will include a planted screening area along the westerly property line.
Additional infill landscaping will be provided along the easterly property line consisting of White Pine
trees. Various in-lot parking trees will be provided as well as typical ground level foundation plantings.
The property will connect to municipal water systems and will have electrical service. The Project will
include energy efficient, all electric mechanical systems, high R-value insulation, LED lighting, and
Energy-Star certified appliances.
The Project will be constructed in a single phase and projected date for completion of construction and
initial early occupancy is September 2025.
Waivers
The applicant has submitted a request for waivers from the General Ordinances, Board of Health
Regulations:
General Ordinances
• Chapter 180 Scenic Roads
• Chapter 232 Wastewater Discharge
• Chapter 240 Zoning
Board of Health Regulations
• Chapter 360 Art X, Art XIII, Art XV
Distribution and Review - 56.05(3)
The following local Boards and officials were notified of this appeal, provided with a copy of the
application and list of waivers, and invited to participate as necessary and helpful, pursuant to 760
CMR 56.05(3): Barnstable Town Clerk, Planning and Development Department.
The Board received the following submissions in response:
None to date
Consistency with Local Needs – 56.03
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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A Zoning Board of Appeals decision to deny a Comprehensive Permit shall be upheld by the Housing
Appeals Committee if the municipality can demonstrate progress towards meeting local affordable
housing goals or if the application falls into a specified category, as outlined in 760 CMR 56.03(1).
The statutory requirement of MGL Chapter 40B is to provide 10% of the housing stock as affordable
housing units; this goal is also reflected in Barnstable’s Comprehensive Plan and the Regional Policy
Plan. According to the Executive Office of Housing and Livable Communities Subsidized Housing
Inventory as of June 29, 2023, the Town of Barnstable has 1,485 affordable units, comprising 6.78% of
the total housing stock.
Barnstable is current in the process of updating its Housing Production Plan, but the Town has not
been granted a certification of compliance with the plan by DHCD.1 The Town has also not been
certified as having shown recent progress2 towards achieving its Statutory Minima.
The project is not a large project as defined by 760 CMR 56.03 and this application has not been
previously received.
Project Eligibility – Findings in Determination - 56.04(4)
On May 25, 2023 the Mass Housing Finance Agency (MassHousing) issued a Project Eligibility/Site
Approval letter under the New England Fund (NEF) Program of the Federal Home Loan Bank of
Boston. In accordance with the Comprehensive Permit Regulations, the Project Eligibility Letter (PEL)
is a written determination of project eligibility by MassHousing acting as the Subsidizing Agency before
submitting its Project Eligibility application, the Applicant met with Town Staff and/or department heads
on November 9, 2022 for informal Site Plan Review to review the project.
The letter confirms that the Applicant and the project meet all minimum requirements of 760 CMR
56.04 Project Eligibility, which include:
1. The project shall be fundable by a subsidizing agency under a low and moderate-income
housing subsidy program: The letter includes findings by MassHousing that the project is eligible
under the NEF housing subsidy program and at least 25% of the units will be available to
households earning at or below 80% of the Area Median Income.
2. Site is appropriate for residential development. The MassHousing letter states that base on a
site inspection by MassHousing staff, internal discussions, and a thorough review of the
application, MassHousing finds that the site is suitable for residential use and development.
3. The conceptual design is generally appropriate for the site. The Masshousing letter found that
given the building massing, site arrangement, architectural design, density, topography,
environmental resources, they found it was appropriate.
4. The proposed project appears financially feasible. The Masshousing letter stated that
according to the appraisal report, the towns residential market appears stable and strong and that
the MassHousing team performed a Competitive Market Analysis and found that the proposed
market rents for each unit type fall within the range of adjusted comparable market rents.
5. The initial pro forma has been reviewed. MassHousing has commissioned an as “as is”
appraisal which indicates a land valuation of $260,000. Based on the proposed investment of
$3,353,596 in equity and permanent financing the development pro forma appears to be financially
feasible and within the limitations on profits and distributions.
1 If a community has a DHCD approved HPP and is granted certification of compliance with the plan by DHCD, a decision
by the Zoning Board of Appeals (ZBA) relative to a comprehensive permit application will be deemed "consistent with
local needs" under MGL Chapter 40B. "Consistent with local needs" means the ZBA's decision will be upheld by the
Housing Appeals Committee.
2 Defined as the addition of affordable units equal to 2% of total housing units within the last 12 months
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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6. The applicant shall be an eligible public agency, non-profit organization or a limited
dividend organization: The MassHousing letter confirms the project sponsor and development
team meet the general eligibility standards.
7. The applicant shall control the site.
The Applicant is the owner of the property, as evidenced by deed recorded with the Barnstable
County Registry of Deeds as Book 34556 Page 022, dated October 8, 2021.
Suggested Findings
After considering the concerns raised by abutters and others during the course of the
public hearing and reviewing the documents, plans, testimony and other evidence
submitted during the public hearing, the Board makes the following Determinations and
Findings:
LIST OF MATERIALS SUBMITTED
1. Storrmwater Management Report by Baxter Nye Engineering & Surveying dated
August 25, 2023.
2. Site Operation and Maintenance Plan by Baxter Nye Engineering & Surveying dated
August 25, 2023.
3. Comprehensive Permit application from Attorney Peter Freeman dated September 25,
2023.
4. Letter from Planning and Development Director Elizabeth Jenkins to Michael Busby
dated March 3, 2023.
5. Project Eligibility letter from Mass Housing to Bayridge Realty LLC dated May 25,
2023.
6. Site Plan Review Committee letter of approval dated November 9, 2022.
7. Letter requesting comments from Mass Housing to the Barnstable Town Council
dated February 6, 2023.
8. Presentation from Applicant to Zoning Board of Appeals.
9. The site/engineering plans filed with the Application;
10. The building plans filed with the Application;
11. The letter from Tom Lee on the septic system;
12. The Tom McKean email about the Tom Lee letter and septic system;
13. Traffic Assessment by Randy Hart of VHB, Inc
DETERMINATIONS/ FINDINGS
After considering the concerns raised by abutters and others during the course of the
public hearing and reviewing the documents, plans, testimony and other evidence
submitted during the public hearing, the Board makes the following Determinations and
Findings:
1. The Applicant filed a Chapter 40B project eligibility/site approval application to
MassHousing and received a site approval/project eligibility letter dated May 25,
2023, allowing for no more than 14 rental units at the proposed Site. In addition, the
Board finds that:
• the Applicant is a limited dividend organization as per the MassHousing
eligibility letter and 760 CMR 56.04(1)(a);
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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• the Project is fundable by a state subsidizing agency as per the MassHousing
eligibility letter and 760 CMR 56.(1)(b); and
• the Applicant controls the site as per the MassHousing eligibility letter and
760CMR 56.04(1)(c) and Finding No. 4 below.
2. The Site is largely undeveloped. The Site has a 210 foot wide utility easement to
the western portion of the property and abut residential to the east.
3. The Site is in Residence C (RC) Zoning District.
4. Bayridge Realty, LLC has control over the Site, as evidenced by the submission of
Quitclaim Deeds and Purchase and Sales agreements for each lot (see Book 34556
Page 22, and Book 34589 Page 95).
5. The Application is for fourteen (14) residential apartments; there are 3 buildings
each with 4 units and one building with 2 units and 4 garages; along with associated
amenities.
6. The Application proposes 10 market units and 4 affordable rental units for
householder earing up to 89% of the area AMI.
7. The Project will be served by public water and private septic as shown on the
Approved Plan.
8. The Property is not to be further subdivided.
9. The property is not within the 100-foot buffer of jurisdictional areas of the
Massachusetts Wetlands Protection Act (the “Wetlands Protection Act”) as defined
by the Wetland Protection Act.
10. The Board finds that the Town has not met the required housing goal of 10 percent
in accordance with Massachusetts General Law chapter 40B §20-23 nor any other
statutory or regulatory safe harbors and therefore accepted the application and
reviewed the proposed Project.
11. The Board finds that the site development plans showing the locations and outlines
of proposed buildings; the proposed locations, general dimensions and materials for
streets, drives, parking areas, walks and paved areas; and proposed landscaping
improvements and open areas within the site are in compliance with the Department
of Housing and Community Development regulations 760 CMR 56.04(2).
12. The Board finds that the performance requirements of the Barnstable Zoning
Ordinance Article IX Site Plan Review have been met or a waiver has been
requested and granted.
13. The Board finds that the stormwater management shown on the Approved Plan and
associated drainage analysis has been designed to meet the Stormwater
Management Standards set by the Massachusetts Department of Environmental
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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Protection. The standards include removing solids from the stormwater and
reducing rates of runoff from the site.
14. The Board finds that the qualities of the natural environment were considered and
there were discussions and plan revisions to preserve and/or mitigate impacts to the
natural environment.
15. The Board finds that the Applicant has cooperated with the Board in the design of
adequate landscape buffer through plantings and fence screening.
16. The Board finds that the illumination of the proposed lighting for the development, in
accordance with the photometric plan provided, shall not trespass on to abutting
properties. Any exterior building and street lighting shall be consistent with “dark
sky” standards, shielded and directed downward to maintain lighting on to the Site.
17. The Board has determined through detailed analysis of the following documents that
the Project has adequate access: Turning Template and Sight Distance plans as
shown on Sheet C3.2 and Sheet C3.3 of the site plans. these were submitted and
approved through SPR.
Draft Findings for Septic approval:
18. This project is in the Centerville River watershed, which has been determined to be a
nitrogen sensitive area in the Massachusetts Estuaries Project (MEP) study in 2006 and in
the Town of Barnstable Saltwater Estuary zone. The Town’s Department of Public Work
(DPW) has determined that the town sewer will not be available for this area.
Under the Town of Barnstable Code, Saltwater Estuary Regulation Section B (1),
the maximum allowable number of bedrooms is 17 (or 1 bedroom per 10,000 SF)
and the total wastewater flow allowed is 1,870 gallons per day using a standard Title
5 septic system. This Regulation, by a variance provision, does allow a greater
septic flow if certain standards are met.
This project proposes to build 14 units with 24 bedrooms. The design flow of the
wastewater is 2,640 gallons per day (gpd).
The applicant has proposed using innovative/alternative (I/A) technology, such as
a Nitrex system or equal, to treat its wastewater to produce an effluent that would be
less than 10 mg/L at the end of the pipe. This treatment technology is also known as
Best Available Nitrogen Reduction Technology under the latest Title 5 regulation.
Based on the design flow of 2,640 gpd (for 24 bedrooms) and the use of the l/A
technology, the total nitrogen load for the proposed project could be 40% or less of
the maximum allowable load using a standard septic system.
According to an email to Anna Brigham from Tom McKean, the Barnstable Board of
Health Director dated March 8, 2024, and referring to a septic system analysis in a
letter dated March 8, 2024 from F.P. Lee (Tom). P.E., Vice Chair of the Barnstable
Board of Health, Mr. McKean stated: “Therefore based on this analysis, according to
Board of Health Vice Chairman Tom Lee, a ‘…24 -bedroom development could be
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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allowed by the Board of Health” if this project incorporates the best available
nitrogen reduction technology at this site.”
The proposal innovative/Alternative (I/A) technology shall be conditioned further
herein.
19. The Board finds that, as proposed, the Project is inconsistent with certain local
planning standards. However, the Applicant has modified the proposal to meet the
State standards and has cooperated with the Board to meet local standards to the
maximum extent practicable.
20. The Applicant has requested and is hereby granted waivers to certain local
ordinances. These waivers have potential to cause adverse impacts, and as such
appropriate provisions are codified into the Town of Barnstable’s local ordinances.
Because the comprehensive permit process provides that the applicant need only
ascribe to less protective state level regulations, and even though these waivers
have the potential to cause adverse local impacts, the Board concluded to grant the
following waivers and to find that the conditions imposed below sufficiently mitigate
against any adverse impacts from the granting of waivers:
The applicant has submitted a request for waivers from the General Ordinances, Board of
Health Regulations:
General Ordinances
• Chapter 180 Scenic Roads
• Chapter 232 Wastewater Discharge
• Chapter 240 Zoning
Board of Health Regulations
• Chapter 360 Art X, Art XIII, Art XV
The above waivers were specifically defined during the hearing process. The
Board finds that the Project is designed to meet the local standards where
practicable and therefore applicable requirements of the local zoning ordinance are
hereby waived where not specifically granted above only if such waiver is required
to comply with the approved plans.
21. The Board finds that the conditions imposed in the following section are necessary
in order to properly address the local concerns and mitigate impacts related to the
construction and occupancy of the project. The Board finds that such conditions will
not render the project uneconomic.
Suggested Conditions
Based on the above determinations, the Zoning Board of Appeals finds that the
proposal meets the requirements of Massachusetts General Law chapter 40B §20 -23,
and by a vote of ___ to ___ in favor, accordingly, grants the Applicant and its
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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successors and assigns as owner of the premises, a Comprehensive Permit with the
Conditions as set forth herein:
1. This Approval is limited to the improvements as noted on the Approved
Plan and as may be conditioned herein. In the event the Applicant seeks any
change in the Comprehensive Permit after this decision is final, any such change
must be presented to the Board for approval and for modification of this decision.
Within 20 days the Board shall determine and notify the Applicant whether it deems
the change substantial or insubstantial, with reference to the factors set forth at 760
CMR 56.07(4).) If the change is determined to be insubstantial or if the Board fails
to notify the Applicant by the end of such 20-day period, the Comprehensive Permit
shall be deemed modified to incorporate the change. If, during a public meeting,
the Board deems a change to be substantial, then the Board shall hold a
subsequent public hearing within 30 days of its determination and issue a decision
within 40 days of termination of the hearing, at which the Board may approve or
disapprove the requested modifications or amendments to this decision, in
accordance with the provisions of Mass. Gen. Laws c. 40B, section 21, the
provisions of 760 CMR 56.05 (11). The Board will determine whether additional
information and advice is necessary from other boards and officials in the event of
such substantial change and will then determine whether the change or requested
relief is to be approved and the decision amended accordingly. “Substantial
Change” for the purposes of this paragraph shall include, but not be limited to, all
matters defined as substantial changes in 760 CMR 56.07(4). If it deems
necessary, the Board may, at the Applicant’s expense, retain consultants to review
and advise the Board regarding any proposed changes.
2. No building permit shall be issued and no construction of any structure or
infrastructure shall commence until the Project receives final approval from the
subsidizing agency and evidence of said approval is provided to the ZBA.
3. The Applicant has requested waivers from the Zoning Ordinance and from
other applicable regulations. In review of the relief requested, the Board found that
certain waivers may be granted. In issuing of this permit the Board has waived
compliance with the following sections of the Code of the Town of Barnstable: see
Exhibit A attached hereto and incorporated herein by reference.
4. An affordable restriction and regulatory agreement in form and substance as
required by the subsidizing agency shall be signed with the Subsidizing Agency
and shall be recorded at the Barnstable County Registry of Deeds prior to the
issuance of any certificate of occupancy.
The Applicant shall enter into a Permanent Restriction/Regulatory Agreement with
the Town, in a form and substance reasonably acceptable to the Board and its
counsel (the “Town Regulatory Agreement”), which shall be recorded with the
Barnstable County Registry of Deeds prior to issuance of any certificate of
occupancy and signed by all necessary parties, including all mortgagees and lien
holders of record and shall be in force in perpetuity. The Town Regulatory
Agreement: (i) shall only become effective if and when the Regulatory Agreement
with the Subsidizing Agency is terminated, expires or is otherwise no longer in
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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effect and is not replaced with another regulatory agreement with another
Subsidizing Agency; (ii) shall require that the Project shall remain 25% affordable
so long as the Project does not conform to local zoning; (iii) shall require that at
least 25% of the units in the Project shall be affordable as that term is defined in
M.G.L. Chapter 40B, §20-23; and (iv) shall restrict or limit the dividend or profit of
the Applicant only if and as required under M.G.L. c.40B and 760 CMR 56.00, et
seq., and no independent limitation on dividends or profits is imposed hereunder.
5. As required by law and the Subsidizing Agency, the Applicant shall be a limited
dividend organization and comply with the limited dividend requirements of M.G.L.
c. 40B, §20 and otherwise limit its profits as required under M.G.L. c. 40B (as
determined by the Subsidizing Agency) and any excess profits shall be paid by the
Applicant and distributed or escrowed for reserves as required by the Subsidizing
Agency and in accordance with applicable law, regulations and/or guidelines.
6. This Decision shall be recorded at the Barnstable County Registry of Deeds. This
Decision shall become effective upon recording. Proof of recording shall be
forwarded to the ZBA and the Building Commissioner prior to issuance of a building
permit or the start of construction.
7. This Decision permits the construction, use, and occupancy of a maximum of 14
rental units on the Site and 4 garages in one building which also contains 2 of the
residential units. The construction and occupancy of the Project shall be in
substantial conformity with the Approved Plan, and there shall be no further division
or subdivision of the Site, or the creation of additional housing units or any other
structures or infrastructure except that which is shown on the Approved Plan
without further approval of the ZBA in the form of an amendment to this Decision
and pursuant to statutory requirements applicable at the time and in accordance
with the terms and conditions of this Decision.
8. The Project shall designate not less than twenty-five percent (25%) of the units for
qualifying households earning at or below 80% of the area median income, as
defined and amended from time to time by the subsidizing agency for this project.
Per the subsidizing agency’s rules and guidelines, the affordable units shall be
evenly dispersed throughout the Project and shall be indistinguishable from the
market rate units in the Project. To properly phase each affordable unit, no less
than two affordable units shall be provided within the first structure to seek an
occupancy permit. Evidence of affordable units shall be provided at time of
occupancy permit request. The affordable units shall remain affordable in perpetuity
by deed riders in form and substance acceptable to the subsidizing agency for the
Project.
The Applicant shall notify the Board when building permits are issued for and
cooperate with the preparation of request forms to add the units to the Town’s SHI.
The Affordable Units shall permanently remain affordable units, for so long as the
Project is not in compliance with the Town’s Zoning Ordinance, or for the longest
period allowed by law, if longer, so that the Affordable Units shall continue to serve
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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the public purposes for which this Comprehensive Permit was authorized under
M.G.L. c. 40B, § 20-23.
9. For the initial rent-up of the Project, the maximum number of Affordable Units
allowed by law and the applicable subsidy program, but not more than seventy
percent (70%) of the Affordable Units, shall be reserved for households that qualify
under a local preference definition approved by the Subsidizing Agency. A lottery
shall be established in a form approved by the Subsidizing Agency to effectuate this
local preference, with an approved secondary lottery for all other Applicants. The
Applicant shall assist the Town in the submittal of any evidence required by the
Subsidizing Agency to support this local preference requirement. The Board
acknowledges that it will be required to provide evidence satisfactory to the
Subsidizing Agency of the need for the foregoing local preference and to obtain
approval of the categories of persons qualifying for the same, and in no event shall
the Applicant be in violation of the terms of this Comprehensive Permit to the extent
the Subsidizing Agency disapproves the local preference requirement or any aspect
thereof. The Applicant shall provide reasonable and timely assistance to the Town
in providing this evidence. If the Board or its designee does not provide such
information within sixty (60) days of a written request by the Applicant, its Lottery
Agent, the Subsidizing Agency, then this condition shall be void unless the Applicant
has failed to provide reasonable and timely assistance as described above.
10. Prior to issuance of the first Certificate of Occupancy, the developer shall furnish
guarantees to the Zoning Board of Appeals as provided in the Subdivision
Regulations that except as otherwise expressly provided in M.G.L. c. 41, Section
81-U, no unit included in the Project shall be occupied until the essential
uncompleted infrastructure necessary to serve such unit has been completed in the
manner specified by the Subdivision Regulations of the Town of Barnstable and/or
the Approved Plan or a performance bond or other security in lieu of completion has
been accepted by the Zoning Board of Appeals. The sum of any such security held
shall be acceptable to the Barnstable Department of Public Works and shall bear a
direct and reasonable relationship to the expected cost, including the effect of
inflation, necessary to complete the subject work. The Applicant shall be permitted
to choose the type of security instrument that is authorized under §81U, including
but not limited a so-called “Tri-Party Agreement” between the Applicant, its
mortgage lender, and this Board, and also including a Letter of Credit but the actual
form of such instrument is subject to the prior review and approval of Town Counsel.
11. Prior to issuance of a building permit, the Applicant shall provide to the Town
Engineer a final Stormwater Pollution and Prevention Plan to address specific
sedimentation, erosion and dust control, which illustrates, at a minimum, locations of
measures and provide detailed construction sequencing.
12. The Applicant shall have a Licensed Site Professional complete a Massachusetts
21E environmental site assessment prior to Building Permit in order to confirm no
hazardous material are present on site. If hazardous materials are found, the
Applicant shall stop work immediately and work with the Board of Health on proper
disposal procedures prior to restarting activities on site.
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Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
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Draft Conditions for Septic approval:
13. Due to Finding No. 18, the project cannot exceed 24 bedrooms and a
wastewater design flow of 2,640 gallons per day (gpd).
The applicant shall use an innovative/alternative (I/A) technology, such as Nitrex system or
others that are equal and listed in the DEP Approved Title 5 I/A technologies listed on the
DEP website, to treat its wastewater to produce an effluent that would be less than 10 mg/L at
the end of the pipe. This treatment technology is also known as Best Available Nitrogen
Reduction Technology under the latest Title 5 regulation.
14. The project shall meet a TN calculation based on the Nitrogen concentration
using Cape Cod Commission method (Technical Bulletin 91-001), not to exceed
5 mg/L at the downgradient property line.
15. Prior to the start of construction, sediment and erosion controls shall be
installed and be subject to the inspection and approval by the Director of Planning
and Development or her designee.
16. The Limit of Work is the limit of grading and general excavation. No
construction staging or stockpiling of equipment or materials shall be placed outside
the Limit of Work. All mature trees at or beyond the limit of work shall be preserved
and protected during construction.
17. The hours of operation for any construction or staging activities on-site
shall be Monday through Friday, from 7:00 am to 5:00 pm. Construction activity shall
also be permitted on Saturdays from 7:00 am to 4:00 pm. No construction activity
shall take place outside the specified permitted hours or on Sunday or New Years’
Day, Memorial Day, July Fourth, Labor Day, Thanksgiving, Christmas, or other legal
holiday. Work outside of these hours may be considered upon review and approval
by the Building Commissioner prior to any work outside of these hours commencing.
18. All construction related parking shall be conducted on -site. No parking of
any vehicle associated with the Project shall park on nearby parcels including those
vehicles arriving early. There shall be no staging of vehicles on nearby parcels. And
all vehicles associated with the Project shall enter into the temporary construction
entrance and park within the construction fencing at all times.
19. During construction, no run-off shall be directed down the proposed
driveway onto Old Stage Road or onto abutting properties. The Applicant shall
maintain any drainage or sediment controls in good working order and maintain the
construction site free of dust that would create a hazard or nuisance to adjacent
properties. In addition, the Applicant shall require trucks hauling debris to be
covered and wet down as required to minimize dust. Spillage on roads shall be
cleaned up immediately, and overloading trucks, which may contribute to spillage
on haul roads, is prohibited.
Zoning Board of Appeals Planning and Development Staff Report
Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
12
20. If construction activity ceases for longer than 30 days, then written notice
shall be provided by the Applicant to the Building Commissioner at least 48 hours
before resuming work. Pursuant to 780 CMR 33 Safeguards during Construction
and applicable statutes, the Building Commissioner may require that any foundation,
trench, structure, equipment or other hazard be secured as necessary, in his
opinion, including but not limited to installation of fencing and/or filling of trenches.
21. If construction is temporarily suspended during the growing season, all
exposed areas shall be stabilized by seeding and/or mulching within 14 days of
suspension of construction. If construction is temporarily suspended outside the
growing season, all exposed areas shall be stabilized by mulching and tack within
14 days of suspension of construction. Slopes steeper than 3:1 shall be stabilized
by netting and pinning during suspension of construction.
22. Utilities within the Site, including but not necessarily limited to electric,
cable and telephone, shall be located underground.
23. All exterior lighting at the Site shall be dark sky compliant and shall not
allow spillover of light onto adjoining properties, in accordance with the Approved
Plans and the Town’s Zoning Ordinance.
24. Snow and ice removal shall be the responsibility of the Applicant or a
successor and in accordance with the approved Operation and Maintenance Plan.
25. Fertilizers containing phosphorous are prohibited and shall not be used
with in the site.
26. The Applicant shall be permanently responsible for the following at the
Project: 1) all plowing, sanding, and snow removal; 2) all site maintenance and
establishing a regular schedule for site maintenance; 3) repairing and maintaining all
on-site ways, including drainage structures and utilities therein; 4) conducting
annual inspection, maintenance and cleaning of all elements of the drainage
system, including but not limited to catch basins, drain manholes, detention basins,
swales and pipelines; and site lighting and landscaping.
27. As stated by the Board and agreed to by the Applicant, the internal
roadways, utilities, drainage systems and all other infrastructure shown in the Plan
shall remain private. The Town of Barnstable shall not have, now or ever, any legal
responsibility for the operation or maintenance of the infrastructure, including but not
limited to snow removal and road repair.
28. Prior to commencing construction of the Project, the Applicant shall
submit a fully executed copy of a Monitoring Service Agreement to the Board;
provided, however, that it is acceptable if monitoring provisions are provided for
within the subsidizing agency affordable housing restriction/Regulatory Agreement.
Zoning Board of Appeals Planning and Development Staff Report
Appeal No. 2023-034 – Bayridge Realty LLC – MGL Chapter 40B
13
29. This Decision is binding on the Applicant’s successors, assigns, agents,
and employees. This approval shall inure to the benefit of and binding upon
Bayridge Realty LLC, its successors and assigns, provided there is no change in
use for the Premises. The Zoning Board of Appeals shall be notified in writing of any
changes in affiliates and successors in title and additional users of the Premises.
30. Any change of use shall require a public hearing to either modify the
existing Decision or to issue a new Decision.
31. The Applicant shall provide an As-Built Plan. An as-built plan shall be
provided to the Building Commissioner and Department of Public Works for review
and certification prior to the final occupancy permit for the Project.
32. If at any time it appears that the Applicant is in violation of an affordable
housing restriction, then the Board may pursue such enforcement rights as it may
have under the affordable housing restriction and/or applicable law.
33. The Town, by and through the Board, Building Department, or its
designee, shall have continuing jurisdiction over the Project to ensure compliance
with the terms and conditions of this Decision.
34. This Comprehensive Permit shall lapse if the Applicant does not
commence substantial construction within three (3) years of the date it becomes
final (which is the date this Decision is filed with the Town Clerk if no appeal is filed,
or the date the last appeal is decided or otherwise terminated favorably to the
Applicant in the event of an appeal). The Zoning Board of Appeals may authorize an
extension of the three (3) year period under the applicable state regulations.
Construction shall be completed within six (6) years of this Permit taking effect.
35. If any part of this Decision is for any reason held invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity of any other portion of
this Decision.
CC: Applicant, c/o Attorney Peter Freeman
Attachments: Comprehensive Permit Application and attachments