PROVINCETOWN — Developer Christine Barker secured a special permit from the planning board on Feb. 23 for the 31-room hotel, restaurant, bar, and residential condominium project she plans to construct on the harborfront property where the dilapidated Old Reliable Fish House now stands.
The project has received both zoning and planning board approvals in the past, but those decisions have left the project tied up by appeals in Land Court. This time, Barker proposed to forgo a zoning bylaw variance she received in 2019 and instead tap provisions in the town’s inclusionary zoning and incentive bylaw to allow for the nearly 60-foot height of her proposed mixed-use development.
As required under the bylaw, Barker committed to building or buying a one-bedroom unit of affordable or community housing at an off-site location that will be similar in square footage to the four market-rate condominiums that are part of the harbor proposal.
Although the planning board ultimately gave its unanimous approval to the special permit allowing for the exchange, its decision won’t necessarily bring her closer to building the project.
Some special permits from the zoning board remain and are still being appealed. And an appeal of this latest special permit from the planning board could be added to those already filed in Land Court, based on the opposition expressed at the meeting by one abutter, Marine Specialties owner Patrick Patrick, and his lawyer.
Patrick argued that Barker was using the inclusionary bylaw provisions in a manner that wasn’t intended by town meeting voters. There was no publicly discussed intent that inclusionary zoning would apply to large commercial developments with a small housing component, he said.
“This is an attempt to take advantage of a perceived loophole in the inclusionary zoning bylaws,” said Patrick. “Providing a single off-site affordable unit in exchange for the ability to site a new project with a mass larger than the Ice House is unfair to the entire town.”
The Ice House is a 23-unit condominium complex in a renovated cold-storage plant at 501-503 Commercial St.
Peter Brooks, Patrick’s attorney, argued that the inclusionary bylaw provision allowing for a special permit to exceed height was for residential development projects only. “This is in no way a residential development,” he said.
Eliza Cox, Barker’s attorney, quoted sections of the inclusionary bylaw that state a development that results in a net increase of two or more dwelling units qualifies. “Under the terms of the bylaw, this is considered a residential development,” she said.
Regarding the reason Barker would prefer the special permit over the variance she already had from the zoning board, attorney Amy Kwesell of KP Law, who represents the town’s boards in the previous appeals, told the planning board that a special permit might be easier for Barker to defend in Land Court, should Patrick appeal it.
“A special permit is a little bit more discretionary than a variance,” Kwesell said, “so under case law and statute, they would have a better fight if they had the special permit.”
Patrick remains the only appellant of the previous planning and zoning board decisions.
Both the planning and zoning boards approved Barker’s initial proposal in 2019 and early 2020 respectively, but Patrick and two other abutters appealed those decisions in Land Court: Canteen owner Rob Anderson and Scott Ravelson, who owned properties at 227 and 229 Commercial St.
In 2021, Barker returned to the two town boards and secured approval for a project with the same components but on a smaller footprint, satisfying Anderson, who then withdrew from the suit.
Last summer, Barker bought Ravelson’s properties for $4.7 million to get him to drop the case. The purchase gives Barker ownership of the alleyway between Commercial Street and the Fish House site, which will provide access and was a point of dispute between Barker and Ravelson.
In December, the Land Court allowed the case to be put on hold while Barker requested the special permit to exceed the town’s maximum height of 33 feet based on provisions in the inclusionary bylaw adopted last April.
In her special permit request, Barker said she would buy or build a one-bedroom affordable or workforce housing unit off-site, so the project would have four market-rate units on-site and a single affordable unit off-site.
All other components of the project remain unchanged from the plan approved in 2021. Plans also include reconstructing the old pier to a length of 264 feet, which awaits approval by the state Dept. of Environmental Protection. Barker has said the fact that the new pier would be open to the public is one of the major community benefits of the project.
While Barker had already been granted the height variance from the zoning board for the project in both 2020 and 2021, one of Patrick’s complaints is related to those decisions. Now that she has secured the special permit to allow the project to exceed the town’s height limit from the planning board, she will no longer need the variance from the zoning board that is under appeal.
Conditions attached to the board’s previous approval of the project remained the same. With the new permit, three new conditions were added: that the affordable or community housing unit be integrated with the rest of the neighborhood so that it is indistinguishable from other housing there; that the details of the planned affordable unit be submitted to the town’s community development dept. for review; and that the last certificate of occupancy for the market-rate units is not issued until the off-site affordable unit has been issued its certificate.
Once the decision is filed with the town clerk, Patrick may choose to file an appeal with the Land Court. Gregory Boucher, a Boston attorney who also represents Patrick, wrote to the planning board before the hearing to say a major dispute over property boundaries has not yet been resolved.
Patrick hired local land surveyor William Rogers, who has prepared a plan that shows Barker’s proposed commercial development encroaching on property owned by Patrick, the attorney said. Patrick will file a new Land Court action related to the property line dispute, Boucher said.