2006-TOWN MEETING RECORDS - Laserfiche WebLink

Home Browse Search

floriculture or viticulture, whether by the owner or lessee of the land on which the facility is located or by another, except that all such activities may be limited to parcels of 5 acres or more in area not zoned for agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel. (Emphasis added) General Laws Chapter 40A, Section 3, states that all agricultural uses must be allowed as of right on land zoned for agriculture and on land that is greater than five acres in size; therefore, a municipality cannot restrict agricultural uses in those areas. A municipality is allowed to restrict agricultural uses on land less than five acres that is not zoned for agriculture. Thus, it would be inconsistent with state law to prohibit, require a special permit, or unreasonably re ulate agricultural uses that enjoy the protections accorded under G.L. c. 40A, § 3. Establishments for the breeding, sale, and boarding of dogs may be considered agriculture and subject to the protections provided under G.L. c. 40A, § 3. See Sturbridge V. McDowell, 35 Mass. App. Ct. 924, 926 (1993). In instances where these establishments enjoy the protections under G.L. c. 40A, § 3, it would be inconsistent with state law for the by-law, as applied, to unreasonably regulate, require a special permit or prohibit these activities. Thus, we caution the town to apply the proposed in a manner consistent with the protections given to agriculture under G.L. c. 40A, § 3. Article 32 - The amendments adopted under Article 32 make a number of changes to Chapter 170, "Use of Waterways." A number of these changes pertain to the use of Mashpee-Wakeby Lake and the use of personal watercraft. In approving the amendments adopted under Article 32, we remind the town that the proposed by-law amendments may require the approval of the Director of the Division of Law Enforcement of the Department of Fisheries, Wildlife and Environmental Law Enforcement before it can take effect, if the town has not done so already. See G.L. c. 90B, §§ 11 and 15, and c. 131, §§ 1 and 45. These Sections require the approval of the Director of the Division of Law Enforcement within the Department of Fisheries, Wildlife and Environmental Law Enforcement in the Executive Office of Environmental Affairs before certain by-laws pertaining to Great Ponds and to motor boats and other types of vessels can take effect. We suggest that the town discuss with town counsel whether the proposed by-law and the existing by-law must be submitted to and approved by the Director, if the town has not done so already. One change deletes Section 170-9.D., "Moorings," and inserts new text, which provides in pertinent part as follows: The Board of Selectmen shall establish a fee schedule for mooring permits. In approving the above-quoted text, we remind the town that fees established by the Board of Selectmen cannot exceed the limits imposed on local government by the Constitution and the statutes of the Commonwealth. Valid fees are distinguishable from invalid taxes by three criteria: (i)the fee is assessed for a particular government service benefitting the party paying the fee in a manner not shared FAUSERS\RITCHIE\WP61\DOCS\TOWNS\Mashpee\#4100FA.APP.wpd