12/12/2018 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES DECEMBER 12, 2018 The applicant claims ownership through a"release deed"for no consideration and for zero dollars. His final point is that the applicant's claim of financial hardship as current owner of an island with no money and with no proven way to access it, or any ownership on the part of Mashpee where he thinks he could put a bridge. Attorney Kate Connolly mentioned that Attorney Bowen was correct, it's simply a release deed that was taken for no payment, and also financial hardship is not one of the requirements to prove hardship under the bylaw, it has to be as Mr. Bowman said; owned to unusual circumstances of shape, soil conditions,or topography, and none of those apply. Ashley Fisher, Shellfish Constable for the Town of Mashpee approached the Board and quoted a couple of points from the bylaw in Chapter 130 Section 57 (Shellfish Aquaculture Licenses) for the record. She said that the area is under a grant and because of this, there cannot be any disturbance of the licensed shellfish grant area. Attorney Wall said that before the name of Punkhorn Point Road, it was called the way to Gooseberry Island. His client claims rights to that way. If there were no claim, the case would have been dismissed. The land court will decide the title issue, the Superior Court will decide the DEP issue, and the proposal before the Board is for the bridge to be there, and he thinks the Board can act on this. He believes it's completely different than the first submittal because now there is a bridge to access the island. Mr. Gould asked Attorney Wall if he and his client addressed the Tribe's claims, and how would you repair any damage if there's an issue with pollution regarding their shellfish grant. Attorney Wall said that the Tribe claims that their shellfish aquaculture grant prohibits the bridge from crossing the channel is not valid. He disagrees because the statute that the shellfish constable read says that the Tribe has exclusive rights to plant, grow and take shellfish but not exclusive rights to the area itself. The ideas is to put the house somewhere in the center of the island, and far away from shore. The septic system has not been proposed so those concerns are speculative and not before the Board. The bridge will be sufficiently high enough for boat traffic to pass. Mr. Furbush asked where the pilings of the bridge will be located. Mr. Haney, the Trustee, approached the Board and did not answer the question. He said that no one knows where the shellfish grant is located. He said he has a letter from the Town Manager that says it's sub-title below mean low water mark. He said he went to the DEP with the plan for the wooden bridge, and the Tribe said they did not want the piles in the shellfish grant area. He said the Town refuses to provide him with the legal requirements of the shellfish grant. He said his abutter's dock is in the shellfish area. He said that this is a"regulatory taking". Attorney Wall said that relief can be granted such that it doesn't derogate from the purpose of the zoning bylaw. He believes the bridge provides access. 6