12/12/2018 ZONING BOARD OF APPEALS ZBA Decision

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MASHPEE ZONING BOARD OF APPEALS DECISION FOR A VARIANCE Gooseberry Island Trust& SN Trust Robert D. Emmeluth, Trustee of Gooseberry Island 0 Gooseberry Island (Map 100, Parcel 6-0-R), Mashpee, MA 02649 V-2015-61 Attorney John Bowen, with Rackemann, Sawyer & Brewster represents the two private owners who own the last two houses on the left on the North side of Punkhom Point Rd. The owners of 80 Punkhom Point Road are James Atkins and John Weltman, and 84 Punkhom Point Road, owners, Robert and Michelle Wolpe. Mr. Wolpe was present in the audience. Attorney Bowen said these applications are the same as submitted back in 2013, and suggested that under Chapter 40A Section 16 that decision issued by the Board was not really final because the appeal is still pending in Superior Court. He disputes, and doesn't believe the applicant has any right to pave the road,or has any right to bring utilities down the road. Punkhorn Point is a private unpaved narrow road, and he disputes the applicant to travel on this road because it is a private road. Attorney Bowen said there are several 'items that are very much undecided, and to repeat the requests while there's a live action pending in Superior Court is wasteful and unnecessary. He asked the Board that the requests be denied on these grounds as presented, and it fails to meet the requirements of the Town's bylaws and also fails to meet Chapter 40A Section 10 for a variance. The Attorney said that his clients assert ownership to the Southern boundary and just below Punkhom Paint Rd, and below that, the Town has an active claim to that land. Those issues are open, and there will be a decision. 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 a hardship owing 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. 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. 4