01/08/2014 ZONING BOARD OF APPEALS Minutes

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aesthetic qualities of the community. (Emphasis added). See, 1975 Mass. Acts 808, § 2A, copy attached as Exhibit "D."1 The Legislature, pursuant to M.G.L. c. 42, § 1, and the Board of Harbor and Land Commissioners have determined that Mashpee's municipal boundary in the area of Popponesset Bay as shown on the Map Accompanying Report of Board of Harbor and Land Commissioners to the General Court Under Chapter 105 of the Resolves of 1893 Relating to the Boundary Line on Tidewater Between the Towns of Mashpee and Barnstable, September 1893. A copy of M.G.L. c. 42, § 1 is attached as Exhibit "E" and a copy of the Map is attached as Exhibit "IT." The Residents Group asserts that the fact that the Legislature determined that the Town's boundary is in the middle of the Bay and, pursuant to 1975 Mass. Acts 808, § 2A and Chapter 40A, conferred upon the Town authority to zone the waters of the Bay, makes it manifest that the Legislature has made an unambiguous delegation of authority to the Town to regulate the use of Popponesset Bay, including, but not limited to, zoning Popponesset Bay. B. Mashpee Presently Exerts Zoning Jurisdiction Over Bodies Of Water. Mashpee's Zoning Bylaw presently contains several provisions which regulate bodies of water and the land underneath: • Section 174-25(E)(5) regulates marinas. • Section 174-25(I)(9) regulates piers, wharves and docks. • Article XI regulates floodplains and velocity zones. • Article XII regulates the Mashpee River and the Quashnet River. • Article XIV regulates the Waquoit Bay ACEC.2 i M.G.L. c. 40A, § 3 provides an exemption from zoning for aquaculture facilities that are more than 5 acres in size. Since the exemption does not apply to aquaculture facilities that are smaller than 5 acres, it is clear that such smaller facilities are subject to the full extent of municipal authority. 2 Other Towns on Cape Cod have exerted zoning authority over bodies of water. Barnstable has enacted a "Dock and Pier Overlay District" (Barnstable Zoning Ordinance Section 240-37) and a"Recreational Shellfish Areas and Shellfish Relay Dock and Pier Overlay District." (Barnstable Zoning Ordinance 240-37). These Ordinances specifically regulate bodies of water. Further,the Town of Wellfleet has enacted zoning regulations specifically addressing aquaculture. 5