01/08/2014 ZONING BOARD OF APPEALS Minutes

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These Bylaw provisions were reviewed and approved by the Attorney General's Office. If the Bylaw provisions were in excess of the Town's authority or impermissibly regulated Commonwealth property, then they would not have been approved. Since they were approved, it is manifest that the Attorney General is of the opinion that the Town has authority to regulate both the use of Commonwealth waters and the land beneath same and that the zoning regulations are consistent with the public trust rights. That the Town already regulates land below the extreme low water mark is evidence that the Town's Zoning Bylaw does extend to the waters of Popponesset Bay as argued by the Residents Group. C. Massachusetts Decisional Law Recognizes That Municipalities Have "Ordinary And Traditional" Authority To Enact Zoning Regulations Regarding Bodies Of Water Without A Legislative Delegation. Massachusetts decisional law recognizes municipal zoning authority over tidelands and waterways owned by the Commonwealth. In Fafard v. Conservation Commission of Barnstable, 432 Mass. 194 (2000), property owners in Barnstable sought judicial review of a decision of the Barnstable Conservation Commission ("Commission") denying them permission to build a pier on a tidal river. The Commission denied the proposed pier on the grounds that it would have an adverse effect upon recreational interests in the river — which interests were protected by the local Barnstable Wetlands Protection Ordinance. The Supreme Judicial Court ("SJC") affirmed the Commission's decision and ruled that the Town's regulation of recreational interests in the tidal river was authorized. The property owners ("Fafard") argued that only the Commonwealth had authority to further "public trust rights" and that M.G.L. c. 91, which provides for State licensing of structures on coastal lands and in the waterways of the Commonwealth, preempts the pier regulations on which the Commission based its decision. The SJC noted that the Commonwealth "owns and controls lands seaward of the flats" and that "[t]hese lands are held in trust by the Commonwealth to preserve the general rights of the public." Id. at 198-199. The Court then stated: "The Commonwealth's authority with respect to these lands, to which we refer to today as `Commonwealth tidelands,' is subject only to Federal law, the State Constitution, and the State's obligations as trustee." Id. "[The] history of the origins of the 6