01/08/2014 ZONING BOARD OF APPEALS Minutes

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Commonwealth's public trust obligations and authority, as well as the jurisprudence and legislation spanning two centuries, [establishes] that only the Commonwealth, or an entity to which the Legislature properly has delegated authority, may administer public trust rights." Ibid. The SJC invalidated the Barnstable Ordinance to the extent it sought to protect "public trust rights" because, to this extent, the Ordinance intruded upon the Commonwealth's authority.3 But the SJC ruled that, to the extent that the Ordinance regulated "recreational values" in the tidal river, the Ordinance was a valid exercise of authority because that the State Wetlands Protection Act delegated authority to the Commission to regulate recreational interests in wetlands and that the ordinance at issue was not preempted or inconsistent with State law. Id. at 205; citing M.G.L. c. 40, § 8C and M.G.L. c. 131, § 40.' In its explanation of the rationale for its decision, the SJC twice acknowledged that municipalities have "ordinary powers" that "traditionally" allow regulation of tidelands without an express Legislative delegation, including "zoning regulations, public safety, [ ] nuisances, [and] other spheres traditionally within municipal authority." Id. at 201 and 206 (Emphasis added). This principle has been since reaffirmed by the Appeals Court in Commonwealth v. Muise, 59 Mass.App.Ct. 562 (2003). In this case, the defendant was convicted of lobstering in Gloucester's inner harbor in violation of a Gloucester waterways board regulation. On appeal, the defendant cited the Fafard decision and argued that the regulation was invalid because "[a]bsent a grant of authority from the Commonwealth, a municipality may not claim powers to act on behalf of public trust rights." Id. at 562, citing, Fafard at 199. The Appeals Court noted that the Fafard case stood for the proposition that "only the Commonwealth, or an entity to which the Legislature properly has delegated authority, may administer public trust rights." 3 The"public trust rights"are the rights of the public to"fish,fowl and navigate". See,Colonial Ordinance of 1641-1647. 4 The Fafard Court also noted that a grant of express power carries with it all unexpressed,incidental powers necessary to carry it into effect. Fafard at 206;citing Greater Boston Real Estate Bd. v.Boston,397 Mass. 870 (1986),quoting Flynn v. Cambridge,383 Mass. 152(1981). Thus,the authority to enact zoning regulations carries with it the authority to do so throughout the Town, including in Popponesset Bay. 7