01/08/2014 ZONING BOARD OF APPEALS Minutes

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However, the Appeals Court affirmed the defendant's conviction observing that this limitation: ... does not mean [ ] that municipalities may not address certain subjects with respect to shorelands such as `zonin ,' `public safety,' `nuisances, or other spheres traditionally within municipal authority. For these ordinary and core functions of local government, no additional delegation by the Legislature is needed. Fafard contrasts these traditional powers of a municipality with other spheres of regulation that require explicit legislative authorization. Id. at 563; citing Fafard at 201 and 206. (Emphasis added). The Appeals Court upheld the validity of the Gloucester regulation under the following rationale: "While in the present case there is no explicit grant of authority, the Gloucester regulation does not purport to protect the public trust, but rather is the ordinary and traditional police-power-public-safety regulation that needs no specific delegation. ... As a traditional regulation intended to increase public safety, the regulation in question does not offend the public trust and does not require specific delegation from the Legislature." Commonwealth v. Muise at 563. In Mad Maxine's Watersports, Inc v Harbormaster of Provincetown, 67 Mass.App.Ct. 804 (2006), the Appeals Court upheld a municipal bylaw which imposed restrictions on the use of jet skis in Provincetown Harbor. The Court based its decision on a finding that M.G.L. c. 9013, § 15 delegated authority to the Town to regulate watercraft and that there was "no encroachment upon the Commonwealth's sovereignty under the public trust doctrine." Id. at 767. This further confirms that municipal regulation of water bodies is permissible, provided the regulation does not trample upon the Commonwealth's power to protect and regulate the public trust rights of"fishing, fowling and navigation." This principle is also implicitly recognized by the doctrine of Commonwealth immunity from zoning which provides that land or structures owned or leased by the Commonwealth are immune from zoning "only if devoted to an essential government function or action reasonably related to that function." Town of Bourne v. Plante, 429 Mass. 329 (1999); see also, Mass Turnpike Authority v Building Commissionerof Boston, 348 Mass. 107 (1964) (land owned by the Turnpike Authority excess to the turnpike function not exempt from local zoning provisions). Since the scope of 8