01/08/2014 ZONING BOARD OF APPEALS Minutes

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immunity from zoning is limited, it is manifest that land of the Commonwealth that is not devoted to an essential government function is not immune from zoning. Based upon the foregoing, it is clear that the Town of Mashpee has authority to extend its Zoning Bylaw below the extreme low water marls and to the project site in Popponesset Bay because: • 1975 Mass. Acts 808, § 2A and M.G.L. c. 40A — the Zoning Enabling Act — constitute Legislative delegations of authority empowering the Town to impose zoning regulations to the waters of Popponesset Bay and the land underneath; or • Alternatively, the Town may impose its zoning regulations to the waters of Popponesset Bay and the land underneath without any Legislative delegation because such authority is recognized as "ordinarily and traditionally" belonging to municipalities and does not require a Legislative grant. Furthermore, Mashpee's Zoning Bylaw does not offend the public trust or impinge upon the Commonwealth's authority with respect to the public trust. Indeed, the Bylaw prohibits aquaculture at the proposed location. But this prohibition does not offend public trust rights because the SJC specifically held that "aquaculture" is not included in the public rights of fishing, fowling and navigation. Pazolt v. Director of Marine Fisheries, 417 Mass. 565 (1994). II. PROPOSED AQUACULTURE USE IS NOT PERMITTED BY THE MASHPEE ZONING BYLAW. A. The Proposed Project Is Within A Residential Zoning District. The properties owned by members of the Residents Group are situated within a residential (R-3) zoning district. Pursuant to Section 174-7 of the Mashpee Zoning Bylaw, where a district boundary is parallel to a watercourse or a town municipal boundary, the boundary shall be construed as the centerline of the watercourse or as being parallel to the municipal boundary. Thus, the R- 3 Zoning District extends to the municipal boundary at the center of 9