01/08/2014 ZONING BOARD OF APPEALS Minutes

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September 18, 2013 Page 9 C. The Proposed Aquaculture Grant Is Prohibited By Section 173-33 Of The Zoning Bylaw Which Mandates Setbacks From Water And Wetlands. Section 174-33 of the Mashpee Zoning Bylaw imposes setbacks from water and wetlands as follows: Any building or structure, exclusive of fixed or floating piers, wharves, docks, bridges or boardwalks, shall be set back at least fifty (50)feet from any water or wetlands as defined by M.G.L. c. 131, § 40. As asserted above, the flexible cages at issue are three-dimensional enclosures made of a combination of material assembled at a fixed location to give support and shelter to the shellfish "planted" therein. The bags/cages are proposed to be affixed to the bottom with an anchoring system consisting of cables and anchors. Consequently, the flexible cages are "structures" and "buildings." Indeed, "aquaculture gear" is specifically defined as a "structure" by the Conservation Commission's Wetlands Protection Regulations,4 The 4,500 flexible cages are proposed in the waters of Popponesset Bay and on "Land Under The Ocean", which is a resource areas defined by M.G.L. c. 131, § 40. The bags/cages are not fixed or floating piers, wharves, docks, bridges or boardwalks. Consequently, the bags/cages are not exempted from the setback provisions of Section 174-33 of the Zoning Bylaw. Since the 4 Mashpee Wetlands Regulation 24 defines"structure"as"any man-made object which is intended to remain in place in,over or under any area(or within 100 feet)of any of the resource areas as listed in section 2 of Chapter 172 of the Mashpee Code;anything constructed or erected and the use of which requires more or less permanent location on the ground or attachment to something having a permanent location on ground; an edifice or building of any kind, including but not limited to walls, including retaining walls, fences, walkways, boardwalks, docks, piers, groins, jetties, breakwaters, wharfs, dams, weirs, booms, bulkheads, revetments, ripraps,culverts or any pile-held or other permanent fixed floats,vessels or aquaculture gear."