01/08/2014 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS Decision: Denial of an Appeal of the Building Commissioner's Decision Appellants: Robert J. Zammito, et al Proposed Aquaculture Farm off 36 Popponesset Island Road Mashpee,MA 02649 A-2014-01 On September 18, 2013, Attorney Wall filed a request for a Zoning determination with the Building Commissioner and expressed concerns with the Aquaculture facility. On October 21, 2013, the Building Commissioner responded and gave his opinion that the Mashpee By-laws do not apply to the property beyond the extreme low water mark and denied the request on this basis. On January 8, 2014, Attorney Wall approached the Board and gave a ten minute Power Point presentation. The presentation explained the nature of the Aquaculture Industry, the proposed area of the shellfish facility (Popponesset Bay), illustrations of equipment, its use, and zoning regulations concerning bodies of water from other Towns on Cape Cod. Attorney Wall stated the district boundary line shown on the Town maps depict the line running along the shore and questioned this was the basis of Mr. Morgan's opinion. Attorney Wall said in his opinion, the bylaw states the zoning boundary extends to the municipal boundary in the Bay. He stated Section 174-7 provides a district boundary and is parallel to a watercourse or a town municipal boundary, and the boundary shall be construed as the centerline of the watercourse or as being parallel to the municipal boundary. As a result, the R-3 District extends to the center of Popponesset Bay and that the proposed aquaculture grant is within the R-3 Zoning District. Attorney Wall stated the Aquaculture facility proposal was submitted by Mr. Richard Cook and will consist of 4,500 shellfish cages to be installed approximately 900 feet off Popponesset Bay, requires specialized equipment to maintain the shellfish farm, and considered by the Appellants to be commercial in nature. Mr. Furbush said he held a ten page Decision dated July 14, 2011 regarding a very similar aquaculture project stating the Board's position that "the use is beyond the low water mark and is not within the Zoning Board's jurisdiction." Attorney Wall stated the case was taken to court and became moot when Mr. Cook moved the location. The courts only decide actual cases and controversies. The first proposal was 30 feet off shore of the property and the Decision was appealed to the land court. Mr. Cook decided to abandon that location and move to a different location about 900 feet, and as a result the land court has never reviewed that decision. He said it is clearly below the low water mark and his clients do not necessarily agree. He said his presentation demonstrated all the reasons the legislature gave the Town authority to regulate. 2