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 Attorney John Burke, 14 Crestview Drive,Harwich,MA approached the Board and stated he represents Popponesset Island LLC, and his client's property located at 70 Popponesset Island Road on the easterly side of the Island directly facing west of the proposed Aquaculture Grant. At his client's request,he was asked to give an independent opinion regarding two issues that were not covered in Attorney Wall's presentation. He submitted a letter dated January 22,2014, and summarized an issue regarding the comprehensiveness of the zoning by-law of the Town and whether or not it is comprehensive enough that it covers all of the Town or only part of the Town. The second issue is whether or not the section in the by- law determines district boundaries. He said he spoke to the Building Commissioner to re- confirm his statement that the aquaculture grant was not subject to zoning because the zoning didn't apply below the extreme low-water marls. He also wanted to confirm that the extreme low-water mark is considered un-zoned. Attorney Burke stated that whether the Town has a comprehensive zoning bylaw or not, any court will determine the intent of the bylaw, and usually the intent are in the beginning and states that this bylaw is intended to regulate uses, land, all activities, and the keyword is "throughout" the Town of Mashpee, not some of the Town. He is questioning Sections 174-7 and 174-8 and would like these sections taken into consideration. Mr. Blaisdell stated he met with Town Counsel, and reviewed the details of Attorney Wall's presentation. He discussed his opinion with the other Board members and concluded that nothing has changed with the Petition since the last request dated September 14, 2011. However, because of the complex nature of the arguments in support of the Applicants' multiple grounds of appeal, the Board deems it appropriate to address each in some level of detail. In the view of the Board, the Mashpee Zoning Bylaws and the official Zoning Map should reasonably be construed to establish that the Residential (R-3) zoning district does not extend beyond the extreme low water mark and, therefore, does. not apply to the aquaculture grant in question. The territorial limit of any municipality which borders the seashore extends only to the extreme low water mark. G.L. c.42, §1. All water and the land located below the extreme low water marls is under the ownership and control of the Commonwealth of Massachusetts. The Applicants argue that Section 174-7 of the Mashpee Zoning Bylaws provides evidence that the zoning district extends to the center of Popponesset Bay.' Section 174-7 states in relevant part, "[w]here a district boundary is indicated as within or parallel to a ...watercourse...such district boundary shall be construed as the center line or as beginning parallel to the center line of such...watercourse." Mashpee Zoning Bylaws, Section 174-7 (emphasis added). 4