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 The term "watercourse" is not defined in the Mashpee Zoning Bylaws or Massachusetts General Law. However, Massachusetts case law generally requires a "watercourse" to have a regular channel with banks and sides such as a river or similar water structure. Given these definitions, it is unlikely that an ocean, bay or tidelands areas thereof would be included within the cominon law definition of watercourse. Further, to include Popponesset Bay as a"watercourse" as set forth in Section 174-7 could bring the Town of Mashpee Bylaws in direct conflict with both common law and Massachusetts General Law, because it would presumably allow Mashpee to regulate property owned by the Commonwealth which is not within its municipal boundaries. As stated above, the only way Mashpee would have zoning power over such tidal lands is upon delegation of such authority by the Commonwealth. Based upon the record in this matter,the Commonwealth does not appear to have made any such specific delegation. Further, it should be noted that Section 174-8 of the Mashpee Zoning Bylaws allows the Building Inspector to have the final say over all boundary line disputes within the Town: "[w]henever any uncertainty exists as to the exact location of a boundary line, the location of such line shall be determined from the scale of the map by the Building Inspector." Mashpee Zoning Bylaws, Section 174-8. Therefore,if the Building Inspector, in his discretion, determines that the boundary line for the R-3 district does not extend beyond the extreme low water mark, said determination would control, subject to review by the Zoning Board of Appeals on appeal. Upon review of the Bylaws and applicable law, we concur with the Building Inspector's determination in this regard. Second, even if, hypothetically, the Town of Mashpee Zoning Bylaws did extend zoning districts below the extreme low water mark of Popponesset Bay, aquaculture would appear to be a permitted use in an R-3 Zoning District. The Mashpee mainland most proximate to the site of the subject aquaculture grant is located in an R-3 Zoning District. Accordingly, if, arQuendo, the zoning district were extended beyond the extreme low water mark, the proposed aquaculture grant would be located in an R-3 Zone. The Mashpee Zoning Bylaws explicitly permit "[a]gricultural activities other than the raising or housing of livestock, swine or of poultry where more than twenty four birds are kept"in an R-3 Zoning District. The Zoning Bylaws provide no definition for agriculture,therefore we must look to the General Laws for such a definition. Particularly persuasive is the definition of agriculture provided by G.L. c. 128 §1A, which states, in relevant part, "... `agriculture' shall include farming in all of its branches including ... the production, cultivation, growing and har i esting of any... aquacultural ... commodities." Accordingly,because agriculture is defined by Massachusetts General Law to specifically include aquaculture, and agriculture use is allowed as of right in and R-3 Zoning District pursuant to Section 174-25(C)(4) of the Mashpee Zoning Bylaws, a solid inference could be made that aquaculture would be an allowed use within the R-3 Zoning District. 5