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 Applicants further assert that the aquaculture grant is prohibited by Mashpee Zoning Bylaws, Section 174-62 which restricts "development" of areas designated as velocity(V)zones on the Flood Insurance Administration Flood Rate Maps,unless several requirements are met. They argue that the subject aquaculture grant is subject to this provision because it constitutes "development" and is a"structure"within the definition of the Zoning Bylaws. First,we have concluded that the provisions of the Town's Zoning Bylaws, in their entirety, do not apply to the subject aquaculture grant site(as stated above) and, therefore, this specific requirement does not apply. However, if it is determined that Mashpee's Zoning Bylaws do apply, we would have to examine the application of this Section to the proposed use. A fair reading of Section 174-62 indicates that it only applies to land within the V (velocity) Zone shown on the Flood Insurance Administration Flood Rate Maps. See Mashpee Zoning Bylaws, Section 174-62("No land within areas designated as V(velocity) Zones on the Flood Insurance Administration Flood Rate Maps shall be developed..."). Obviously, the proposed area of the aquaculture grant is not on land,but instead is located below the extreme low water marls in Popponesset Bay. As such, Section 174-62 could be deemed to be inapplicable to this activity. Furthermore, a strict reading of Section 174-62 and its requirements could not logically apply to a "structure" which is intended to be completely submerged under water. See, Section 174-62 (requires all structures built in a V Zone to be elevated on adequately anchored pilings or columns so that the lower part of the structure is above the base flood elevation). Accordingly, Section 174-62 does not, in our view, apply. Assuming, arguendo, that the Zoning Bylaws do apply, Section 174-58 of the Zoning Bylaw, which governs new construction, alteration of structures or other development within V Zones, would appear to allow the aquaculture grant. Section 174- 58 states in relevant part: "Permits for new construction,alteration of structures or other development (any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging,filling, grading, paving, excavation or drilling operations) at or below the base flood elevation as specified within the A and V Zones...shall be approved subject to other laws and bylaws applicable thereto and to the following....." See Mashpee Zoning Bylaws, Section 174-58 (Emphasis added). 6