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 Accordingly, it appears that an aquaculture grant use being conducted at or below the base flood elevation within a V Zone,must be approved subject only to other laws and bylaws—none of which would appear to prevent the use. The Applicants further argue that Town of Mashpee Zoning Bylaws, Section 174- 33,requires any"building or structure"be setback 50 feet from any water or wetlands,and, accordingly, the location of this particular grant does not comport with this requirement. First and foremost, as noted above, we have determined that the provisions of the Town's Zoning Bylaws do not apply to the aquaculture grant location and, therefore, this setback requirement does not apply. However, if it were to be determined that the Zoning Bylaws do apply, we would have to review the definition of"structure" to determine whether the equipment contemplated for use within the aquaculture grant falls within this definition. Section 174-3 of the Town of Mashpee Zoning Bylaws defines a "structure" as a, "combination of material assembled at a fixed location to give support or shelter, such as a building, tower, framework, platform, bin, sign or the like." The proposed aquaculture grant consists of multiple mesh growing bags which are temporarily anchored to the ground and periodically rotated throughout the life-cycle of the shellfish growing therein. In our view, it would be reasonable to conclude that the subject aquaculture equipment does not constitute "structures" as said term is contemplated by the Bylaw. The mesh bags are merely held down by an anchor, are routinely moved by hand and are meant to be mobile, contrary to the itemized examples referenced in the Bylaw definition of"structure". The bags are, in essence, no different from a lobster trap/cage; lobster traps are regularly grouped together and anchored to the ground by binding one trap to another. Similar to an aquaculture grant,lobster traps are demarcated with a buoy and left in a single location for a period of time. Accordingly, we believe it is reasonable to conclude that the definition of structure, as set forth in the Bylaws,was not intended to include the racks, cages or other equipment appurtenant to aquaculture farms. Accordingly,the setback provision of Section 174-33 would not apply. If the aquaculture bags and equipment were determined to be structures, it could be persuasively argued that the very nature of an aquaculture grant requires that these bags and equipment be located almost exclusively tinder water. Accordingly, it would be ridiculous to even assert that such"structures" could or should be located 50 feet back from the water. By their very nature, aquaculture bags and related equipment have to be located within the water—just like piers, docks, wharves and bridges, which are all exempt from the setback provisions. 7