01/08/2014 ZONING BOARD OF APPEALS Minutes

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The Residents Group contends that Mr. Cook's proposed aquaculture facility and the activities associated with it are not permitted by the Mashpee Zoning Bylaw. These contentions were presented to the Building Commissioner, but he determined that the Zoning Bylaw does not apply below the extreme low water marl- and never reached the merits of the arguments of the Residents Group. Further, the Building Commissioner did not address the Resident Group's contention that Mr. Cook's intended use of the public boat landings is also prohibited by the Zoning Bylaw. The Residents Group is aggrieved by the Building Commissioner's determination and, for the reasons set forth below, requests the Zoning Board of Appeals to reverse it and determine that Mr. Cook's proposed aquaculture facility and his proposed use of the public boat landings are subject to, and prohibited by, the Zoning Bylaw. ARGUMENT I. THE MASHPEE ZONING BYLAW APPLIES TO PROPERTY BELOW THE EXTREME LOW WATER MARK. A. M.G.L. Chapter 40A Delegates Authority To Municipalities To Adopt Zoning Regulations Governing Uses Of Bodies Of Water. Municipalities derive authority to enact zoning bylaws from M.G.L. c. 40A — the Zoning Enabling Act. The Act of the Legislature that created Chapter 40A specifically authorized zoning regulations governing the following: 1) Uses of land, including wetlands deemed subject to seasonal or periodic flooding; 2) size, height, bulk and use of structures, including buildings and signs ... 3) uses of bodies of water, including water courses; 4) noxious uses; 5) areas and dimensions of land and bodies of water to be occupied by uses and structures, court yards and open spaces; 6) densities of population and intensity of use; 7) accessory facilities and uses, such as vehicle parking and loading, landscaping, and open space; and 8) the development of the natural, scenic and 4