08/10/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OFAPPEALS Decision for Denial of an Appeal of the Building Commissioner's Decision Appellant: Leslie A. Caffyn, et al 10 Popponesset Island Road Mashpee, MA 02649 A-2011-31 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 Bylaws. First, as stated above, it is the Board's finding that the provisions of the Town's Zoning Bylaws do not apply to the subject aquaculture grant and, therefore,this specific requirement does not apply. However, even if the Bylaws were deemed to apply, this section of the Bylaw would not apply to the proposed aquaculture 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: "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 is located below the extreme low water mark in Popponesset Bay. As such, Section 174-62 is 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. (Section 174-62 requires all strictures 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). Further, according to the Flood Insurance Administration Flood Rate Map for Mashpee, the proposed area of the aquaculture grant is within a designated A Zone, not a V Zone as required by Section 174-62. Accordingly, it is the Board's determination that Section 174-62 does not apply to the proposed use. Finally, assuming, arguendo, that the Bylaws did apply, Section 174-58, which governs new construction, alteration of structures or other development within A Zones, appears 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 specific within the A and V Zones...shall be approved subject to other laws and bylaws applicable thereto and to the following.....". Mashpee Zoning Bylaws, Section 174-58 (Emphasis added). Accordingly, an aquaculture grant use being conducted at or below the base flood elevation within an A Zone, must be approved, subject only to other laws and bylaws—none of which would appear to prevent the use in the instant situation. 7