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 15. The aquaculture grant is situated in an area of Popponesset Bay which is owned and controlled by the Commonwealth of Massachusetts. 16. The Town of Mashpee Zoning Bylaws, as currently drafted, were not intended to be applicable, nor are they applicable by their express terms, to the proposed aquaculture grant. 17. The Town of Mashpee cannot legally regulate or restrict activity within the area where the grant is located without an express delegation of authority to do so by the Commonwealth. To the best of the Board's knowledge, the only such delegation of authority in this regard is provided by the licensing provisions of G.L. c.130, §57, and regulations promulgated thereunder. DECISION Pursuant to the Town's Bylaws and applicable case law, the Zoning Board of Appeals has authority to interpret the Town's Zoning Bylaws and the Board's construction and interpretation of the Zoning Bylaws is entitled to substantial deference. It is the interpretation of this Board, upon review and discussion of relevant provisions of the Mashpee Zoning Bylaws and the official Mashpee Zoning Map that the Residential (R-3) zoning district does not extend beyond the extreme low water mark of Popponesset Bay and, therefore, the zoning regulations relating to said District do not apply to the aquaculture grant in question. Massachusetts General Law clearly provides that the territorial limit of any municipality which borders the seashore extends only to the extreme low water mark. See, G.L. c.42, §1. All water and the land located below the extreme low water mark is under the ownership and control of the Commonwealth of Massachusetts. The Commonwealth, therefore,has the sole ability to administer the rights over these waters, subject to a delegation of such authority to another. Unless the Massachusetts General Court decides to delegate its authority to govern areas extending beyond the extreme low tide, a municipality has no legal ability to govern or regulate said waters and/or rights therein. The Appellants argue that Section 174-7 of the Mashpee Zoning Bylaws provides evidence that the R-3 zoning district extends to the center of Popponesset Bay. Section 174-7 states in relevant part, "[w]here a district boundary is indicated as within or parallel to a ...watercourse...such district boundary shall be construed as the center line or as being parallel to the center line of such...watercourse." Mashpee Zoning Bylaws, Section 174-7 (emphasis added). The term"watercourse"is not specifically defined in the Bylaws or Massachusetts General Law. However, Massachusetts case law generally 3