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 requires a"watercourse"to have a regular channel with banks and sides such as a river or similar water structure. Given this construction, we do not believe that an ocean,bay or tideland areas thereof would reasonably be included within the common law definition of watercourse. Further, consistent with the rationale expressed above, to deem Popponesset Bay to be a"watercourse" for the purposes of Section 174-7 would create a direct conflict between the Town of Mashpee Bylaws and Massachusetts common law/ General Law because it would presumably allow Mashpee to regulate property of the Commonwealth outside its municipal boundaries. The only way Mashpee would have zoning power over such bodies of water would be upon delegation of such authority by the Commonwealth. Based upon the record in this matter, the Commonwealth does not appear to have made any such specific delegation of land use regulatory authority. Notably,however, the Commonwealth has specifically delegated to municipalities the ability to grant licenses for conducting aquaculture activities within its coastal waters. See, G.L. c. 130 §57. The provisions of G.L. c. 130, §57, clearly recognize that the waters in which an aquaculture license is granted remain within the ownership and control of the Commonwealth. The provisions of G.L. c. 130, §57 state, in relevant part, "...the selectmen of any town, may...grant to any person a shellfish aquaculture license...Said license shall authorize said licensee...at all times of the year, in, upon, or from a specific portion of coastal waters of the commonwealth..." G.L. c. 130, §57 (emphasis added). Accordingly, the provisions of this statute only delegate the Commonwealth's power to grant licenses for the purpose of conducting aquaculture within its waters, not any other control or governance of such waters. Notably, the statute does not affirmatively allow a municipality to extend its zoning regulations over and upon the waters of the Commonwealth, nor does it reference compliance with zoning bylaws as a criterion for the grant of a license. The only criteria referenced in the statute for a municipality's consideration when deciding whether to grant an aquaculture license is whether the operation will "cause substantial adverse effect on the shellfish or other natural resources of the city or town." G.L. c. 130, §57. Based upon the record, it is the Board's.understanding that the Mashpee Board of Selectmen did, in fact approve a license pursuant to this statute for the subject aquaculture grant, which grant is currently being appealed by the Appellants. The Appellants argue that the Massachusetts Legislature has, in fact, delegated the authority to zone territorial waters of the Commonwealth under the Zoning Enabling Act. They cite 1975 Mass. Acts 808, § 2A as the source of this delegation. We do not agree with this proposition as it relates to the subject aquaculture grant. Section 2A authorizes the regulation,prohibition, and limitation o£ "uses of bodies of water, including watercourses," and "areas and dimensions of land and bodies of water to be occupied by uses and structures." As stated above, the definition of a watercourse does 4