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 not, in our view, logically include an ocean or a bay. A body of water must demonstrate three characteristics to be considered a watercourse: it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. In addition, the term watercourse is typically applied to rivers and streams, not to oceans or bays which are generally boundless within a municipality's territorial limits. There may well be other"bodies of water", such as lakes, streams or ponds, within the geographical boundaries of the Town owned by or under the control of the Town or private persons/entities which could be subject to zoning regulation under the Enabling Act, however,we do not consider Popponesset Bay to be such a water body; nor do we believe that the Zoning Enabling Act constitutes a"general" delegation of authority to cities and towns to impose land use regulations over all water bodies under the ownership and control of the Commonwealth. Further, we recognize and deem significant the fact that Section 174-8 of the Mashpee Zoning Bylaws specifically delegates to the Building Inspector authority to have the final say over all boundary line disputes within the Town: "[w]henever any uncertainty exists as to the exact location of a boundary line, the location of such line shall be determined from the scale of the map by the Building Inspector." Mashpee Zoning Bylaws, Section 174-8. Therefore, if the Building Inspector determines, as he has in this case, that the boundary line for the R-3 District does not extend beyond the extreme low water mark, his determination would control, subject to review by the Zoning Board of Appeals on appeal. We find no reason to refute this determination based on the record of these proceedings. This Board further finds that even if the Mashpee Zoning Bylaws did extend zoning districts to areas below the extreme low water mark of Popponesset Bay, which we find not to be the case, aquaculture would be a permitted use in the R-3 Zoning District. The land immediately adjacent to subject aquaculture grant site is located in an R-3 Zoning District. Accordingly, if, arguendo, the zoning district were extended beyond the extreme low water mark, the proposed aquaculture grant would be located in the R-3 District. The Zoning Bylaws explicitly permit"[a]gricultural activities other than the raising or housing of livestock, swine or of poultry where more than twenty four birds are kept" in an R-3 Zoning District. The Zoning Bylaws provide no definition for the term agriculture, accordingly, we must look to the General Laws and other authorities for such a definition. Particularly persuasive, in our view, is the definition of agriculture provided by G.L. c. 128 §IA, which states, in relevant part, "... `agriculture' shall include farming in all of its branches including ... the production, cultivation, growing and harvesting of any... aquacultural ... commodities." G.L. c. 128 §lA (emphasis added). Accordingly,because agriculture is defined by Massachusetts General Law to specifically include aquaculture, and agricultural use is allowed as of right in an R-3 5