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 Zoning District pursuant to Section 174-25(C)(4) of the Mashpee Zoning Bylaws, it is our determination that aquaculture would be an allowed use within the R-3 Zoning District even if that District did extend beyond the extreme low water mark. The Appellants further argue that Town of Mashpee Zoning Bylaws, Section 174- 33, requires that any"building or structure"be setback 50 feet from any water or wetlands; accordingly,the location of this particular grant does not comply with this requirement. First, this Board has concluded that the provisions of the Town's Zoning Bylaws do not apply to the aquaculture grant location and,therefore, this setback requirement is not applicable. 4rguendo, even if the Zoning Bylaws did apply, it is this Board's finding that the cages and equipment used for the aquaculture grant would not constitute"structures" as defined by the Bylaws. Section 174-3 of the Bylaws defines a "structure" as a, "combination of material assembled at a fixed location to give support or shelter, such as a building, tower, framework,platform,bin, sign or the like." The aquaculture grant consists of multiple stacked cages which are temporarily anchored and periodically rotated throughout the life-cycle of the shellfish growing therein. The cages are held down by an anchor, are routinely moved by hand and are meant to be mobile, contrary to the examples referenced in the Bylaw definition of"structure". The cages are, in essence, no different than a lobster trap; lobster traps are regularly grouped together and anchored by binding one trap to another. Similar to an aquaculture grant, lobster traps are demarcated with a buoy and left in a single location for a period of time. The Board, to its knowledge, never has regulated, nor would it deem it appropriate to regulate, lobster traps as "structures"under the Bylaw. Accordingly, the Board finds that the cages and equipment for the subject aquaculture grant do not rationally fall within the definition of"structure" as set forth in the Bylaws. Further, we find that the nature of an aquaculture grant requires that these cages and equipment be located almost exclusively tinder water. We note that the license granted by the Board of Selectmen for the proposed aquaculture grant specifically requires the cages to be located under water. Accordingly, it would be nonsensical to assert that such"structures" could, or should,be located 50 feet back from the water. By their very nature, aquaculture cages and related equipment have to be located within the water—just like piers, docks, wharves and bridges, all of which are exempt from the set back provisions. Literal application of this setback provision to such racks or cages would, de facto, result in the preclusion of any aquaculture use in the Town. Accordingly, it is the Board's finding that the setback provisions set forth in Section 174- 33 do not apply to this aquaculture grant. The Appellants assert, as a final basis for precluding the subject aquaculture grant, that the grant is prohibited by Mashpee Zoning Bylaws, 6