08/10/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OFAPPEALS MINUTES AUGUST 10, 2011 • loop connectors. The grant will he 120 feet wide, 360 +/- feet long and 30 feet from the mean high water line. The Board of Selectmen has issued a license to the Petitioner under M.G.L. Chapter 131 §57 and the Conservation Commission has issued an Order of Conditions. The Appellants have appealed both of these Decisions. Attorney Wall said that he is representing 23 Appellants who own property on Popponesset Island Road and Daniel's Island Road. He said that his clients have serious concerns with the proposed shellfish aquaculture grant. Attorney Wall is requesting a reversal from the ZBA of the Building Inspector's determination referenced below: June 15, 2011 Attorney Brian Wall Troy Wall Associates 90 Route 6A Sandwich, MA 02563 Re: Request for Zoning Determination Pursuant to M G.L. c. 40A, Section 7 Proposed Aquaculture Farm offPopponesset Island Dear Attorney Wall, I have received your request for a zoning "determination" pursuant to M.G.L. c. 40A, section 7, dated May 27, 2011, as supplemented on June 6, 2011, with respect to the proposed aquaculture farm off Popponesset Island in Mashpee. Upon review of the relevant facts relating to the proposed use and the provisions of the Mashpee Zoning Bylaws cited in your request, it is my determination that the Mashpee Zoning Bylaw provisions you have cited are inapplicable to the proposed aquaculture use specified in Mr. Cook's license application. First, I see no provision of the Zoning Bylaw, including the provisions of Sections 174-7 and 174-33, which could be construed to render its terms applicable to the use of lands or waters of the Commonwealth located below the mean low water line of tidal bodies of water, such as Popponesset Bay, which is where the proposed aquaculture activities would be constructed. Second, it is clear under the "public trust doctrine ", that the subject waters and the land underneath said waters are owned and controlled by the Commonwealth of Massachusetts and are, thus generally exempt from local.zoning regulation absent specific provision of the General Court to the contrary. Notwithstanding the above, I do not consider the proposed aquaculture cages to be "structures" within the context of the Zoning Bylaw definition, nor would 1 consider this proposed use to be a "development" within the scope ofsection 174-62. • Based upon the foregoing, I have determined that Mr. Cook's proposed aquaculture use is not within my enforcement jurisdiction because it does not fall within the scope of regulation under the Mashpee Zoning Bylaws. VJ