08/10/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OFAPPEALS MINUTES AUGUST 10, 2011 • Sincerely, Charles Maintanis Acting Building Inspector Town ofMashpee Attorney Wall summarized the Building Inspector's determination: • that the Zoning Bylaw does not apply to land located below the mean low water line; • that the subject property is owned and controlled by the Commonwealth of Massachusetts and are exempt from zoning regulation; • that the aquaculture cages are not "structures" as defined by the Zoning By-laws. • that the proposal is not "development" as defined by Section 174-62 of the Zoning By-laws. Conversely, the following are some of the arguments from Attorney Wall's power point presentation: • Aquaculture is not listed in the Table of Regulations as a "permitted use" in an R- 3 zoning district. • The cages are not piers, wharves, docks, bridges or boardwalks; therefore, the aquaculture Petition is subject to regulation by the Town. The proposal requires Variance relief from the ZBA under Section 174-33. • • Aquaculture does not meet the definition of agriculture as defined under the By- laws. • Section 174-7 of the Zoning By-laws provides that, where a district boundary is parallel to a watercourse, the boundary shall be construed as the centerline of a watercourse. If the R-3 district extends to the center of Popponesset Bay, the proposal lies within the R-3 zoning district. • The district boundary is shown on the zoning map as running along the shoreline boundary of Popponesset Bay. • Under M.G.L. Chapter 41 Section 1, boundary lines in tidal waters are based upon plans prepared by the Board of Harbor and Land Commissioners. On a map dated 1893, the Board of Harbor and Land Commissioners determined that the boundary line between Mashpee and Barnstable in Popponesset Bay is the center of the Bay. • The 1975 amendment to Chapter 40A authorizes municipalities to adopt zoning regulations of uses of bodies of water, including water courses, and bodies of water to be occupied by uses and structures. • Potential for unsightly appearance of cages/anchors/gear protruding above the surface of the water. • Potential for aquaculture gear and cages washing ashore. • Potential for danger posed by the underwater gear to people operating kayaks, • • boats, jet skis, canoes, etc. Access, maintenance and operation of the grant will boats, tools and power winches that will create a noisy nuisance to abutters. 3