08/10/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OFAPPEALS MINUTES AUGUST 10, 2011 • • The grant area is entirely within a velocity zone (V-17 zone). Attorney Wall maintained that in a "storm event, sometimes what happens before a hurricane is the water rushes out and it becomes land and the waves crash in. 'So, the intent of the By-law is to prohibit structures in velocity zones" and therefore, the proposal is prohibited in this zone. The proposal should be located somewhere else. • The proposal falls under the description of "development" as defined in Section 174-58. The proposed "development" is not allowed in V zones under Section 174-62, which prohibits man-made changes to unimproved land below the base flood elevation. • The proposal meets the definition of a "structure". The proposed "structures" do not meet the setback requirements as set forth under Section 174-33. • The proposal requires a license from the Commonwealth under Chapter 91. • Because other Towns on Cape Cod have specifically addressed aquaculture, this confirms that zoning authority extends to the water of Towns. • Land or structures owned or leased by the Commonwealth are immune from zoning only if devoted to an essential function or action reasonably related to that function. (Town of Bourne v. Plante, 429 Mass. 329, 1999). The proposal is a profit -generating business. • The proposal is a commercial/industrial operation that is not appropriate for an R- 3 zoning district. At the conclusion of Attorney Wall's presentation, Mr. Nelson opened the discussion to is the Board for questions and recognized Mr. Furbush. Mr. Furbush asked Attorney Wall if there is any case law to answer the question of whether the water or the land below the mean low water line in the bay belongs to the Town or the Commonwealth. Attorney Wall said that he didn't find any case law to establish ownership, but said that the Zoning Enabling Act of Chapter 40A proves that local government has authority to regulate bodies of water and watercourses. Attorney Wall opined that the land underneath the ocean being discussed is within the R-3 zoning district. He said the issue is land landward at mean low water and land seaward at mean low water, not what occurs above or below the water. He said that even if the land at issue is not within the R-3 zoning district, the proposal is still subject to zoning. He maintained that the land is being used under a license granted by the Board of Selectmen under state authority to a private individual; and this private. use, a lease, of the land is subject to zoning regulations. Attorney Patrick Costello said that his opinion is that the boundary between the Town of Mashpee or private property owners' land and land of the Commonwealth is the low water mark. His opinion is that the low tide mark is the demarcation between the rights of private owners who own land abutting the water and the Commonwealth of Massachusetts. He said that he does not agree that the R-3 zone extends beyond the boundary line between land of the Commonwealth and the land of the Town. Attorney Costello said that there is nothing in the By-law to support this argument. He also said that the ZBA does not have the authority to construe the boundary in that fashion. He said that the R-3 zone terminates at the start of State land and that the Zoning By-law • does not apply below the mean low water mark El