08/10/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OFAPPEALS MINUTES AUGUST 10, 2011 • Mr. Reiffarth said that if the proposal requires a Chapter 91 license from the State, then the land under the water belongs to the Commonwealth, not the Town of Mashpee. Attorney Costello agreed that the Commonwealth has custody and control of the land under the water. He said that while the Commonwealth is exempt from zoning, it does have the right under its sovereign powers to allow municipalities to conduct and permit certain types of uses within the land of waters of the Commonwealth. The Commonwealth gives local authorities a limited right to grant licenses for use of that property for a specific purpose. Attorney Costello said that Attorney Wall's argument that the Petitioner needs a Chapter 91 license is an entirely different matter from the issue before the Board. Attorney Costello reminded the Board to focus on the Zoning By-law and referred to Section 174-8 which states: &174-8. Determination of Boundaries by Building: Whenever any uncertainty exists as to the exact location of a boundary line, the location of such tine shall be determined from the scale of the map by the Building Inspector. Attorney Costello said that the Town of Mashpee's By-laws has empowered the Building Inspector with specific authority and jurisdiction to render a determination of boundaries. He said that this is the issue before the Board — the Appeal of the Building Inspector's determination. Attorney Wall said that the Board, not the Building Inspector, should decide where the boundary lies — either on the shore or in the Bay. Attorney Costello disagreed with Attorney Wall and said that there is a distinction • between a bay or ocean and a watercourse. Attorney Costello said that case law provides that a watercourse is a river with a definitive flow, banks and defined boundaries. He. asked the Board to mull over where it would draw the boundary line in bays, inlets, and open ocean. He said that the map showing the boundary line between the Town of Mashpee and the Town of Barnstable is a territorial boundary line, which would establish which Town has jurisdiction to grant the aquaculture license. Attorney Costello said that the map does not prove that the R-3 district runs out to that territorial boundary line. In response to Mr. Furbush's question, Attorney Wall maintains that aquaculture does not meet the definition of agriculture. Attorney Costello said that in the absence of a specific definition of agriculture in Mashpee's By-law, common usage and statutes within M.G.L. would apply. He referred to M.G.L. Chapter 128 Section LA which states: "Farming" or "agriculture" shall include farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities... Attorney Costello said that if the Board does conclude that the land at issue is part of an R-3 zoning district, they must bear in mind that agriculture is permitted as of right in an R-3 zoning district. He also said that M.G.L. Chapter 40 A Section 3 prohibits local By- laws from prohibiting or unreasonably regulating agricultural uses. Attorney Costello said that the five -acre minimum would not apply in this case. Mr. Nelson agreed that he • feels that aquaculture is part of agriculture. Attorney Wall suggested that the Petitioner should apply for a Special Permit under Section 174-24.J., which the Board could then be condition and restrict. Mr. Furbush 5