08/28/1996 ZONING BOARD OF APPEALS Decisions

Home Browse Search

thereto. The Mashpee Water District is further concerned by the fact that these changes in the development restrictions may greatly impact the quality of ground water and the public water supply as these modifications allow for development, commercial and residential, in close proximity to well sites. The water district is aggrieved by these supposed changes to the Special Permit. The Board of Selectmen is without the authority to amend or modify further any aspects of the 1964 Special Permit or the subsequent modifications made in 1971. This is especially true when the modifications relate to restrictions which run with the land in perpetuity. Under the Mashpee Zoning By-Law,the Board of Anneals is deemed to be the Special Permit granting authority, Accordingly under M.G.L. 40A sec. 9, only the Special Permit granting authority has the power to grant. amend or modify a Special Permit. Therefore, any action taken by the Board of Selectmen purporting to modify the restrictions contained in a deed, which deed comprises all, or a material portion of the Special Permit, is null and void, absent Board of Appeals approval, which as been neither sought or obtained. Furthermore, the modification agreement was approved contrary to the provisions of M.G.L. c. 40A Section 9. The Modification Agreement purported to re-modify the restrictions contained in a deed from Popponessett Corporation to the Town dated July 13, 1964 as well as the Special Permit. On January 29, 1990, a special town meeting voted to "authorize and direct the Selectmen to execute, acknowledge, seal and deliver an agreement" remodifying the restrictions contained in a deed from Popponessett Corporation to the Town dated July 13, 1964. The special town meeting did not authorize the Board of Selectmen to make the determination as to whether or not the transferred development rights is in substantial compliance with the 1964 permit. The only authority granted was to permit the Selectmen to enter into and execute an agreement. Authority to make the determination of compliance with the Special Permit rests solely and exclusively with the Mashpee Board of Appeals. Based on the foregoing, any modifications to the enigmatic 1964 Special Permit must be made in accordance with M.G.L. c. 40A Section 9. Therefore, all permits issued to New Seabury under this Modification Agreement should be revoked and rescinded, and,,to the extent that such Modification Agreement purports to modify the Special Permit issued in 1964, the Modification Agreement itself should be rescinded. The Modification Agreement violates the Zoning By-Law, as it purports to be an amendment of a Special Permit by a board (i.e. Selectmen)with no authority whatsoever to make such an amendment. MAS�FE.A memo