12/12/2018 ZONING BOARD OF APPEALS ZBA Decision

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MASHPEE ZONING BOARD OF APPBALS DECISION FOR A VARIANCE Gooseberry Island Trust&SN Trust Robert D.Emmeluth,Thistee of Gooseberry Island 0 Gooseberry Island(Map 100,Parcel 6-0-R), Mashpee,MA 02649 V-2018-61 Attorney John Bowen, with Rackemann, Sawyer&Brewster represents the two private owners who own the last two houses ontheleft on theNorth side ofPunlchorn Point Rd.The owners of 80 Punkhorn Point Road are James Atkins and John Wcltmaa,and 84 Punkhorn Point Road,owners,Robert and Michelle Wolpe,lVlr.Wolpe was present in the audience. Attorney Bowen said these applications are the same as submitted back,in 2013, and suggested that under Chapter 40A Section 16 that decision issued by the Board was not really final because the appeal is still pending in Superior Court. He dispatcs, and i doesn't believe the applicant has any right to pave tine road,or has any right to bring utilities down the mad Punkhorn Point is a private unpaved narrow road, and he disputes the applicant to travel on this mad because it is a private road. Attorney Bowen said there are several items that are very much undecided,and to repeat the requests while there's a live action pending in Superior Court is wasteful and unnecessary.He asked the Board that the requests be denied on these grounds as presented, sled it fails to meet the requirements ofthe Town's bylaws and also fills to meet Chapter 40A Section 10 for a Variance,The Attorney said that lois clients assert ownership to the Southem boundary and just below Punkhorn Point Rd,and below that,the Town has an active claire to that larud.Those issues are open,and there will be a decision.The applicant claims ownership through a"release deed."for no consideration and for zero dollars,His final point is that the applicant's claim of financial hardship as current owner of an island ; with no money and with no proven way to access it, or any ownership on the part of Mashpee where he thinks he could put a bridge. t Attorney Kate Connolly mentioned that Attorney Bowen was correct,it's simply a release deed that was taken for no payment,and also financlal hardship is not one of the requirements to prove hardship under the bylaw,it has to be a hardship owing to unusual circumstances of shape,soil conditions,or topography,and none of those apply, Ashley Fisher,Shellfish Constable for the Town of Mashpee approached the Board and quoted a couple of points from the bylaw In Chapter 130 Section 57 (Shellfish Aquaculture Licenses)for the record She said that the area is under a grant and because of this,there cannot be any disturbance ofthe licensed shellfish grant area. Mr. Gould asked Attorney Wall if he and his client addressed.the Tribe's claims, and how would you repair any damage if there's an issue with pollution regarding their shellfish grant 4