08/10/2011 ZONING BOARD OF APPEALS Minutes

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proposed to be affixed to the bottom with an anchoring system consisting of cables and anchors. Consequently, the cages are "structures" and "buildings." Indeed, "aquaculture gear" is specifically defined as a "structure" by the Conservation Commission's Wetlands Protection Regulations.3 The 3,000 cages are proposed in the waters of Popponesset Bay and on "Land Under The Ocean", which is a resource area defined by M.G.L. c. 131, § 40. The cages are not fixed or floating piers, wharves, docks, bridges or boardwalks. Consequently, the cages are subject to the setback provisions of Section 174-33 of the Zoning Bylaw. Since the cages are proposed in the water, the cages do not comply with the 50' setback requirement. Accordingly, the cages cannot be placed as proposed without a setback variance from the Zoning Board of Appeals. II. THE DETERMINATION ISSUED BY THE BUILDING INSPECTOR DENYING THE REQUEST FOR ZONING DETERMINATION IS ERRONEOUS AND MUST BE REVERSED. The Building Inspector denied the Petitioners' request for zoning determination on four grounds: 1. That the Zoning Bylaw does not apply to land located below the mean low water line of tidal bodies of water; 3 Mashpee Wetlands Regulation 24 defines"structure"as"any man-made object which is intended to remain in place in,over or under any area(or within 100 feet)of any of the resource areas as listed in section 2 of Chapter 172 of the Mashpee Code;anything constructed or erected and the use of which requires more or less permanent location on the ground or attachment to something having a permanent location on ground; an edifice or building of any kind, including but not limited to walls, including retaining walls, fences, walkways, boardwalks, docks, piers, groins, jetties, breakwaters, wharfs, dams, weirs, booms, bulkheads, revetments, ripraps,culverts or any pile-held or other permanent fixed floats,vessels or aquaculture gear." 11