08/10/2011 ZONING BOARD OF APPEALS Minutes

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Bay and the lands underneath the waters.4 Consequently, the Building Inspector's determination must be reversed. B. Mr. Cook's Proposed Aquaculture Grant Is Not Immune From Zoning. The Building Inspector determined that the proposed aquaculture grant is exempt from local zoning regulation because it is situated on land under the waters of Popponesset Bay owned by the Commonwealth of Massachusetts. The Commonwealth of Massachusetts is immune from municipal zoning regulations. See, City of Medford v. Marinucci Bros. & Co., 344 Mass. 50 (1962). However, this immunity is not as broad as the Building Inspector believes and, moreover, does not apply to Mr. Cook. Land or structures owned or leased by the Commonwealth is immune from zoning only if devoted to an essential government function or action reasonably related to that function. Town of Bourne v. Plante, 429 Mass. 329 (1999); County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706 (1980). . Although the land under the waters of Popponesset Bay is owned by the Commonwealth, Mr. Cook's use of the land is not exempt for the following reasons: 1. Mr. Cook intends to use the land under a license issued by the Board of Selectmen under M.G.L. c. 130, § 57. Thus, the Commonwealth's land is being licensed or leased to a private individual. The doctrine 4 The Board need only look next door to the Town of Barnstable for confirmation of the authority to zone bodies of water. In 2001,Barnstable adopted a"Dock and Pier Overlay District"(Barnstable Zoning Ordinance Section 240-37. In 2008,Barnstable adopted a"Recreational Shellfish Areas and Shellfish Relay Area Dock and Pier Overlay District'(Barnstable Zoning Ordinance Section 240-37.1) These overlay districts regulate uses in the coastal waters of the Town, including Cotuit Bay,North Bay,West Bay,Lewis Bay and Barnstable Harbor. 14