08/25/1999 ZONING BOARD OF APPEALS Decisions

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William Hauck April 23, 1999 Page 3 Evaluation of the Wetlands Protection Act and the Mashpee Wetlands Protection Bylaw with §174-33 of Mashpee Zoning underline that §174-33 is only a dimensional wetland setback. Assuredly, the Zoning Act, at M.G.L. c.40A, §3 prohibits a town from exempting land or structures from state laws governing wetlands and floodplains. Issuance of a building permit for the proposed garage structure does not conflict with Chapter 40A, §3. Specifically, the proposed garage structure indeed complies not only with the State law governing wetlands, i.e., the Wetlands Protection Act, M.G.L. c.131, §40, but also complies the Mashpee Wetlands Protection Bylaw, Mashpee Code, Chapter 172. According to the local Mashpee Wetlands Bylaw, "(t]his chapter is intended to utilize the Home Rule authority of this municipality to protect . . . for additional values, with additional standards and procedures stricter than those of the Wetlands Protection Act, M.G.L. c.131, §40 and Regulations thereunder, 310 CMR 10.00." Mashpee Code, Chapter 172, §172-1 (Purpose). The Conservation Commission, acting under its authority granted by the Wetlands Protection Act and the Mashpee Wetlands Bylaw, granted an Order of Conditions to Mr. Litvack to allow for the construction of the proposed garage structure along with vegetative plantings. In so doing, the Commission has determined that the proposed garage project substantively meets the performance standards established under State Law and any additional performance standards established under the local Wetlands Bylaw. In fact, in accordance with the above- quoted provisions of the local Wetlands Bylaw, Q172-1, approval by the Commission under the local Bylaw unequivocally evidences compliance with the substantive requirements Wetlands Protection Act. Assuredly, the proposed garage is not exempt from the rules and regulations governing wetlands, either those imposed by the State or those imposed by Mashpee itself. From this review of the proposed accessory building, our opinion remains that the single car garage complies with the zoning in effect when this pre-existing, non-conforming lot was created, in the mid-1960s. As such, we maintain that the issuance of a building permit is appropriate and required at this time without a need for variance and/or special permit relief from the Board of Appeals. As such, we request that your office issue a building permit. With this letter, we have filed the necessary building permit application for your review and hopefully approval. In the event that you disagree that the pre-existing lot is not grandfathered from any one or more of the above-noted nonconformities, we ask that in a response letter you specifically identify which setback provision or coverage requirement impedes the issuance of the requested building permit. Fasanella, Johnson & Wood P.C.