08/25/1999 ZONING BOARD OF APPEALS Decisions

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11/10/1999 13: 06 6177204449 LAW OFFICES PAGE 07 Zoning Board of Appeals July 30, 1999 Page 4 We must assume that the Building Inspector's silence on the front yard setback issue and the lot coverage issue means that he did not disagree that the Property is grandfathered from these two non-conformities. We must assume that the Building Inspector's denial of a building permit rested solely on his analysis of the 50 foot setback requirement. B. The Building Inspector's Sole Criteria for Denial of the Permit (the 50 Foot Setback) Rests on Unsupported Misinterpretations of State Law and the Mashpee Zoning Bylaw. The Building Inspector's sole grounds for rejecting the Applicant's building permit application appears to be that the 50 foot setback from wetlands provision (Mashpee Zoning §174-33) applies to "all lots and structures"as [M.G.L.] 40-A does not allow exemptions from wetlands regulations, wetlands regulations allows [sic] local regulations and this was established under general law (zoning) . . . . See, Exhibit 1. The Building Inspector specifically relies on M.G.L. c.40A, §3, T1, sentence 2 to support his position. However, the Building Inspector's interpretation of M.G.L. c.40A, §3 is misguided. First, the Building Inspector has not cited to any case law which provides support for his interpretation and/or application of M.G.L. c.40A, §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 wetlands 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 with 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 Fasanella, Johnson & Wood P.C.