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Zoning Board of Appeals Minutes 08/10/2011
MASHPEE ZONING BOARD OF APPEALS
MINUTES
AUGUST 10, 2011

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, August 10, 2011 at 7:00 p.m. (Conference Room #1) at the Mashpee Town Hall, 16 Great Neck Road North.  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie, and Associate Board Member Judith M. Horton were present.  Attorney Patrick Costello attended as legal counsel to the Board.  Board Member John M. Dorsey was not present due to serious illness.

Chairman Robert G. Nelson opened the meeting at 7:05 p.m. and announced that the meeting was being televised live.  He informed everyone that the meeting was going to be conducted by Robert’s Rules of Order.  Mr. Nelson said that anyone wishing to speak must be recognized by the Chair.  Anyone recognized by the Chair will address their comments to the Board only.  He also said that arguments and side discussions between audience members will not be tolerated.  

DISCUSSION

Proposed Change in Status/Title of two Board Members
Mr. Nelson said that Mr. Dorsey’s prolonged absence due to serious illness has necessitated a change in his position on the Board.  On Monday, August 8, 2011, the Board of Selectmen voted to appoint Mr. Bonvie to Board Member and appoint Mr. Dorsey as Associate Member on the Board.  The Board sends best wishes to Mr. Dorsey and looks forward to his return as an active member of the Board.

NEW HEARINGS

Leslie A. Wagner Caffyn, et al:  Request Appeal under Massachusetts General Laws Chapter 40A, Sections 8 and 15 of the Building Commissioner’s Decision regarding his enforcement jurisdiction on the proposed offshore aquaculture farm on property abutting an R-3 zoning district at 10 Popponesset Island Road (Map 105 Parcel 267A) Mashpee, MA.  Appellants request reversal of the Building Commissioner’s Determination and issue a ruling that the proposed aquaculture grant is subject to, and prohibited by, the Town’s By-laws.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie.

MATERIAL  SUBMITTED:  COPY OF POWER POINT PRESENTATION**

Attorney Brian J. Wall said that the proposed aquaculture grant will consist of installation of 3,000 shellfish aquaculture cages permanently affixed to the bottom by 100 cables which will be held down by 200 anchors, all of which will be held together with 3,000 loop connectors.  The grant will be 120 feet wide, 360 +/- feet long and 30 feet from the mean high water line.

The Board of Selectmen has issued a license to the Petitioner under M.G.L. Chapter 131 §57 and the Conservation Commission has issued an Order of Conditions.  The Appellants have appealed both of these Decisions.  

Attorney Wall said that he is representing 23 Appellants who own property on Popponesset Island Road and Daniel’s Island Road.  He said that his clients have serious concerns with the proposed shellfish aquaculture grant.  Attorney Wall is requesting a reversal from the ZBA of the Building Inspector’s determination referenced below:   

June 15, 2011

Attorney Brian Wall
Troy Wall Associates
90 Route 6A
Sandwich, MA 02563

Re:     Request for Zoning Determination
        Pursuant to M.G.L. c. 40A, Section 7
        Proposed Aquaculture Farm off Popponesset Island

Dear Attorney Wall,

I have received your request for a zoning “determination” pursuant to M.G.L. c. 40A, section 7, dated May 27, 2011, as supplemented on June 6, 2011, with respect to the proposed aquaculture farm off Popponesset Island in Mashpee.

Upon review of the relevant facts relating to the proposed use and the provisions of the Mashpee Zoning Bylaws cited in your request, it is my determination that the Mashpee Zoning Bylaw provisions you have cited are inapplicable to the proposed aquaculture use specified in Mr. Cook’s license application.  First, I see no provision of the Zoning Bylaw, including the provisions of Sections 174-7 and 174-33, which could be construed to render its terms applicable to the use of lands or waters of the Commonwealth located below the mean low water line of tidal bodies of water, such as Popponesset Bay, which is where the proposed aquaculture activities would be constructed.  Second, it is clear under the “public trust doctrine”, that the subject waters and the land underneath said waters are owned and controlled by the Commonwealth of Massachusetts and are, thus generally exempt from local zoning regulation absent specific provision of the General Court to the contrary.  Notwithstanding the above, I do not consider the proposed aquaculture cages to be “structures” within the context of the Zoning Bylaw definition, nor would I consider this proposed use to be a “development” within the scope of section 174-62.

Based upon the foregoing, I have determined that Mr. Cook’s proposed aquaculture use is not within my enforcement jurisdiction because it does not fall within the scope of regulation under the Mashpee Zoning Bylaws.

Sincerely,

Charles Maintanis
Acting Building Inspector
Town of Mashpee

Attorney Wall summarized the Building Inspector’s determination:
  • that the Zoning Bylaw does not apply to land located below the mean low water line;
  • that the subject property is owned and controlled by the Commonwealth of Massachusetts and are exempt from zoning regulation;
  • that the aquaculture cages are not “structures” as defined by the Zoning By-laws.
  • that the proposal is not “development” as defined by Section 174-62 of the Zoning By-laws.
Conversely, the following are some of the arguments from Attorney Wall’s power point presentation:
  • Aquaculture is not listed in the Table of Regulations as a “permitted use” in an R-3 zoning district.  
  • The cages are not piers, wharves, docks, bridges or boardwalks; therefore, the aquaculture Petition is subject to regulation by the Town.  The proposal requires Variance relief from the ZBA under Section 174-33.  
  • Aquaculture does not meet the definition of agriculture as defined under the By-laws.
  • Section 174-7 of the Zoning By-laws provides that, where a district boundary is parallel to a watercourse, the boundary shall be construed as the centerline of a watercourse.  If the R-3 district extends to the center of Popponesset Bay, the proposal lies within the R-3 zoning district.
  • The district boundary is shown on the zoning map as running along the shoreline boundary of Popponesset Bay.
  • Under M.G.L. Chapter 41 Section 1, boundary lines in tidal waters are based upon plans prepared by the Board of Harbor and Land Commissioners.  On a map dated 1893, the Board of Harbor and Land Commissioners determined that the boundary line between Mashpee and Barnstable in Popponesset Bay is the center of the Bay.
  • The 1975 amendment to Chapter 40A authorizes municipalities to adopt zoning regulations of uses of bodies of water, including water courses, and bodies of water to be occupied by uses and structures.
  • Potential for unsightly appearance of cages/anchors/gear protruding above the surface of the water.
  • Potential for aquaculture gear and cages washing ashore.
  • Potential for danger posed by the underwater gear to people operating kayaks, boats, jet skis, canoes, etc.
  • Access, maintenance and operation of the grant will boats, tools and power winches that will create a noisy nuisance to abutters.
  • The grant area is entirely within a velocity zone (V-17 zone).  Attorney Wall maintained that in a “storm event, sometimes what happens before a hurricane is the water rushes out and it becomes land and the waves crash in.  So, the intent of the By-law is to prohibit structures in velocity zones” and therefore, the proposal is prohibited in this zone.  The proposal should be located somewhere else.
  • The proposal falls under the description of “development” as defined in Section 174-58.   The proposed “development” is not allowed in V zones under Section 174-62, which prohibits man-made changes to unimproved land below the base flood elevation.
  • The proposal meets the definition of a “structure”.  The proposed “structures” do not meet the setback requirements as set forth under Section 174-33.
  • The proposal requires a license from the Commonwealth under Chapter 91.
  • Because other Towns on Cape Cod have specifically addressed aquaculture, this confirms that zoning authority extends to the water of Towns.
  • Land or structures owned or leased by the Commonwealth are immune from zoning only if devoted to an essential function or action reasonably related to that function.  (Town of Bourne v. Plante, 429 Mass. 329, 1999).  The proposal is a profit-generating business.
  • The proposal is a commercial/industrial operation that is not appropriate for an R-3 zoning district.
At the conclusion of Attorney Wall’s presentation, Mr. Nelson opened the discussion to the Board for questions and recognized Mr. Furbush.  Mr. Furbush asked Attorney Wall if there is any case law to answer the question of whether the water or the land below the mean low water line in the bay belongs to the Town or the Commonwealth.  Attorney Wall said that he didn’t find any case law to establish ownership, but said that the Zoning Enabling Act of Chapter 40A proves that local government has authority to regulate bodies of water and watercourses.  Attorney Wall opined that the land underneath the ocean being discussed is within the R-3 zoning district.  He said the issue is land landward at mean low water and land seaward at mean low water, not what occurs above or below the water.  He said that even if the land at issue is not within the R-3 zoning district, the proposal is still subject to zoning.  He maintained that the land is being used under a license granted by the Board of Selectmen under state authority to a private individual; and this private use, a lease, of the land is subject to zoning regulations.   

Attorney Patrick Costello said that his opinion is that the boundary between the Town of Mashpee or private property owners’ land and land of the Commonwealth is the low water mark.  His opinion is that the low tide mark is the demarcation between the rights of private owners who own land abutting the water and the Commonwealth of Massachusetts.    He said that he does not agree that the R-3 zone extends beyond the boundary line between land of the Commonwealth and the land of the Town.  Attorney Costello said that there is nothing in the By-law to support this argument.  He also said that the ZBA does not have the authority to construe the boundary in that fashion.  He said that the R-3 zone terminates at the start of State land and that the Zoning By-law does not apply below the mean low water mark.  

Mr. Reiffarth said that if the proposal requires a Chapter 91 license from the State, then the land under the water belongs to the Commonwealth, not the Town of Mashpee.  Attorney Costello agreed that the Commonwealth has custody and control of the land under the water.  He said that while the Commonwealth is exempt from zoning, it does have the right under its sovereign powers to allow municipalities to conduct and permit certain types of uses within the land of waters of the Commonwealth.  The Commonwealth gives local authorities a limited right to grant licenses for use of that property for a specific purpose.  Attorney Costello said that Attorney Wall’s argument that the Petitioner needs a Chapter 91 license is an entirely different matter from the issue before the Board.  

Attorney Costello reminded the Board to focus on the Zoning By-law and referred to Section 174-8 which states: §174-8.  Determination of Boundaries by Building: Whenever any uncertainty exists as to the exact location of a boundary line, the location of such line shall be determined from the scale of the map by the Building Inspector.  Attorney Costello said that the Town of Mashpee’s By-laws has empowered the Building Inspector with specific authority and jurisdiction to render a determination of boundaries.  He said that this is the issue before the Board – the Appeal of the Building Inspector’s determination.  Attorney Wall said that the Board, not the Building Inspector, should decide where the boundary lies – either on the shore or in the Bay.  

Attorney Costello disagreed with Attorney Wall and said that there is a distinction between a bay or ocean and a watercourse.  Attorney Costello said that case law provides that a watercourse is a river with a definitive flow, banks and defined boundaries.  He asked the Board to mull over where it would draw the boundary line in bays, inlets, and open ocean.  He said that the map showing the boundary line between the Town of Mashpee and the Town of Barnstable is a territorial boundary line, which would establish which Town has jurisdiction to grant the aquaculture license.  Attorney Costello said that the map does not prove that the R-3 district runs out to that territorial boundary line.

In response to Mr. Furbush’s question, Attorney Wall maintains that aquaculture does not meet the definition of agriculture.  Attorney Costello said that in the absence of a specific definition of agriculture in Mashpee’s By-law, common usage and statutes within M.G.L. would apply.  He referred to M.G.L. Chapter 128 Section 1.A which states: “Farming” or “agriculture” shall include farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities…

Attorney Costello said that if the Board does conclude that the land at issue is part of an R-3 zoning district, they must bear in mind that agriculture is permitted as of right in an R-3 zoning district.  He also said that M.G.L. Chapter 40 A Section 3 prohibits local By-laws from prohibiting or unreasonably regulating agricultural uses.  Attorney Costello said that the five-acre minimum would not apply in this case.  Mr. Nelson agreed that he feels that aquaculture is part of agriculture.  

Attorney Wall suggested that the Petitioner should apply for a Special Permit under Section 174-24.J., which the Board could then be condition and restrict.  Mr. Furbush said the whole crux of the matter is whether the land underneath the water is subject to the existing zoning By-law and therefore, under the jurisdiction of the Building Commissioner.

Attorney Costello said that Section 174-62 of the Zoning By-laws applies to land.  The proposed aquaculture will be located underneath the water.  He said that if the velocity requirements are applied to the cages (“structures”), then they would have to be raised to certain elevations, as are piers, ramps and floats.  This would be utterly contrary to the nature of this farming endeavor.  

The Board questioned where the cages will be relocated in the winter.  Attorney Wall said that the Petitioner intends to move the cages to deeper water during the winter to protect them from predation.  He said that it appears that the proposal will take up most of the grant area, so he isn’t sure where the cages will be moved.

Attorney Costello said that the Board of Selectmen conditioned the license by requiring the proposed cages to remain below water at all times.  Attorney Costello said that the Petitioner would have to stack the cages to ensure that they remain below water.  Enforcement rests with the permit granting authority – the Board of Selectmen.

The Chair asked for comments from the audience and recognized Mrs. Kristen Hanlon of 51 Popponesset Island Road.  She said that she won’t hear either the machinery or see the cages, but that she is worried about the safety of families using the area for recreation.  Mrs. Hanlon said that surf boarders, boaters, kayakers and jet skiers will venture into the area and run into the cages.  

Mr. William Sandler of 44 Popponesset Island Road said that the proposal will be 30 feet from his property.  He said that children will not be able to swim in the area anymore because of the proposal.  

Mr. Mark Burtis of 53 Nehoiden Road said he is in favor of the proposal, which is similar in nature to the oyster grant that he has been operating in a residential area in Hamblin Pond in Mashpee for the last 11 years.  He said that he addresses all safety issues and maintains markers and buoys that clearly identify his grant area and the submerged equipment.  He said that one man cannot realistically maintain 3,000 cages by himself, so the proposal will most likely be far less than that.  Mr. Burtis said that the cages must be kept under the water, in the flow in the tidal zone.  He said that the Commonwealth embraces aquaculture, which is obviously agriculture.  He said that he has building docks for the last 30 years and the boundary is very clear between the land of the Commonwealth and the land of the Town.  He said that he went through the same procedure as Mr. Cook has and that abutters have every opportunity to participate in the process because the licenses are granted after public advertising, public hearing, public testimony and comments in a public forum.  

Mrs. Leslie Caffyn of 10 Popponesset Island Road showed the Board pictures that she had taken of people kayaking, jet skiing and boating in the area at issue.  She said that the area is very busy and expressed concern about safety.  Digressing from the focus of the Appeal, Mrs. Caffyn asked the Board to educate her about “a project the Wampanoag Indians are going to be receiving a large amount of oysters, contaminated oysters, that are going to be brought into Popponesset Bay where their project currently is.  And the purpose of it is to clean the oysters.  Anybody aware of this refreshment project and how does that play into Mr. Cook’s project?”  She said that the commercial operations will eliminate her ability to kayak, jet ski and tubing.  Mr. Sandler agreed and said that someone is eventually going to be seriously injured or killed.   

Mr. Nelson said that Popponesset Bay is large enough for several of these operations and does not see how the proposal would keep Mrs. Caffyn and her family from enjoying their water activities.   

Mr. Alfred White of 2 Cross Tree Way asked the Board why they are discussing jurisdiction when the proposal benefits only one person.  He said the proposal is mean-spirited and will damage the beauty of the area.

Mr. Furbush said that the Board is discussing jurisdiction because it has been charged with deliberating on something different than what the Board of Selectmen were charged with and what the Conservation Commission was charged with.  Mr. Furbush also said that he appreciates the safety concerns raised, but reiterated that the Board’s focus is whether to uphold or overturn the Building Commissioner’s determination.  

Attorney Wall said that Mr. Cook is the Petitioner, but the licenses are transferable.
   
After a brief discussion with the rest of the Board, Mr. Nelson moved to close the hearing to public testimony.  Mr. Blaisdell seconded the motion.  Mr. Furbush voted yes.  Mr. Reiffarth voted yes.  Mr. Bonvie voted yes.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Vote was unanimous.  

In order to allow the Board to review all of the testimony, Mr. Blaisdell made a motion to continue the hearing until September 14, 2011.  Mr. Furbush seconded the motion.  Mr. Nelson voted yes.  Mr. Reiffarth voted yes.  Mr. Bonvie voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous.

CONTINUED HEARINGS

Stephen Berish, Trustee: Requests a Finding under Section 174-24.J and a Special Permit/Modification under Section 174-25.E(2) to allow for retail and service donut/pastry shop with accessory drive-thru window on property located in a C-2/R-3 zoning district at 439 Nathan Ellis Highway (Map 72 Parcel 23) Mashpee, MA.  Continued, but not heard, from June 22, and July 27, 2011 Public Hearings.  Petitioner Requests Withdrawal of Petition.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie.

Stephen Berish, Trustee: Requests a Variance from Section 174-25.F.7 of the Zoning By-laws to allow for retail and service donut/pastry shop with accessory drive-thru window on property located in a C-2/R-3 zoning district at 439 Nathan Ellis Highway (Map 72 Parcel 23) Mashpee, MA.  Continued, but not heard, from June 22, and July 27, 2011 Public Hearings.  Petitioner Requests Withdrawal of Petition.

Sitting:  Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Ronald S. Bonvie.

Mr. Nelson made a motion to accept the Petitioner’s request for Withdrawal Without Prejudice of the above-referenced Petitions.  Mr. Furbush seconded the motion.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Nelson voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Vote was unanimous.

OTHER BUSINESS

Affordable Housing of New England v. Town of Mashpee Zoning Board of Appeals:  Clarify request for detailed Site Plan and Definitive Plan of Land concerning property located in an R-5 zoning district at 72 – 72A Main Street, Mashpee MA.

Attorney Costello said that one of the terms in the settlement agreement was for Mr. White to submit a site plan showing the actual conditions of the site including the location of all buildings, structures, and parking.  He said that the site as it exists today is identical to the plan from the late 1980’s.  The only exception is the dumpster, which has been added to the plan.  Attorney Costello said that although Mr. White did not go to the cost of having a new plan engineered, he feels that Mr. White has met the requirements of the settlement agreement.  

Mr. White submitted a letter dated August 9, 2011 that reads:

CERTIFICATION
“I, Peter white, General Partner of Affordable Housing Association of New England, hereby certify that the conditions shown on the plan entitled: “La Plaza del Sol Motor Lodge, Mashpee, MA” dated October 26, 1982, are the same conditions that existed on May 26, 2011.  As was already submitted to the ZBA!  This parking has been the same for 25 years!!”

Mr. Nelson countered that the plan does not show handicap parking.  He said that the dumpster is neither sitting on a concrete pad nor is it enclosed.  Attorney Costello said that the dumpster issue is under the jurisdiction of the Board of Health.  

Accept July 20, 2011 Executive Session Minutes
Mr. Nelson moved to accept the Minutes.  Mr. Furbush seconded the motion.  Mrs. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Vote was unanimous.

Accept July 27, 2011 Minutes
Mr. Nelson moved to accept the Minutes.  Mr. Furbush seconded the motion.  Mrs. Horton voted yes.  Mr. Bonvie voted yes.  Mr. Reiffarth voted yes.  Mr. Blaisdell voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Vote was unanimous.

Attorney Costello said that the Board asked great questions and maintained proper decorum during the hearing concerning the aquaculture petition.   Mr. Nelson questioned if the Board could reduce the number of cages or phase the proposal.  Attorney Costello said that much of the discussion that took place tonight was more appropriate for the Board of Selectmen and those subject matters were already addressed.  Attorney Costello reminded the Board that its focus is whether the subject land falls within an R-3 zoning district.  He suggested that the Board should address each of Attorney Wall’s points when composing the Decision.   

Mr. Nelson said that “once the Executive Session Minutes are prepared and come out over the computer, the general public can see those Minutes with no problem”. Mr. Blaisdell questioned if Executive Session Minutes can be emailed by computer. Attorney Costello routinely sends confidential material by email to the Board and to the ZBA office.  Although Attorney Costello said that they can be emailed, Mr. Nelson said that he objects to sending them out by computer “because anyone can pick up what was sent to you on a computer”. He insisted that Executive Session Minutes should be mailed to the Board members. Other Board members said that they prefer receiving Executive Session Minutes by email. Confidentiality of Executive Session Minutes is always maintained, which means that the Minutes are never sent “over the computer” for the “general public” to access.

Attorney Costello said that under the new Open Meeting Law, Executive Session and the Minutes remain confidential for as long as the purpose for going into Executive Session continues to exist. Once an issue, such as litigation, has been resolved and concluded, the Board should review the Minutes and then vote on whether to release them. Open Meeting Law also requires a Board or Commission to periodically review, approve and release Executive Session Minutes in a timely fashion. In response to Mr. Furbush’s question, Attorney Costello said that certain portions of Minutes can be released if some matters are resolved before other issues are resolved.

Mr. Bonvie made a motion to adjourn the meeting.  Mr. Furbush seconded the motion.  Mrs. Horton voted yes.  Mr. Reiffarth voted yes.  Mr. Blaisdell voted yes.  Mr. Bonvie voted yes.  Mr. Furbush voted yes.  Mr. Nelson voted yes.  Meeting was adjourned at 9:00 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary


** ALL MATERIAL SUBMITTED DURING THE MEETING IS AVAILABLE IN THE ZBA OFFICE.