State Sides With ConCom On Mashnee Parking Question
By: Diana T. Barth
The state has upheld an opinion that Bourne Community Boating’s storage sheds, portable toilets, and parking at the end of the Mashnee Island dike are not causing any environmental problems.
That appeal to the Massachusetts Department of Environmental Protection had been filed by the Mashnee Association and several individual island residents in the wake of a Bourne Conservation Commission decision allowing the use of the dike property by the boating group.
According to the DEP’s December 18 final decision, and the order of conditions that will accompany it, Bourne Community Boating members can continue to park on the unpaved lot next to the Quahog Republic restaurant on Mashnee Island.
Any future alteration to that land to accommodate parking would be prohibited, however.
In the event of a hurricane, the boating group’s portable sheds and toilets will need to be removed, or at least secured if removal is not possible. The sheds will need to be elevated by at least two feet.
In a DEP appeal, the presiding hearing officer prepares a recommended decision for the department’s commissioner, who issues a final decision. The final decision in the Bourne Community Boating matter adopted the 35-page Recommended Final Decision, one that discussed the use of parking on the Mashnee Island land in question in great detail.
All of the interested parties—the Mashnee Island residents, the DEP, Bourne Community Boating, ConCom, and the property owner—agreed that the land in question is not pristine. They disagreed as to whether the parking area was an active dune, or simply subject to coastal storm flow, becoming inundated during storms. The DEP concluded that the evidence showed it to be the latter.
The parking area is, however, clearly within 100 feet of a coastal dune, and thus, the question became whether the parking of vehicles would have any adverse effect on the coastal dune outside of the lot’s square footage.
The decision found that it would not.
The decision found that the three lots on which the Mashnee Island parking area sits were not governed by a circa-1980 Coastal Wetlands Restriction Order.
The state Coastal Wetlands Restriction Act authorized the DEP to place permanent restrictions on coastal wetlands resource areas. Those orders were recorded in the Registry of Deeds. Although no new restriction orders have been recorded for many years, the existing orders remained in effect.
Determining their boundaries, and enforcing them, has sometimes been problematic for municipal conservation commissions. Therefore, Bourne’s conservation agent said, the decision that the historic restriction order was not applicable to lots was welcome.
The final decision, however, disagreed with the recommended decision in that respect.
DEP Commissioner Laurie Burt found the restriction order was warranted for the area and said that it applied.
While the decision talked about what was, and was not, coastal dune, it did not determine a clear line for that dune, a question that might arise in the future.
All of the parties, including the property owner, Mashnee Village, Inc., have the right to appeal the decision.
According the DEP, no such appeal has been filed, but the 30-day appeal period has not as yet closed.
After the appeal was filed, many of the members of the Mashnee Association expected that they would be purchasing the land in question, having signed a purchase and sale agreement with a December 10 closing date.
Quahog Republic restaurant owner Erik K. Bevans, however, filed suit in Barnstable Superior Court, attempting to exercise a right of first refusal to buy the property, himself. He successfully stopped any sale of the property until his rights are determined.
Unless that issue is resolved by agreement, that dispute is not due back in court until February.
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