Superior Court Judge Sides With Cook, Mashpee In First Popponesset Oyster Farm Ruling

By: Geoff Spillane
Published: 01/04/13

A Barnstable Superior Court judge upheld the Mashpee Board of Selectmen’s vote to issue approval for local shellfisherman Richard J. Cook Jr. to farm and harvest oysters on a 1.9-acre grant in Popponesset Bay.

The decision by Superior Court Judge Robert C. Rufo was made public yesterday, as the contentious clash over the aquaculture project between Mr. Cook and a group of waterfront homeowners entered its third calendar year. A motion hearing in the lawsuit was held on December 13 at the courthouse in Barnstable.

“That’s beautiful,” Mr. Cook said, upon learning of the decision.

Mashpee Town Counsel Patrick J. Costello was also pleased with the decision, saying that he has contended all along that the board’s consideration of issuing the license to Mr. Cook was very thorough, and that it did indeed have jurisdiction to make its decision.

In late 2011, the board unanimously approved Mr. Cook’s request for a 1.9-acre aquaculture grant in the middle of the bay, more than 1,100 feet from the nearest waterfront residences on Popponesset Island. It was the second grant the board approved for Mr. Cook within a year, after he abandoned a smaller one, located closer to the shore off the northeast tip of Popponesset Island, in favor of a new location farther away from waterfront property owners.

Nonetheless, a group of 20 homeowners on Popponesset and Daniels Island, led by resident William J. Zammito, who have steadfastly opposed the project from the outset, filed a civil complaint at Barnstable Superior Court in early 2012, approximately one week after the board of selectmen gave its approval to Mr. Cook.

The same opposition group has also filed a lawsuit in the same court against the Mashpee Conservation Commission, which approved the grant last summer. A hearing in that case has not yet been scheduled, although the court projects a disposition date of next August. It is unclear whether this week’s decision will affect the case against the conservation commission.

Not Arbitrary Or Capricious
At a hearing held at Barnstable Superior Court on December 13, attorney Brian J. Wall argued the crux of the lawsuit, which alleged that the board infringed upon the opponents’ legal rights and that they will suffer “a special and different injury as a result of the board’s decision.” Mr. Wall, who represents the 20 island homeowners, also claimed that the board’s decision is beyond its authority and jurisdiction, and that it was arbitrary and capricious.

Mr. Wall, whose office is in Sandwich, also expressed concern that as many as 15,000 shellfish bags may not be able to withstand the force of a major storm, causing significant damage to his clients’ properties. The grant is located in a “velocity zone,” designated by the state as an area prone to storm damage. He also stated that the aquaculture project, while completely located on land under the water, may be large enough to trigger review by the Cape Cod Commission as a project of regional impact.

Judge Rufo ultimately did not agree with Mr. Wall’s arguments.

“The administrative record shows that the Mashpee Board of Selectmen’s decision to grant an aquaculture license to Richard J. Cook, Jr., was supported by substantial evidence. The plaintiffs have not met their burden of showing that the board’s decision was arbitrary, illegal, or unsupported by substantial evidence,” he wrote in his decision.

Judge Rufo went on to detail 10 sources of relevant information that the board evaluated to make its decision, including letters and comments of support from the Massachusetts Division of Marine Fisheries, the town’s director of assessing, and the town’s shellfish constable, as well as documents that were presented by the opposition, explaining their concerns with the proposed project.

“We take everything into consideration before we make a decision. And that’s what we did in this case. We felt comfortable that we made the right decision based on the facts that were presented to us, and I’m glad that the court agreed,” Michael R. Richardson, chairman of the board of selectmen, said.

Judge Rufo also rejected the plaintiff’s claim that the Cape Cod Commission should review the project since the state gives towns the authority to approve shellfish grants and state law preempts county government regulations.

Will Plaintiffs Appeal?
Mr. Wall and his clients now have 30 days to file an appeal to the Massachusetts Court of Appeals in Boston. Mr. Costello, however, doubts that an appeal would be successful.

“The only way an appeal would be successful is to prove that there was an error of law in the ruling, and Judge Rufo went to great lengths to establish the basis for the board’s decision and also noted quite correctly the legal standards that are granted to local boards. This is a very well-written decision, and I do not see how it could be overturned by an appeals court,” Mr. Costello said.

Mr. Wall responded by voicemail yesterday afternoon to an Enterprise request for comment, but attempts to re-connect with him were unsuccessful.

2 Responses to "Superior Court Judge Sides With Cook, Mashpee In First Popponesset Oyster Farm Ruling"

1. curtrent says: 01/06/13
   

   I think its great!!! 86% of the beach front is PRIVATE here on the Cape. Shame on us...NO ONE OWNS THE OCEAN, no one!!!!!
2. Cooknews says: 01/22/13
   

   I second that!