Mashpee Selectmen Approve Shellfish Grant Off Popponesset Island

By: Brian Kehrl
Published: 03/18/11

The Mashpee Board of Selectmen on Monday night approved a one-acre shellfish grant just off the northeastern tip of Popponesset Island despite strong opposition from about a dozen property owners nearby.

The approval for Richard J. Cook Jr. to grow oysters in 3,000, four-foot-by-four-foot wire mesh cages for 10 years sets up a likely court battle over the grant.

Mr. Cook, though, still has several additional steps in the permitting process before he obtains final approval to begin growing oysters 30 feet offshore from the sandbar that curves around off the end of the island.

In response to concerns from residents, selectmen downplayed the magnitude of the operation and on several occasions pointed out that the town has heard no complaints from abutters to a separate, much larger shellfish grant that Mr. Cook has operated for nearly two decades in Ockway Bay.

“I personally have not heard anything that, to me, causes us to do anything but approve this,” Selectman Wayne E. Taylor said. “I just don’t see this as an industrial thing.”

With the selectmen’s approval, Mr. Cook must next go through standard permitting procedures with the state Division of Marine Fisheries and the US Army Corps of Engineers. He also must go through another public hearing process with the Mashpee Conservation Commission.

Opposition to the grant was led at the public hearing this week by Brian J. Wall, an attorney for Leslie A. Caffyn, who purchased the 1.2-acre property at the end of the island last fall for $4.15 million.

Mr. Wall said Ms. Caffyn was against the aquaculture grant because it would spoil her views of the water; the noise and activity related to the operation would amount to a nuisance in an otherwise secluded area; and it would make her property less valuable.

“She bought this property specifically because of the beautiful views it has of Popponesset Bay and Nantucket Sound,” Mr. Wall said. “She paid a premium for this property, and she pays taxes based on that.”

Ms. Caffyn did not speak at the public hearing, but when asked what her next move will be after the selectmen’s decision, she said simply, “We take them to court.”

In a subsequent interview, Mr. Caffyn said she thought the decision was “very unfair,” but declined to elaborate or comment further, referring questions to Mr. Wall.

Ms. Caffyn’s ex-husband, Brian Caffyn, is a son of former Mashpee selectman and state representative Nancy J. Caffyn. Mr. Caffyn was involved with James Gordon early in the formation of Cape Wind, the company permitted to install 130 wind turbines in Nantucket Sound.

Leslie Caffyn, a Wellesley resident, said in a previous interview that her family has been coming to the Popponesset area during summers for several decades. She said the little cottage at the end of Popponesset Island was her “dream house,” in large part due to its privacy.

The town and Mr. Cook would likely be co-defendants in any appeal Ms. Caffyn may pursue, according to Mr. Wall.

Also joining the march of property owners from Daniels Island and Popponesset Island who spoke against the proposal was Robyn Glaser, who said she represents the Kraft family. Ms. Glaser said she did not have any points of contention beyond what had been articulated by others, but that she wanted to put the Kraft family’s opposition on the record. New England Patriots owner Robert T. Kraft owns several properties on the island, well down the shore from the proposed oyster farm.

Mr. Cook, however, did have his defenders, who attested both to his responsibility and to the broader benefits of aquaculture.

For example, Albert S. Wickel, a member of the Mashpee Waterways Commission and a friend of Mr. Cook’s, said he lives near the town’s oyster growing area in the Mashpee River and he has seen the benefits of aquaculture in improved water quality.

“Fishing has been a part of the way of life since long before we were here,” Mr. Wickel said, adding that the grant is located less than 150 feet offshore, so it should not impact boating or navigation.

Under state law motorboats and personal watercraft are not allowed to go fast within 150 feet of the shore.

Resident Jeffrey Tomchik said he could vouch for Mr.Cook’s care for the environment. “In terms of noise, I would take the noise of an oyster any day over the noise of a Jet Ski screaming down Popponesset Bay,” Mr. Tomchik said.

Abutters of Mr. Cook’s Ockway Bay grant said in interviews this week that they have seen little impact from the operation.

Stephen A. Ide, a Punkhorn Point resident who lives about 300 feet from the Ockway grant, said he sees Mr. Cook out at the grant occasionally and can see the cages at times during low tide. But the impacts are negligible, he said.

“I have never heard a sound other than his boat, and he is there so seldom. If you want to complain about noise, then half the boat owners and the Jet Ski operators down there would be the ones that make the noise,” he said.

James B. Wright, like Mr. Ide, said he could not speak to whether an aquaculture operation is compatible with the Popponesset Island location. But he hardly notices Mr. Cook from his home about 350 feet down the shore from the Ockway grant. “I wouldn’t know anything was there unless I knew it was there,” he said.

Mr. Cook said he hopes the Popponesset Island residents will some day agree with the Ockway Bay residents’ impressions.

“I was obviously pleased with the outcome, but I was very surprised how many people were against it with no real knowledge or reason behind it,” Mr. Cook said. “What exactly are they against?”

“To be honest, if this goes all the way through, I believe they will look at it in hindsight and say, ‘Geez, I don’t know what we were so concerned about because what this guy is doing is good for the bay and he is responsible in how he goes about his business,’ ” Mr. Cook said.

Mr. Wall, however, said the Popponesset Island location is considerably different than the grant in Ockway.

The Ockway site is farther offshore and nearby onshore is open space rather than a residence, Mr. Wall said.

Mr. Cook’s Ockway grant is offshore primarily from a marsh and two pieces of conservation land owned by the Punkhorn Point Homeowners Association and the town Conservation Commission. So the abutters there are not nearly as close as Ms. Caffyn would be, he said.

The Popponesset grant is not directly in front of Ms. Caffyn’s home; its southernmost border is a few dozen feet down the shore.

Mr. Wall outlined Ms. Caffyn’s concerns in a seven-page memorandum delivered to town hall on Monday, the day of the hearing.

Mr. Wall emphasized the scope of the proposal: with 3,000 cages allowed, and approximately 1,000 oysters in each cage, Mr. Cook will be growing three million oysters at the site.

The grant will be demarcated with yellow buoys and on an average low tide, about one-third of the cages will be above water, Mr. Wall wrote.

Mr. Wall argued that if any of Mr. Cook’s equipment washes ashore above the mean low-tide line, he will have to trespass in order to get it back, since he has no rights to the land.

Ms. Caffyn solicited letters from two local real estates agents testifying that the grant will diminish her property value.

“The proposed grant is against the public interest because it will result in a flood of tax abatements by all affected property owners,” Mr. Wall wrote.

Mr. Wall also noted that Mr. Cook did not satisfy the recommendation of the waterways commission, which voted to support the project as long as Mr. Cook obtained a letter of support for the project from Ms. Caffyn. Ms. Caffyn has provided no such letter.

At the hearing, other residents expressed concerns about boat traffic coming around the point to head into Popponesset Creek and New Seabury Marina; being prevented from kayaking in the area; and their views and property values.

Selectmen, for their part, seemed to take comfort in the precedent set in Ockway.

Mr. Taylor noted that the Popponesset Island grant is less than one-third the size of the Ockway grant.

Mr. Cook said he would like the Popponesset grant because the Ockway site is shallow enough that when water there freezes, it impacts the oysters down into the mud, suffocating them.

Mr. Taylor asked Mr. Cook how many people he expects to have working the site, and Mr. Cook said himself at first and one other person if the project grows. Mr. Cook, who also works as an electrician, said he expects to need to visit the site a couple of times a week.

Mr. Cook said he will work to keep the cages underwater at all times, an effort that he says is to his benefit as well since the oysters are not feeding unless they are underwater.

“So it will look like moorings out there, with a winter stick on it during the winter to make sure it is not carried away by the ice,” he said.

The grant gives Mr. Cook exclusive rights to shellfish in the one-acre area. However, Mr. Cook must first demonstrate that there are no shellfish naturally growing in the area.

Selectmen approved the application as it was proposed.

Shellfish Constable Richard H. York Jr. said the conservation commission can place additional restrictions on what Mr. Cook is and is not allowed to do on the site.

Selectmen, who Mr. York said have broad authority to approve or deny shellfishing grant proposals, backed the grant with a three-to-zero vote.

Theresa M. Cook, chairman of the board of selectmen, recused herself because Mr. Cook is her brother-in-law.

Selectman Michael R. Richard recused himself due to his position as executive director of the Peninsula Council, the New Seabury homeowners association, which collects some dues from Popponesset Island residents for projects of mutual benefit. Mr. Richardson said in an interview this week that he did not think it was a direct conflict of interest. But he spoke with Town Counsel Patrick J. Costello, who suggested that Mr. Richardson err on the side of caution and recuse himself.