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Appeals Court rules for Mashpee oysterman

Richard Cook in a boat on the 1.9-acre area he wants to try to lease to harvest oysters.

Joanne Rathe/Globe Staff

Richard Cook in a boat on the 1.9-acre area he wants to try to lease to harvest oysters.

The state Appeals Court found in favor Tuesday of a Mashpee shellfisherman whose efforts to build an oyster farm in the waters off Popponesset Island have been blocked by nearby homeowners.

The dispute found its way to Beacon Hill when House leaders tucked a vaguely worded amendment into the state budget that would have prohibited Richard Cook from constructing his 1.9-acre project, about a quarter-mile from the shoreline. Cape Cod lawmakers and Mashpee officials said they were blindsided by the legislation, and slammed it as a trampling of local autonomy.

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On Tuesday, a three-judge panel said the arguments by the homeowners, who were the plaintiffs in the case, were “without merit” and “specious.” Ruling in two separate cases, the court found that the Mashpee Board of Selectmen and its Conservation Commission had acted properly in issuing approval for the farm.

“It’s not a good outcome for the opposition,” said Barry Fogel, Cook’s lawyer.

Homeowners had turned to the Appeals Court after losing in two Superior Court cases, once Cook’s project had won approval from a string of local and state regulating authorities.

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Cook has been pursuing the oyster farm since 2011, repeatedly encountering opposition from property owners on Popponesset Island and Daniels Island.

Both Patriots owner Robert Kraft and president Jonathan Kraft own homes there and have previously been recorded in opposition, but were not named parties in the suit the court decided Tuesday.

The budget amendment, filed by Newburyport Democrat Michael Costello, the House Financial Services Committee chairman, was adopted unanimously, though many lawmakers later said they were unaware of its content. ML Strategies, the lobbying wing of the Boston law firm Mintz Levin, approached Costello to file the amendment.

Mintz lawyers have represented the abutters to the proposed site who have gone to court to block Cook’s project.

Island property owners have raised a host of complaints about the project over the years, from suggestions that oyster farming equipment would spoil their views to recreational boating safety concerns to the suggestion that nor’easters could blow debris onto beaches. The court explicitly rejected some of those reasons in its ruling on Tuesday.

A lawyer for the abutters did not respond to a request for comment Tuesday.

The abutters’ options for permanently blocking the oyster farm appear to be narrowing.

The Senate did not include the Costello amendment in the draft budget it is set to begin debating on Wednesday, and state Senator Dan Wolf has vowed to block amendments that would obstruct Cook’s project, which is slated for his district.

If the Senate passes a budget without such legislation, attention would probably turn to the House-Senate conference committee, tasked with resolving differences between the two spending blueprints.

A separate decision on the abutters’ appeal of the state Department of Environmental Protection’s approval of the project is still pending. A hearing was held earlier this month.

Cook’s opponents are also appealing a Mashpee Zoning Board of Appeals decision to a state Land Court. And abutters who oppose the oyster farm could still appeal to the state’s highest court.

“That’s the only step they have,” said Fogel, Cook’s lawyer.

Cook said Tuesday he was guardedly optimistic about the oyster farm’s prospects.

“Time will tell,” he said. “I don’t know what they’re going to throw at me next.”

Jim O’Sullivan can be reached at Jim.OSullivan@globe.com. Follow him on Twitter at @JOSreports.
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