Building construction — See Ch. 30.
Zoning — See Ch. 200.
Shellfish — See Ch. 251.
Subdivision of land — See Ch. 258.
§ 194-4Applications for permits and
requests for determination.
§ 194-5Notice and hearings.
§ 194-6Coordination with other boards.
§ 194-7Permits, determinations and conditions.
§ 194-12Burden of proof.
§ 194-13Relation to the Wetlands Protection
The purpose of this By-Law is to protect the wetlands, related water resources, and adjoining land areas in the Town of Marblehead by controlling activities deemed by the Marblehead Conservation Commission (the Conservation Commission) likely to have a significant or cumulative effect upon wetland values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water pollution, fisheries, shellfish, wildlife habitat, recreation (collectively, the "wetland values protected by this By-Law").
Except as permitted by the Conservation Commission or as provided for in this By-Law, no person shall remove, fill, dredge, build upon or alter the following resource areas, or land within 100 feet thereof: freshwater wetland, coastal wetland, marsh, wet meadow, bog, swamp, vernal pool, bank, beach, dune, flat, river, pond, stream, estuary, ocean, land under water, or land subject to flooding or inundation by groundwater, surface water, tidal action or coastal storm flowage.
The permit required by this By-Law shall not be required for maintaining, repairing, or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, provided that the structure or facility is not substantially changed or enlarged, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.
The permit required by this By-Law shall not be required for normal maintenance or improvement of land in agricultural use or in aquacultural use, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.
The permit required by this By-Law shall not apply to emergency projects necessary for the protection of the health or safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the commonwealth or a political subdivision thereof, provided that advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement, provided that the Conservation Commission or its agent certifies the work as an emergency project, provided that the work is performed only for the time and place certified by the Conservation Commission for the limited purposes necessary to abate the emergency, and provided that within 21 days of commencement of an emergency project a permit application shall be filed with the Commission for review as provided in this By-Law. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.
Except as provided in § 194-3, a written application shall be filed with the Commission to perform activities regulated by this By-Law affecting resource areas protected by this By-Law. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the environment. No activities shall commence without receiving and complying with a permit issued pursuant to this By-Law.
The Commission in an appropriate case may accept as the application and plans under this By-Law the notice of intent and plans filed under the Wetlands Protection Act, G.L. Chapter 131, Section 40.
Any person desiring to know whether or not proposed activity or an area is subject to this By-Law may in writing request a determination from the Commission. Such a request for determination shall contain data and plans specified by the regulations of the Commission.
At the time of a permit application or request for determination, the applicant shall pay a filing fee as specified in regulations of the Commission. The fee is in addition to that required by the Wetlands Protection Act, G.L. Chapter 131, Section 40. The Commission may waive the filing fee for a permit application or request for determination filed by a government agency or for a request for a determination filed by a person having no financial connection with the property that is the subject of the request.
As provided by G.L. Ch. 44, § 53G, the Marblehead Conservation Commission may impose reasonable fees for the employment of outside consultants, engaged by the Conservation Commission, for specific expert services deemed necessary by the Commission to come to a final decision on an application submitted to the Conservation Commission pursuant to the requirements of the Wetlands Protection Act (GL Ch. 131, § 40) or any other state or municipal statute, by-law or regulation, as they may be amended or enacted from time to time.
Any person filing a permit application or a request for determination with the Commission, at the same time shall give written notice thereof to all abutters and abutters to abutters within 300 feet of the affected property, according to the most recent records of the Assessors, including those across a traveled way and including any in another municipality. The notice to abutters shall enclose a copy of the permit application or request for determination, along with plans, or shall state where said documents may be examined and copies obtained by the abutters. When a person requesting a determination is other than the owner, the request, the notice of the hearing and the determination itself shall be sent by the Commission to the owner as well as the person making the request.
The Commission shall conduct a public hearing on any permit application or request for determination, with written notice given at the expense of the applicant, five working days prior to the hearing, in a newspaper of general circulation in the municipality.
The Commission shall commence the public hearing within 21 days from receipt of a completed application or request for determination.
The Commission shall issue its decision with regards to a permit application or request for determination in writing within 21 days of the close of the public hearing thereon.
The Commission in an appropriate case may combine its hearing under this By-Law with the hearing conducted under the Wetlands Protection Act, G.L. Chapter 131, Section 40.
The Commission shall have authority to continue the hearing to a date certain announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information offered by the applicant or others, information and plans required of the applicant, deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in § 194-6. In the event the applicant objects to a continuance or postponement, the hearing shall be closed and the Commission shall take action on such information as is available.
Any person filing a permit application or a request for determination with the Commission shall provide a copy thereof at the same time, by certified mail or hand delivery, to the Board of Selectmen, Planning Board, Board of Appeals, Board of Health and Building Commissioner. The Commission shall not take final action until such boards and officials have had 14 days from receipt of notice to file written comments and recommendations with the Commission, which the Commission shall take into account, but which shall not be binding on the Commission. The applicant shall have the right to receive any such comments and recommendations, and to respond to them at a hearing of the Commission, prior to final action.
If the Commission after a public hearing determines that the activities that are the subject of the application are likely to have a significant or cumulative effect upon the wetland values protected by this By-Law, the Commission, within 21 days of the close of the hearing, shall issue or deny a permit for the activities requested. If it issues a permit, the Commission shall impose conditions which the Commission deems necessary or desirable to protect those values, and all activities shall be done in accordance with those conditions.
The Commission is empowered to deny a permit for failure to meet the requirements of this By-Law; for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications, performance standards, and other requirements in regulations of the Commission; for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetland values protected by this By-Law.
A permit shall be valid for three years from the date of its issuance; provided, however, that the Commission may issue a permit for up to five years where special circumstances warrant and where those special circumstances are set forth in the permit. Any permit may be extended by the Commission for good cause for one or more periods of up to one year each, provided the request for an extension is made to the Commission at least 30 days prior to the expiration of the permit. Notwithstanding the foregoing, the Commission may in its discretion issue a permit containing surviving/in perpetuity conditions that will affect the property, which is the subject of the permit, following the expiration of the permit.
For good cause the Commission may revoke or modify a permit issued under this By-Law after public notice and public hearing, and notice to the holder of the permit.
The Commission in an appropriate case may combine the permit or other action on an application issued under this By-Law with the order of conditions issued under the Wetlands Protection Act.
No work proposed in any application shall be undertaken until the permit issued by the Commission with respect to such work has been recorded in the Registry of Deeds or, if the land affected thereby be registered land, in the registry section of the Land Court for the Southern District of Essex Court, and until the holder of the permit certifies in writing to the Commission that the permit has been so recorded.
An applicant for a permit under G.L. Chapter 131, Section 40 and the Marblehead Wetlands Protection By-Law may not apply for a building permit unless or until an order of conditions/Wetlands Protection By-Law permit, or a determination of nonapplicability, has been issued by the Conservation Commission, and recorded in the Essex South District Registry of Deeds, and no building permit may be issued unless in conformance with such Wetlands Protection By-Law permit.
After public notice and public hearing the Commission shall promulgate rules and regulations to effectuate the purposes of this By-Law. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this By-Law.
At a minimum these regulations shall define key terms in this By-Law not inconsistent with this By-Law.
The following definitions shall apply in the interpretation and implementation of this By-Law.
The term "person" shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth, or political subdivision thereof, to the extent subject to Town by-laws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.
The term "alter" shall include, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this By-Law:
Removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any kind;
Changing of preexisting drainage characteristics, flushing characteristics, salinity, distribution, sedimentation patterns, flow patterns, or flood retention characteristics;
Drainage or other disturbance of water level or water table;
Dumping, discharging or filling with any material which may degrade water quality;
Placing of fill, or removal of material, which would alter elevation;
Driving of piles, erection or repair of buildings or structures of any kind;
Placing of obstructions or objects in water;
Destruction of plant life including cutting of trees;
Changing water temperature, biochemical oxygen demand, or other physical or chemical characteristics of water;
Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.
Application of pesticides or herbicides.
As part of a permit issued under this By-Law, in addition to any security required by any other municipal or state board, agency or official, the Commission may require that the performance and observance of the conditions imposed hereinunder be secured wholly or in part by one or more of the methods described below:
By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission;
By a conservation restriction, easement or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of this municipality whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed.
The Commission, its agents, officers, and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this By-Law and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary.
The Commission shall have authority to enforce this By-Law, its regulations, and permits issued thereunder by violation notices, administrative orders, and civil and criminal court actions.
Upon request of the Commission, the Board of Selectmen and the Town Counsel shall take legal action for enforcement under civil law.
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
Any person who violates any provision of this By-Law, regulations thereunder, or permits issued thereunder, shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the chapter, regulations or permit violated shall constitute a separate offense.
In the alternative to criminal prosecution, the Commission may elect to utilize the noncriminal disposition procedure set forth in G.L. Chapter 40, Section 21D.
The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application will not have unacceptable significant or cumulative effect upon the wetland values protected by this By-Law. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
This By-Law is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Statutes, independent of the Wetlands Protection Act, G.L. Chapter 131, Section 40, and regulations thereunder.
The invalidity of any section or provision of this By-Law shall not invalidate any other section or provision thereof, nor shall it invalidate any permit or determination which previously has been issued.