Town of Nantucket, MA
Nantucket County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Annual Town Meeting of the Town of Nantucket 4-5-1983 by Art. 29, approved 8-19-1983. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 139.

§ 136-1 Definitions.

[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000; 4-12-2004 ATM by Art. 52, approved 9-3-2004]
Through its authority to promulgate regulations pursuant to § 136-7, the Conservation Commission shall adopt definitions to effectuate the purposes of this chapter.
The definitions for "agricultural practices," "alter," and "person" shall be included in the Nantucket Wetland Regulations, subject to future revision as set forth in § 136-7. The Commission is directed to revise its regulations pursuant to § 136-7 to incorporate the current definition for "habitat" into the definitions for "habitat" contained within the Wetland Regulations, prior to this amendment taking effect.

§ 136-2 Purpose.

[Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996]
The purpose of this chapter is to protect the wetlands of the Town of Nantucket by controlling activities deemed 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 control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, rare species, including rare, threatened or endangered plant species and animals and habitats, recreation and wetland scenic views (collectively, "the interests protected by this chapter"). This chapter is intended to utilize the Home Rule Authority of this municipality to protect additional resource areas for additional values, with additional standards and procedures in addition to those of the Wetlands Protection Act, MGL c. 131, § 40, and regulations thereunder, 310 CMR 10.00.

§ 136-3 Permit required; procedure.

A. 
No person shall commence to remove, fill, dredge, alter or build upon or within 100 feet of any bank, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp or upon or within 100 feet of any estuary, creek, river, stream, pond or lake or upon or within 100 feet of any land subject to tidal action, coastal storm flowage, inland or coastal flooding or inundation or within 100 feet of the hundred-year storm line or within any area located within the geographic boundaries of the resource areas listed previously that is habitat for rare/significant wildlife and/or fauna, including Department of Environmental Protection certified vernal pools, without filing written application for a permit to remove, fill, dredge, alter or build upon, including such plans as may be necessary to describe such proposed activity and its effect on the environment, and receiving and complying with the permit issued pursuant to this chapter. Said resource areas shall be protected whether or not they border surface waters. The application and permit required by this chapter 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 and used to provide electric, gas, water, telephone, telegraph and other telecommunication services.
[Amended 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000]
B. 
The provisions of this section shall not apply to work performed for normal maintenance or improvement of land in agricultural use as defined under § 136-1A of this chapter.
C. 
Such application may be identical in form to a notice of intent filed pursuant to MGL c. 131, § 40, shall be sent by certified mail or by hand delivery to the Town of Nantucket Conservation Commission (the "Commission") and must be filed concurrently with or after applications for all other variances and approvals required by the Zoning Bylaw,[1] the Subdivision Control Law or any other bylaw or regulation have been obtained. The Commission shall set filing fees for filings pursuant to this chapter by regulation, but no filing fee is required when the Town or County of Nantucket or Nantucket Islands Land Bank files an application for a permit. The Commission is authorized to require an applicant to pay the costs and expenses of any expert consultant deemed by the Commission necessary to enable the Commission to evaluate the application. This provision shall apply to all expert consultants providing services to the Commission with respect to the effects of the proposed work or activities on the environment, including, without limitation, services in the fields of environmental engineering and marine biology. The costs and expenses assessed to an applicant shall reflect the actual costs and expenses incurred by the Commission for such services. If the proposed project meets the definition of a "major commercial development," as defined in § 139-11B of the Code of the Town of Nantucket, or if such project includes more than four lots, the costs and expenses assessed to the applicant shall not, in any event, exceed $5,000 per application. In all other instances, the costs and expenses assessed to the applicant shall not, in any event, exceed $2,500 per application. Copies of the application shall be sent, at the same time, by certified mail, to the Board of Selectmen, the Planning Board and the Board of Health.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-10-1989 ATM by Art. 126, approved 7-4-1989; 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-15-2003 ATM by Art. 26, approved 8-27-2003]
[1]
Editor's Note: See Ch. 139, Zoning.
D. 
Any person who desires a determination as to whether this Nantucket wetlands chapter applies to land or to work that may affect an area subject to protection under this chapter may submit to the Conservation Commission by certified mail or hand delivery a written request which may be identical in form to a request for determination filed pursuant to MGL c. 131, § 40, Form 1 of 310 CMR 10.99. The Commission shall within 21 days of receipt make a written determination to such request which may be identical in form to Form 2 of 310 CMR 10.99. Notice of the time and place of the public meeting at which the determination is to be made shall be given by the Commission at the expense of the applicant, not less than five days prior to the public meeting, by publication in a newspaper of general circulation in Nantucket. At least five days prior to the public meeting, by certified mail, return receipt requested, the applicant shall send a copy of the notice of the public meeting, supplied by the Commission, to all abutters, as certified by the Assessor from the Town's most recent Assessor's list. Postmarked mailing receipts and the certified abutter's list shall be presented to the Commission at the opening of the public meeting. The Commission may determine that the work described in a request is in an area subject to this chapter but will not alter the wetland and, because the work is of a limited extent, does not require a permit, notwithstanding the other provisions of this chapter.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 6-27-1989 STM by Art. II, approved 10-17-1989]
E. 
Members of the Commission, its employees and agents may enter upon privately owned land to perform their duties under this section and may, in furtherance thereof, take samples and photographs and made examinations, inspections and surveys.
[Added 4-10-1989 ATM by Art. 126, approved 7-4-1989]
F. 
Permit and waiver rehearing limit. No permit or waiver which has been unfavorably and finally acted upon by the Commission shall again be eligible for consideration on a new application within three years after the date of final unfavorable action unless the Commission finds, by a favorable vote of a majority of the members then present and voting, specific and material changes in the circumstances upon which the previous unfavorable action was based and describes such changes in the records of its proceedings.
[Added 4-12-1999 ATM by Art. 61, approved 8-10-1999]

§ 136-4 Hearing; determination; enforcement orders; appeals; plan changes or modifications.

A. 
The Commission shall hold a public hearing on the application within 21 days of its receipt. Notice of the time and place of the hearing shall be given by the Commission at the expense of the applicant, not less than five days prior to the hearing, by publication in a newspaper of general circulation in Nantucket and by mailing a notice to the applicant, the Board of Health, the Board of Selectmen, the Planning Board, all abutters, the property owner if different from the applicant and to such other persons as the Commission may by regulation determine. At least five days prior to the public hearing, by certified mail, return receipt requested, the applicant shall send a copy of the notice of the public hearing, supplied by the Commission, to all abutters, as certified by the Assessor from the Town's most recent Assessor's list. Postmarked mailing receipts and the certified abutter's list shall be presented to the Commission at the opening of the public hearing. Return receipt cards shall be presented to the Commission before the hearing can be closed. The Commission, its agents, officers and employees, may enter upon privately owned land for the purpose of performing their duties under this chapter.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 6-27-1989 STM by Art. II, approved 10-17-1989]
B. 
Permit and conditions. If, after the public hearing, the Commission determines that the area which is the subject of the application is significant to the interests of this chapter, the Commission shall, within 21 days of such hearing, issue or deny a permit for the work requested. If it issues a permit after making such determination, the Commission shall impose such conditions as it determines are necessary or desirable for protection of those interests, and all work shall be done in accordance with those conditions. If the Commission determines that the area which is the subject of the application is not significant to the interests protected by this chapter or that the proposed activity does not require the imposition of conditions, it shall issue a permit without conditions within 21 days of the public hearing. Permits shall expire three years from the date of issuance unless renewed prior to expiration. Permits may be extended for three one-year periods. The Commission may determine by regulation standards for the granting or denial of an extension.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-9-2001 ATM by Art. 44, approved 8-4-2001]
C. 
Relationship to MGL c. 131, § 40. Since the Wetlands Protection Act, MGL c. 131, § 40, establishes minimum standards, the Commission shall not impose additional or more stringent conditions in an order pursuant to MGL c. 131, § 40, than it imposes pursuant to this chapter; nor shall it require a notice of intention filed under MGL c. 131, § 40, to provide additional materials or data to those required under this chapter.
D. 
The Commission may continue or adjourn a public hearing for a permit in the following situations:
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
(1) 
With the consent of the applicant, to an agreed-upon date which shall be announced at the hearing; or
(2) 
Without the consent of the applicant, to a date certain for the reasons stated at the hearing, including receipt of additional information from the applicant or others.
E. 
The Commission may deny or revoke a permit at any time, even after commencement or completion of work, if the applicant fails to comply with the requirements of this chapter, fails to comply with the regulations promulgated pursuant to this chapter, fails to comply with the conditions of a permit issued pursuant to this chapter or if the applicant fails to submit necessary information or plans requested by the Commission. The inaccuracy or incompleteness of plans or other information required to be submitted to the Commission shall be grounds for denial or revocation of an application. This provision shall apply even if such inaccuracy or incompleteness is not apparent until after a permit has been issued and shall apply whether or not such inaccuracy or incompleteness is the result of intentional or willful conduct.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
F. 
When the Commission determines that any work is performed in violation of this chapter, the regulations promulgated pursuant to this chapter or the conditions specified in a permit issued pursuant to this chapter, the Commission may issue an enforcement order. The Commission may promulgate regulations to effectuate the purposes of this section.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
G. 
Any party aggrieved by a permit issued pursuant to this chapter may file a complaint seeking relief in the Superior Court of the County of Nantucket not more than 20 days after the issuance of the permit by the Commission.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
H. 
Prior to the commencement of any work permitted or required by a permit issued pursuant to this chapter, the permit shall be recorded by the applicant in the Nantucket Registry of Deeds or with the Nantucket Registry of the Land Court, within the chain of title of the affected property. Certification of recording shall be sent to the Commission.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
I. 
Persons applying for or holding a valid permit who wish to make plan changes shall request in writing permission to do so. The Commission may determine that the plan changes are not significant and no further action is required or that the plan changes are significant and a new application for a permit or notice of intent must be filed in writing. Within 21 days of the issuance of an occupancy permit by the Building Inspector for any work or activity covered by a permit issued by the Commission, the applicant shall apply for a certificate of compliance from the Commission certifying that the work or activity has been completed as authorized and in compliance with the permit. As a condition to issuance of such certificate, the Commission, its members, employees or agents may enter on privately owned land and take samples and photographs and make examinations, inspections and surveys. If the Commission determines that the work or activity has in fact been completed as authorized and in compliance with the permit, it shall issue a certificate of compliance to the applicant. Failure of the applicant to comply with this provision shall constitute a violation within the meaning of § 136-10A and shall be punishable as provided therein.
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
J. 
For any project which the Commission determines will have a detrimental effect on a wetland scenic view, the Commission may require that the project be modified in a manner that mitigates the effect on the wetland scenic view. Such requirements may include but are not limited to:
[Added 5-17-1988 ATM by Art. 95, approved 9-28-1988]
(1) 
Building size or height restrictions.
(2) 
Imposition of distance restrictions between existing structures and proposed new structures.
(3) 
Landscaping and revegetation requirements.
K. 
The Conservation Commission may deny or revoke a permit at any time where the proposed activity or previously permitted activity poses a reasonably foreseeable threat to the public health and safety as certified by the Chief of Police, Fire Chief, Health Inspector, Marine Superintendent, or Building Commissioner.
[Added 4-12-2004 ATM by Art. 50, approved 9-3-2004]

§ 136-5 Emergency projects.

[Amended 4-12-2004 ATM by Art. 51, approved 9-3-2004]
An emergency project is an activity in a resource area or its buffer that is necessary to protect the public health and safety, and which, because of the conditions giving rise to the emergency, to be performed effectively cannot await compliance with the notice requirements and appeal periods associated with the filing of a notice of intent or request for determination of applicability. An emergency project may proceed only upon the issuance of an emergency certification from the Conservation Commission, which shall comply with the following procedures:
A. 
Any person requesting to undertake an emergency project shall specify why the project is necessary for the protection of the public health and safety and which agency or subagency of the Commonwealth of Massachusetts is to perform the project or has ordered the project to be performed;
B. 
An emergency certification shall be issued only for the protection of public health or safety;
C. 
If the project is certified to be an emergency by the Conservation Commission, the certification shall include a description of the work which is to be allowed and shall not authorize work different or more extensive than that necessary to abate the emergency which gave rise to that certification;
D. 
An emergency permit shall be issued only following a site inspection by a member of the Conservation Commission, or an authorized representative thereof;
E. 
All work performed pursuant to an emergency certification shall be completed within 30 days of issue;
F. 
Within 21 days of commencement of an emergency project, a notice of intent, or, where appropriate, a request for determination of applicability, shall be filed with the Conservation Commission for review as provided by this chapter. In the event that such a filing is not timely received by the Conservation Commission, or is incomplete, or such filing is denied for any reason, the Commission may revoke or modify an emergency project certification and/or order appropriate restoration and mitigation measures.

§ 136-6 Preacquisition violation.

[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988]
Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this chapter or in violation of any permit issued pursuant to this chapter shall forthwith comply with any such order or restore such land to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless commenced within three years following the date of acquisition of the real estate by such person or five years after the violation, whichever is earlier.

§ 136-7 Promulgation of rules and regulations.

After due notice and public hearing, the Commission may promulgate rules and regulations to effectuate the purposes of this chapter. 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 chapter.

§ 136-8 Burden of proof.

The applicant shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application shall not harm the interests protected by this chapter. Failure to provide adequate evidence to the Commission supporting a determination that the proposed work will not harm the interests protected by this chapter shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions or, in the Commission's discretion, to continue the hearing to another date to enable the applicant or others to present additional evidence.

§ 136-9 Security.

The Commission may require, as a permit condition, that the performance and observance of other conditions be secured by one or both of the following methods:
A. 
By a bond or deposit of money or negotiable securities in an amount determined by the Commission to be sufficient and payable to the Town of Nantucket. The bond shall be released by the Commission only after the Commission issues a certificate of compliance.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988]
B. 
By a conservation restriction, easement or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land).

§ 136-10 Violations and penalties; enforcement.

[Amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
A. 
Any person who violates any provision of this chapter or of any condition of a permit issued pursuant to it 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; if more than one, each condition violated shall constitute a separate offense. The fine set forth herein is in addition to any fine levied under the Wetlands Protection Act, MGL c. 131, § 40. This chapter may be enforced pursuant to MGL c. 40, § 21D, by a Town police officer or other officer having police powers.
B. 
Upon request of the Commission, the Board of Selectmen and Town Counsel shall take such civil legal actions, including the bringing of actions for injunctive and monetary relief, as may be necessary to enforce this chapter and permits issued pursuant to it. Upon request of the Commission, the Chief of Police shall take such legal actions under the criminal law as may be necessary to enforce this chapter and permits issued pursuant to it.