[HISTORY: Adopted by the Conservation Commission of the Town
of Marshfield 5-15-1990; as amended through 10-30-2018. Subsequent amendments noted where applicable.]
These regulations are promulgated by the Town of Marshfield Conservation Commission pursuant to the authority granted to it under § 294-4C of the Town of Marshfield Wetlands Protection Bylaw, Town of Marshfield General Bylaws Chapter 294 (hereinafter referred to as "the bylaw"). These regulations shall complement the bylaw by setting forth controls in addition to those already promulgated by the Department of Environmental Protection (DEP) under MGL c. 131, § 40. After a public hearing, these regulations may be amended from time to time by majority vote of the Town of Marshfield Conservation Commission.
A.
These regulations provide definitions, procedures and standards for
work within those areas subject to protection under the bylaw. Any
project subject to regulation shall comply with all applicable regulations.
B.
The bylaw sets forth a public review and decision-making process
by which activities affecting areas subject to protection under the
bylaw are to be regulated in order to contribute to the protection
of the following interests:
(1)
Public water supply.
(2)
Private water supply.
(3)
Groundwater.
(4)
Flood control.
(5)
Erosion control.
(6)
Sedimentation control.
(7)
Recreation.
(8)
Public safety.
(9)
Aquaculture.
(10)
Fish.
(11)
Shellfish.
(12)
Wildlife.
(13)
Wildlife habitats.
(14)
Fish habitats.
(15)
Shellfish habitats.
(16)
Prevention of water pollution.
(17)
Prevention of storm damage.
(18)
Agriculture.
C.
These regulations seek to control those activities within the jurisdiction
of the Marshfield Conservation Commission, as set forth under the
bylaw, and prevent any activities from having adverse impact upon
any of the interests protected by the bylaw.
D.
These regulations will define and clarify the process by establishing
standard definitions and uniform procedures by which the Marshfield
Conservation Commission may carry out its responsibilities under the
bylaw.
E.
These regulations are intended solely for use in administering the
bylaw; nothing contained herein should be construed as preempting
or precluding other protections afforded to wetlands or other natural
resource areas by other Marshfield Town boards, regulations or bylaws.
A.
Areas subject to protection. The following areas are subject to protection
under the bylaw:
(1)
Any bank; freshwater wetland; coastal wetland; beach; dune; flat;
marsh; wet meadow; bog; swamp; lands adjoining the ocean or any estuary,
creek, river, stream, pond, or lake; or any land under said waters;
or any land subject to tidal action, coastal storm flowage or flooding.
(2)
Land at or below elevation 11 feet above mean sea level.
B.
Activities subject to regulation.
(1)
Any activity proposed or undertaken within 100 feet (buffer zone) of an area specified in § 505-3A(1) of these regulations or within an area specified in § 505-3A(2) of these regulations which will remove, fill, dredge, or alter that area is subject to regulation under the bylaw and will require a notice of intent and approval of the Conservation Commission.
C.
The applicant must also submit a list of abutters, with names and
mailing addresses, along with evidence that this list has been reviewed
and verified by the Marshfield Board of Assessors.
D.
Failure to provide any of the information required in completing
a notice of intent shall be deemed an incomplete filing and, as such,
the application will be deemed to not have been received by this Commission
until such filing is complete.
E.
A new notice of intent for a project that was denied may not be filed
(and will be rejected if filed) for a period of two years from the
date of denial, unless substantial changes have been made to the plan
and those changes are responsive to and attempt to resolve those issues
causing the Commission to previously deny the project. The Commission
shall solely determine whether or not the changes are substantial
and address the issues for denial and shall solely determine whether
to accept or reject the notice of intent.
A.
Effective date. In accordance with the Town of Marshfield Wetlands
Protection Bylaw, as amended, the following regulations with respect
to the payment of fees shall be effective as to those notices of intent
and all other matters filed with the Conservation Commission as of
May 1, 2008. The Conservation Commission establishes these fee regulations
to defray costs incurred by the Commission with respect to specific
applications and hearings held under the Wetlands Protection Bylaw.
B.
Rules.
(1)
Fees are payable at the time of application and are nonrefundable.
(2)
Fees shall be calculated by the Conservation Commission per the schedule established below in Subsection C.
(3)
Any notice of intent or request for determination of applicability
fee received as a result of after-the-fact removal, alteration, dredging
or filling within Conservation jurisdictional boundaries as per § 505-3(A)
or the Commission issuing an enforcement order for a violation of
the Wetlands Protection Bylaw shall be doubled.
C.
Filing fees. Filing fee for any notice of intent or abbreviated notice
of resource area delineation under the Marshfield Wetlands Protection
Bylaw shall be equal to and in addition to the fee required by 310
CMR 10.03(7), set forth as follows:
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Wetland Fee Category Summary
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|---|---|
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Notice of Intent/WPA Form 3:
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Category 1: $125
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a)
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Work on single-family lot: addition, pool, etc.
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b)
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Site work without house
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c)
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Control vegetation single-family house (SFH): removal, herbicide,
etc.
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d)
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Resource improvement
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e)
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Work on septic system separate from house
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f)
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Monitoring well activities minus roadway
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Category 2: $500
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a)
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Construction of single-family house (SFH)
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b)
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Parking lot
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c)
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Beach nourishment
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d)
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Electric generating facility activities
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e)
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Inland limited projects minus road crossings
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f)
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New agricultural or aquacultural projects
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g)
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Each crossing for driveway to SFH
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h)
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Any point source discharge
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Category 3: $1,050
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a)
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Site preparation (for development) beyond NOI scope
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b)
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Each building (for development) including site
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c)
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Road construction not crossing or driveway
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d)
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Hazardous cleanup
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Category 4: $1,450
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a)
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Each crossing for development or commercial road
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b)
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Dam, sluiceway, tide-gate work
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c)
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Landfill
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d)
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Sand and gravel operation
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e)
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Railroad line construction
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f)
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Control vegetation in development (SFH)
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g)
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Bridge (SFH)
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h)
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Water level variation
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i)
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Hazardous waste alterations to resource area
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j)
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Dredging
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k)
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Package treatment plant and discharge
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Category 5: $4.50 per linear foot (minimum $50, maximum $1,000)
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a)
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Docks, piers, revetments, dikes, etc. (coastal or inland)
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Category 6: $3 per linear foot (maximum $200 for SFH, maximum
$2,000 for any other)
| |
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a)
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Delineation of wetland resources
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D.
Cost of publication in the local newspaper. Check shall be made payable
to the designated newspaper in an amount required by said newspaper
and delivered to the Commission.
E.
Cost of notice to abutters. Cost of delivering notice of hearings
by certified mail to abutters shall be paid for by applicant.
F.
Other fees.
(1)
Extension of order of conditions/WPA Form 7: $100.
(2)
Amending order of conditions/WPA Form 3/modified for Amendment: $100.
(4)
Request for determination of applicability/WPA Form 1: $150.
(5)
Request for copy of order of conditions: $10.
(6)
Abbreviated notice of resource area delineation/WPA Form 4A: The
delineation fee for each resource area equals $2 per linear foot.
The maximum fee for activities with a single family house is $200
and the maximum fee for any other activity is $2,000.
G.
Consultant fee.
(1)
The applicant shall pay for the cost and expense of expert consultants
to review the application or to gather additional information as deemed
necessary by the Commission. Such consultants shall work for and represent
the interests of the Commission.
(2)
Upon receipt of a permit application or RFD, or at any point in its
deliberations, the Commission may deem it necessary to obtain expert
engineering or other outside consultant services in order to reach
a final decision on the application. The specific consultant services
may include but are not limited to resource area survey and delineation,
analysis of resource area values, including wildlife habitat evaluations,
hydrogeologic and drainage analysis, and environmental or land use
law. In such instances the Commission shall notify the applicant of
this need and the estimated costs and provide the opportunity for
the application to be amended or withdrawn. Should an applicant choose
to proceed the Commission shall require the applicant to pay the reasonable
costs and expenses borne by the Commission for these consulting services
as listed below. This fee is called the "consultant fee."
(3)
The exercise of discretion by the Commission in making its determination
to require the payment of a consultant fee shall be based upon its
reasonable finding that additional information acquirable only through
outside consultants would be necessary for the making of an objective
decision.
(5)
An applicant may appeal the choice of the consultant selected by
the Commission to the Select Board. Such an administrative appeal
is limited to claims that:
[Amended 10-18-2021 STM by Art. 32]
(6)
The time required for action by the Commission on the application
for a permit or approval is extended pending the appeal. The selection
by the Commission stands unless the Select Board decides otherwise
within one month following the filing of the appeal.
[Amended 10-18-2021 STM by Art. 32]
(7)
The Commission may require the payment of the consultant fee at any
point in its deliberations prior to a final decision. The applicant
shall pay the fee to be put into a special revolving fund consultant
services account of the Commission, which may be drawn upon by the
Commission for specific consultant services approved by the Commission
at one of its public meetings.
(8)
The Commission shall return any unused portion of the consultant
fee, along with any interest accrued during the time the funds were
deposited in the special revolving fund consultant services account,
to the applicant.
(9)
The estimated required consultant fee charged to reimburse the Commission
for reasonable costs and expenses shall be according to the following
schedule:
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Project Cost
|
Estimated Deposit Fee*
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|---|---|
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Up to $100,000
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$1,200
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$100,001 to $500,000
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$2,500
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$500,001 to $1,000,000
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$5,000
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$1,000,001 to $1,500,000
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$7,500
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$1,500,001 to $2,000,000
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$10,000
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*
|
The amount is an estimate only. Applicant is responsible for
all overages.
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(a)
Each additional $500,000 project cost increment (over $2,000,000)
shall be charged at an additional $2,500 estimated required fee per
increment.
(b)
The project cost means the estimated entire cost of the project,
including but not limited to building construction, site preparation,
landscaping, roadway and drainage construction, utilities, and all
site improvements. The consultant fee shall be paid pro rata for that
portion of the project cost applicable to those activities affecting
all resource areas protected by this bylaw. The project shall not
be segmented to avoid being subject to the consultant fee. The applicant
shall submit estimated project costs at the Commission's request,
but the lack of such estimated project costs shall not avoid the payment
of the consultant fee.
A.
The Conservation Commission shall hold a public hearing within 21
days of receipt of a complete notice of intent by the Commission.
The hearing may be continued in accordance with the regulations set
forth in 310 CMR 10.05(5)(b).
B.
The public hearing shall be conducted as follows:
(1)
A public hearing officer shall call the meeting to order and shall
read the notice as published.
(2)
Applicant shall make presentation.
(3)
The Commissioners shall question the applicant.
(4)
Questions from other Town boards shall be addressed to the applicant
through the hearing officer.
(5)
Questions from the public to the applicant shall be addressed through
the hearing officer.
(6)
The hearing shall then be continued or closed by vote of the Commission.
A.
Within 21 days of closing the public hearing, the Commission shall
either:
(1)
Determine the proposed activity is not significant to any of the
interests identified by the bylaw; or
(2)
Make a determination that the proposed activity is significant to
one or more of the interests identified by the bylaw and shall issue
an order of conditions for the protection of said interests.
B.
The order of conditions shall impose such conditions as are necessary
to protect one or more of the interests identified by the bylaw. If
the Commission finds that the proposed activity cannot be regulated
so as to protect the interests identified in the bylaw, then the order
may prohibit the proposed activity.
C.
If the Commission finds that the information submitted by the applicant
is not sufficient to describe the site, the work or the effect of
the work on the interests identified in the bylaw, it may issue an
order of conditions prohibiting the work. The order shall specify
the information lacking and why it was necessary.
D.
The order of conditions shall be valid for three years from the date
of its issuance. The order may be extended by majority vote of the
Commission.
E.
The order of conditions shall be voted and approved by a majority
of a quorum of the Conservation Commission and shall be signed by
a majority of the Commission.
F.
The order of conditions shall be recorded in the Plymouth County
Registry of Deeds or Registry District of the Land Court, where appropriate,
prior to the commencement of any of the proposed activities regulated
by the order of conditions. No work shall commence until proof of
recording is provided to the Commission.
A.
Upon completion of the activity described in the notice of intent
in accordance with the order of conditions, the applicant or his or
her successor in interest shall request the Commission, in writing,
that a certificate of compliance be issued stating that the work has
been satisfactorily completed in compliance with all conditions set
forth in the order of conditions. Unless exempted by the Commission,
said request shall be accompanied by an as-built plan, certified by
a professional engineer or surveyor who is registered in the commonwealth,
certifying that the work conforms to the plans, or specifying how
the completed work differs from that shown on the submitted plans.
B.
In all other respects, the procedure for granting a certificate of
compliance shall be identical to those procedures set forth in 310
CMR 10.05(9).
Any person aggrieved by the Commission's issuing of an order
of conditions or a certificate of compliance may file an appeal in
accordance with Massachusetts General Laws. Presently, the party aggrieved
may file a complaint in the Plymouth County Superior Court within
60 days of the date of said order of conditions or certificate of
compliance in accordance with MGL c. 249, § 4.
A.
There shall be no habitable space in any structure wherein the top
of any floor elevation of the habitable space is below 11 feet above
mean sea level (MSL) or below the flood surge height as determined
by the most recent FEMA flood insurance maps. No utilities for any
structure shall be placed below 11 feet above MSL or below the flood
surge height as determined by the most recent FEMA flood insurance
maps, whichever is higher.
B.
A setback zone shall be created so that no disturbance or alteration shall occur within 50 feet and no building or structure shall be placed within 75 feet of any area set forth in § 505-3A(1) for any new construction or development. No activity, including but not limited to landscaping, mowing, or removal of vegetation, is allowed in the no disturbance zone.
(1)
A setback zone shall be created so that no disturbance or alteration shall occur within 25 feet of any area set forth in § 505-3A(1) for existing lots with existing buildings.
(2)
The following activities shall be exempt from the setback zone of any area set forth in § 505-3A(1):
(a)
Work related to the public water supply or municipal sewer systems.
(b)
Structures related to stormwater management such as swales,
retention and detention basins, drainage pipes and headwalls.
(c)
Work related to 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, or telephone service, provided that the written
notice has been given to the Conservation Commission prior to commencement
of work.
(d)
Public open space nature trails, observation platforms, boardwalks,
or footbridges.
(e)
Seawalls, bulkheads, and revetments.
(f)
Docks, piers, and associated ramps.
(g)
Repairs or improvements to existing on-site septic systems and
their related structures in order to comply with current standards
where there is no viable alternative. No increase in the design flow
of the dwelling shall be permitted.
C.
A vernal pool setback zone shall be created where no disturbance
or alteration shall occur within 100 feet of a vernal pool.
D.
Any proposed way or pavement within 100 feet of an area subject to
protection under these regulations must be constructed with a surface
approved by the Conservation Commission. Construction of any way which
is built in an area subject to protection under these regulations,
which constitutes a limited project as defined in the Code of Massachusetts
Regulations, 310 CMR 10.53(3), must not be constructed in a manner
which restricts the flow of water or restricts or endangers the movement
of local wildlife. Every way in an area subject to protection must
provide throughways accessible to local wildlife. The total width
of said throughways shall not be less than 5% of the length of that
portion of the way which passes through the area subject to protection.
E.
There shall be no removing, filling, dredging, or altering of isolated
wetland subject to flooding in the Polder, which is that area identified
as the Green Harbor Reclamation Area on the plan titled "Plan Showing
Boundaries of Green Harbor Reclamation District," dated February 1925,
Plymouth Registry of Deeds, Plan Book 1, Page 142.
F.
Any alteration of a vegetated wetland may be allowed up to but not
to exceed 5,000 square feet; provided, however, that the wetland so
altered is replaced in kind by an area not less than 200% of the area
so altered and the replication is conducted in accordance with the
regulations set forth in 310 CMR 10.55(4)(b). The exception provided
in 310 CMR 10.55(4)(c) is not allowed under the bylaw. Therefore,
any alteration of any bordering vegetated wetlands is subject to this
provision.
G.
There shall be no destruction or removal of woody vegetation, shrubs, trees, and the like within 100 feet of an area subject to protection, as set forth in these regulations at § 505-3A(1), without first obtaining the permission of the Commission.
H.
Breakaway walls (constructed in accordance with the State Building
Code) will be required in all structures built in areas subject to
flooding or coastal storm flowage, unless specifically exempted by
the Commission.
I.
Any project, whether it is within 100 feet of an area subject to
protection under these regulations or not, where there exists a reasonable
likelihood that stormwater runoff or drainage will be discharged into
or adversely affect an area subject to protection will be subject
to the Wetlands Protection Bylaw, and the proponent must file a notice
of intent with the Commission and take action necessary to prevent
such adverse effects on the areas protected by the bylaw.
J.
Where any structure is proposed within land subject to tidal action,
coastal storm flowage or flooding, adequate access to and egress from
said structure must be proven by the applicant to be available so
that individuals can leave the structure and emergency vehicles can
access the structure during the entire course of a 100-year storm.
Failure on the part of the proponent to meet such a burden shall be
reasonable cause for the Commission to conclude that the health, welfare
and safety of individuals in the community are endangered and, therefore,
it may deny the application.
A.
Where activity is necessary to protect public health and safety,
the Commission may certify an emergency situation and allow the activity.
B.
Any person requesting permission to do an emergency project shall
specify why the project is necessary for the protection of the public
health or safety and what agency of the commonwealth or subdivision
thereof is to perform the project or has ordered the project to be
performed. If the project is certified to be an emergency by the Commission,
the certification shall include a description of the work which is
to be allowed and shall not include work beyond that necessary to
abate the emergency. A site inspection shall be made prior to certification.
C.
An emergency certificate shall be issued only for the protection
of public health or safety.
D.
The time limitation for performance of emergency work shall not exceed
30 days.
A.
When the Commission determines that an activity is in violation of
the bylaw, these regulations or an order of conditions, the Commission
may issue an enforcement order. Violations include, but are not limited
to:
B.
An order of conditions shall be enforceable by the Conservation Commission.
The members, officers, employees and agents of the Commission may
enter upon privately owned land for the purpose of performing their
duties under the bylaw and these regulations.
C.
An enforcement order issued by the Conservation Commission shall
be signed by a majority of the Commission. In a situation requiring
immediate action, an enforcement order may be signed by a single member
or agent of the Commission and must be ratified by a majority of the
members at the next scheduled meeting of the Commission.
If any provision of any part of these regulations or the application
thereof is held to be invalid, such invalidity shall not affect any
other provision of these regulations.
A.
The Conservation Commission may, in its discretion, grant variances
from the operation of one or more of these regulations pursuant to
this section. Such variances are intended to be granted only in rare
and unusual cases and shall be granted only in accordance with the
provisions of this section.
B.
The applicant must request a variance in writing, filed with the notice of intent. The request shall set forth the reasons particular to the applicant's project which meet the requirements for a variance as set forth in Subsection C.
C.
A variance may be granted only for the following reasons and upon
the following conditions:
(1)
The Conservation Commission may grant a variance from these regulations
upon a clear and convincing showing by the applicant that any proposed
work, or its natural and consequential impacts and effects, will not
have any adverse effect upon any of the interests protected in the
bylaw. It shall be the responsibility of the applicant to provide
the Conservation Commission with any and all information which the
Commission may in writing request in order to enable the Commission
to ascertain such adverse effects, and the failure of the applicant
to furnish any information which has been so requested shall result
in the denial of a request for a variance pursuant to this subsection;
or
(2)
The Conservation Commission may grant a variance from these regulations
when it is necessary to avoid so restricting the use of the property
as to constitute an unconstitutional taking without compensation.
It shall be the responsibility of the applicant to provide the Conservation
Commission with any and all information necessary to determine if
the enforcement of these regulations constitutes such an unconstitutional
taking without compensation. No variance shall be granted unless and
until the Conservation Commission has received from Town Counsel a
written opinion that such enforcement of these regulations shall constitute
an unconstitutional taking without compensation.
These rules and regulations were first promulgated on May 15,
1990; they have been subsequently amended on December 18, 1990, December
17, 1991, June 19, 2002, October 2, 2002, September 17, 2003, December
1, 2004, May 1, 2008 and October 30, 2018, and shall apply, as amended,
to all applications and requests filed after that date.
As used in these rules and regulations, the following terms
shall have the meanings indicated:
Any plant or animal listed by the Massachusetts Division
of Fisheries and Wildlife Natural Heritage and Endangered Species
Program (NHESP) as endangered, threatened, or special concern.
A freshwater wetland that is a confined basin or depression
which does not support a minimum of 400 square feet of predominantly
wetland plant vegetation and does not function as a vernal pool and
is not contiguous with other wetland resources.
A freshwater wetland not bordering on the ocean or any estuary,
creek, river, stream, pond or lake and having a minimum of 400 square
feet of predominantly wetland vegetation.
The area of land between a perennial stream's annual high-water
line and a parallel line measured horizontally and at a distance of
200 feet.
A combination of materials assembled at a fixed location
to give support or shelter, including but not limited to a building,
bridge, driveway, trestle, tower, framework, retaining wall, tank,
tunnel, stadium, reviewing stand, shed, platform, deck, fence, sign,
flagpole, windmill, solar devices, tennis courts, swimming pools,
paved areas or anything requiring a building permit.
A freshwater wetland that is a confined basin or depression
(not occurring in existing lawns, gardens, or driveways) which, in
most years, holds water for a minimum of two months in the spring
and/or summer; is free of self-sustaining populations of adult predatory
fish; and functions as breeding habitat for one or more obligate or
two or more facultative amphibian, reptile, crustacean, mollusk or
insect populations listed by the Massachusetts Division of Fisheries
and Wildlife Natural Heritage and Endangered Species Program (NHESP),
regardless of whether the site has been certified by the NHESP and
regardless of association with other resource areas. The presumption
that any seasonal basin functions as a vernal pool shall prevail through
a minimum of one spring/summer breeding season for the purpose of
documenting the occurrence or lack of occurrence of breeding activity
of one or more obligate or two or more facultative vernal pool species.
The buffer zone for vernal pools shall extend 100 feet from the highest
extent of flooding.
The line connecting test plots showing the upper limit of
a plant community where 50% or more of the individual plants are included
in facultative (FAC), facultative wetland (FACW), or obligate wetland
(OBL) categories. Wetlands shall be delineated by qualified wetlands
scientists using analysis of plant communities. For sites where plant
communities have been altered, disturbed or modified, analysis of
soils for hydric indicators may be used to augment or replace plant
analysis.
Any plant listed in the U.S. Fish and Wildlife Service "National
List of Plant Species That Occur in Wetlands: Massachusetts 1988"
and condensed by the Massachusetts Department of Environmental Protection,
Division of Wetlands and Waterways, April 1995, having an indicator
category of obligate wetland (OBL), facultative wetland (FACW), or
facultative (FAC).
