[HISTORY: Adopted by the Annual Town Meeting
of the Town of North Reading 4-30-1992 by Art. 19, approved 8-6-1992. Amendments noted where applicable.]
The purpose of this bylaw is to protect the
wetlands, related water resources, and adjoining land areas in the
Town of North Reading by prior review and control of activities deemed
by the Conservation Commission (the Commission) to have a significant
or cumulative effect upon resource area 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 control, fisheries, shellfish, wildlife habitat, recreation,
aesthetics, agriculture, and aquaculture (collectively, the "resource
area values protected by this bylaw").
Except as permitted by the Conservation Commission
or as provided in this by-law, no person shall remove, fill, dredge,
build upon, degrade, or alter the following resource areas: any freshwater
wetland; marshes; wet meadows; bogs; swamps; vernal pools; banks;
reservoirs; lakes; ponds; rivers; streams; creeks; beaches; dunes;
estuaries; flats; land under water bodies; lands subject to flooding
or inundation by groundwater, surface water or tidal action; and lands
within 100 feet of any of the aforesaid resource areas (collectively
the "resource areas protected by this bylaw").
A.
Public service facilities. The permit and application
required by this bylaw shall not be required for maintaining, repairing,
or replacing, but not substantially changing or enlarging, an existing
and lawfully located structure or facility provided that written notice
has been given to the Commission prior to commencement of work, and
provided that the work conforms to the performance standards and design
specifications in the regulations adopted by the Commission.
B.
Agricultural use. The permit and application required
by this bylaw shall not be required for work performed for normal
maintenance or improvement of land in agricultural use or in aquacultural
use, provided that the work conforms to performance standards and
design specifications in regulations adopted by the Commission.
C.
Emergency work. The permit and application required
by the bylaw 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 notice, oral or written, has been given to the Commission
prior to or within 24 hours after commencement of the work, 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 any emergency project a permit application
shall be filed with the Commission for review as provided in this
bylaw or, if the person performing the emergency work is the Town
of North Reading, a written certification from the Town Engineer stating
that all work performed conformed to the performance standards and
design specifications in the regulations adopted by the Commission.
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.
D.
Previously authorized work. The permit and application required by this bylaw shall not apply to any work which, prior to the effective date of this bylaw, had been authorized by all required orders of conditions under Massachusetts General Laws, Chapter 131, Section 40, and special permits under the former Section 9.4 of the Zoning By-law, provided that such work is performed in accordance with the terms of said orders and special permits, including any amendment or extension of said orders and special permits as may be granted by the issuing authority.
E.
Other exceptions. Other than stated in this section,
the exceptions provided in the Wetlands Protection Act, MGL c. 131,
§ 40, and regulations, 310 CMR 10.00, shall not apply under
this bylaw.
A.
Applications for permits.
(1)
Written application shall be filed with the Commission
to perform activities affecting resource areas protected by this bylaw.
(2)
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 resource areas protected by this
bylaw. No activity shall commence without receiving and complying
with a permit issued pursuant to this bylaw. The Commission in an
appropriate case may accept as the permit application and plans under
this bylaw the notice of intent and plans filed under the Wetlands
Protection Act, MGL c. 131, § 40, and regulations, 310 CMR
10.00.
B.
Requests for determination. Any person desiring to
know whether or not a proposed activity or an area is subject to this
bylaw may in writing request a determination from the Commission.
Such a request for determination shall contain information and plans
as are deemed necessary by the Commission.
C.
Fees.
(1)
At the time of a permit application or request for
determination, the applicant shall pay a filing fee as approved by
the Select Board and specified in the regulations of the Commission.
This fee is in addition to that required by the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
[Amended 6-4-2018 ATM
by Art. 28, approved 9-21-2018]
(2)
In addition to the filing fee, the Commission shall
require the applicant to pay the reasonable costs and expenses of
any expert consultant deemed necessary by the Commission to review
the application or request for determination. The applicant shall
have the right to make recommendations concerning the choice of expert
consultant to be used. 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, environmental or land use law, field inspections
and monitoring of work permitted by the Commission under this bylaw.
Payment for consultant services shall be made to the Town of North
Reading prior to the issuance of a final decision by the Commission.
Funds collected under this provision shall be placed in a consultant
services account of the Commission, and shall be immediately paid
to the consultant for specific consultant services rendered. The phrase
"necessary services" shall mean any services beyond the initial review
and evaluation of a permit application or a request for determination.
(3)
The Commission shall return any unused portion of
any payment made for consultant services to the applicant unless the
Commission decides at a public meeting that other action is necessary.
Any applicant aggrieved by the imposition of, or size of, the payment
for consultant services, or any act related thereto, may appeal according
to the provisions of the Massachusetts General Laws. The Commission
may waive the filing fee or costs or expenses for a permit application
or request for determination filed by a government agency or for a
request for determination filed by a person having no financial connection
with the property which is the subject of the request.
(4)
Failure to submit required fees, costs or expenses
shall constitute an incomplete filing and shall be considered cause
for denial.
A.
Notice. Any person filing a permit application or
a request for determination with the Commission subsequent to acceptance
shall give written notice thereof, by certified mail (return receipt
requested) to all abutters at their mailing addresses as shown on
the most recent applicable tax list of the Assessors, including owners
of land directly opposite on any public or private street or way,
and abutters to the abutters within 300 feet of the property line
of the applicant, including any in another municipality or across
a body of water. The notice to abutters shall state where copies of
the application, including plans and calculations, may be examined
and obtained by 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 to the owner as well as to
the person making the request.
B.
Public hearing.
(1)
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 days prior to the hearing,
in a newspaper of general circulation in North Reading.
(2)
The Commission shall commence the public hearing within
21 days from receipt of a completed application or request for determination
unless an extension is authorized in writing by the applicant.
(3)
The Commission shall issue its permit or determination
in writing within 21 days of the close of the public hearing thereon
unless an extension is authorized in writing by the applicant.
(4)
The Commission in an appropriate case may combine
its hearing under this bylaw with the hearing conducted under the
Wetlands Protection Act, MGL c. 131, § 40, and regulations,
310 CMR 10.00.
(5)
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, 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 § 196-6. In the event that 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 copies
to be delivered by the Conservation Commission to the Community Planning
Commission, Board of Appeals, Board of Health, Building Inspector
and Town Engineer. 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.
A.
Granting of permit. If the Commission after a public
hearing determines that the activities which are the subject of the
application are likely to have a significant or cumulative effect
upon the resource area values protected by this bylaw, 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
may impose conditions, which the Commission deems necessary to protect
those values, and all activities shall be done in accordance with
those conditions.
B.
Denial of permit. The Commission is empowered to deny
a permit for failure to meet the requirements of this bylaw; for failure
to submit necessary information and plans requested by the Commission;
for failure to submit required fees, costs or expenses; 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
resource area values protected by this bylaw; and where no conditions
are adequate to protect those values.
C.
Expiration of permit. A permit shall expire three
years from the date of issuance. Any permit may be renewed once for
an additional one-year period, provided that a request for a renewal
is received in writing by the Commission not less than one month prior
to expiration.
E.
Relationship to order of conditions. The Commission
in an appropriate case may incorporate the order of conditions or
determination of applicability issued under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00, into
a permit or determination issued under this bylaw.
F.
Recording of permit. 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 is registered land, in the registry section of
the land court for the district wherein the land lies, and until the
Commission receives a copy of the recorded permit bearing the recording
information on the permit.
After public notice and public hearing the Commission
shall promulgate rules and regulations to effectuate the purposes
of this bylaw. 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 bylaw.
A.
The following definitions shall apply in the interpretation
and implementation of this bylaw.
(1)
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 bylaws, administrative agency,
public or quasi-public corporation or body, this municipality, and
any other legal entity, its legal representatives, agents, or assigns.
(2)
The term "alter" shall include, without limitation,
the following activities when undertaken to, upon, within or affecting
resource areas protected by this bylaw:
(a)
Removal, excavation or dredging of soil, sand,
gravel or aggregate materials of any kind;
(b)
Changing of preexisting drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns, or flood retention characteristics;
(c)
Drainage or other disturbance of water level
or water table;
(d)
Dumping, discharging or filling with any material
which may degrade water quality;
(e)
Placing of fill, or removal of material, which
would alter elevation;
(f)
Driving of piles, erection or exterior repair
of buildings, or structures of any kind;
(g)
Placing of obstructions or objects in water;
(h)
Destruction of plant life including cutting
of trees;
(i)
Changing water temperature, biochemical oxygen
demand, or other physical or chemical characteristics of any waters;
(j)
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater;
and
(k)
Application of pesticides or herbicides.
(3)
The term "land subject to flooding" shall include
both isolated land subject to flooding and bordering land subject
to flooding as set forth in the Wetlands Protection Act, MGL c. 131,
§ 40, and regulations, 310 CMR 10.00.
B.
Except as otherwise provided in regulations of the
Commission, the definitions of terms in this bylaw shall be as set
forth in the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00.
As part of a permit issued under this bylaw,
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 hereunder be secured wholly
or in part by one or more of the methods described below:
A.
By a proper bond or deposit of money or negotiable
securities or other undertaking of financial responsibility sufficient
in the opinion of the Commission, to be released in whole or in part
upon issuance of a certificate of compliance for work performed pursuant
to the permit;
B.
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.
A.
General. No person shall remove, fill, dredge, build
upon, degrade or alter the resource areas protected by this bylaw,
or cause, suffer, or allow such activity to continue or allow such
fill or other alteration to be left in place, without the required
authorization pursuant to this bylaw.
B.
Right of entry. The Commission or its agent(s) shall
have authority to enter upon privately owned land for the purpose
of performing their duties under this bylaw and may make or cause
to be made such examinations, surveys or sampling as the Commission
deems necessary. Prior to entry upon any privately owned land, the
Commission shall send notice, mailed or delivered to the current owner
of the land in question stating when the Commission intends to inspect
the land, the reasons and purpose for entering upon the land and any
violations reported to the Commission. The owner of the land has the
right to be present at any or all such entries and may refuse entry
by the Commission or its agent(s) either verbally or in writing at
any point during the inspection process.
C.
Enforcement actions.
(1)
The Commission shall have authority to enforce this
bylaw, its regulations, and permits issued thereunder by violation
notices, administrative orders, and civil and criminal court actions.
Any person who violates any provision of this bylaw may be ordered
to restore the property to its original condition or take other action
deemed necessary to remedy such violation.
(2)
Upon request of the Commission, the Select Board and
Town Counsel may take legal action for enforcement under civil law.
Upon request of the Commission, the Select Board may order the Chief
of Police to take legal action for enforcement under criminal law.
[Amended 6-4-2018 ATM
by Art. 28, approved 9-21-2018]
(3)
Town boards and officers, including any police officer
or other officer having police powers, shall have authority to assist
the Commission in enforcement.
D.
Fines. Whoever violates any provision of this by-law,
or regulations, permits, or administrative orders issued thereunder,
shall be subject to the following penalties: first offense: $25; second
offense: $100; third and subsequent offenses: $300. Each day or portion
thereof during which a violation continues or unauthorized fill or
other alteration remains in place shall constitute a separate offense,
and each provision of the bylaw, regulations, or permit violated shall
constitute a separate offense. As an alternative to criminal prosecution
in a specific case, the Commission may issue citations under the noncriminal
disposition procedure set forth in MGL c. 40, § 21D, and
adopted by the Town as a general bylaw.[1]
[Amended 10-2-2000 ATM by Art. 15, approved 3-29-2001]
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 bylaw.
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.
A decision of the Commission shall be reviewable
in the Superior Court in an action filed within 60 days thereof, in
accordance with MGL c. 249, § 4.
This bylaw is adopted under the Home Rule Amendment
of the Massachusetts Constitution and the Home Rule Statutes, independent
of the Wetlands Protection Act, MGL c. 131, § 40, and regulations
310 CMR 10.00 thereunder.
The invalidity of any section or provisions
of this bylaw shall not invalidate any other section or provision
thereof, nor shall it invalidate any permit or determination which
previously has been issued.
