[HISTORY: Adopted by the Town Council of
the Town of Franklin 8-20-1997 by Bylaw Amendment 97-340-R.[1]]
[1]
Editor's Note: This Bylaw Amendment repealed
former Ch. 181, Wetlands Protection, adopted 5-4-1976 ATM by Art.
30.
A.
The purpose of this chapter is to preserve and protect
the floodplains and wetlands and adjoining lands in the Town of Franklin
by regulating and controlling activities deemed to have significant
or cumulative effect upon the functions and characteristics of such
floodplains and wetlands including, but not limited to, the following:
public or private water supply, groundwater, flood control, erosion
and sedimentation control, storm damage prevention, water quality,
water pollution control, fisheries, shellfish, wildlife habitat, rare
species habitat including rare plant species, agriculture, aquaculture
and recreation.
B.
This chapter is intended to utilize the Home Rule
authority of this municipality to protect additional resource areas,
for additional functions and characteristics, with additional standards
and procedures stricter than those of the Wetlands Protection Act,
MGL c. 131, § 40, and Regulations thereunder, 310 CMR 10.00.
A.
No person shall remove, fill, dredge, build upon,
degrade, discharge into or otherwise alter any of the resource areas
listed below without filing written notice of the intention to do
so with the Commission in accordance with the provisions set forth
in this chapter and without receiving and complying with the permit,
and provided that all appeal periods have lapsed, unless the Commission
shall have determined that this chapter does not apply to the activity
proposed.
B.
Except as permitted by the Conservation Commission
or as provided in this chapter, no person shall commence to remove,
fill, dredge, build upon, degrade, discharge into or otherwise alter
the following resource areas: any freshwater wetlands; marshes; wet
meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds
of any size; beaches; intermittent streams; lands under water bodies;
lands within 100 feet of any of the aforesaid wetland or floodplain
areas; lands subject to flooding or inundation by groundwater or surface
water; rivers and streams; and lands within 200 feet of the mean annual
high-water line of any river or stream.
C.
The above-referenced areas are the resource areas
protected by this chapter. Said resource areas shall be protected
whether or not they border surface waters.
A.
Floodplains, lands within 100 feet of other resource
areas and within 200 feet of rivers and perennial streams, the resource
areas, are presumed significant to the protection of functions and
characteristics of these areas because activities undertaken in close
proximity have a high likelihood of adverse impact upon them, either
immediately, as a consequence of construction, or over time, as a
consequence of daily operation or existence of the activities. These
adverse impacts from construction and use can include, without limitation,
erosion, siltation, loss of groundwater recharge, poor water quality
and loss of wildlife habitat. The Commission therefore may require
that the applicant maintain a strip of continuous, undisturbed vegetative
cover within aforesaid one-hundred- or two-hundred-foot area, unless
the applicant convinces the Commission with clear convincing evidence
that the area or part of it may be disturbed without harm to the functions
and characteristics protected by this chapter.
B.
A subsurface disposal system which complies with the
requirements of Title 5 or more stringent regulations of the Board
of Health shall have the same presumption as set forth in the Massachusetts
Wetlands Protection Act Regulations [310 CMR 10.03(3) and Wetlands
Protection Program Policy Title 5 (March 1995)]. The presumption applies
only to the discharge from a sewage disposal system and not to the
impacts from construction of the system. The Commission may apply
the standards set out in the above-referenced regulations and policy
when reviewing an application for construction of a sewage disposal
system.
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
BANK
PERSON
RARE SPECIES
RIVER or STREAM
VERNAL POOL
The following definitions shall apply in the interpretation
and implementation of this chapter:
The following activities when undertaken upon or within resource
areas protected by this chapter:
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. Existing homes will not have to file a
notice of intent for normal household repairs and maintenance. However,
if the footprint of the house and/or yard changes, a notice of intent
will be required.
Placing of obstructions or objects in water.
Destruction of plant life including cutting
of trees.
Changing temperature, biochemical oxygen demand
or other physical, biological or chemical characteristics of any waters.
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater.
Incremental activities which have, or may have,
a cumulative impact on the resource areas protected by this chapter.
The land area which normally abuts and confines a water body;
the lower boundary being the mean annual low flow level, and the upper
boundary being the first observable break in the slope or the mean
annual flood level, whichever is higher.
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.
Includes, without limitation, all vertebrate and invertebrate
animal and plant species listed as endangered, threatened or of special
concern by the Massachusetts Division of Fisheries and Wildlife, regardless
of whether the site in which they occur has been previously identified
by the Division.
A naturally flowing body of water that empties to any ocean,
lake or other river or stream and which flows throughout the year.
A confined basin depression which, at least in most years,
holds water for a minimum of two continuous months during the spring
and/or summer and which is free of adult fish populations, regardless
of whether the site has been certified by the Massachusetts Division
of Wildlife and Fisheries. Where there is a conflict of opinion as
to the extent of the vernal pool or the extent of the habitat area,
the applicant may submit an opinion certified by a registered professional
engineer and/or a competent professional with at least two years experience
in wildlife habitat evaluation, following the procedures set forth
in MGL c. 131, § 40 and 310 CMR 10.00, as to the probable
extent of the pool and the habitat area.
B.
Except as otherwise provided in this chapter or in
regulations of the Commission, the definitions of terms in this chapter
shall be as set forth in the Wetlands Protection Act, MGL c. 131,
§ 40, and Regulations, 310 CMR 10.00.
A.
Permit.
(1)
Written application shall be filed with the Commission
to perform activities affecting resource areas protected by this chapter.
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 chapter.
No activities shall commence without receiving and complying with
a permit issued pursuant to this chapter.
(2)
The Commission in an appropriate case may accept as
the permit application and plans under this chapter the notice of
intent and plans filed under the Wetlands Protection Act, MGL c. 131,
§ 40, and Regulations, 310 CMR 10.00.
B.
Request for determination. Any person desiring to
know whether or not a proposed activity or an area is subject to this
chapter may in writing request a determination from the Commission.
Such a request for determination (RFD) shall include information and
plans as are deemed necessary by the Commission.
C.
Filing fee. At the time of a permit application or RFD, or application for certificate of compliance, the applicant shall pay a filing fee specified in Chapter 82, Appendix A, of the Code of the Town of Franklin. The fee is in addition to that required by the Wetlands Protection Act, MGL c. 131, § 40, and Regulations, 310 CMR 10.00.
D.
Consultant fee.
(1)
Upon receipt of a permit application or RFD, or at
any time during the hearing process, the Commission is authorized
to require an applicant to pay a fee for the reasonable costs and
expenses borne by the Commission for specific expert engineering and
other consultant services deemed necessary by the Commission to come
to a final decision on the application. This fee is called the consultant
fee. The specific consultant services may include, but are not limited
to, performing or verifying the accuracy of a resource area survey
and delineation, analysis of resource area functions and characteristics,
including wildlife habitat evaluations, hydrogeologic and drainage
analysis and environmental or land use law.
(2)
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 which shall be put into a revolving fund
which may be drawn upon by the Commission for specific consultant
services approved by the Commission at one of its public meetings.
(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.
(4)
The Commission shall return any unused portion of
the consultant fee 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 consultant fee, or
any act related thereto, may appeal according to the provisions of
the Massachusetts General Laws.
(5)
Regulations for hiring outside consultants under MGL
c. 44, § 53G:
[Amended 4-15-2015 by
Bylaw Amendment 15-746]
(a)
As provided by MGL c. 44, § 53G, the Franklin Conservation
Commission may impose upon and collect from applicants under the Massachusetts
Wetlands Protection Act and the Franklin Wetlands Bylaw and Regulations
reasonable fees for the employment of outside consultants, including,
but not limited to, scientists, engineers, surveyors or consultants
of any other kind engaged by the Conservation Commission, for services
deemed necessary by the Commission to adequately review an application
or request submitted to the Conservation Commission and to provide
on-site inspectional services while an approved project is under construction.
(6)
The project cost means the estimated, entire cost
of the project including, but not limited to, building construction,
site preparation, landscaping and all site improvements. The consultant
fee shall be paid pro rata for that portion of the project cost applicable
to those activities within resource areas protected by this chapter.
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.
E.
Waiver. The Commission may waive the filing fee, consultant
fee and costs and expenses for a permit application or RFD filed by
a government agency.
[Amended 4-7-2010 by Bylaw Amendment 10-642]
A.
Notice
of intent (NOI), abbreviated notice of intent (abbreviated NOI), abbreviated
notice of resource area delineation (ANRAD) or any modification to
these permits.
(1)
Any
person filing a permit application with the Commission at the same
time shall give written notice thereof, by certified mail (return
receipt requested) or hand delivered, to all abutters at their mailing
addresses 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 have enclosed
a copy of the permit application or request, with plans, or shall
state where copies may be examined and obtained by abutters.
(2)
All hearing notices shall also comply with the public hearing requirements set out at § 4-15 of the Code of the Town of Franklin.
(3)
An affidavit of the person providing such notice,
with a copy of the notice mailed or delivered, shall be filed with
the Commission prior to the date of the hearing.
(4)
The Commission shall conduct a public hearing on any
permit application, with written notice given at the expense of the
applicant, 10 calendar days prior to the hearing, in a newspaper of
general circulation in the municipality.
(5)
The Commission shall commence the public hearing within
21 days from receipt of a completed permit application unless an extension
is authorized in writing by the applicant.
(6)
The Commission shall issue its permit in writing within
21 days of the close of the public hearing thereon unless an extension
is authorized in writing by the applicant.
(7)
The Commission in an appropriate case may simultaneously
hold its hearing under this chapter with the hearing conducted under
the Wetlands Protection Act, MGL c. 131, § 40, and Regulations,
310 CMR 10.00.
(8)
The Commission shall have authority to continue the hearing to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information from the applicant or others deemed necessary by the Commission in its discretion or comments and recommendations of the boards and officials listed in § 181-7.
B.
Request
for determination of applicability (RFD).
(1)
The
Commission shall conduct a public meeting on any RFD application,
with written notice given at the expense of the applicant, 10 calendar
days prior to the hearing, in a newspaper of general circulation in
the municipality.
(2)
The
Commission shall commence the public meeting within 21 days, from
receipt of a completed RFD application unless an extension is authorized
in writing by the applicant.
(3)
The
Commission shall issue its determination in writing within 21 days
of the close of the public meeting thereon unless an extension is
authorized in writing by the applicant. 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 to the person making the request.
(4)
The
Commission in an appropriate case may simultaneously hold its public
meeting under this chapter with the public meeting 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 meeting to a certain date announced at the meeting, for reasons stated at the meeting, which may include receipt of additional information from the applicant or others deemed necessary by the Commission in its discretion or comments and recommendations of the boards and officials listed in § 181-7.
A.
Any person filing a permit application with the Commission
shall provide a copy thereof at the same time to the DPW Director.
A copy shall be provided in the same manner to the Conservation Commission
of the adjoining municipality if the application pertains to property
within 300 feet of that municipality. An affidavit of the person providing
notice, with a copy of the notice mailed or delivered, shall be filed
with the Franklin Conservation Commission.
[Amended 9-9-2015 by
Bylaw Amendment 15-751]
B.
The Commission shall not take final action until the
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
comments and recommendations and to respond to them at a hearing of
the Commission, prior to final action.
A.
If the Commission, after a public hearing, determines
that the activities which are subject to the permit application or
the land and water uses which will result therefrom are likely to
have an individual or cumulative effect upon the resource area functions
and characteristics protected by this chapter, 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 functions and characteristics, and all activities
shall be done in accordance with those conditions. The Commission
shall take into account the cumulative effects of loss, degradation,
isolation and replication of protected resource areas throughout the
community and the watershed resulting from past activities (permitted
and exempt) and foreseeable future activities.
B.
The Commission is empowered to deny a permit for failure
to meet the requirements of this chapter; 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 adverse effects upon the resource area functions
and characteristics protected by this chapter; and where no conditions
are adequate to protect those functions and characteristics. Due consideration
shall be given to any demonstrated hardship on the applicant by reason
of denial, as presented at the public hearing.
C.
Conditions.
(1)
In the case of areas within 200 feet of rivers and
streams, no permit issued hereunder shall permit any activities unless
the applicant, in addition to meeting the otherwise applicable requirements
of this chapter, has proved by a preponderance of the evidence that
there is no practicable alternative to the proposed project with less
adverse effects, and, as well, should there be no such practicable
alternative, that such activities, including proposed mitigation measures,
will have no impact on the resource area functions and characteristics
protected by this chapter. The Commission shall regard as practicable
an alternative which is reasonably available and capable of being
done after taking into consideration the proposed property use, overall
project purposes, logistics, existing technology, costs or the alternatives
and overall project costs.
(2)
To prevent wetlands loss, the Commission shall require
applicants to avoid wetlands alteration wherever feasible; shall minimize
wetlands alteration; and, where alteration is unavoidable, shall require
full mitigation. The Commission may authorize or require replication
of wetlands as a form of mitigation, but only with adequate security,
professional design and monitoring to assure success, because of the
high likelihood of failure of replication.
(3)
In the case of areas within 100 feet of a resource
area, or within 200 feet of a perennial stream, no permit issued hereunder
shall permit the installation of any individual septic disposal system
or any component thereof, unless the applicant, in addition to meeting
the otherwise applicable requirements of this chapter, has proved
by a preponderance of the evidence that there is no practicable alternative
to the proposed installation with less adverse effects, and such installation
will have no impact on the resource area(s) functions and characteristics
protected by this chapter. The Commission shall regard as practicable
an alternative which is reasonably available and capable of being
done after taking into consideration the proposed property use, overall
project purposes, logistics, existing technology, costs of the alternatives
and overall project costs.
[Added 10-21-1998 by Bylaw Amendment 98-391-R]
D.
Term of years. A permit shall expire three years from
the date of issuance. Notwithstanding the above, the Commission in
its discretion may issue a permit expiring five years from the date
of issuance for recurring or continuous maintenance work, provided
that annual notification of time and location of work is given to
the Commission. Any permit may be renewed up to three consecutive
times, each for an additional one-year period, provided that the request
for a renewal is received in writing by the Commission prior to expiration.
Notwithstanding the above, a permit may contain requirements which
shall be enforceable for a stated number of years, indefinitely or
until permanent protection is in place and shall apply to all owners
of the land.
[Amended 10-7-2009by Bylaw Amendment 09-634]
F.
Merge with order of conditions. The Commission, in
an appropriate case, may combine the permit or determination issued
under this chapter with the order of conditions or determination of
applicability issued under the Wetlands Protection Act, MGL c. 131,
§ 40, and Regulations, 310 CMR 10.00.
G.
Recording. No work proposed in any permit 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
holder of the permit certifies in writing to the Commission that the
permit has been recorded.
A.
After public notice and a hearing, the Commission
shall 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.
B.
At a minimum, these regulations shall define key terms
in the chapter not inconsistent with the chapter and procedures governing
the amount and filing of fees.
As part of a permit issued under this chapter,
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 thereunder (including conditions
requiring mitigation work) be secured by one, or in part by one and
in part by another, of the methods described below.
A.
Security.
(1)
The Commission may require the applicant to furnish
a performance guaranty by a deposit of money or passbook in the name
of the Town of Franklin, in an amount to be determined by the Commission
to be sufficient to cover the performance of some or all of the conditions
required by the permit. Letters of credit are unacceptable.
(2)
When the conditions, in whole or in part, for which
the performance guaranty has been provided have been satisfactorily
completed, the Commission may reduce the amount of the security. When
all of the conditions have been satisfactorily completed, the Commission
shall return the remaining security, along with accumulated interest.
B.
Covenant. By a covenant, executed and simultaneously
recorded with the permit in the registry of deeds, running with the
land to the benefit of the municipality whereby the permit conditions
shall be performed and observed before any lot may be conveyed other
than by mortgage deed. This method shall be used with the consent
of the applicant.
A.
No person shall remove, fill, dredge, build upon,
degrade or otherwise alter resource areas protected by this chapter
or cause, suffer or allow such activity or leave in place unauthorized
fill or otherwise fail to restore illegally altered land to its original
condition or fail to comply with a permit or an enforcement order
issued pursuant to this chapter.
B.
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 chapter and may make or cause
to be made such examinations, surveys or sampling as the Commission
deems necessary, subject to the constitutions and laws of the United
States and the Commonwealth.
C.
The Commission shall have authority to enforce this
chapter, its regulations and permits issued thereunder by violation
notices, administrative orders and the initiation of civil and criminal
court actions. Any person who violates provisions of this chapter
may be ordered to restore the property to its original condition and
take other action deemed necessary to remedy such violations or may
be fined, or both.
D.
Upon request of the Commission, the Town Administrator
and the Town Counsel shall take legal action for enforcement under
civil law. Upon request of the Commission, the Chief of Police shall
take legal action for enforcement under criminal law.
E.
Municipal boards and officers, including any police
officer or other officer having police powers, shall have authority
to assist the Commission in enforcement.
F.
In addition to any other remedies available under
any law or this chapter, any person who violates any provision of
this chapter, regulation, permit or administrative order issued thereunder
may be fined not more than $300 for each offense. 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 chapter, regulations, permits or administrative
orders violated shall constitute a separate offense.
G.
In a specific case, the Commission may issue citations
pursuant to MGL c. 40, § 21D under the noncriminal disposition
procedure established in the Town of Franklin. When so enforced, the
penalties for wetland violations of any type described in this chapter
shall be:
H.
The enforcing officers in the noncriminal disposition
procedure shall be members of the Conservation Commission or its agents.
The applicant for a permit shall have the burden
of proving by a preponderance of the credible evidence that the work
proposed in the permit application will not have significant adverse
effect upon the resource area functions and characteristics protected
by this chapter. 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 accordance with MGL c. 249, § 4.
B.
(Reserved)
C.
(Reserved)
D.
Emergency. The application and permit required by
this chapter shall not be required for emergency projects necessary
for the protection of the health and 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 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 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 by this
chapter. 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.
E.
(Reserved)
This chapter 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 provision of
this chapter shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit or determination which previously
has been issued.
The requirements of this chapter shall apply
to any notice of intent submitted after the date of adoption. This
Zoning Chapter shall become effective according to the provisions
outlined in the Franklin Home Rule Charter.
