The purpose of this By-Law is to protect the
wetlands, related water resources, and adjoining land areas in the
Town of Marblehead by controlling activities deemed by the Marblehead
Conservation Commission (the Conservation Commission) likely to have
a significant or cumulative effect upon wetland values, including
but not limited to the following: public or private water supply,
groundwater, flood control, erosion and sedimentation control, storm
damage prevention, water pollution, fisheries, shellfish, wildlife
habitat, recreation (collectively, the "wetland values protected by
this By-Law").
[Amended 5-7-2001 ATM by Art. 38]
Except as permitted by the Conservation Commission
or as provided for in this By-Law, no person shall remove, fill, dredge,
build upon or alter the following resource areas, or land within 100
feet thereof: freshwater wetland, coastal wetland, marsh, wet meadow,
bog, swamp, vernal pool, bank, beach, dune, flat, river, pond, stream,
estuary, ocean, land under water, or land subject to flooding or inundation
by groundwater, surface water, tidal action or coastal storm flowage.
[Amended 5-7-2001 ATM by Art. 38]
A. The permit required by this By-Law shall not be required
for maintaining, repairing, or replacing, but not substantially changing
or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water,
telephone, telegraph or other telecommunication services, provided
that the structure or facility is not substantially changed or enlarged,
provided that written notice has been given to the Commission prior
to commencement of work, and provided that the work conforms to performance
standards and design specifications in regulations adopted by the
Commission.
B. The permit required by this By-Law shall not be required
for normal maintenance or improvement of land in agricultural use
or in aquacultural use, provided that written notice has been given
to the Commission prior to commencement of work, and provided that
the work conforms to performance standards and design specifications
in regulations adopted by the Commission.
C. The permit required by this By-Law shall not apply
to emergency projects necessary for the protection of the health or
safety of the public, provided that the work is to be performed by
or has been ordered to be performed by an agency of the commonwealth
or a political subdivision thereof, provided that advance notice,
oral or written, has been given to the Commission prior to commencement
of work or within 24 hours after commencement, provided that the Conservation
Commission or its agent certifies the work as an emergency project,
provided that the work is performed only for the time and place certified
by the Conservation Commission for the limited purposes necessary
to abate the emergency, and provided that within 21 days of commencement
of an emergency project a permit application shall be filed with the
Commission for review as provided in this By-Law. Upon failure to
meet these and other requirements of the Commission, the Commission
may, after notice and a public hearing, revoke or modify an emergency
project approval and order restoration and mitigation measures.
[Amended 5-2-1989 STM by Art. 6]
Any person filing a permit application or a
request for determination with the Commission shall provide a copy
thereof at the same time, by certified mail or hand delivery, to the Select
Board, Planning Board, Board of Appeals, Board of Health and Building
Commissioner. The Commission shall not take final action until such
boards and officials have had 14 days from receipt of notice to file
written comments and recommendations with the Commission, which the
Commission shall take into account, but which shall not be binding
on the Commission. The applicant shall have the right to receive any
such comments and recommendations, and to respond to them at a hearing
of the Commission, prior to final action.
The following definitions shall apply in the
interpretation and implementation of this By-Law.
A. The term "person" shall include any individual, group
of individuals, association, partnership, corporation, company, business
organization, trust, estate, the commonwealth, or political subdivision
thereof, to the extent subject to Town by-laws, administrative agency,
public or quasi-public corporation or body, this municipality, and
any other legal entity, its legal representatives, agents, or assigns.
B. The term "alter" shall include, without limitation,
the following activities when undertaken to, upon, within or affecting
resource areas protected by this By-Law:
(1) Removal, excavation or dredging of soil, sand, gravel,
or aggregate materials of any kind;
(2) Changing of preexisting drainage characteristics,
flushing characteristics, salinity, distribution, sedimentation patterns,
flow patterns, or flood retention characteristics;
(3) Drainage or other disturbance of water level or water
table;
(4) Dumping, discharging or filling with any material
which may degrade water quality;
(5) Placing of fill, or removal of material, which would
alter elevation;
(6) Driving of piles, erection or repair of buildings
or structures of any kind;
(7) Placing of obstructions or objects in water;
(8) Destruction of plant life including cutting of trees;
(9) Changing water temperature, biochemical oxygen demand,
or other physical or chemical characteristics of water;
(10)
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater.
[Amended 5-7-2001 ATM by Art. 38]
(11)
Application of pesticides or herbicides.
As part of a permit issued under this By-Law,
in addition to any security required by any other municipal or state
board, agency or official, the Commission may require that the performance
and observance of the conditions imposed hereinunder be secured wholly
or in part by one or more of the methods described below:
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;
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.
The applicant for a permit shall have the burden
of proving by a preponderance of the credible evidence that the work
proposed in the application will not have unacceptable significant
or cumulative effect upon the wetland values protected by this By-Law.
Failure to provide adequate evidence to the Commission supporting
this burden shall be sufficient cause for the Commission to deny a
permit or grant a permit with conditions.
This By-Law is adopted under the Home Rule Amendment
of the Massachusetts Constitution and the Home Rule Statutes, independent
of the Wetlands Protection Act, G.L. Chapter 131, Section 40, and
regulations thereunder.
The invalidity of any section or provision of
this By-Law shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit or determination which previously
has been issued.