[HISTORY: Adopted by the Annual Town Meeting
of the Town of Marblehead 5-6-1987 ATM by Art. 63. Amendments noted
where applicable.]
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.
A.
Except as provided in § 194-3, a written application shall be filed with the Commission to perform activities regulated by this By-Law affecting resource areas protected by this By-Law. 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 environment. No activities shall commence without receiving and complying with a permit issued pursuant to this By-Law.
[Amended 5-7-2001 ATM by Art. 38]
B.
The Commission in an appropriate case may accept as
the application and plans under this By-Law the notice of intent and
plans filed under the Wetlands Protection Act, G.L. Chapter 131, Section
40.
C.
Any person desiring to know whether or not proposed
activity or an area is subject to this By-Law may in writing request
a determination from the Commission. Such a request for determination
shall contain data and plans specified by the regulations of the Commission.
D.
At the time of a permit application or request for
determination, the applicant shall pay a filing fee as specified in
regulations of the Commission. The fee is in addition to that required
by the Wetlands Protection Act, G.L. Chapter 131, Section 40. The
Commission may waive the filing fee for a permit application or request
for determination filed by a government agency or for a request for
a determination filed by a person having no financial connection with
the property that is the subject of the request.
[Amended 5-7-2001 ATM by Art. 38; 5-3-2004 ATM by Art.
47]
E.
As provided by G.L. Ch. 44, § 53G, the Marblehead
Conservation Commission may impose reasonable fees for the employment
of outside consultants, engaged by the Conservation Commission, for
specific expert services deemed necessary by the Commission to come
to a final decision on an application submitted to the Conservation
Commission pursuant to the requirements of the Wetlands Protection
Act (GL Ch. 131, § 40) or any other state or municipal statute,
by-law or regulation, as they may be amended or enacted from time
to time.
[Added 5-3-2004 ATM by Art. 47]
A.
Any person filing a permit application or a request
for determination with the Commission, at the same time shall give
written notice thereof to all abutters and abutters to abutters within
300 feet of the affected property, according to the most recent records
of the Assessors, including those across a traveled way and including
any in another municipality. The notice to abutters shall enclose
a copy of the permit application or request for determination, along
with plans, or shall state where said documents may be examined and
copies obtained by the 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 by the Commission to the owner
as well as the person making the request.
[Amended 5-7-2001 ATM by Art. 38]
B.
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 working days prior to
the hearing, in a newspaper of general circulation in the municipality.
[Amended 7-5-2001 ATM by Art. 38]
C.
The Commission shall commence the public hearing within
21 days from receipt of a completed application or request for determination.
D.
The Commission shall issue its decision with regards
to a permit application or request for determination in writing within
21 days of the close of the public hearing thereon.
[Amended 5-7-2001 ATM by Art. 38]
E.
The Commission in an appropriate case may combine
its hearing under this By-Law with the hearing conducted under the
Wetlands Protection Act, G.L. Chapter 131, Section 40.
F.
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 or others, 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 § 194-6. In the event 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.
[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
Board of Selectmen, 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.
A.
If the Commission after a public hearing determines
that the activities that are the subject of the application are likely
to have a significant or cumulative effect upon the wetland values
protected by this By-Law, 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 values,
and all activities shall be done in accordance with those conditions.
B.
The Commission is empowered to deny a permit for failure
to meet the requirements of this By-Law; 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 or cumulative effects upon the wetland values
protected by this By-Law.
[Amended 5-7-2001 ATM by Art. 38]
C.
A permit shall be valid for three years
from the date of its issuance; provided, however, that the Commission
may issue a permit for up to five years where special circumstances
warrant and where those special circumstances are set forth in the
permit. Any permit may be extended by the Commission for good cause
for one or more periods of up to one year each, provided the request
for an extension is made to the Commission at least 30 days prior
to the expiration of the permit. Notwithstanding the foregoing, the
Commission may in its discretion issue a permit containing surviving/in
perpetuity conditions that will affect the property, which is the
subject of the permit, following the expiration of the permit.
[Amended 5-3-2004 ATM by Art. 46]
D.
For good cause the Commission may revoke or modify
a permit issued under this By-Law after public notice and public hearing,
and notice to the holder of the permit.
E.
The Commission in an appropriate case may combine
the permit or other action on an application issued under this By-Law
with the order of conditions issued under the Wetlands Protection
Act.
F.
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
thereby be registered land, in the registry section of the Land Court
for the Southern District of Essex Court, and until the holder of
the permit certifies in writing to the Commission that the permit
has been so recorded.
G.
An applicant for a permit under G.L. Chapter 131,
Section 40 and the Marblehead Wetlands Protection By-Law may not apply
for a building permit unless or until an order of conditions/Wetlands
Protection By-Law permit, or a determination of nonapplicability,
has been issued by the Conservation Commission, and recorded in the
Essex South District Registry of Deeds, and no building permit may
be issued unless in conformance with such Wetlands Protection By-Law
permit.
[Added 5-6-1991 ATM by Art. 52]
A.
After public notice and public hearing the Commission
shall promulgate rules and regulations to effectuate the purposes
of this By-Law. 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 By-Law.
B.
At a minimum these regulations shall define key terms
in this By-Law not inconsistent with this By-Law.
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.
A.
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 By-Law and may make or cause
to be made such examinations, surveys or sampling as the Commission
deems necessary.
B.
The Commission shall have authority to enforce this
By-Law, its regulations, and permits issued thereunder by violation
notices, administrative orders, and civil and criminal court actions.
C.
Upon request of the Commission, the Board of Selectmen
and the Town Counsel shall take legal action for enforcement under
civil law.
D.
Municipal boards and officers, including any police
officer or other officer having police powers, shall have authority
to assist the Commission in enforcement.
E.
Any person who violates any provision of this By-Law,
regulations thereunder, or permits issued thereunder, 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, and
each provision of the chapter, regulations or permit violated shall
constitute a separate offense.
F.
In the alternative to criminal prosecution, the Commission
may elect to utilize the noncriminal disposition procedure set forth
in G.L. Chapter 40, Section 21D.
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.
