Town of Southwick, MA
Hampden County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Annual Town Meeting 6-6-1989 by Art. 16. Amendments noted where applicable.]
GENERAL REFERENCES
Fines — See Ch. 1, Art. III.
Building construction — See Ch. 79.
Zoning — See Ch. 185.
Subdivision of land — See Ch. 315.

§ 182-1 Purpose.

The purpose of this chapter is to protect the wetlands, related water resources and adjoining land areas in this municipality by controlling activities deemed by 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, wildlife habitat, recreation, aesthetics, agriculture and aquaculture values (collectively, the "wetland values protected by this chapter").

§ 182-2 Jurisdiction.

[Amended STM 11-21-1991 by Art. 17]
Except as permitted by the Conservation Commission or as provided in this chapter, no person shall remove, fill, dredge, build upon or alter the following resource areas, nor shall any person remove, fill, dredge, build upon or make alterations to any land within 100 feet of the following resource areas (an area known as the "Buffer Zone"):
A. 
Any freshwater wetland, marsh, wet meadow, bog or swamp, including, but not limited to, isolated wetlands.
B. 
Any bank, beach, dune or flat.
C. 
Any pond, lake, river or stream.
D. 
Any land under said waters.
E. 
Any land subject to flooding or inundation by groundwater, surface water or storm flowage, including but not limited to ephemeral ponds and vernal pools.

§ 182-3 Exceptions.

A. 
The permit and application required by this chapter 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 telecommunications services, 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 and application required by this chapter shall be not required for work performed 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 and application required by this chapter 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 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. Other than stated in this section the exceptions provided in the Wetlands Protection Act shall not apply under this chapter.

§ 182-4 Application for permits and requests for determination.

A. 
Written application shall be filed with the Commission to perform activities regulated by this chapter affecting resource areas protected by this chapter. The 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 chapter.
B. 
The Commission in an appropriate case may accept as the application and plans under this chapter the notice of intent and plans filed under the Wetlands Protection Act, MGL C. 131, § 40.
C. 
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 shall contain data and plans specified by the regulations of the Commission.

§ 182-5 Fees.

[Amended STM 11-21-1991 by Art. 17]
A. 
At the time of an application or request the applicant shall pay a filing fee as specified below, in addition to the filing fee required by the Wetlands Protection Act, MGL C. 131, § 40. In addition to the forgoing fees, if in the opinion of the Conservation Commission the complexity and scale of a project so warrants, the Commission is authorized to require the applicant to pay the costs and expenses of any expert consultant deemed necessary by the Commission to review the application. The Conservation Commission may waive the filing fee for a request for determination filed by a person having no financial connection with the property which is the subject of the request. The Commission may also waive the filing fee for a request or application if evidence is provided that the fee causes undue hardship to the applicant.
B. 
Procedure.
(1) 
Fees are payable at the time of filing an application or request and are nonrefundable.
(2) 
Nonpayment of the fees as required under this chapter shall cause the request or application to be deemed to be incomplete and not properly filed, and the time period for the Commission to act under this chapter shall be stayed and shall not begin to run until all such fees are paid in full. The Commission, after notifying the applicant in writing, shall take no further action on the request or application until all such fees are paid in full.
(3) 
Nonpayment of costs and expenses as required under this chapter shall stay the time period for the Commission to act under this chapter until such costs and expenses are paid in full. The Commission, after notifying the applicant in writing, shall not issue a permit hereunder until such costs and expenses are paid in full.
(4) 
The Conservation Commission shall promulgate regulations specifying the amount of the fees to be paid under this chapter.
(5) 
Applications and requests made by the Town of Southwick are exempt from fees under this chapter.
(6) 
All fees, costs and expenses collected under this chapter shall be paid into the town treasury upon their receipt by the Commission in accordance with MGL C. 44, § 53.

§ 182-6 Notice and hearing.

A. 
Any person filing an application with the Commission at the same time shall give written notice thereof, by mail or hand delivery, to all abutters at their mailing addresses shown on the most recent tax list of the Assessors, including owners of land directly opposite on any public or private street or way, or in another municipality. The notice to abutters shall state the date of filing the application and shall state that the Commission will hold a public hearing within 21 days from the date of filing and that the Conservation Commission can be contacted for the day, time and place of the public hearing. The notice will also state where copies of the application may be examined and obtained by abutters. An affidavit of the person providing such notice, with a copy of the notice mailed and delivered and a list of abutters so notified, shall be filed with the Commission. 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.
[Amended STM 11-21-1991 by Art. 17]
B. 
The Commission shall conduct a public hearing within 21 days from receipt of a completed 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.
C. 
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.
D. 
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.
E. 
The Commission may, in appropriate cases, combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act, MGL C. 131, § 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 § 182-7. 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; provided, however, that the Commission shall not take such final action until such boards and officials provided for in § 182-7 of this chapter have had 14 days from receipt of notice to file written comments and recommendations with the Commission.

§ 182-7 Coordination with other boards.

[Amended STM 11-21-1991 by Art. 17]
Any person filing a permit application with the Commission at the same time shall give written notice thereof, by mail or hand delivery, to the Board of Selectmen, Planning Board, Board of Appeals, Board of Health, Historical Commission, Building Inspector and Board of Water Commissioners. The notice to the Boards shall state the date of filing the application, shall state where copies of the application may be examined and obtained and shall inform the Boards that they have 14 days from receipt of the notice to file written comments and recommendations with the Commission. A copy of the notice mailed or delivered shall be filed with the Commission. 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.

§ 182-8 Permits, determinations and conditions.

A. 
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 wetland values 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.
B. 
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.
C. 
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 or cumulative effects upon the wetland values; and where no conditions are adequate to protect those values. Due consideration may be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.
D. 
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 once for a additional one-year period, provided that a request for a renewal is received in writing by the Commission prior to expiration.
E. 
For good cause the Commission may revoke or modify a permit issued under this chapter after notice to the holder of the permit, notice to the public, abutters and Town Boards pursuant to §§ 182-6 and 182-7, and public hearing.
F. 
The Commission in an appropriate case may combine the permit or other action on an application issued under this chapter with the order of conditions issued under the Wetlands Protection Act.[1]
[1]
Editor's Note: See MGL C. 131, § 40.
G. 
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 district wherein the land lies, and until the holder of the permit certifies in writing to the Commission that the permit has been so recorded.

§ 182-9 Regulations.

A. 
After public notice and public 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 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 this chapter not inconsistent with this chapter.

§ 182-10 Definitions.

A. 
The following definitions shall apply in the interpretation and implementation of this chapter:
ALTER
Includes, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this chapter:
(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.
PERSON
Includes 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 representative, agents or assigns.
B. 
Except as otherwise provided 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.

§ 182-11 Security.

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 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 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, sufficient in the opinion of the Commission to insure that the permit conditions will be performed and observed before the whole or any part of the property may be conveyed other than by mortgage deed.

§ 182-12 Enforcement; violations and penalties.

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 chapter and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary.
B. 
The Commission and/or the Board of Selectmen shall have authority to enforce this chapter, 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 may take legal action for enforcement under civil law. Upon request of the Commission, the chief of police may take legal action for enforcement under criminal 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 provisions of this chapter, regulations thereunder or permits issued thereunder shall be punished by a fine of not more than $300.00. 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. 
As an alternative to initiating criminal proceedings to enforce this chapter, the Commission and/or Board of Selectmen may elect to utilize the following noncriminal disposition procedure incorporated in MGL C. 40, § 21D, as amended:
(1) 
The Commission, the Board of Selectmen or the Police Department shall give to the offender a written notice to appear before the clerk of the district court having jurisdiction thereof at any time during office hours, not later than twenty-one days after the date of such notice. Such notice shall be in triplicate and shall contain the name and address, if known, of the offender, the specific offense charged and the time and place for his required appearance. Such notice shall be signed by the Town Clerk, Conservation Commission, a member of the Police Department or by the Board of Selectmen, as the case may be, and shall also be signed by the offender whenever practicable in acknowledgment that such notice has been received.
[Amended STM 11-21-1991 by Art. 17]
(2) 
A copy of the notice shall, if possible, be delivered to the offender at the time and place of the violation. If it is not possible to deliver a copy of said notice to the offender at that time and place of violation, said copy shall be mailed or delivered to the offender's last known address, within fifteen days after said violation. Such notice as so mailed shall be deemed a sufficient notice, and a certificate of the person so mailing such notice that it is has been mailed in accordance with this subsection shall be prima facie evidence thereof.
(3) 
At or before the completion of each tour of duty, or at the beginning of the first subsequent tour of duty, the enforcing person shall give to his commanding officer or department head, as the case may be, those copies of each notice of such a violation he has taken cognizance of during such tour which have not already been delivered or mailed by him as aforesaid. Said commanding officer or department head shall retain and safely preserve one copy and shall, at a time not later than the next court day after such delivery or mailing, deliver the other copy to the clerk of the court before which the offender has been notified to appear.
(4) 
Any person notified to appear before the clerk of a district court as hereinbefore provided may so appear and confess the offense charged, either personally or through a duly authorized agent or by mailing to the Town clerk, together with the notice, such specific sum of money not exceeding three hundred dollars as the town shall fix as penalty for violation of this chapter, rule or regulation. Such payment shall if mailed be made only by postal note, money order or check. Upon receipt of such notice, the Town Clerk shall forthwith notify the district court clerk of such payment, and the receipt by the district court clerk of such notification shall operate as a final disposition of the case. An appearance under this subsection shall not be deemed to be a criminal proceeding. No person so notified to appear before the clerk of a district court shall be required to report to any probation officer, and no record of the case shall be entered in any probation records.
[Amended STM 11-21-1991 by Art. 17]
(5) 
If any person so notified to appear desires to contest the violation alleged in the notice to appear and also to avail himself of the procedure established pursuant to this section, he may, within twenty-one days after the date of the notice, request a hearing in writing. Such hearing shall be held before a district court judge, clerk or assistant clerk, as the court shall direct, and if the judge, clerk or assistant clerk shall, after hearing find that the violation occurred and that it was committed by the person so notified to appear, the person so notified shall be permitted to dispose of the case by paying the specific sum of money fixed as a penalty as aforesaid, or such lesser amount as the judge, clerk or assistant clerk shall order, which payment shall operate as a final disposition of the case. If the judge, clerk, or assistant clerk shall, after hearing, find that violation alleged did not occur or was not committed by the person notified to appear, that finding shall be entered in the docket, which shall operate as a final disposition of the case. Proceedings held pursuant to this subsection shall not be deemed to be criminal proceedings. No person disposing of a case by payment of such penalty shall be required to report to any probation office as a result of such violation, nor shall any record of the case be entered in the probation records.
(6) 
If any person so notified to appear before the clerk of a district court fails to pay the fine provided hereunder within the time specified or, having appeared, does not confess the offense before the clerk or pay the sum of money fixed as a penalty after a hearing and finding as provided in the preceding subsection, the clerk shall notify the enforcing person who issued the original notice, who shall determine whether to apply for the issuance of a complaint for the violation of the appropriate ordinance, bylaw, rule or regulation.
(7) 
As used in this section, the term "district court" shall include, within limits of its jurisdiction, the housing courts of the County of Hampden.
(8) 
The notice to appear provided for herein shall be printed in such form as the chief justice of the district courts shall prescribe for the district courts, and as the chief justice of the housing court shall prescribe for the housing court. Said notice may also include notice of violations pursuant to MGL C. 85, § 11C, MGL C. 90, § 18A, MGL C. 270, § 16A, and MGL C. 140, § 173. Any fines imposed under the provisions of this section shall enure to the Town of Southwick for such use as the town may direct.

§ 182-13 Burden of proof.

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 an unacceptable significant or cumulative effect upon the wetland values 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.

§ 182-14 Appeals.

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.

§ 182-15 Relation to Wetlands Protection Act.

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 thereunder.

§ 182-16 Severability.

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.