[HISTORY: Adopted by the Annual Town Meeting 6-6-1989 by Art. 16.
Amendments noted where applicable.]
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").
[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.
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.
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.
[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.
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.
[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.
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.
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.
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.
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
PERSON
The following definitions shall apply in the interpretation
and implementation of this chapter:
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting 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.
Placing of obstructions or objects in water;
Destruction of plant life including cutting
of trees.
Changing water temperature, biochemical oxygen
demand or other physical or chemical characteristics of water.
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater.
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.
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.
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.
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.
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 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.
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.
