[HISTORY: Adopted by the Annual Town Meeting
of the Town of Lexington 4-11-1977 by Art. 85; amended 5-3-1982 ATM by Art. 48. Subsequent amendments
noted where applicable.]
[Added 3-26-1997 ATM by Art. 25]
The purpose of this by-law is to preserve and
protect the wetland resource areas and buffer zones of the Town of
Lexington by regulation of, and control of, activities deemed by the
Conservation Commission to have significant or cumulatively detrimental
effect upon the following interests and values, including but not
limited to: public or private water supply; groundwater supply; the
prevention and control of flooding, erosion or sedimentation, storm
damage, other water damage and/or pollution; the protection of surrounding
land and other homes or buildings, aquatic life or wildlife, streams,
ponds or other bodies of water, and recreation.
[Amended 3-25-1985 ATM by Art. 9; 3-26-1997 ATM by Art. 25; 3-24-1999 ATM by Art.
15]
A.
No person shall remove, fill, dredge, build upon or
alter any bank, freshwater wetland, marsh, bog, wet meadow, swamp,
creek, river, stream, pond, lake, vernal pool habitat, land under
water bodies, land subject to flooding, or any land bordering thereon
as hereinafter defined, or riverfront area other than in the course
of 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 and used to provide electric, gas,
water, telephone, telegraph or other telecommunication services without
first filing written notice of intent to so remove, fill, dredge,
alter or build upon, including such plans as may be necessary to fully
describe such proposed activity and its effect on the environment,
and without receiving and complying with a permit issued by the Conservation
Commission.
B.
Said notice shall be sent by certified mail to the
Conservation Commission or filed at the Conservation Office in accordance
with the general filing procedures. Each such notice shall be accompanied
by a filing fee to be determined in accordance with a fee schedule
adopted by the Conservation Commission payable to the Town of Lexington.
Such notice may be sent before any or all permits, variances and approvals
required by the Zoning By-Law or by the Subdivision Control Law and
the regulations of the Planning Board thereunder have been obtained.
C.
Upon written request of any person, the Conservation
Commission shall within 21 days make a written determination as to
whether this by-law is applicable to any land or work thereon. Where
such person is other than the owner notice of any such determination
shall be sent to the owner and to the person making such request.
[Amended 3-25-1985 ATM by Art. 9; 3-26-1997 ATM by Art. 25; 3-24-1999 ATM by Art.
15; 3-27-2019 ATM
by Art. 34]
The Conservation Commission shall hold a public
hearing on the proposed activity within 30 days of the receipt of
said notice. Legal notice of the time and place of said hearing shall
be given by the Conservation Commission at the expense of the applicant
not less than five days prior to such hearing by publication in a
newspaper of general circulation in Lexington, and by delivering or
mailing a notice thereof to the applicant, to the Board of Health,
Select Board, the Town Engineer, Building Commissioner, Zoning Officer
and the Planning Board, and to such other persons as the Conservation
Commission may determine. Notice of the time and place of said hearing
shall be given by the applicant, not less than five days prior to
such hearing, to abutters within 100 feet of the property or lot (as
determined by the most recent Assessor's records) on which the proposed
activity is to take place. The Conservation Commission, the Town Manager,
the Town Engineer, the Building Commissioner, the Zoning Officer,
the Planning Board, their agents, officers and employees may enter
upon privately owned land without liability of any kind for the purpose
of performing the duties under this by-law.
A.
If, after said hearing, the Conservation Commission
determines that the land on which the proposed work is to be done
is probably significant to public or private water supply, to the
groundwater supply, to flood control, to control of erosion or sedimentation,
to storm damage prevention, to other water damage prevention, to the
prevention of pollution, to the protection of surrounding land and
other homes or buildings, to aquatic life or wildlife, to the protection
of streams, ponds or other bodies of water, or to the protection of
recreation, the Commission shall, by written order, within 21 days
or such further time as the Commission and the applicant shall agree
on, impose such conditions as are reasonably necessary for the protection
of the interests described herein and all work shall be done in accordance
therewith. The conditions may include a condition that certain land
or portions thereof not be built upon or altered, filled or dredged,
that streams not be diverted, dammed or otherwise disturbed.
B.
If the Conservation Commission makes a determination
that the proposed activity does not require the imposition of such
conditions, the applicant and all others who have received notice
of such hearing by mail shall be notified of such determination within
21 days after said hearing.
C.
The Conservation Commission shall not impose additional or more stringent conditions as a result of any hearing conducted by it pursuant to Massachusetts General Laws (M.G.L.) Chapter 131, Section 40 than it has imposed pursuant to the provisions of this by-law, nor shall it require from an applicant who filed a notice of intent pursuant to M.G.L. Chapter 131, Section 40 additional materials or data than is required of him pursuant to the application filed under this by-law.
[Amended 3-25-1985 ATM by Art. 9; 3-24-1999 ATM by Art. 15]
This By-Law shall not apply to any emergency project as defined in M.G.L. Chapter 131, Section 40, to any mosquito control project authorized by any laws of the commonwealth or to any work performed for normal maintenance or improvement of land actively devoted to agricultural use at the time of application.
[Amended 3-27-2019 ATM by Art. 34]
Any person who purchases, inherits or otherwise
acquires real estate upon which work has been done in violation of
the provisions of this by-law or in violation of any order issued
under this by-law shall forthwith comply with any such order or restore
such land to its condition prior to any such violation; provided,
however, that no action, civil or criminal, shall be brought against
such person unless such action is commenced within three years following
the recording of the deed or the date of the death by which such real
estate was acquired by such person. The Town Manager and the Select
Board shall, upon request of the Conservation Commission, instruct
Town Counsel to take such legal action as may be necessary to restrain
a violation of this by-law, and enforce the orders of the Conservation
Commission hereunder, and the Town Counsel shall forthwith comply
with such instructions.
The Conservation Commission may promulgate after
due notice and public hearing rules and regulations to effectuate
the purposes of this by-law. However, 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.
[Amended 3-26-1997 ATM by Art. 25; 3-24-1999 ATM by Art. 15]
The applicant shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
by him in his notice of intent will not cause significant individual
or cumulative harmful effects to the interest sought to be protected
by this by-law. In assessing cumulative harmful effects, the Commission
may consider the likely long-term effects of the proposed work as
well as the likely effects of the proposed work when taken in conjunction
with any prior work and any contemplated future work in the affected
area. Failure to provide to the Conservation Commission adequate evidence
for it to determine that the proposed work will not cause significant
harm to the interest sought to be protected by this by-law shall be
sufficient cause for the Conservation Commission to deny such permit
or to grant such permit with such conditions as it deems reasonably
necessary or desirable to carry out the purposes of this by-law or
to postpone or continue the hearing to another date certain to enable
the applicant and others to present additional evidence, upon such
terms and conditions as seems to the Commission to be just.
[Amended 3-25-1985 ATM by Art. 9; 4-4-1990 ATM by Art. 35; 3-23-1992 ATM by Art.
25; 3-26-1997 ATM by Art. 25; 3-24-1999 ATM by Art. 15]
The following definitions shall apply in the
interpretation and implementation of this by-law:
A.
The term "applicant" as used in this by-law shall
mean a person giving notice of intent to build, remove, fill, dredge
or alter.
B.
The term "person" as used in this by-law shall include
any individual, group of individuals, associations, partnerships,
corporations, business organizations, trust, estate, Commonwealth
of Massachusetts when subject to Town by-laws, any public or quasi-public
corporation or body when subject to Town by-law or any other legal
entity, including the Town of Lexington or its legal representatives,
agents or assigns.
C.
Protected resource areas definitions.
(1)
The terms "marsh," "freshwater wetland," "swamp," "wet meadow" and "bog" as used in this by-law shall be defined as set forth in M.G.L. Chapter 131, Section 40 and its regulations 310 CMR 10.04. Said resource areas shall be protected whether or not they border surface waters. The boundary of these wetlands is either the line within which 50% or more of the vegetation community consists of wetland plant species identified in M.G.L. Chapter 131, Section 40 or the line within which the soil conditions meet the technical criterion of a hydric soil as developed and revised by the National Technical Committee for Hydric Soils, whichever line or segment of line protects more wetlands in situations where two lines exist.
[Amended 4-8-2002 ATM by Art. 22]
(2)
The terms "river" and "riverfront area" as used in this by-law shall be defined as set forth in M.G.L. Chapter 131, Section 40 and its regulations 310 CMR 10.04.
(3)
The terms "bank," "creek," "stream," "pond," "lake," "vernal pool habitat," "land under water bodies," and "bordering land subject to flooding" shall be defined as set forth in the regulations 310 CMR 10.04 of M.G.L. Chapter 131, Section 40.
[Amended 4-8-2002 ATM by Art. 22]
(4)
"Land bordering thereon" shall be defined including
any land within either of the following:
(a)
One hundred feet horizontally lateral from the
edge of any bank, freshwater wetland, bog, marsh, wet meadow, swamp,
creek, river, stream, pond, lake, vernal pool habitat, land under
water bodies or land subject to flooding.
(5)
The term "isolated land subject to flooding" shall
mean an area, depression or basin that holds at minimum one-eighth
acre foot of water to an average depth of at least six inches once
a year. This shall not include swimming pools, artificially lined
ponds or pools, or constructed wastewater lagoons.
[Added 4-8-2002 ATM by Art. 22]
D.
The word "alter" shall be defined as including but
not limited to one or more of the following actions upon areas described
in this by-law:
(1)
The removal, excavation or dredging of soil, sand,
gravel or aggregate material of any kind;
(2)
The changing of pre-existing drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns and flood storage retention areas;
(3)
The drainage or disturbance of the water level or
water table, the dumping, discharging or filling with any material
which could degrade the water quality;
(4)
The driving of piling, erection of buildings or structures
of any kind;
(5)
The placing of obstructions whether or not they interfere
with the flow of water;
(6)
The destruction of plant life, including the cutting
of trees, which might result in environmental damage to the land or
a part thereof rendered by this by-law;
(7)
The changing of water temperature, biochemical oxygen
demand and other natural characteristics of the receiving water;
(8)
Any activities, changes or work which pollutes any
stream or body of water, whether located in or out of the Town of
Lexington.
E.
The Conservation Commission may in its rules and regulations
provide such other definitions, or terms used in this by-law, as it
deems useful in order to carry out its obligations under this by-law.
[Added 3-24-1999 ATM by Art. 15]
A.
Upon receipt of a permit application, the Conservation
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 applicant. The
specific consultant services may include but are not limited to resource
area survey and delineation, analysis of resource area values, including
wildlife habitat evaluations, hydrogeologic and drainage analysis,
and environmental or land use law.
B.
The Commission may require the payment of the consultant
fee at any point in its deliberations prior to a final decision in
accordance with rules and regulations adopted by the Conservation
Commission. The exercise of discretion by the Commission 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.
The Conservation Commission may, as part of
its order of conditions, require, in addition to any security required
by any other Town or state board, commission, agency or officer, that
the performance and observance of the conditions imposed hereunder
be secured by one, or in part by one and in part by the other of the
methods described in the following Subsections A and B:
A.
By a proper bond or a deposit of money or negotiable
securities, sufficient in the opinion of the Conservation Commission
to secure performance of the conditions and observance of the safeguards
of such order of conditions.
B.
By a covenant, executed and duly recorded by the owner
of record, running with the land, whereby the conditions and safeguards
included in such order of conditions shall be performed before any
lot may be conveyed other than by mortgage deed.
[Added 3-26-1997 ATM by Art. 25; amended 3-24-1999 ATM by Art.
15]
A.
All orders of conditions shall expire three years
after the date of issuance. The Conservation Commission shall have
the authority to extend an order of conditions for an additional period
or may deny such extension, according to regulations promulgated under
authority of this by-law.
B.
For good cause, the Conservation Commission at a public hearing may revoke or modify an order of conditions or a determination of applicability issued under this by-law, after notice to the holder of the order of conditions or determination of applicability, and notice to the public, abutters and Town boards, pursuant to § 130-3. Good cause for such revocation or modification shall include the following:
(1)
Failure by the applicant or his successors to comply
with the terms of the order of conditions or determination of applicability;
(2)
The receipt of new information relating to the project,
which indicates that previous information presented to the Conservation
Commission was inaccurate; or
(3)
Changes to the project after completion of the Conservation
Commission's review.
[Amended 3-25-1985 ATM by Art. 9]
Whoever violates any provision of this by-law
shall be punished by a fine of not more than $300. Each day or portion
thereof of continuing violation shall constitute a separate offense.
This by-law may be enforced by any Town police officer or other officer
having police powers.
[Amended 3-25-1985 ATM by Art. 9]
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 order of conditions which has previously
become final.
