[HISTORY: Adopted by the Annual Town Meeting of the Town of Eastham
5-3-1999 by Art. 29. Amendments noted where applicable.]
The purpose of this bylaw is to protect the foreshore and wetlands of
the Town of Eastham by controlling activities deemed to have a significant
effect on wetland values including, but not limited to, the following: public
or private water supply groundwater, flood control, erosion control, storm
damage, water pollution, fisheries, shellfish, wildlife and recreation.
No person shall remove, fill, dredge, alter or build upon or within
100 feet of any bank, freshwater swamp, certified vernal pool, or seasonal
wetland, beach, dune, estuary, creek, pond or lake; or within 200 feet of
any river, stream; or upon any land under said waters or upon or within 100
feet of any land subject to tidal action, coastal storm flowage, or flooding
or any land designated by the commonwealth or federal government as an area
of critical environmental concern and/or wildlife refuge, 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,
or telecommunications services, without first filing written notices of intention
to so remove, fill, dredge, alter, or build upon, by sending a separate letter
by certified mail to the Eastham Conservation Commission and without receiving
and complying with an order of conditions and provided all appeal periods
have elapsed. Such notice of intention shall include such plans as may be
necessary to describe such proposed activity and its effects on the environment.
The same plans and specifications required to be filed by an applicant under
MGL C. 131, § 40, will be accepted as fulfilling the requirements
of this bylaw. Said Commission may hear any oral presentation under this bylaw
at the same public hearing required to be held under the provisions of said
MGL C. 131, § 40. Unless otherwise provided herein, definitions
set forth in said chapter and section and in the regulations issued and as
may be amended by the DEP or any successor thereto, are hereby made a part
of this bylaw.
A.
Land within 200 feet of rivers are designated "riverfront areas."
Riverfront areas and buffer zones, which are lands within 100 feet of other
resource areas, are presumed to be significant to protect the private or public
water supply, to protect the groundwater, to provide flood control, to prevent
pollution, to protect wildlife habitat, and to protect fisheries and shellfisheries.
Such lands are so presumed because it has been observed that activities undertaken
in close proximity to resource areas have a high likelihood of adverse impact
on these resources, either immediately, or as a consequence of construction,
or, over time, as a consequence of maintenance or operation of activities
or structures. Such adverse impacts from construction and use are presumed
to include, without limitation, erosion, siltation, loss of groundwater recharge,
impairment of water quality and/or wildlife habitat. This presumption is refutable,
and may be overcome by a clear showing by a preponderance of the evidence
that the riverfront or buffer zones do not play a role in the protection of
any one of these interests. The Commission therefore may require that the
applicant maintain a strip of continuous, undisturbed vegetative cover within
this area, unless the applicant demonstrates to the satisfaction of the Commission
that the area or part of it may be disturbed without harm to the values protected
by the bylaw.
B.
No permit shall be issued for any activity in the buffer
zone, unless the applicant, in addition to meeting the otherwise applicable
requirements of this bylaw, has proved by a preponderance of the evidence
that:
C.
As to projects within the riverfront areas or buffer zones, the
closer an activity is proposed to a resource area, the more scrutiny will
be given to the potential impacts of a proposed project.
Any activity proposed or undertaken outside of the resource areas protected
by this bylaw, as specified above, shall not be subject to jurisdiction of
the Conservation Commission unless, in the judgment of the Conservation Commission,
said activity is likely to result or has resulted in the alteration of a resource
area protected by this bylaw.
The term "person" as used in this bylaw shall include any individual,
group of individuals, association, partnership, corporation, company, business,
organization, trust, estate, administrative agency, public or quasi-public
corporation or body, or any other legal entity or its legal representatives,
agents or assigns.
Any person may apply to the Conservation Commission for a determination
as to whether or not this bylaw applies to a specific situation prior to the
filling of a written notice of intent. The Commission shall make such determination
under the provisions hereof within 21 days of the receipt of a written request
sent by certified mail from any person desiring such determination.
The Conservation Commission may impose, as part of any determination
or order of conditions, any conditions, which it deems necessary to contribute
to the protection and preservation of the subject land and the furtherance
of the purposes of this bylaw stated above. Request for determination or a
notice of intent may be made in the same manner and using the same forms as
for applications pursuant to MGL C. 131, § 40. The Commission may
combine the hearing under the bylaw and MGL C. 131, § 40, into one
proceeding.
The Conservation Commission is empowered to deny permission for any
dredging, filling, or altering of subject lands within the Town, if in its
judgment such denial is necessary to preserve the environment quality of the
land and resources subject to this bylaw. Due consideration shall be given
to possible effects of the proposal on all values to be protected under this
bylaw and to any demonstrated hardship on the petitioner by reason of denial,
as brought forth at the public hearing. Any order of conditions of denial
issued under this bylaw shall be considered a "prior local permit" under MGL,
c. 131, § 40.
The notice required by § 155-2 of this bylaw shall not apply to emergency projects necessary for the protection of the health or safety of the citizens of Eastham and to be performed or ordered to be performed by an administrative agency of the commonwealth or by the Town. "Emergency projects" shall mean any projects certified to be an emergency by the Commissioner of the Department of Environmental Protection and the Conservation Commission if this bylaw and MGL C. 131, § 40, are both applicable, or by the Conservation Commission, if only this bylaw is applicable. In no case shall any removal, filling, dredging or alteration authorized by such certification extend beyond the time necessary to abate the emergency.
Appeal from any action of the Commission under this bylaw shall be made
to the Superior Court within 60 days of the date of issuance of said order
or denial. Appeal shall be perfected by filling a complaint within the above
period and by sending a copy thereof, by certified mail, return receipt requested,
to the Town Clerk and the Conservation Commission of the Town of Eastham,
and if the appellant is other than the petitioner, to the petitioner.
The Eastham Conservation Commission may, from time to time, adopt such definitions, regulations and performance standards as they may deem necessary to protect the interests of this bylaw. Said regulations shall become effective upon publication following a public hearing in accordance with procedures in § 155-13 of this bylaw.
The Commission may promulgate regulations, after a public hearing following
public notice in a newspaper of general circulation in the Town of Eastham,
not less than 21 days prior to the hearing.
A.
New docks and piers may be permitted only if said dock
or pier or its construction will not impinge on any navigable channel and
will not interfere with any form of navigation, fishing (including shellfishing
and aquaculture) and/or current or historical shellfish resources or shellfish
habitat as determined by survey, historical record, or other designation by
the Shellfish Constable or Massachusetts Division of Marine Fisheries. New
docks and reconstructed portions of existing docks shall be constructed entirely
of materials that do not contain toxic materials, including but not limited
to chromated copper arsenate.
B.
New docks or piers shall be constructed so as to not
adversely affect upland vegetation in the vicinity of the proposed structure.
It shall be a condition of any order of conditions for a new dock or pier,
or for any permit to authorize a previously unlicensed dock or pier, that
the applicant obtain all applicable state and federal licenses. Further the
Conservation Commission shall require that the applicant demonstrate that
there exists no other reasonable alternative to the proposed design or location
of any dock or pier, in that the dock or pier has been located so as to maximize
the possibility of shared use.
A.
The Commission, its agents, officers, and employees shall
have the authority to enter upon privately owned land for the purpose of performing
their duties under this bylaw and may make or cause to be made such examinations,
surveys or sampling as the Commission deems necessary.
B.
The Commission, its agents, officers, and employees and
any police officer of the Town of Eastham shall have authority to enforce
this bylaw, its regulations and any orders of the Commission issued thereunder.
D.
Any person who violates any provision of the bylaw, regulations,
or any orders issued thereunder, shall be punished by a fine of up to $300
for each offense. Each day or portion thereof during which a violation occurs
shall constitute a separate offense of each provision of the bylaw. When enforced
pursuant to the noncriminal disposition provisions of MGL C. 40, § 21D,
the penalties shall be as follows:
