[HISTORY: Adopted by the Annual Town Meeting
of the Town of Nantucket 4-5-1983 by Art. 29, approved 8-19-1983.
Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 139.
[Amended 5-17-1988 ATM by Art. 95, approved 9-28-1988; 4-8-1996 ATM by Art.
47, approved 7-15-1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000; 4-12-2004 ATM by Art. 52, approved 9-3-2004]
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Through its authority to promulgate regulations pursuant to § 136-7, the Conservation Commission shall adopt definitions to effectuate the purposes of this chapter.
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The definitions for "agricultural practices," "alter," and "person" shall be included in the Nantucket Wetland Regulations, subject to future revision as set forth in § 136-7. The Commission is directed to revise its regulations pursuant to § 136-7 to incorporate the current definition for "habitat" into the definitions for "habitat" contained within the Wetland Regulations, prior to this amendment taking effect.
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[Amended 4-8-1996 ATM by Art. 47, approved
7-15-1996]
The purpose of this chapter is to protect the
wetlands of the Town of Nantucket by controlling activities deemed
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 control, storm damage prevention,
water pollution, fisheries, shellfish, wildlife, rare species, including
rare, threatened or endangered plant species and animals and habitats,
recreation and wetland scenic views (collectively, "the interests
protected by this chapter"). This chapter is intended to utilize the
Home Rule Authority of this municipality to protect additional resource
areas for additional values, with additional standards and procedures
in addition to those of the Wetlands Protection Act, MGL c. 131, § 40,
and regulations thereunder, 310 CMR 10.00.
A.
No person shall commence to remove, fill, dredge,
alter or build upon or within 100 feet of any bank, freshwater wetland,
coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp or upon
or within 100 feet of any estuary, creek, river, stream, pond or lake
or upon or within 100 feet of any land subject to tidal action, coastal
storm flowage, inland or coastal flooding or inundation or within
100 feet of the hundred-year storm line or within any area located
within the geographic boundaries of the resource areas listed previously
that is habitat for rare/significant wildlife and/or fauna, including
Department of Environmental Protection certified vernal pools, without
filing written application for a permit to remove, fill, dredge, alter
or build upon, including such plans as may be necessary to describe
such proposed activity and its effect on the environment, and receiving
and complying with the permit issued pursuant to this chapter. Said
resource areas shall be protected whether or not they border surface
waters. The application and permit 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 and used to provide
electric, gas, water, telephone, telegraph and other telecommunication
services.
[Amended 4-8-1996 ATM by Art. 47, approved
7-15-1996; 4-10-2000 ATM by Art. 62, approved 8-2-2000]
B.
The provisions of this section shall not apply to
work performed for normal maintenance or improvement of land in agricultural
use as defined under § 136-1A of this chapter.
C.
Such application may be identical in form to a notice
of intent filed pursuant to MGL c. 131, § 40, shall be sent
by certified mail or by hand delivery to the Town of Nantucket Conservation
Commission (the "Commission") and must be filed concurrently with
or after applications for all other variances and approvals required
by the Zoning Bylaw,[1] the Subdivision Control Law or any other bylaw or regulation have been obtained. The Commission shall set filing fees for filings pursuant to this chapter by regulation, but no filing fee is required when the Town or County of Nantucket or Nantucket Islands Land Bank files an application for a permit. The Commission is authorized to require an applicant to pay the costs and expenses of any expert consultant deemed by the Commission necessary to enable the Commission to evaluate the application. This provision shall apply to all expert consultants providing services to the Commission with respect to the effects of the proposed work or activities on the environment, including, without limitation, services in the fields of environmental engineering and marine biology. The costs and expenses assessed to an applicant shall reflect the actual costs and expenses incurred by the Commission for such services. If the proposed project meets the definition of a "major commercial development," as defined in § 139-11B of the Code of the Town of Nantucket, or if such project includes more than four lots, the costs and expenses assessed to the applicant shall not, in any event, exceed $5,000 per application. In all other instances, the costs and expenses assessed to the applicant shall not, in any event, exceed $2,500 per application. Copies of the application shall be sent, at the same time, by certified mail, to the Select Board, the Planning Board and the Board of Health.
[Amended 5-17-1988 ATM by Art. 95, approved
9-28-1988; 4-10-1989 ATM by Art. 126, approved 7-4-1989; 4-8-1996 ATM by Art. 47, approved 7-15-1996; 4-15-2003 ATM by Art.
26, approved 8-27-2003; 6-25-2020 ATM by Art. 70, approved 10-27-2020]
D.
Any person who desires a determination as to whether
this Nantucket wetlands chapter applies to land or to work that may
affect an area subject to protection under this chapter may submit
to the Conservation Commission by certified mail or hand delivery
a written request which may be identical in form to a request for
determination filed pursuant to MGL c. 131, § 40, Form 1
of 310 CMR 10.99. The Commission shall within 21 days of receipt make
a written determination to such request which may be identical in
form to Form 2 of 310 CMR 10.99. Notice of the time and place of the
public meeting at which the determination is to be made shall be given
by the Commission at the expense of the applicant, not less than five
days prior to the public meeting, by publication in a newspaper of
general circulation in Nantucket. At least five days prior to the
public meeting, by certified mail, return receipt requested, the applicant
shall send a copy of the notice of the public meeting, supplied by
the Commission, to all abutters, as certified by the Assessor from
the Town's most recent Assessor's list. Postmarked mailing receipts
and the certified abutter's list shall be presented to the Commission
at the opening of the public meeting. The Commission may determine
that the work described in a request is in an area subject to this
chapter but will not alter the wetland and, because the work is of
a limited extent, does not require a permit, notwithstanding the other
provisions of this chapter.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988; amended 6-27-1989 STM by Art. II, approved 10-17-1989]
E.
Members of the Commission, its employees and agents
may enter upon privately owned land to perform their duties under
this section and may, in furtherance thereof, take samples and photographs
and made examinations, inspections and surveys.
[Added 4-10-1989 ATM by Art. 126, approved
7-4-1989]
F.
Permit and waiver rehearing limit. No permit or waiver
which has been unfavorably and finally acted upon by the Commission
shall again be eligible for consideration on a new application within
three years after the date of final unfavorable action unless the
Commission finds, by a favorable vote of a majority of the members
then present and voting, specific and material changes in the circumstances
upon which the previous unfavorable action was based and describes
such changes in the records of its proceedings.
[Added 4-12-1999 ATM by Art. 61, approved
8-10-1999]
A.
The Commission shall hold a public hearing on the
application within 21 days of its receipt. Notice of the time and
place of the hearing shall be given by the Commission at the expense
of the applicant, not less than five days prior to the hearing, by
publication in a newspaper of general circulation in Nantucket and
by mailing a notice to the applicant, the Board of Health, the Select
Board, the Planning Board, all abutters, the property owner if different
from the applicant and to such other persons as the Commission may
by regulation determine. At least five days prior to the public hearing,
by certified mail, return receipt requested, the applicant shall send
a copy of the notice of the public hearing, supplied by the Commission,
to all abutters, as certified by the Assessor from the Town's most
recent Assessor's list. Postmarked mailing receipts and the certified
abutter's list shall be presented to the Commission at the opening
of the public hearing. Return receipt cards shall be presented to
the Commission before the hearing can be closed. The Commission, its
agents, officers and employees, may enter upon privately owned land
for the purpose of performing their duties under this chapter.
[Amended 5-17-1988 ATM by Art. 95, approved
9-28-1988; 6-27-1989 STM by Art. II, approved 10-17-1989; 6-25-2020 ATM by Art. 70, approved 10-27-2020]
B.
Permit and conditions. If, after the public hearing,
the Commission determines that the area which is the subject of the
application is significant to the interests of this chapter, the Commission
shall, within 21 days of such hearing, issue or deny a permit for
the work requested. If it issues a permit after making such determination,
the Commission shall impose such conditions as it determines are necessary
or desirable for protection of those interests, and all work shall
be done in accordance with those conditions. If the Commission determines
that the area which is the subject of the application is not significant
to the interests protected by this chapter or that the proposed activity
does not require the imposition of conditions, it shall issue a permit
without conditions within 21 days of the public hearing. Permits shall
expire three years from the date of issuance unless renewed prior
to expiration. Permits may be extended for three one-year periods.
The Commission may determine by regulation standards for the granting
or denial of an extension.
[Amended 5-17-1988 ATM by Art. 95, approved
9-28-1988; 4-9-2001 ATM by Art. 44, approved 8-4-2001]
C.
Relationship to MGL c. 131, § 40. Since
the Wetlands Protection Act, MGL c. 131, § 40, establishes
minimum standards, the Commission shall not impose additional or more
stringent conditions in an order pursuant to MGL c. 131, § 40,
than it imposes pursuant to this chapter; nor shall it require a notice
of intention filed under MGL c. 131, § 40, to provide additional
materials or data to those required under this chapter.
D.
The Commission may continue or adjourn a public hearing
for a permit in the following situations:
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988]
E.
The Commission may deny or revoke a permit at any
time, even after commencement or completion of work, if the applicant
fails to comply with the requirements of this chapter, fails to comply
with the regulations promulgated pursuant to this chapter, fails to
comply with the conditions of a permit issued pursuant to this chapter
or if the applicant fails to submit necessary information or plans
requested by the Commission. The inaccuracy or incompleteness of plans
or other information required to be submitted to the Commission shall
be grounds for denial or revocation of an application. This provision
shall apply even if such inaccuracy or incompleteness is not apparent
until after a permit has been issued and shall apply whether or not
such inaccuracy or incompleteness is the result of intentional or
willful conduct.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
F.
When the Commission determines that any work is performed
in violation of this chapter, the regulations promulgated pursuant
to this chapter or the conditions specified in a permit issued pursuant
to this chapter, the Commission may issue an enforcement order. The
Commission may promulgate regulations to effectuate the purposes of
this section.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988]
G.
Any party aggrieved by a permit issued pursuant to
this chapter may file a complaint seeking relief in the Superior Court
of the County of Nantucket not more than 20 days after the issuance
of the permit by the Commission.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988]
H.
Prior to the commencement of any work permitted or
required by a permit issued pursuant to this chapter, the permit shall
be recorded by the applicant in the Nantucket Registry of Deeds or
with the Nantucket Registry of the Land Court, within the chain of
title of the affected property. Certification of recording shall be
sent to the Commission.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988]
I.
Persons applying for or holding a valid permit who wish to make plan changes shall request in writing permission to do so. The Commission may determine that the plan changes are not significant and no further action is required or that the plan changes are significant and a new application for a permit or notice of intent must be filed in writing. Within 21 days of the issuance of an occupancy permit by the Building Inspector for any work or activity covered by a permit issued by the Commission, the applicant shall apply for a certificate of compliance from the Commission certifying that the work or activity has been completed as authorized and in compliance with the permit. As a condition to issuance of such certificate, the Commission, its members, employees or agents may enter on privately owned land and take samples and photographs and make examinations, inspections and surveys. If the Commission determines that the work or activity has in fact been completed as authorized and in compliance with the permit, it shall issue a certificate of compliance to the applicant. Failure of the applicant to comply with this provision shall constitute a violation within the meaning of § 136-10A and shall be punishable as provided therein.
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988; amended 4-10-1989 ATM by Art. 126, approved 7-4-1989]
J.
For any project which the Commission determines will
have a detrimental effect on a wetland scenic view, the Commission
may require that the project be modified in a manner that mitigates
the effect on the wetland scenic view. Such requirements may include
but are not limited to:
[Added 5-17-1988 ATM by Art. 95, approved
9-28-1988]
K.
The Conservation Commission may deny or revoke a permit
at any time where the proposed activity or previously permitted activity
poses a reasonably foreseeable threat to the public health and safety
as certified by the Chief of Police, Fire Chief, Health Inspector,
Marine Superintendent, or Building Commissioner.
[Added 4-12-2004 ATM by Art. 50, approved 9-3-2004]
[Amended 4-12-2004 ATM by Art. 51, approved 9-3-2004]
An emergency project is an activity in a resource
area or its buffer that is necessary to protect the public health
and safety, and which, because of the conditions giving rise to the
emergency, to be performed effectively cannot await compliance with
the notice requirements and appeal periods associated with the filing
of a notice of intent or request for determination of applicability.
An emergency project may proceed only upon the issuance of an emergency
certification from the Conservation Commission, which shall comply
with the following procedures:
A.
Any person requesting to undertake an emergency project
shall specify why the project is necessary for the protection of the
public health and safety and which agency or subagency of the Commonwealth
of Massachusetts is to perform the project or has ordered the project
to be performed;
B.
An emergency certification shall be issued only for
the protection of public health or safety;
C.
If the project is certified to be an emergency by
the Conservation Commission, the certification shall include a description
of the work which is to be allowed and shall not authorize work different
or more extensive than that necessary to abate the emergency which
gave rise to that certification;
D.
An emergency permit shall be issued only following
a site inspection by a member of the Conservation Commission, or an
authorized representative thereof;
E.
All work performed pursuant to an emergency certification
shall be completed within 30 days of issue;
F.
Within 21 days of commencement of an emergency project,
a notice of intent, or, where appropriate, a request for determination
of applicability, shall be filed with the Conservation Commission
for review as provided by this chapter. In the event that such a filing
is not timely received by the Conservation Commission, or is incomplete,
or such filing is denied for any reason, the Commission may revoke
or modify an emergency project certification and/or order appropriate
restoration and mitigation measures.
[Amended 5-17-1988 ATM by Art. 95, approved
9-28-1988]
Any person who purchases, inherits or otherwise
acquires real estate upon which work has been done in violation of
the provisions of this chapter or in violation of any permit issued
pursuant to this chapter 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 commenced within three years following
the date of acquisition of the real estate by such person or five
years after the violation, whichever is earlier.
After due notice and public hearing, the Commission
may promulgate rules and regulations to effectuate the purposes of
this chapter. 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 chapter.
The applicant shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the application shall not harm the interests protected by this
chapter. Failure to provide adequate evidence to the Commission supporting
a determination that the proposed work will not harm the interests
protected by this chapter shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions or, in the Commission's
discretion, to continue the hearing to another date to enable the
applicant or others to present additional evidence.
The Commission may require, as a permit condition,
that the performance and observance of other conditions be secured
by one or both of the following methods:
A.
By a bond or deposit of money or negotiable securities
in an amount determined by the Commission to be sufficient and payable
to the Town of Nantucket. The bond shall be released by the Commission
only after the Commission issues a certificate of compliance.
[Amended 5-17-1988 ATM by Art. 95, approved
9-28-1988]
B.
By a conservation restriction, easement or other covenant
running with the land, executed and properly recorded (or registered,
in the case of registered land).
[Amended 4-10-1989 ATM by Art. 126, approved
7-4-1989]
A.
Any person who violates any provision of this chapter
or of any condition of a permit issued pursuant to it 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; if
more than one, each condition violated shall constitute a separate
offense. The fine set forth herein is in addition to any fine levied
under the Wetlands Protection Act, MGL c. 131, § 40. This
chapter may be enforced pursuant to MGL c. 40, § 21D, by
a Town police officer or other officer having police powers.
B.
Upon request of the Commission, the Select Board and
Town Counsel shall take such civil legal actions, including the bringing
of actions for injunctive and monetary relief, as may be necessary
to enforce this chapter and permits issued pursuant to it. Upon request
of the Commission, the Chief of Police shall take such legal actions
under the criminal law as may be necessary to enforce this chapter
and permits issued pursuant to it.
[Amended 6-25-2020 ATM by Art. 70, approved 10-27-2020]
