[HISTORY: Adopted by the Town of Lancaster
10-15-2007 STM by Art. 3. Amendments noted where applicable.]
A.
The purpose of this bylaw is to protect the wetlands,
wildlife, water resources, flood-prone areas, and adjoining upland
areas in the Town of Lancaster by controlling activities deemed by
the Conservation Commission likely to have a significant or cumulative
effect on resource area values, including but not limited to the following:
(1)
Public or private water supply;
(2)
Groundwater supply;
(3)
Flood control;
(4)
Erosion and sedimentation control;
(5)
Storm damage prevention;
(6)
Water quality;
(7)
Prevention and control of pollution;
(8)
Fisheries;
(9)
Forests;
(10)
Wildlife habitat;
(11)
Rare or threatened species habitat, whether
plant or animal (according to the Natural Heritage and Endangered
Species Program);
(12)
Vernal pools;
(13)
Agriculture;
(14)
Aquaculture; and
(15)
Recreational values.
B.
This bylaw is intended to utilize the Home Rule authority
of this municipality so as to protect the resource areas under the
Wetlands Protection Act (MGL c. 131, § 40; the "Act") to
a greater degree, to protect additional resource areas beyond the
Act recognized by the Town as significant, to protect all resource
areas for their additional values beyond those recognized in the Act,
and to impose in local regulations and permits additional standards
and procedures stricter than those of the Act and Regulations thereunder
(310 CMR 10.00), subject, however, to the rights and benefits accorded
to agricultural uses and structures of all kinds under the laws of
the commonwealth and other relevant bylaws of the Town of Lancaster.
A.
Except as permitted by the Conservation Commission,
no person shall commence to remove, fill, dredge, build upon, degrade,
discharge into, or otherwise alter the following resource areas:
(1)
Any wetlands;
(2)
Marshes;
(3)
Wet meadows;
(4)
Bogs;
(5)
Swamps;
(6)
Vernal pools;
(7)
Springs;
(8)
Banks;
(9)
Reservoirs;
(10)
Lakes;
(11)
Ponds of any size;
(12)
Lands under water bodies;
(13)
Lands adjoining these resources out to a distance
of 100 feet, known as the buffer zone;
(14)
Rivers;
(15)
Streams, brooks and creeks, whether perennial
or intermittent;
(16)
Lands adjoining these resource areas out to
a distance of 200 feet, known as the riverfront area;
(17)
Lands subject to flooding or inundation by groundwater
or surface water;
(18)
Floodplain Overlay District (as established in Chapter 220, Zoning, of the Code of the Town of Lancaster); and
(19)
Twenty-five-foot no-build or no-alteration zone.
B.
The jurisdiction of this bylaw shall not extend to
uses and structures of agriculture that enjoy the rights and privileges
of laws and regulations of the commonwealth governing agriculture,
including work performed for normal maintenance or improvement of
land in agricultural or aquacultural uses as defined by the Wetlands
Protection Act Regulations found at 310 CMR 10.04.
The following definitions shall apply in the
interpretation and implementation of this bylaw:
Refers to the definition as provided by MGL c. 128, § 1A.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this bylaw:
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 and erection, expansion or
repair of buildings or structures of any kind;
Placing of obstructions or objects in water;
Destruction of plant life, including cutting
or trimming of trees and shrubs;
Changing temperature, biochemical oxygen demand
or other physical, biological, or chemical characteristics of any
waters;
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater;
Incremental activities which have, or may have,
a cumulative adverse impact on the resource areas protected by this
bylaw.
Includes the land area which normally abuts and confines
a water body; the lower boundary being the mean annual low-flow level,
and the upper boundary being the first observable break in the slope
or the mean annual flood level, whichever is higher.
Includes twenty-five-foot no-build or no-alteration area
surrounding any type of wetland or vernal pool. It shall also include
all lands within 100 feet of a wetland or floodplain resource area,
and within 200 feet of a riverfront area, whether perennial or intermittent.
Includes a body of water, including brooks and creeks, which
moves in a definite channel due to a hydraulic gradient, and which
flows within, into or out of areas subject to protection under the
Wetlands Protection Act.[1] An intermittent stream, or ephemeral stream, does not
flow year round. It may flow in all seasons except during the driest
summer months, or only after precipitation, or when groundwater levels
or water from snowmelt are high. An ephemeral stream may have a fish
population.
Includes a body of water, including brooks and creeks, which
moves in a definite channel due to a hydraulic gradient, and which
flows within, into or out of areas subject to protection under the
Wetlands Protection Act. A perennial stream flows all year, except
during periods of drought, or unless it is subject to withdrawals
or controlled by dams or other restricting structures.
Include 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
representatives, agents, or assigns.
Follow the definition of 310 CMR 10.04 except that the size
threshold of 5,000 square feet shall apply.
Includes, without limitation, all vertebrate and invertebrate
animals and all plant species listed as endangered, threatened, or
of special concern by the Massachusetts Division of Fisheries and
Wildlife and the National Heritage Endangered Species Program (NHESP),
regardless whether the site in which they occur has been previously
identified by the Division or Program.
Includes, in addition to scientific definitions found in
the regulations under the Wetlands Protection Act, any confined basin
or depression not occurring in existing lawns, gardens, landscaped
areas or driveways which, at least in most years, holds water for
a minimum of two continuous months during the spring and/or summer,
contains at least 200 cubic feet of water at some time during most
years, is free of adult predatory fish populations, and provides essential
breeding and rearing habitat functions for amphibian, reptile or other
vernal pool community species, regardless of whether the site has
been certified by the Massachusetts Division of Fisheries and Wildlife.
The boundary of the resource area for vernal pools shall be 100 feet
outward from the mean annual high-water line defining the depression,
but shall not include existing lawns, gardens, landscaped or developed
areas.
[1]
Editor's Note: See MGL c. 131, § 40.
A.
Buffer zones are presumed significant to the protection
of wetland resources and interests because activities undertaken in
close proximity to resource areas have a high likelihood of adverse
impact upon the wetland or other resources, either immediately, as
a consequence of construction, or over time, as a consequence of daily
operations or maintenance of such activities. Such adverse impacts
from construction and use include, without limitation, erosion, siltation,
loss of groundwater recharge, degradation of water quality and loss
of wildlife habitat.
B.
Vernal pools are presumed to provide essential breeding
and rearing habitat functions, which in the case of any seasonal wetland,
may not been certified as a vernal pool by the state. It may be that
the depression or area does not provide the habitat functions specified
for identification of noncertified vernal pools.
A.
Notwithstanding any provision of this chapter to the
contrary, the alteration of any residential, business or institutional
building or customary appurtenance thereto, such as lawns, gardens,
landscaped or other developed areas, where such structure or appurtenance
existed prior to the effective date of this bylaw, shall not be subject
to this bylaw but shall be regulated exclusively by the provisions
of MGL c. 131, § 40 (the Wetlands Protection Act).
B.
The applications and permits required by this bylaw
shall not be required for work performed for normal maintenance or
improvement of land in agricultural and aquacultural use as defined
by the Wetlands Protection Act Regulations at 310 CMR 10.04.
C.
The applications and permits required by this bylaw
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 Conservation
Commission prior to commencement of work, and provided that the work
conforms to any performance standards and design specifications in
regulations adopted by the Commission.
D.
The applications and permits required by this bylaw
shall not be required for emergency projects necessary for the protection
of the health and 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 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 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 by this bylaw.
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.
E.
Other than stated in this bylaw, the exceptions provided
in the Wetlands Protection Act (MGL c. 131, § 40) and Regulations
(310 CMR 10.00) shall not apply under this bylaw.
A.
If the Conservation Commission, after a public hearing,
determines that the activities which are subject to the permit application,
or the land and water uses which will result therefrom, are likely
to have a significant individual or cumulative effect on the resource
area values protected by this bylaw, the Commission, within 21 days
of the close of the hearing, shall issue or deny a permit for the
activities requested. The Commission shall take into account the extent
to which the applicant has avoided, minimized and mitigated any such
effect. The Commission also shall take into account any loss, degradation,
isolation and replacement or replication of such protected resource
areas elsewhere in the community and the watershed, resulting from
past activities, whether permitted, unpermitted or exempt, and foreseeable
future activities.
B.
If it issues a permit, the Commission may impose conditions
which the Commission deems necessary or desirable to protect said
resource area values, and all activities shall be conducted in accordance
with those conditions.
C.
Where no conditions are adequate to protect said resource
area values, the Commission is empowered to deny a permit for failure
to meet the requirements of this bylaw.
(1)
It may also deny a permit:
(a)
For failure to submit necessary information
and plans requested by the Commission;
(b)
For failure to comply with the procedures, design
specifications, performance standards, and other requirements in regulations
of the Commission; or
(c)
For failure to avoid, minimize or mitigate unacceptable
significant or cumulative effects upon the resource area values protected
by this bylaw.
(2)
Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing.
D.
The Commission may waive specifically identified and
requested procedures, design specifications, performance standards
or other requirements set forth in its regulations, provided that:
(1)
The Commission finds in writing after said public
hearing that there are no reasonable conditions or alternatives that
would allow the proposed activity to proceed in compliance with said
regulations;
(2)
That avoidance, minimization and mitigation has been
employed to the maximum extent feasible; and
(3)
That the waiver is necessary to accommodate an overriding
public interest or to avoid a decision that so restricts the use of
the property as to constitute an unconstitutional taking without compensation.
E.
In reviewing activities within the one-hundred-foot
buffer zone to a wetland and the twenty-five-foot no-build or no-alteration
zone, the Commission shall presume these areas are important to the
protection of other resource areas because activities undertaken in
close proximity have a high likelihood of adverse impact, either immediately,
as a consequence of construction, or over time as a consequence of
daily operation or existence of the activities.
(2)
The Commission may establish in its regulations design
specifications, performance standards, other measures and safeguards,
and other work limits for protection of such lands, including without
limitation, strips of continuous, undisturbed vegetative cover, unless
the applicant convinces the Commission that the area or part of it
may be disturbed without harm to the values protected by the bylaw.
F.
In reviewing activities within the two-hundred-foot
buffer zone to a riverfront, the Commission shall presume the riverfront
area is important to all the resource area values unless demonstrated
otherwise, and no permit issued hereunder shall permit any activities
unless the applicant, in addition to meeting the otherwise applicable
requirements of this bylaw, has proved by a preponderance of the evidence
that 1) there is no practicable alternative to the proposed project
with less adverse effects, and that 2) such activities, including
proposed mitigation measures, will have no significant adverse impact
on the areas or values protected by this bylaw. The Commission shall
regard as practicable an alternative which is reasonably available
and capable of being done, after taking into consideration the proposed
property use, the overall project purpose (e.g., residential, institutional,
commercial, or industrial), logistics, existing technology, costs
of the alternatives and overall project costs.
G.
To prevent resource area loss, the Commission shall
require applicants to avoid alteration wherever feasible, to minimize
alteration, and where alteration is unavoidable and has been minimized
to provide full mitigation. The Commission may authorize or require
replication of wetlands as a form of mitigation, but only with specific
plans, professional design, proper safeguards, adequate security,
and professional monitoring and reporting to assure success, because
of the poor performance of earlier replication technologies.
H.
The Commission may require a wildlife habitat study
of the project area, to be paid for by the applicant, whenever it
deems appropriate, regardless the type of resource area or the amount
or type of alteration proposed. The decision shall be based upon the
Commission's estimation of the importance of the habitat area considering,
but not limited to, such factors as proximity to other areas suitable
for wildlife, importance of wildlife corridors in the area, or actual
or possible presence of rare plant or animal species in the area.
The work shall be performed by an individual who at least meets the
qualifications set out in the wildlife habitat section of the Wetlands
Protection Act Regulations (310 CMR 10.60).
I.
The Commission shall presume that all areas meeting
the definition of vernal pools, including the adjacent wetland buffer
zone and twenty-five-foot no-build or no-alteration zones, perform
essential habitat functions. This presumption may be overcome only
by the presentation of credible evidence which, in the judgment of
the Commission, demonstrates that the basin or depression does not
provide essential habitat functions. Any formal evaluation should
be performed by an individual who at least meets the qualifications
under the wildlife habitat section of the Wetlands Protection Act
Regulations (310 CMR 10.60). The Commission holds the right to assign
its own consultant for review.
J.
A permit, determination of applicability (DOA) or
order of resource area delineation (ORAD) 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 an additional one-year
period, provided that a request for a renewal is received in writing
by the Commission prior to expiration. Notwithstanding the above,
a permit may identify requirements which shall be enforceable for
a stated number of years, indefinitely, or until permanent protection
is in place, and shall apply to all present and future owners of the
land.
K.
For good cause, the Commission may revoke any permit,
DOA, ORAD or any other order, determination or other decision issued
under this bylaw after notice to the holder, the public, abutters
within 300 feet, and Town boards (Select Board, Planning Board, Board
of Appeals, Board of Health, and Building Commissioner), and after
a public hearing. Amendments to any permits, DOA or ORAD shall be
handled in the manner set out in the Wetlands Protections Act Regulations
and policies thereunder.
L.
The Commission, in an appropriate case, may combine
the decision issued under this bylaw with the order of conditions,
determination of applicability, order of resource area delineation
or certificate of compliance issued under the Wetlands Protection
Act and Regulations.
M.
No work proposed in any application shall be undertaken
until the permit, DOA or ORAD issued by the Commission, with respect
to such work, has been recorded in the Registry of Deeds or, if the
land affected is 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 document
has been recorded. If the applicant fails to perform such recording,
the Commission may record the documents itself and require the applicant
to furnish the recording fee therefor, either at the time of recording
or as a condition precedent to the issuance of a certificate of compliance,
or issue a cease work order until evidence of such recording is received
by the Commission.
A.
After public notice and public hearing, the Conservation
Commission shall promulgate rules and regulations to effectuate the
purposes of this bylaw, effective when voted and filed with the Town
Clerk. 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 bylaw.
B.
At a minimum the regulations shall reiterate the terms
defined in this bylaw, define additional terms not inconsistent with
the bylaw, and impose filing and consultant fees.
This bylaw 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
(310 CMR 10.00) thereunder. It is the intention of this bylaw that
the purposes, jurisdiction, authority, exemptions, regulations, specifications,
standards and other requirements shall be interpreted and administered
as stricter than those under the Wetlands Protection Act and Regulations.
The invalidity of any section or provision of
this bylaw shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit, approval or determination which
previously has been issued.
Applicants that have filed an application (notice
of intent, request for determination of applicability, or abbreviated
notice of resource area delineation) prior to the effective date of
this bylaw shall not be subject to this bylaw, but shall be regulated
exclusively by the provisions of the Wetlands Protection Act (MGL
c. 131, § 40).
This bylaw shall take effect upon approval of
the Attorney General, and after the bylaw has been posted, in accordance
with MGL c. 40, § 32.
