[HISTORY: Adopted 4-27-1990 ATM, Art. 32. Amendments noted
where applicable.]
The purpose of this chapter is to protect the
wetlands, related water resources and adjoining land areas of the
Town of Sunderland by prior review and control of activities deemed
by the Conservation Commission likely to have significant or cumulative
effect upon wetland values, including but not limited to the following:
public and private water supplies, groundwater, flood control, erosion
and sedimentation control, storm damage prevention, prevention of
water pollution, fisheries, wildlife, wildlife habitat, recreation
and aesthetic values (collectively to be known as the "wetlands protected
by this chapter").
Except as provided by this chapter or permitted
by the Sunderland Conservation Commission, no person shall remove,
fill, dredge, alter or build upon or within one hundred (100) feet
of the following resource areas: any freshwater wetland, riverine
wetland, marsh, wet meadow, bog or swamp, any bank or beach, any lake,
river, pond or stream, whether intermittent or continuous, natural
or man-made, any land under aforesaid waters, any land subject to
flooding or inundation by surface or ground water, storm flowage and
isolated wetlands, including kettle holes and seasonal wetlands.
A.
The application and permit required by this chapter
shall not be required for maintaining, repairing or replacing, but
not substantially changing or enlarging [more than fifty percent (50%)
of structure area], an existing or lawfully located structure or facility
used in the service of the public to provide electric, gas or water,
telephone, telegraph or other telecommunication services, town-maintained
drainage ditches, sanitary sewers and storm sewers, provided that
the structure or facility is not substantially changed or enlarged,
provided that written notice has been given to the Commission at least
forty-eight (48) hours prior to commencement of work and provided
that the work conforms to performance standards in regulations adopted
by the Commission.
B.
The application and permits 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 twenty-four (24) hours after
commencement, provided that the Conservation Commission or its agent
certified 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 twenty-one (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 public hearing, revoke or modify an emergency project approval
and order restoration and mitigation measures.
C.
The application and permit required by this chapter
shall not be required for work performed for the normal maintenance
or improvement of lands in agricultural use, forestry done under an
approved DEM forest cutting practices plan or normal lawn and yard
work done to maintain existing developed lots.
The delineation of wetland boundaries must be
done by a person approved by the Conservation Commission as a competent
wetlands biologist, wetlands scientist or other qualified person.
A.
Any person desiring to know whether a proposed activity
or an area is subject to this chapter may request, in writing, a determination
from the Commission. Such a request for determination shall contain
data and plans specified by the regulations of the Commission. When
the Commission determines that the activity proposed in an application
represents only a portion of a plan or project, it may require information
describing the entire project and its potential impact.
B.
The Commission, in an appropriate case, may accept
as the request under this chapter the request for determination of
applicability filed under the Wetlands Protection Act, MGL c. 131,
§ 40.
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 the 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.
At the time of an application request, the applicant
shall pay a filing fee specified in the regulations of the Commission.
This fee is in addition to that required by the Wetlands Protection
Act, MGL c. 131, § 40. In addition, the Commission is authorized
to require the applicant to pay the reasonable costs and expenses
borne by the Commission for specific expert engineering and consultant
services deemed necessary by the Commission to review the application.
Said payment can be required at any point in the deliberations prior
to a final decision rendered. Said services may include but are not
limited to wetland survey and delineation, hydrogeologic and drainage
analysis, wildlife evaluation and environmental/land use law. The
terms and conditions under which an expert engineer or consultant
may be hired at the applicant's expense shall be defined in the regulations
adopted pursuant to this chapter. The Commission may waive the filing
fee and costs and expenses for an application of request filed by
a government agency and 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.
Notices of intent under this chapter must include
evidence that the wetland boundaries were delineated as required above.
A.
An application or a request for determination shall
be hand delivered or sent by certified mail to the Commission. The
applicant shall notify all abutters according to the most recent records
of the Assessors, including those across a traveled way or body of
water. The notice to abutters shall state where the request or application,
including any accompanying documents, may be examined or obtained.
Proof of notification and a copy of a certified abutters list shall
be supplied to the Commission within forty-eight (48) hours of said
notification. 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 owners as well as to
the person making the request.
B.
The Commission shall conduct a public hearing on any
application or request for determination, with written notice given
at the expense of the applicant, five (5) working days prior to the
hearing, in a newspaper of general circulation in the Town of Sunderland.
The Commission, in an appropriate case, may combine its hearing under
this chapter with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40.
C.
The Commission shall commence the public hearing within
twenty-one (21) days from receipt of a completed application or request
for determination, unless the applicant extends the twenty-one-day
time period by a signed written waiver.
D.
The Commission shall have the authority to continue
the hearing to a certain date announced at the hearing or to an unspecified
date, for reasons stated at the hearing, which may include the 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 below. If a date for continuation is not specified, the hearing
shall reconvene within twenty-one (21) days after the submission of
a specified piece of information or the occurrence of a specified
action. The date, time and place of said continued hearing shall be
published in a newspaper of general circulation in the Town of Sunderland
five (5) working days prior to the continuation, at the expense of
the applicant, and written notice shall be sent to any person who
so requests in writing.
E.
The Commission shall issue its permit or determination,
in writing, within twenty-one (21) days of the close of the public
hearing thereon.
[Amended by Ch. 141 of the Acts of 2019, approved 12-12-2019]
Any person filing a permit application or a
request for determination with the Commission shall provide written
notice thereof at the same time, by certified mail or hand delivery,
to the Selectboard, Planning Board, Zoning Board of Appeals, Board
of Health, Highway Superintendent and Building Commissioner. The Commission
shall not take final action until to file written comments and recommendations
with the Commission, such boards and officials have had fourteen (14)
days from receipt of notice 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.
The Commission shall have the authority, after a public
hearing, to determine whether a specific parcel of land contains or
does not contain resource areas protected under this chapter. If the
Commission finds that no such resource areas are present, it shall
issue a negative determination.
B.
If the Commission, after a public hearing on the permit
application, determines that the activities which are the subject
of the application are likely to have a significant or cumulative
detrimental effect upon the wetland values protected by this chapter,
the Commission, within twenty-one (21) days of the close of the hearing,
shall issue or deny a permit for the activities requested. 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 specification, performance standards and other requirements
and regulations of the Commission, for failure to avoid or prevent
significant or cumulative detrimental effects upon the wetland values
protected by this chapter and where no conditions are adequate to
protect those values.
D.
A permit shall expire three (3) years from the date
of issuance. Notwithstanding the above, the Commission, in its discretion,
may issue a permit expiring five (5) 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.
E.
For good cause, the Commission may revoke or amend
a permit issued under this chapter after public notice and public
hearing and notice to the holder of the permit.
F.
The Commission, in an appropriate case, may combine
the permit or other action on an application issued under this chapter
with the order of conditions or other action issued or taken under
the Wetlands Protection Act, MGL c. 131, § 40.
A.
After public notice and public hearing, the Commission
shall promulgate rules and regulations to accomplish the purposes
of this chapter. These regulations shall be consistent with the terms
of this chapter. The Commission may amend the rules and regulations
after public notice and public hearing.
B.
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.
C.
Unless otherwise stated in this chapter or in the
rules and regulations promulgated under this chapter, the definitions,
procedures and performance standards of the Wetlands Protection Act,
MGL c. 131, § 40, and associated regulations, 310 CMR 10.00,
as promulgated April 1983, shall apply.
The following definitions shall apply in the
interpretation and implementation of this chapter:
Includes, without limitation, the following activities when
undertaken to, upon or within or affecting resource areas protected
by this chapter:
Removal, excavation or dredging of soil, sand,
gravel, clay, minerals 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 or 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, chemical or biological characteristics of
surface or ground water.
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater.
Any real estate with a human-made structure used or intended
for human use.
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 representatives,
agents or assigns.
A.
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 a proper bond or deposit of money or negotiable securities
or other undertaking of financial responsibility sufficient in the
opinion of the Commission.
B.
In addition or in the alternative, the Commission
may accept as security 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 and observed before any lot may be conveyed other than
by mortgage deed.
A.
The Commission and its agents, officers and employees
shall have the 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 samplings as the
Commission deems necessary.
B.
The Commission shall have the 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 Selectboard and
the Town Counsel will take legal action for enforcement under civil
law. Upon request of the Commission, the Chief of Police shall 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 the authority
to assist the Commission in enforcement.
Any person who violates any provision of this
chapter, regulations thereunder or permits issued thereunder shall
be punished by a fine of not more than three hundred dollars ($300.)
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.
This fine may be in addition to any levied under the Wetlands Protection
Act, MGL c. 131, § 40.
The applicant for a permit shall have the burden
of proving by a preponderance of credible evidence that the work proposed
in the application will not have any significant or cumulative detrimental
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.
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 the regulations thereunder.
