[HISTORY: Adopted by the Town of Ashland Annual Town Meeting 5-6-2009, Art. 23. Amendments noted where applicable.]
Stormwater management — See Ch. 247.
Zoning — See Ch. 280.
Subdivision of land — See Ch. 344.
Editor’s Note: This article also repealed former Ch. 280, Wetlands Protection, adopted 10-20-1999 ATM by Art. 12.
The purpose of this bylaw is to protect the wetlands, water resources, flood prone areas, and adjoining upland areas in the Town of Ashland 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: public or private water supply, groundwater supply, flood control, erosion and sedimentation control, storm damage prevention, water quality, prevention and control of pollution, wildlife habitat, rare species habitat including rare plant and animal species, agriculture, and aquaculture, deemed important to the community (collectively, the "resource area values protected by this bylaw").
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 (G.L. Ch. 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 Ashland.
Nothing in this bylaw is intended to replace the requirements of either the Town of Ashland Stormwater Management Bylaw, or any other bylaw that has been or may be adopted by the Town of Ashland. Any activity subject to the provisions of the above-cited bylaws must comply with the specifications of each applicable bylaw.
The objectives of this bylaw are to:
Create consistency with the Ashland Stormwater Management Bylaw and streamline the permitting process for work within jurisdictional areas;
Maintain a twenty-five (25) foot No Disturb Zone around protected wetland resources;
Accommodate expedited permitting of Priority Development Sites designated under MGL Chapter 43D;
Enable enforcement of violations of the provisions of this bylaw.
The following definitions shall apply in the interpretation and implementation of this bylaw.
- The normal maintenance or improvement of land in agricultural or aquacultural use, as defined by the Massachusetts Wetlands Protection Act (MGL c. 131 § 40) and its implementing regulations (310 CMR 10.00).
- Any of the following activities when undertaken to, upon, within or affecting resource areas protected by this bylaw:
- A. Removal, excavation, or dredging of soil, sand, gravel, or aggregate materials of any kind
- B. Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns, or flood retention characteristics
- C. Drainage, or other disturbance of water level or water table
- D. Dumping, discharging, or filling with any material which may degrade water quality, including yard waste
- E. Placing of fill, or removal of material, which would alter elevation
- F. Driving of piles, erection, expansion or repair of buildings, or structures of any kind
- G. Placing of obstructions or objects in water
- H. Destruction of plant life including cutting or trimming of trees and shrubs
- I. Changing temperature, biochemical oxygen demand, or other physical, biological, or chemical characteristics of any waters
- J. Any activities, changes, or work which may cause or tend to contribute to pollution of any body of water or groundwater
- K. Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.
- The land area which normally abuts and confines a water body or waterway; 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.
- BORDERING VEGETATED WETLAND
- Freshwater wetlands which border on creeks, rivers, streams, ponds and lakes. The types of freshwater wetlands are wet meadows, marshes, swamps and bogs. Bordering Vegetated Wetlands are areas where the soils are saturated and/or inundated such that they support a predominance of wetland indicator plants. The ground and surface water regime and vegetational community which occur in each type of freshwater wetland are specified in M.G.L. c. 131 § 40.
- ISOLATED LAND SUBJECT TO FLOODING
- An isolated depression or closed basin without an inlet or an outlet. It is an area which at least once a year confines standing water to an average depth of at least six inches and occupies a minimum surface area of 5,000 square feet.
- 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, the Town of Ashland, and any other legal entity, its legal representatives, agents, or assigns.
- Any open body of fresh water with a surface area observed or recorded within the last ten years of at least 5,000 square feet. Ponds may either be naturally occurring or man-made impoundment, excavation, or otherwise. Ponds shall contain standing water except for periods of extended drought (those periods, in those specifically identified geographic locations, determined to be at the "Advisory" or more severe drought level by the Massachusetts Drought Management Task Force, as established by the Executive Office of Environmental Affairs and the Massachusetts Emergency Management Agency in 2001, in accordance with the Massachusetts Drought Management Plan). Notwithstanding the above, the following man-made bodies of open water shall not be considered ponds:
- RARE SPECIES
- 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, regardless whether the site in which they occur has been previously identified by the Division.
- Any natural flowing body of water that empties to any ocean, lake, pond, or other river and which flows throughout the year. River is defined further at 310 CMR 10.58(2).
- RIVERFRONT AREA
- Area adjacent to a river or perennial stream as defined in 310 CMR 10.58(2).
- A body of running water, including brooks and creeks, which moves in a definite channel in the ground due to a hydraulic gradient, and which flows within, into or out of an Area Subject to Protection Under M.G.L. c. 131, § 40. A portion of a stream may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream except for that portion upgradient of all bogs, swamps, wet meadows and marshes.
- VERNAL POOL
- 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 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 the mean annual high-water line defining the depression.
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: any bordering vegetated wetlands, vernal pools, springs, banks, reservoirs, lakes, ponds, beaches, and lands under water bodies; intermittent streams, brooks and creeks; lands adjoining these resource areas out to a distance of 100 feet, known as the buffer zone; perennial rivers, streams, brooks and creeks; lands adjoining these resource areas out to a distance of 200 feet, known as the riverfront area; lands subject to flooding or inundation by groundwater or surface water; (collectively the "resource areas protected by this bylaw").
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.
Any project which has a validly issued and existing Order of Conditions at the time of passage of this bylaw shall be exempt from the provisions hereof unless any amendments or changes which increase the scope of the project, as determined by the Commission, are requested under the Order of Conditions in which case the provisions hereof shall govern.
No person shall remove, fill, dredge, build upon, degrade, or otherwise alter resource areas protected by this bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
No work or disturbance, including but not limited to grading and vegetation removal, shall be permitted within twenty-five (25) feet of any resource area unless the applicant provides information and evidence deemed satisfactory by the Commission that the work to be performed sufficiently protects or enhances wetland interests.
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.
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 telecommunication 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.
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. Upon failure to meet these and other requirements of the Commission, the Commission may revoke or modify an emergency project approval and order restoration and mitigation measures.
Written application shall be filed with the Conservation Commission to perform activities affecting resource areas protected by this bylaw. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by this bylaw. No activities shall commence without receiving and complying with a permit issued pursuant to this bylaw.
The Commission in an appropriate case may accept as the application and plans under this bylaw any application and plans filed under the Wetlands Protection Act (G.L. Ch. 131 § 40) and regulations (310 CMR 10.00), but the Commission is not obliged to do so.
Any person desiring to know whether or not a proposed activity or an area is subject to this bylaw may in writing request a determination from the Commission. Such a Request for Determination of Applicability (RDA) filed under the Act shall include information and plans as are deemed necessary by the Commission.
Any person filing a permit or other application or Abbreviated Notice of Resource Area Delineation (ANRAD) with the Conservation Commission at the same time shall give written notice thereof, by certified mail (return receipt requested) or hand delivered, to all abutters at their mailing addresses shown on the most recent applicable tax list of the assessors, including owners of land directly opposite on any public or private street or way, and abutters to the abutters within 100 feet of the property line of the applicant, including any in another municipality or across a body of water. The notice shall state a brief description of the project or other proposal and the date of any Commission hearing or meeting date if known. The notice to abutters also shall include a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. All applications shall be signed by the property owner.
The Commission shall conduct a public meeting for any RDA or a public hearing on any permit application or ANRAD with written notice given at the expense of the applicant, at least five business days prior to the hearing, in a newspaper of general circulation in the municipality. The Commission shall commence the public meeting or hearing within 21 days from receipt of a completed permit application, RDA, or ANRAD unless an extension is authorized in writing by the applicant. The Commission shall have authority to continue the meeting or hearing to a specific date announced at the meeting or hearing, for reasons stated at the meeting or hearing, which may include the need for additional information from the applicant or others as deemed necessary by the Commission in its discretion, based on comments and recommendations from other town boards and officials.
The Commission shall issue its permit, other order or determination in writing within 21 days of the close of the public meeting or hearing thereon unless an extension is authorized in writing by the applicant. The Commission in an appropriate case may combine its meeting or hearing under this bylaw with the meeting or hearing conducted under the Wetlands Protection Act (G.L. Ch. 131 § 40) and regulations (310 CMR 10.00). In the case of activity being proposed on a designation M.G.L. Chapter 43D Priority Development Site the Commission shall issue its permit, other order or determination within 180 days of its receipt of a complete application. In order for an application to be considered complete, the Commission must have approved the delineation of resource areas affecting the proposed project within three years of the submittal date through the issuance of an Order of Resource Area Delineation.
After public notice and public hearing, the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw, which shall be 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. At a minimum these regulations may reiterate the terms defined in this bylaw, define additional terms not inconsistent with the bylaw, prescribe requirements for applications, provide more specific terms and conditions in furtherance of this bylaw and not inconsistent herewith and impose filing and consultant fees.
At the time of an application, the applicant shall pay a filing fee specified in regulations of the Commission. The fee is in addition to that required by the Wetlands Protection Act and regulations. Pursuant to G.L. Ch. 44 § 53G and regulations promulgated by the Commission, the Commission may impose reasonable fees upon applicants for the purpose of securing outside consultants including engineers, wetlands scientists, wildlife biologists, attorneys or other experts in order to aid in the review of proposed projects.
As part of a permit issued under this bylaw, in addition to any security required by any other municipal or state board, agency, or official, the Conservation Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or both of the methods described below:
By a proper bond, deposit of money or negotiable securities under a written third-party escrow arrangement, or other undertaking of financial responsibility sufficient in the opinion of the Commission, to be released in whole or in part upon issuance of a COC for work performed pursuant to the permit.
By accepting a Conservation Restriction in accordance with G.L. c. 184 § 31, 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 whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed. This method shall be used only with the consent of the applicant.
The Conservation Commission, after a public hearing, shall consider the individual or cumulative effects on the resource area values protected by this bylaw and, 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.
If it issues a permit, the Commission shall 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.
A permit, Determination of Applicability (DOA), or Order of Resource Area Delineation (ORAD) shall expire three years from the date of issuance. 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 period up to three years, provided that a request for a renewal is received in writing by the Commission at least thirty (30) days prior to expiration of the permit. 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.
For good cause the Commission may revoke any permit, DOA, or ORAD or any other order, determination or other decision issued under this bylaw after notice to the holder, the public, abutters, and town boards, pursuant to § 280-8 and after a public hearing.
Amendments to permits, DOAs, or ORADs shall be handled in the manner set out in the Wetlands Protection Act regulations and policies thereunder.
The Commission in an appropriate case may combine the decision issued under this bylaw with the permit, DOA, ORAD, or Certificate of Compliance (COC) issued under the Wetlands Protection Act and regulations.
No work proposed in any application shall be undertaken until the permit, 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 recording and administration fees therefore, either at the time of recording or as a condition precedent to the issuance of a COC.
The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw. Failure to provide adequate evidence to the Conservation Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
A decision of the Conservation Commission shall be reviewable in the superior court in accordance with MGL c. 249, § 4.
The Commission or its authorized agent shall have the power and duty to enforce this bylaw, its regulations, orders, violations notices and enforcement orders, and may pursue civil and criminal remedies for such violations.
Penalties. Any person who violates any provision of this bylaw, regulation, or permit issued hereunder, may be subject to fines, civil action, criminal prosecution, tax liens, and may be required to restore the property to its original condition, as appropriate and as lawfully established by the Town of Ashland.
Liens. The Town of Ashland shall require reimbursement to the town for the cost of work undertaken by the town that the responsible party was obligated to perform but failed to perform as set forth in the Order of Conditions. If reimbursement is not made within (30) days of written notice from the town to the responsible party, the Town may impose an assessment and municipal lien on the property of the responsible party or parties and interest shall begin to accrue on any unpaid costs at the statutory rate provided in G.L. Ch. 59, Section 57.
Noncriminal disposition. As an alternative to or in addition to criminal prosecution or civil action, the Town may utilize the noncriminal disposition procedure set forth in MGL c. 40, § 21D.
The Conservation Agent or other appointment made by the Town Manager shall be the enforcement authority hereunder.
Any person who violates the provisions hereof or violates the Regulations promulgated pursuant hereto shall be subject to the following fines:
First Offense: $100.00
Second Offense: $200.00
Third Offense and every offense thereafter: $300.00
Each day or portion thereof during which a violation continues, shall constitute a separate offense, and violation of each provision of the bylaw, regulations and permits or administrative orders violated shall constitute a separate offense hereunder.
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.