[HISTORY: Adopted by the City Council of
the City of Fitchburg 9-2-2008 by Ord. No. 274-07. Amendments noted where
applicable.]
A.
The purpose of this chapter is to protect the wetlands,
water resources, flood-prone areas and adjoining upland areas in the
City of Fitchburg by controlling activities deemed by the Conservation
Commission (or "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 or sedimentation control, storm damage prevention, water quality,
prevention and control of pollution, fisheries, wildlife habitat,
rare species habitat, including rare plant and animal species, agriculture,
forestry, aquaculture, and recreation values deemed important to the
community (collectively, the "resource area values protected by this
chapter").
B.
The Conservation Commission will achieve this by requiring
review and regulation of activities likely to have a significant or
cumulative effect on these resource areas and values important to
the community, while promoting responsible development within the
City. These include but are not limited to the following resource
area values or interests:
(1)
Public or private water supply.
(2)
Groundwater.
(3)
Flood control.
(4)
Erosion and sedimentation control.
(5)
Storm damage prevention.
(6)
Water quality.
(7)
Water pollution control.
(8)
Fisheries.
(9)
Wildlife.
(10)
Wildlife habitat.
(11)
Rare species habitat, including rare plant species.
(12)
Aquaculture.
(13)
Agriculture and forestry uses and practices.
(14)
Recreation.
(15)
Aesthetics.
(16)
Historical and archaeological preservation.
C.
This chapter is enacted pursuant to the Home Rule
authority of the City of Fitchburg 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 in
addition to those recognized in the Act which are recognized by the
City as significant; to protect all resource areas for their additional
values in addition to those values 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, forestry uses and practices, structures of all kinds and priority
development site projects under the laws of the commonwealth and other
relevant ordinances of the City of Fitchburg.
D.
The intent of this chapter is to provide for greater
control, regulation or restriction of activities other than that provided
by the Act, notwithstanding that this chapter uses language and references
similar to those used in the Act and the regulations. Because of the
intent to provide local municipal standards distinct from the standards
adopted by the Commonwealth of Massachusetts, the Conservation Commission
implementing this chapter may interpret the language of this chapter
differently from the interpretations made by the Department of Environmental
Protection and the courts interpreting the act so long as its interpretations
are not inconsistent with this chapter or in conflict with state law
or the constitutions of the United States and the Commonwealth of
Massachusetts.
E.
This chapter shall not be construed to extend the
jurisdiction of the Commission to any existing commercial, industrial
or residential structure or appurtenances in existence at the time
of the adoption of this chapter, or any existing recreational or conservation
related use or facility, but shall apply to any substantial change
or extension of such use or structure.
A.
ABUTTER
ACTIVITY
AGRICULTURE
ALTER (and other forms of this word)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
APPLICANT
APPLICATION
BANK
BORDERING LAND SUBJECT TO FLOODING
BUFFER ZONE
CHEMICAL-FREE ZONE
(1)
(2)
(3)
(4)
CUMULATIVE ADVERSE EFFECT
FORESTRY
HARDSHIP
(1)
(2)
(3)
HISTORIC MILL BUILDING(S)
INNER RIPARIAN ZONE
INTERMITTENT STREAM
ISOLATED LAND SUBJECT TO FLOODING
NO-BUILD ZONE
NO-DISTURBANCE ZONE
OUTER RIPARIAN ZONE
PERSON
POND
PRACTICE OF FORESTRY OR FORESTRY USE
PRIORITY DEVELOPMENT SITE
(1)
(2)
(3)
PUBLIC INTEREST
(1)
(2)
RARE SPECIES
RIVERFRONT AREA
(1)
(2)
SEPTIC COMPONENTS ZONE
SURFACE WATER SUPPLY PROTECTION ZONE A
(1)
(2)
TRIBUTARY STREAM
UNDERGROUND FUELS AND HAZMAT ZONE
UPLAND RESOURCE AREA
VERNAL POOL
WETLAND-DEPENDENT STRUCTURES
WILDLIFE
WILDLIFE HABITAT
Definitions. As used in this chapter, the following
definitions shall apply in the interpretation and implementation of
this chapter.
The owner of any property within 300 feet radially from any
lot line of the subject property, and includes owners of land directly
opposite the subject property on any public or private street or way,
including any such way in another municipality. In the case of property
with frontage on a pond, abutters shall include all those owners of
properties with frontage on the pond. In the case of property within
the Surface Water Supply Protection Zone A (as defined herein), abutters
shall include the owner of the water supply affected by the zone.
Any draining, dumping, dredging, damming, discharging, excavating,
filling or grading; any construction, reconstruction or expansion
of any building, structure, road or way; any alteration or changing
of the physical, chemical or biological characteristics of an area
of land or water.
The same as the definition in MGL c. 128, § 1A.
Any material change affecting a resource, including but not
limited to:
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 and/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, 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 tress 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
chapter.
Any person who files a determination of applicability or
notice of intent or on whose behalf said forms are filed.
A determination of applicability or notice of intent filed
under this chapter.
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.
Land within the one-hundred-year floodplain, as mapped by
the Federal Emergency Management Agency. This area is presumed significant
for flood control and storm damage protection.
The same as the definition of the word in 310 CMR 10.00, and that area of land extending 100 horizontal linear feet horizontally outward from the boundary of the resource areas listed in § 178-5 of this chapter. The term "buffer zone" is synonymous with the "upland resource area."
A zone or area in which the manufacture, bulk storage or
distribution of petroleum, chemical or asphalt products or other materials
hazardous to the water supply are either prohibited or regulated so
that the water supply is protected from contamination by the product.
The products include:
Hazardous materials or oil as defined in MGL
c. 21E, § 2;
Radioactive materials;
Large commercial quantities of material which
has a very soluble acid or base, or are highly biodegradable, or can
create a severe oxygen demand transported or stored in large commercial
quantities;
Poisons, or the active ingredients of poisons,
that are or were ever registered in accordance with the provisions
of the Federal Insecticide, Fungicide, and Rodenticide Act, as amended
7 U.S.C. § 135 et seq.; or dangerous to mammalian or aquatic
life.
The effect on a wetland or buffer resource area that is significant,
considering the effect of one activity in combination with other activities
that have occurred, are occurring or are reasonably likely to occur
within that resource area, whether such activities have occurred or
are contemplated as a separate phase of the project, or as a result
of unrelated activities on adjacent land.
The science, the art and the practice of conserving and managing
for human benefit the natural resources, including trees, other plants,
animals, soil and water, that occur on and in association with forest
lands as defined in MGL c. 132, § 47.
An unreasonable economic burden on an applicant which, after
an alternatives analysis cannot be alleviated by imposition of reasonable
conditions. In considering whether the burden is unreasonable the
Conservation Commission must consider:
The degree to which the economic burden on the
applicant is self-imposed by prior actions and decisions of the applicant;
The impact on resources and whether these impacts
can be mitigated; and
Whether denial of the applicant's requested
waivers would harm the public interest, as defined herein.
The historic structure or structures within the "historic
mill complex," defined in 310 CMR 10.04, which structures that are/were
used for manufacturing within the historic mill complex at any time
and which were standing in 1996 and at the time when an application
is filed.
The first 100 horizontal linear feet of the riverfront measured
from the mean annual high water mark of the river to a parallel line
100 feet away.
What it means in 310 CMR 10.00 and includes streams which
meet all criteria specified in the regulations, except:
A natural area, depression or basin that holds at minimum
1/8 acre-foot of water to an average depth of at least six inches
once a year. This shall not include swimming pools, artificially lined
ponds or pools, or constructed wastewater lagoons.
An area within which no structure, permanent or otherwise,
shall be erected.
An area that shall be maintained in its naturally vegetated
state, in which activity is prohibited, except for minor activity
as defined by 310 CMR 10.00.
The outer 100 feet of the riverfront area, measured from
the outer edge of the inner riparian zone to a line 100 horizontal
linear feet away and running parallel to it. The outer edge of the
outer riparian zone is 200 horizontal linear feet from the mean high
water mark of the river.
Any individual, group of individuals, associations, partnerships,
corporations, business organizations, trust, estate, the Commonwealth
of Massachusetts, to the extent that the application of this chapter
is not in conflict with state law, any public or quasi-public corporation
or body, to the extent that application of this chapter is not in
conflict with state law, and any other entity, including the City
of Fitchburg.
Has the same meaning as it does in 310 CMR 10.04, except
that the size threshold of 10,000 square feet shall not apply.
Any professional services requiring the application of forestry
principles and techniques. Such services shall include, but not be
limited to, forest inventory, forest management planning, timber appraisal,
the responsibility for the direction and supervision of silvicultural
activities, use and protection of forested areas, and the evaluation
of the economic and biological consequences of forest management activities
as defined in MGL c. 132, § 47.
A privately or publicly owned property that is:
Commercially or industrially zoned;
Eligible under applicable zoning provisions,
including special permits or other discretionary permits, for the
development or redevelopment of a building at least 50,000 square
feet of gross floor area in new or existing buildings or structures;
and
Designated as a priority development site by
the City of Fitchburg. Several parcels or projects may be included
within a single priority development site.
The common well-being or general welfare of
the residents of the City of Fitchburg or the general public, measured
by increased public access for recreational, educational and cultural
activities or increased protection of public health and safety;
The economic well-being of the City of Fitchburg.
All the vertebrate and invertebrate animals and all plan
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.
What it means in MGL c. 131, § 40, and in the DEP
regulations at 310 CMR 10.04 and 10.58, but the riverfront area also
includes the following:
Lakes and ponds through which a river flows,
regardless of their riverine characteristics, where such lake or pond
is less than 10 acres in its natural state, as calculated based on
the surface area of lands lying below the natural high water mark.
Certain intermittent streams as defined in this
chapter.
An area in which the placement of any tank, piping, leaching
field or other component of an underground sanitary sewage treatment
system is prohibited.
A four-hundred-foot-wide buffer strip along
the edge of a public water supply reservoir. The required setback
distance shall be measured from the mean high water line of the reservoir.
A two-hundred-foot buffer strip along the edge
of any tributary stream which discharges into a water supply reservoir.
The required setback distance shall be measured in the same way as
the riverfront area, pursuant to 310 CMR 10.00.
Any perennial or intermittent stream, including any lake,
pond, wetland or other body of water formed therefrom, flowing either
directly or indirectly into any water supply reservoir and body of
running, or intermittently running, water which moves in a definite
channel, naturally or artificially created, in the ground due to a
hydraulic gradient, and which ultimately discharges to a Class A water
body as Class A water is defined in 314 CMR 4.05(3).
A zone or area in which the manufacture, bulk storage or
distribution of petroleum, chemical or asphalt products or any substance
or mixture having physical, chemical or infectious characteristics
which pose a significant, actual or potential hazard to water supplies
or other hazards to human health, if such substance or mixture was
discharged to land or water in the vicinity and in which these substances
are either prohibited or regulated so that the water supply is protected
from contamination by the substances. These substances include toxic
or hazardous materials, synthetic organic chemicals, petroleum products,
heavy metals, radioactive or infectious wastes, acids and alkalis,
and all substances defined as toxic or hazardous under MGL c. 21C
and c. 21E and 310 CMR 30.00. This includes solvents and thinners
in quantities greater than normal household use.
The "buffer zone," as defined herein. The upland resource
area has no buffer zone.
In addition to scientific definitions found in the regulations
under the Wetlands Protection Act,[1] 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 the mean annual high water line defining the depression.
Except as otherwise provided in this chapter or in associated regulations
of the Conservation Commission, the definitions of terms and the procedures
of this chapter shall be as set forth in the Wetlands Protection Act
(MGL c. 131, § 40) and regulations (310 CMR 10.00).
Any trail, dam, boat or canoe launch area, or any other structure
or area associated with the customary enjoyment or use of any pond,
lake, river or other waterway. It shall also include equipment associated
with the generation of hydropower.
All mammals, birds, fish, reptiles, amphibians and invertebrate
animal species, including, but not limited to, any state- or federally
listed endangered or threatened species, or species of special concern.
Areas having plant community composition and structure, hydrologic
regime or other characteristics which are sufficient to provide shelter,
nutrient sourcing, growing conditions, nesting or breeding sites conducive
to the propagation and preservation of wildlife.
[1]
Editor's Note: See 310 CMR 10.00 et seq.
B.
Abbreviations.
(1)
BVW — Bordering vegetated wetlands.
(2)
CMR — The Code of Massachusetts Regulations.
(3)
COC — Certificate of Compliance.
(4)
DEP — Department of Environmental Protection.
(5)
MGL — Massachusetts General Laws.
(6)
NOI — Notice of Intent.
(7)
OOC — Order of Conditions.
(8)
RDA — Request for Determination of Applicability.
(9)
ANRAD — Abbreviated Notice of Resource Area
Delineation.
(10)
WPA or Act — The Wetlands Protection Act,
MGL c. 131, § 40.
A.
Except as permitted by the Conservation Commission
no person shall commence to remove, fill, dredge, build upon, degrade,
discharge into, pollute or otherwise alter the following resource
areas: any freshwater wetlands, marshes, wet meadows, bogs, swamps,
kettle holes, vernal pools, springs, banks, reservoirs, lakes, ponds
of any size, 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; and lands subject to
coastal storm flowage or flooding (collectively, the "resource areas
protected by this chapter"). These resource areas shall be protected
whether or not they border surface waters.
B.
The jurisdiction of this chapter shall not extend
to uses and structures of agriculture and forestry that enjoy the
rights and privileges of laws and regulations of the commonwealth
governing agriculture or forestry, including work performed for normal
maintenance or improvement of land in agricultural, forestry or aquacultural
uses as defined by the Wetlands Protection Act regulations found at
310 CMR 10.04.
A.
Agriculture and forestry. The applications and permits
required by this chapter shall not be required for work performed
for normal maintenance or improvement of land in agricultural, forestry
and aquacultural use as defined by the Wetlands Protection Act regulations
found at 310 CMR 10.04.
B.
Public utilities and services. The applications and
permits 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 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.
C.
Emergency projects. The applications and permits required
by this chapter 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
chapter.
D.
Existing uses. This chapter does not apply to existing
uses or structures in existence or which had a valid building permit
on the effective date of this chapter but will apply to any substantial
change or extension of such use or structure.
E.
Minor activities. This chapter does not apply to minor
activities as defined in 310 CMR 10.02(2)(b).
F.
Historic mill buildings. Portions of historic mill
complexes as defined in 310 CMR 10.04 are exempt from the application
of this chapter and not under the jurisdiction of the Conservation
Commission. This exempts that portion of the mill complex within the
footprint of the historic mill buildings (as defined herein). All
other components of the historic mill complex, including impervious
surfaces, driveways, sluiceways, outbuildings, silos, garages, storage
buildings, rail spurs, roads and other appurtenances of the historic
mill complex are subject to this chapter.
G.
Priority Development Site projects. This chapter does
apply to projects within Priority Development Sites (as shown on the
Zoning Map), but the time frames stipulated in this chapter may be
superseded by the provisions of MGL c. 43D, to the extent that the
Commission is required to act within certain time frames for any application
within a Priority Development Site (generally 180 days from application
acceptance).
H.
Wetland Protection Act exceptions. Other than stated
in this chapter, the exceptions provided in the Wetlands Protection
Act (MGL c. 131, § 40) and regulations (310 CMR 10.00) shall
not apply under this chapter.
A.
Written application shall be filed with the Conservation
Commission to perform activities affecting resource areas protected
by this chapter. 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
chapter. 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 any application and
plans filed under the Wetlands Protection Act (MGL c. 131, § 40)
and regulations (310 CMR 10.00), but the Commission is not obliged
to do so.
C.
Any person desiring to know whether or not a proposed
activity or an area is subject to this chapter may, in writing, request
a determination from the Commission. Such a Request for Determination
of Applicability (RDA) or Abbreviated Notice of Resource Area Delineation
(ANRAD) filed under the Act[1] shall include information and plans as are deemed necessary
by the Commission.
[1]
Editor's Note: See MGL c. 131, § 40.
A.
Pursuant to and subject to the limitations of MGL
c. 44, § 53G and regulations promulgated by the Commission,
the Commission may impose reasonable fees upon applicants for the
purposes of securing outside consultants, including engineers, wetlands
scientists, wildlife biologists or other experts, in order to aid
in the review of proposed projects. Such funds shall be deposited
with the City Treasurer, who shall create an account specifically
for this purpose. Additional consultant fees may be requested where
the requisite review is more expensive than originally calculated
or where new information requires additional consultant services.
B.
The Commission may expend such funds only in connection
with carrying out its responsibilities under the law. Any consultant
hired under this provision shall be selected by, and report exclusively
to, the Commission. The Commission shall provide applicants with written
notice of the selection of a consultant, identifying the consultant,
the amount of the fee to be charged to the applicant and a request
for payment of that fee. Notice shall be deemed to have been given
on the date it is mailed or delivered. The applicant may withdraw
the application or request within five business days of the date notice
is given without incurring any costs or expenses.
C.
The entire fee must be received before the initiation
of consulting services. Failure by the applicant to pay the requested
consultant fee within 10 business days of the request for payment
shall be cause for the Commission to declare the application administratively
incomplete and deny the permit without prejudice, except in the case
of an appeal. The Commission shall inform the applicant and Department
of Environmental Protection (DEP) of such a decision in writing. In
appropriate situations, the consultant fees may include fees for the
costs of monitoring a project until its completion, provided that
these fees are separately described and set by the Commission.
D.
The applicant may appeal the selection of an outside
consultant to the City Council, which may disqualify the consultant
only on the grounds that the consultant has a conflict of interest
or is not properly qualified. The minimum qualifications shall consist
of either an educational degree or three or more years of practice
in the field at issue or in a related field. The applicant shall make
an appeal, in writing, which must be received within 10 business days
of the date that request for consultant fees was made by the Commission.
Such appeal shall extend the applicable time limits for action upon
the application.
A.
Any person filing a permit or other application, RDA
or ANRAD, or other request with the Conservation Commission at the
same time, shall give written notice thereof by certified mail (return
receipt requested) or hand delivery 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 300 feet of the
property line of the applicant, including any in another municipality
or across a body of water. The notice shall include 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. 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 owner as well as to the person making the request.
(1)
The Commission shall conduct a public hearing on any permit application, RDA 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 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 hearing to a specific date announced at the hearing for reasons stated at the 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 of the boards and officials listed in § 178-9.
(2)
The Commission shall issue its permit, other order
or determination, in writing, within 21 days of the close of the public
hearing thereon unless an extension is authorized, in writing, by
the applicant. 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) and regulations
(310 CMR 10).
B.
The Conservation Commission shall charge fees for
any application, RDA, permit or other relief sought from the Commission.
These fees shall be commensurate with the reasonable costs of the
service or services provided by the Commission, including the reasonable
costs of monitoring any permitted activity or any conditions imposed
by the Commission. These fees must be established by regulation duly
adopted by the Commission and filed on a schedule available at the
office of the City Clerk and such other places as the Commission chooses.
Any person filing a permit application, RDA
or ANRAD with the Conservation Commission shall provide a copy thereof
at the same time by certified mail (return receipt requested) or hand
delivery to the Planning Board, Board of Appeals, Board of Health,
City Engineer and Building Commissioner. A copy shall be provided
in the same manner to the Commission of the adjoining municipality,
if the application or RDA pertains to property within 300 feet of
that municipality. An affidavit of the person providing notice, with
a copy of the notice mailed or delivered, shall be filed with the
Commission. The Commission shall not take final action until the above
boards and officials have had 14 days from receipt of notice to file
written comments and recommendations with the Commission, 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
comments and recommendations, and to respond to them at a hearing
of the Commission, prior to final action. For applications within
a Priority Development Site, the applicant shall also submit a copy
of the application to the primary municipal liaison, who will coordinate
the reviews of all applications submitted for the project according
to the Priority Development Site procedures.
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 chapter, 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 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. 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 chapter.
It may also deny a permit: for failure to submit necessary information
and plans requested by the Commission; for failure to comply with
the procedures, design specifications, performance standards and other
requirements in regulations of the Commission; or for failure to avoid,
minimize or mitigate unacceptable, significant or cumulative effects
upon the resource area values protected by this chapter.
Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing. On written application, the Commission may waive specifically
identified or requested procedures, design specifications, performance
standards or other requirements set forth in its regulations when,
in the judgment of the Commission, such action is in the public interest
or to avoid a decision that so restricts the property as to constitute
an unconstitutional taking without compensation, as long as it is
consistent with the predominant intent and purposes of this chapter.
The Conservation Commission reserves the right to require the applicant
to show evidence that reasonable alternatives cannot be achieved prior
to approval of the waiver.
In reviewing activities within the buffer zone,
the Commission shall presume the buffer zone is 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. These adverse impacts from
construction and use can include, without limitation, erosion, siltation,
loss of groundwater recharge, poor water quality and loss of wildlife
habitat. The Commission may establish, in its regulations, design
specifications, performance standards, and other measures and safeguards,
including setbacks, no-disturb areas, no-build areas 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 this chapter.
In reviewing activities within the riverfront
area, 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 chapter, has proved by a preponderance of the evidence that
there is no practical alternative to the proposed project with less
adverse effects and that such activities, including proposed mitigation
measures, will have no significant adverse impact on the areas or
values protected by this chapter. 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, overall
project purpose (e.g., residential, institutional, commercial or industrial),
logistics, existing technology, costs of the alternatives, and overall
project costs.
In the event that the Commission shall allow
an applicant to alter a resource area, the Commission shall require
the applicant to provide full mitigation to minimize such alteration.
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 high likelihood of failure
of replication. 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).
The Commission shall presume that all areas meeting the definition of "vernal pools" under § 178-2 of this chapter, including the adjacent area, perform essential habitat functions. The 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.[1]
[1]
Editor's Note: See 310 CMR 10.60.
A.
A permit, Determination of the 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.
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 the holder
of the permit shall certify, 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
COC.
After public notice and public hearing, the
Conservation Commission shall promulgate rules and regulations to
effectuate the purposes of this chapter, effective when voted and
filed with the City 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 chapter. At a minimum, these regulations shall reiterate the
terms defined in this chapter, define additional terms not inconsistent
with this chapter and impose filing and consultant fees. Any change
to this chapter that would suspend or invalidate any section of the
promulgated regulations shall be approved by the Conservation Commission
by majority vote prior to any petition of the City Council.
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 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:
A.
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.
B.
By accepting 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 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.
No person shall remove, fill, dredge, build
upon, degrade or otherwise alter resource areas protected by this
chapter, 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 chapter. The following
enforcement procedures shall apply:
A.
The Conservation Commission, its agents, officers
and employees shall have 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 examination, surveys or sampling
as the Commission deems necessary, subject to the constitutions and
laws of the United States and the commonwealth.
B.
The Commission shall have authority to enforce this
chapter, its regulations, and permits issued thereunder by letters,
phone calls, electronic communication and other informal methods,
violation notices, noncriminal citations under MGL c. 40, § 21D,
and civil and criminal court actions. Any person who violates provisions
of this chapter may be ordered to restore the property to its original
condition and take other action deemed necessary to remedy such violations
or may be fined, or both.
C.
Upon request of the Commission, the City Solicitor
shall 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 authority
to assist the Commission in enforcement.
A.
Any person who violates any provision of this chapter,
or regulations, permits, or administrative orders issued thereunder,
shall be punished by a fine of not more than $300 per calendar day.
Each day or portion thereof during which a violation continues, or
unauthorized fill or other alteration remains in place, shall constitute
a separate offense, and each provision of this chapter, regulations,
permits or administrative orders violated shall constitute a separate
offense.
B.
As an alternative to criminal prosecution in a specific
case, the Commission may issue citations with specific penalties pursuant
to the noncriminal disposition procedure set forth in MGL c. 40, § 21D.
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 effects upon the resource area values protected
by this chapter. 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.
This chapter is adopted under the Home Rule
Amendment of the Massachusetts Constitution[1] and the Home Rule statutes,[2] independent of the Wetlands Protection Act (MGL c. 131,
§ 40) and regulations (310 CMR 10.00) thereunder. It is
the intention of this chapter that its 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 chapter shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit, approval or determination which
has been previously issued.
