[HISTORY: Adopted by the City Council of the City of Northampton 8-17-1989 (Ch. 24 of the 1977 Code). Amendments noted where applicable.]
The purpose of this chapter is protect the wetlands and to maintain the quality of surface water, the quality and level of the groundwater table and water recharge areas for existing or potential water supplies; to protect the public health and safety; to protect persons and property against the hazards of floodwater inundation; to protect the community against the costs which may be incurred when unsuitable development occurs in or adjacent to resource areas; to minimize the impacts of new development and expansion on wetland resource areas while encouraging projects that improve degraded areas; and to provide for the reasonable protection and conservation of certain irreplaceable natural features, resources and amenities for the benefit and welfare of the present and future inhabitants of the City of Northampton.
Accordingly, this chapter protects the resource areas and adjoining areas in the City of Northampton by prior review and control of activities likely to have a significant or cumulative effect upon resource area values, including but not limited to the following: public water supply, private water supply, groundwater, fisheries, wildlife, wildlife habitat, rare species habitat, including rare plant species, recreation, agriculture, aesthetic values, flood control, erosion and sedimentation control, storm damage prevention, water quality, and prevention of water pollution; these values are to be known collectively as the "resource area values protected by this chapter.” This chapter supplements the Wetlands Protection Act and is intended to utilize the Home Rule authority of this municipality to protect additional resource areas, for additional values, with additional standards and procedures stricter than those of the Wetlands Protection Act (MGL c. 131, § 40) 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 of Massachusetts.
Except as permitted by the Conservation Commission or as provided in this chapter, no person shall remove, fill, dredge, build upon, or alter the following resource areas:
Any bordering vegetated wetland, freshwater wetland, riverine wetland, marsh, wet meadow, bog or swamp, or within 100 feet of said areas.
Any bank or beach, or within 100 feet of said areas.
Any lake, river, pond, or stream, whether intermittent or continuous, natural or man-made, or within 100 feet of said areas.
Any land under aforesaid waters.
Any land subject to flooding or inundation by groundwater, surface water, storm flowage, except artificially built detention areas and drainage channels including streets and gutters which would not otherwise be subject to jurisdiction under this chapter or 310 CMR, or within 40 feet of said areas subject to flooding or inundation.
Seasonal wetlands, isolated wetlands, including kettle holes, or within 100 feet of said areas.
Vernal Pool Resource Area shown in the table below. (See also definition.)
The following definitions shall apply in the interpretation of this chapter:
- Any agent or Conservation Commission staff who is appointed agent by a majority vote of the Conservation Commission at a regularly scheduled meeting of the Commission.
- Includes, without limitations, the following activities when undertaken to, upon, within or affecting resource areas protected by this chapter:
- A. Removal, excavation or dredging of soil, sand, gravel, clay, minerals, or aggregate materials of any kind.
- B. Changing of preexisting drainage characteristics, flushing characteristics, 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.
- E. Placing of fill, or removal of material, which would alter elevation.
- F. Driving of piles, erection or repair of buildings, or structures of any kind.
- G. Placing of obstructions or objects in water.
- H. Destruction of plant life including cutting of trees.
- I. Changing water temperature, biochemical oxygen demand, or other physical, chemical or biological characteristics of surface and ground water.
- J. Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.
- BUFFER ZONE
- That area of land extending 100 feet horizontally (40 feet for lands subject to flooding) from the boundary of the resource areas defined in § 337-2.[Amended 10-4-2007]
- CERTIFIED VERNAL POOL
- All certified vernal pools plotted by the Massachusetts Division
of Fisheries and Wildlife Natural Heritage and Endangered Species
Program's "Estimated Habitats of Rare Wetlands Wildlife and Certified
Vernal Pools Map." The Natural Heritage and Endangered Species Program
plots the geographic location of certified vernal pools; however,
applicants are required to delineate the boundary of the certified
vernal pool, which shall be reviewed by the Northampton Conservation
- The duly appointed Conservation Commission of the City of Northampton.
- DEGRADED AREA
- Areas of existing structures, buildings, fill, pavement,
impervious surface, lack of topsoil, dump sites or releases of hazardous
- FRESHWATER WETLANDS
- As defined by 310 CMR 10.[Amended 2-1-2007]
- ISOLATED WETLANDS and SEASONAL WETLANDS
- Freshwater wetlands that do not border on creeks, rivers, streams, ponds, and lakes; isolated depressions which hold standing water for extended periods of time, such as kettle holes which are too small to be called ponds; and isolated depressions or closed basins which are subject to flooding during periods of high-water table and high input from spring runoff or snowmelt or heavy precipitation, and support populations of nontransient macroorganisms (wetland plants defined in MGL c. 131, § 40, or 310 CMR 10.00 or animals visible to the naked eye) or serve as breeding habitat for select species of amphibians which depend on wetlands for breeding habitat. Isolated and seasonal wetlands include temporary ponds and pools and vernal ponds and pools.
- LANDS SUBJECT TO FLOODING
- Depressions or closed basins which serve as ponding areas for runoff, snowmelt, heavy precipitation, or high groundwater which has risen above the ground surface, and areas which flood from a rise in a bordering waterway or water body.
- Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivisions thereof to the extent subject
to City ordinance, administrative agency, public or quasi-public corporation
or body, this municipality, and any other legal entity, its legal
representatives, agents or assigns.[Amended 2-1-2007]
- PRESUMED VERNAL POOL
- All confined basin depressions which, at least in most years, hold water for a minimum of two continuous months during the spring and/or summer, and are free of adult fish populations, and are at least 1,000 square feet in area. A presumed vernal pool shall no longer be considered as a presumed vernal pool if rebutted under § 337-10.[Added 10-4-2007]
- PROTECTED ZONE
- The area of land between the edge of a resource area and a parallel line located 50 feet away, measured horizontally, except as provided in § 337-10.[Added 2-17-2011]
- RESOURCE AREA
- The primary resource being protected by this chapter, which is the areas of jurisdiction defined in § 337-2 excluding the one-hundred-foot buffer (40 feet for lands subject to flooding).
- SEASONAL WETLANDS
- Includes all confined basin depressions which, at least in
most years, hold water for a minimum of two continuous months during
the spring and/or summer, and are free of adult fish populations,
and are less than 1,000 square feet in area, but larger than 30 square
feet in area. Except as permitted by the Conservation Commission or
as provided in this chapter, no person shall remove, fill, dredge,
build upon, or alter seasonal wetlands or within 100 feet of seasonal
- VERNAL POOL RESOURCE AREA
- Includes the certified vernal pool, presumed vernal pool and an area, as described in the table in § 337-2, extending laterally from the mean annual high water line defining the depression, but shall not include existing lawns, gardens, and landscaped or developed areas. There is no additional buffer zone around a vernal pool resource area. Presumed vernal pools shall be protected as a vernal pool resource area until and unless the presumption is rebutted under § 337-10.[Added 10-4-2007]
The Commission may exempt the one-hundred-foot buffer area around a seasonal or isolated wetlands and/or the seasonal or isolated wetland resource area itself if the area of the wetland is less than 400 square feet and it does not appear likely that area is a vernal pond or otherwise critical to the wetland values protected by this chapter. Seasonal wetlands and isolated wetlands which are less than 30 square feet are not within the jurisdiction of this chapter, unless they contain a certified vernal pool, as defined under the Wetlands Protection Act, MGL c. 131, § 40.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this chapter shall not be required for detention basins, catch basins, manholes, and dropped inlets that discharge into an existing pipe nor for maintaining, repairing, or replacing, but not changing or enlarging, an existing or lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunications services, sanitary sewers and storm sewers, provided that the structure or facility is not changed or enlarged, provided that written notice has been given to the Commission at least 48 hours prior to commencement of work, and provided that the work conforms to performance standards in or cited by this chapter.
The application and permit 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, 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 in this chapter. If no member of the Commission or the Commission's agent can be reached before emergency work begins, the required notice must be given to the Commission within 24 hours after commencement of the project. 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.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this chapter shall not be required for the harvesting of forestry products under the provisions of MGL c. 132, §§ 40 to 46 when an approved forest cutting plan has been properly filed with the Conservation Commission nor shall they be required for the normal maintenance or improvement of lands in agricultural use (as defined in 310 CMR 10.04), provided that the work conforms to performance standards in or cited by this chapter.
Other than as stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply under this chapter.
Any person desiring to know whether or not a proposed activity or an area is subject to this chapter must request in writing a determination from the Commission. Such a request shall contain at least two copies of all data, forms, and plans specified by this chapter and the Commission and must include permission for the Commission and its agents to enter the property for the purpose of evaluating the request.
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.
Written permit 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 at least two copies of all plans, forms, and such information as is deemed necessary by the Commission to describe proposed activities and their effects on the environment and must include permission for the Commission and its agents to enter the property for the purpose of evaluating the request and monitoring the project. When applications include drainage calculations or the design of any facility that will be dedicated to the City of Northampton, one copy of the application shall be delivered to the Director of Public Works or his/her designee. No activities shall commence without receiving and complying with a permit issued pursuant to this chapter.
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 or request, the applicant shall pay a filing fee in addition to the fee paid under the Wetlands Protection Act and 310 CMR, unless the applicant is a public agency or board of the City of Northampton. Fees shall be placed in the Wetlands Fees Account established as required under state law to hold fees from the Wetlands Protection Act. The required permit fees are as set forth in Chapter 174, Fees.
[Amended 6-1-2000; 6-7-2001; 2-1-2007]
In addition, the Commission is authorized to require the applicant to pay all the costs and expenses of any expert consultant deemed necessary by the Commission to review the application or resource area.
[Amended 9-20-1990; 10-4-2007]
An application for any wetland permit (notice of intent, request for determination of applicability, or abbreviated notice of resource area delineation) shall be hand delivered or sent by certified mail, return receipt, or certificate of mailing to the Conservation Commission, care of the Northampton Office of Planning and Development. Said applicant shall give written notice to the owner if other than the applicant and, with the exception of a request for determination of applicability, 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 other property owners within 100 feet of the property line of the applicant, including any in another municipality or across a body of water. The notice to abutters shall state where copies of the application or request may be examined and obtained by abutters and shall state where information on the date and time of the public hearing may be obtained. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission as part of the application.
After the application/request is received, the applicant shall place a public notice sign provided by the Conservation Commission, facing a public right-of-way and visible from the right-of-way at the edge of the property upon which the permit or request is being made.
Said sign shall notify the public that an application or request is pending on the property.
Said sign shall be posted at least five working days before the first public hearing on the application or request.
A signed statement of the person posting said sign stating that the required sign was provided shall be filed with the Commission prior to the public hearing.
The Commission shall conduct a public hearing on any application, notice of intent, abbreviated notice of resource area delineation (ANRAD), or request for determination of applicability. Notice of said hearing shall be published in a newspaper of general circulation in the City at least five working days prior to said hearing at the expense of the applicant. The published notice, which shall be prepared by the Commission, shall contain the following information: the date, time, and place of the hearing; the location of the property affected; the name of the applicant; and the action requested from the Commission. The Commission shall deliver the notice to the newspaper.
The Commission shall commence the public hearing within 28 days from receipt of a completed application (one which shows all the information, based on a staff determination, necessary to make a decision), unless the applicant extends the time period by a written waiver.
The Commission shall have authority to continue the hearing to a date and time announced at the hearing 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, or comments and recommendations of other boards and officials of the City of Northampton. In the event the applicant objects to a continuance or postponement, the hearing shall be closed and the Commission shall take action on such information as is available.
In addition, when there is snow on the ground and/or the ground is frozen, the Commission may continue a hearing until the snow melts and/or the ground thaws if it determines that an accurate wetland delineation is not possible otherwise.
The Commission shall issue its permit, permit denial, or determination in writing within 21 days of the close of the public hearing, unless an extension is authorized in writing or at the public hearing by the applicant.
The Commission shall combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00, in instances of concurrent jurisdiction.
[Amended 9-20-1990; 12-4-2014]
The Commission shall provide copies of its agenda to the Planning Department, Director of Public Works or his/her designee and Building Inspector. The Commission shall not take final action until five working days after such officials have received their notice of the application. The Commission shall consider recommendations from those officials and any other City boards and officials but they shall not be binding on the Commission.
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.
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 21 days of the close of the hearing, shall issue or deny a permit for the activities requested.
The Commission shall have the right to refuse to issue a permit if a previous permit on the same property or on contiguous properties under the same or affiliated ownership has not been complied with or has not received a certificate of compliance.
If it issues a permit (order of conditions), 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. The Commission can, at its discretion, require that construction of erosion control features and other features that protect the resource areas be completed before other work on the project proceeds. The Commission shall record the order of conditions in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property, provided that the applicant has provided adequate information on the ownership of the parcel. Following recording, the Commission shall provide the original signed order to the applicant by hand delivery or certified mail. The applicant, however, and not the Commission is responsible for insuring that the order is properly recorded and that future buyers are advised of permit conditions. In addition, the permittee or landowner shall notify the Commission when work is due to begin on the project not less than three or more than 14 days before work begins on the project. If work is suspended on a project for more than 60 days, the permittee or landowner shall again notify the Commission when work is due to begin. A copy of the permit (order of conditions) shall be on site at all times during construction activities related to the resource area or buffer zone.
The Commission is empowered to deny a permit for failure to meet the requirements, design specifications and performance standards of this chapter; for failure to submit necessary information and plans requested by 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.
A permit 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 for an additional period of up to three years, provided that a request for renewal is received in writing by the Commission prior to expiration, in accordance with 310 CMR 10.00, and that financial guarantees and other securities required by the Commission are also renewed.
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.
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.
After all work is done in accordance with a permit (order of conditions) issued under this chapter, the landowner or the landowner's successors in interest shall apply for a certificate of compliance. This application shall be accompanied by an as-built plan if different from the original plan and by the project engineer's statement of the project's compliance with the permit, unless the requirement for the statement has been waived by the Commission.
When it has been adequately demonstrated to the Commission that the order of conditions was adhered to, the Commission shall issue a certificate of compliance. The order of conditions and the certificate of compliance may include conditions, such as maintenance requirements, that are perpetual and do not expire with the issuance of the certificate of compliance. The permittee or landowner shall record the certificate of compliance in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property.
After public notice and public hearing, the Commission shall promulgate required forms and submittal requirements to accomplish the purposes of this chapter. The Commission may amend its required forms and submittal requirements after public notice and public hearing. Failure by the Commission to promulgate such forms and submittal requirements or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this chapter.
All work shall be subject to inspection and require the approval of the Conservation Commission.
To encourage infill development, which is considered more sustainable under the principles of smart growth and generally has a smaller environmental footprint than development in outlying areas, in the Central Business, General Business, Highway Business, Neighborhood Business, General Industrial, Special Industrial, Planned Village, Medical, Urban Residential-B and Urban Residential-C Zoning Districts, within those portions of the Water Supply Protection Overlay District which was zoned industrial as of January 1, 2006, the Conservation Commission hereby waives any of the § 337-10 performance standards that are over and above state law with the exception of the setback requirements in the Protected Zone Table (1), and the requirements in § 337-10E(2)(b).
To encourage infill development, which generally has a smaller environmental footprint than development in outlying areas, in the Business Park Zoning District for nonresidential uses only, the Conservation Commission hereby waives any of the § 337-10 performance standards that are over and above state law, except as provided in this subsection. All removal, filling, dredging, or altering of any wetland shall be mitigated by the creation of artificial or replacement wetlands, with the replacement wetland built at 115% of the size of the area which was disturbed.
Artificial or replacement wetlands. If the applicant demonstrates to the Commission that the replacement wetland is a restoration and will provide wetland values equal or greater than the wetland values being lost, the Commission may allow replacement wetlands to be the same size as the disturbed area. If the applicant is attempting to replace a wetland through replication, the area of replication must be up to twice as large as the area of the original wetland that will be destroyed. In those instances where replication is approved by the Commission the following conditions must be met:
At minimum, the replicated wetland must reproduce the values and functions of the original wetland as determined by the Conservation Commission. Site conditions permitting, the Commission may require that additional values and functions be incorporated into the replication design. In particular, in circumstances where replacement of specific functions and values would require substantial amounts of time before being completely replicated (for example, those provided by large mature trees), the Commission may require additional compensation of area, functions, values, etc. beyond those required in other sections of this chapter.
In most instances, the replication of wetlands will result in the destruction of adjacent buffer zone areas. In such instances, replication or additional permanent preservation of new buffer zone areas may be required.
The top 12 inches of soil from the original wetland must be transplanted with soil structure, especially lamination and density profile, intact to the replication area. This is intended to preserve plant, invertebrate, and planktonic communities of the wetland and inhibit the blossoming of invasive species.
Any replication or restoration work that creates a resource on abutting properties shall require an easement from the abutting property owner covering the full extension of the resource on that property prior to commencement of the work.
Standards for the replication shall be specified and verified in terms of functions, values, and actual performance. Technical and engineering specifications used for design and construction shall be considered approximate. Criteria for acceptance and approval shall be based solely on function and performance as specified in the order of conditions. In other words, replications will be evaluated on what they are expected to do, not how closely actual construction matched the plan. For example, although elevations may be used for design and planning of a pond, the standards shall be set in terms of volume and depth of water over the course of a year. In vernal pool replication, the pool must be capable of sustaining full development of vernal pool species, regardless of design elevations or siting.
Replications that do not properly perform the approved functions and values as specified in the order of conditions will not be deemed acceptable no matter how closely they adhere to approved engineered plans.
The Commission may set other conditions on a project-/site-specific basis.
For limited development projects, as defined in the Wetlands Protection Act regulations, where it is not be practical to lay out an element of the project without a wetlands replication, the Commission may waive some or all of the requirements of this section.
Work within upland areas adjacent to wetlands. A growing body of research evidence suggests that even "no disturbance" areas reaching 100 feet from wetlands may be insufficient to protect many important wetland resource characteristics and values. Problems with nutrient runoff, erosion, siltation, loss of groundwater recharge, poor water quality, vegetation change and harm to wildlife habitat are greatly exacerbated by activities within 100 feet of wetlands. These impacts may happen either immediately, or over time, as a consequence of construction, or as a consequence of daily operation. Thus, in general, work and activity within 100 feet of wetlands should be avoided and discouraged and reasonable alternatives pursued.
Certain areas 50 feet to 100 feet from wetlands may be suitable for temporary, limited or permanent disturbance as appropriate when the applicant can demonstrate to the Commission's satisfaction that the proposed work, activity or use will not affect wetland values singularly or cumulatively and, by means of a written and plan view assessment, that reasonable alternatives to the proposed work or activity do not exist.
The Commission may allow the alteration of up to 20% of the area within the fifty-foot to one-hundred-foot buffer zone on a lot, or up to 2,000 square feet on a lot within a cluster subdivision. This is a total, cumulative allowance for all projects on a lot developed since the City first adopted a wetlands protection ordinance (August 17, 1989). The proposed work must have no significant adverse impact on the resource area, and the applicant must provide evidence deemed sufficient by the Commission that the area being disturbed will not harm the resource area values protected by the law.
The Commission shall not permit alteration within resource areas or their associated protected zones, subject to the following exceptions:
Projects in areas downgradient of wetlands.
Projects in certain infill areas, in accordance with Protected Zone Table (1) in § 337-10, where development includes mitigation measures that will improve the existing condition of the wetlands or adjacent upland.
Limited projects, as defined in the Massachusetts Wetlands Protection Act regulations, and walking and multiuse trails designed for nonmotorized use.
Projects which will improve the natural capacity of a resource area(s) to protect the interests identified in MGL c. 131, § 40 (although no such project may be permitted which will have any adverse effect on specified wildlife habitat sites of rare vertebrate or invertebrate species as identified by procedures established under 310 CMR 10.59). Such projects include, but are not limited to, the removal of aquatic nuisance vegetation to retard pond and lake eutrophication and the thinning or planting of vegetation to improve habitat value, removal of invasive nonnative vegetation, removal of fill and/or hazardous materials. These projects may be standalone projects, or may be included as portions of larger projects.
Agricultural activities, as defined in 310 CMR 10.04.
Erection of wetland boundary markers, such as stones or iron rods.
Work involving land under water shall conform to the performance standards set forth in 310 CMR 10.56.
Projects in or affecting protected zones or resource areas containing areas already degraded or developed, subject to the following criteria:
At a minimum, proposed work shall result in an improvement over existing conditions of the capacity of the resource area to protect the interests identified in MGL c. 131, § 40. When a lot is previously developed but no portion of the resource area or its protected zone is degraded, this section shall not apply.
Within the resource area and its protected zone, proposed work shall not be located closer to the resource area than existing degraded conditions.
Proposed work, including expansion of existing structures, shall be located outside the resource area or toward the resource area boundary and away from the resource.
The area of proposed work shall not exceed the amount of degraded area.
When an applicant proposes restoration on the site of the degraded area in the protected zone, alteration may be allowed, notwithstanding the criteria of Subsection E(2)(h),  and  of this section, at a ratio in square feet of at least 1:1 of restored area to area of alteration not conforming to the criteria. Restoration shall include removal of all debris, but retaining any trees or other noninvasive mature vegetation; grading to a topography which reduces runoff and increases infiltration; coverage by topsoil at a depth consistent with natural conditions at the site; and seeding and planting with an erosion control seed mixture, followed by plantings of herbaceous and woody species appropriate to the site.
When an applicant proposes mitigation either on site or in a protected zone associated with the same resource area, alteration may be allowed, notwithstanding the criteria of Subsection E(2)(h),  and  of this section, at a ratio in square feet of at least 2:1 of mitigation area to area of alteration not conforming to the criteria. Mitigation may include off-site restoration of protected zones; conservation restrictions under MGL c. 184, §§ 31 to 33 to preserve undisturbed protected zones that could be otherwise altered; the purchase of development rights within protected zones; the restoration of bordering vegetated wetland; projects to remedy an existing adverse impact on the interests identified in MGL c. 131, § 40, for which the applicant is not legally responsible; or similar activities undertaken voluntarily by the applicant which will support a determination by the Commission of no significant adverse impact.
The Commission shall include a continuing condition in the certificate of compliance for projects under Subsection E(2)(h) prohibiting further alteration within the restoration or mitigation area, except as may be required to maintain the area in its restored or mitigated condition. Prior to requesting the issuance of the certificate of compliance, the applicant shall demonstrate that the restoration or mitigation has been successfully completed for at least two growing seasons.
Work within vernal pool resource area.
The City of Northampton Conservation Commission may issue an order of conditions for the construction, rehabilitation and maintenance of linear systems within the vernal pool resource area, but not within the vernal pool (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Linear systems include, but are not limited to: footpaths, bikepaths, pipelines, and conduits for the transmission of utilities (water, fuel, sewage, and power). Evaluation of such projects shall be based on the applicant's ability to avoid, minimize, and mitigate disturbance to the resource area. With the exception of existing linear systems, the applicant shall avoid disturbance in the resource area. The applicant must prove to the Conservation Commission, beyond a reasonable doubt, that avoidance is not possible. If avoidance is not possible, the applicant must provide documentation that any adverse impacts from the work will be minimized and that the design specifications are commensurate with the projected use and are compatible with the character of the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity, the extent to which adverse impacts are minimized, and the extent to which mitigation measures, such as resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
The City of Northampton Conservation Commission may issue an order of conditions for the construction of a driveway crossing within the one-hundred-foot to two-hundred-foot section of the vernal pool resource area (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Such projects may be permitted if the applicant provides evidence that the work will not cause adverse impacts to the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity and the extent to which mitigation measures, including resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
The City of Northampton Conservation Commission may issue an order of conditions for the rehabilitation and maintenance of existing structures and disturbed areas (structures or disturbed areas existing as of January 1, 2006) within the vernal pool resource area, but not within the vernal pool (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Such projects may be permitted if the applicant provides evidence that the work will not cause additional impacts to the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity and the extent to which mitigation measures, including resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
Vernal pool habitat. The presumptive definition for vernal pools is based on systematic field observations in the City of Northampton by the Northampton Conservation Commission and shows that virtually all basins that possess the defined characteristics actually host breeding vernal pool species. Undoubtedly, this is a particular consequence of Northampton's enduring woodlands and wetlands.
Any ponded area located within a confined basin depression and containing more than 1,000 square feet of water during the growing season shall be presumed to be vernal pool habitat. This presumption is rebuttable through any of the following means:
Demonstration that surface water was present for fewer than 60 consecutive days during the growing season (March 15 through October 15) of any years, provided that rainfall during the period of observation was at least 75% of the average over 20 years for that period in Northampton.
Proof that the ponded area either supports a year-round population of fish or that the fish breed within the confines of the ponded area.
Demonstration, through repeated observation by competent field observers made during the spring months, that the ponded area did not meet the criteria for certification as vernal pool habitat as described in the Guidelines for the Certification of Vernal Pool Habitat of the Massachusetts Division of Fisheries and Wildlife. For such evidence to be considered sufficient and accurate, a vernal pool observation plan must be approved by the Northampton Conservation Commission prior to February 15 of the spring in which the study will be conducted, and staff or agents of the Commission must be granted access to the site as necessary.
If a presumed vernal pool is located entirely on an adjacent property not owned or controlled by the applicant, the applicant and Conservation Commission must attempt to gain permission from the adjacent property owner to access the property to inspect the presumed vernal pool. If said permission is not granted, and the presumed vernal pool cannot be certified from observations made at the property boundary line, the Northampton Conservation Commission will not assert regulatory jurisdiction over the area of upland vernal pool resource area on the applicant's property.
If a property owner grants permission by February 15 of any year, the Northampton Office of Planning and Development or its agent will inspect and certify vernal pools (usually in the spring of each year). The City or its agent will then either certify eligible vernal pools with the Commonwealth of Massachusetts or provide a statement that an inspected presumed vernal pool is not actually a certified vernal pool in accordance with the necessary credible evidence as required. A statement that a site is not a vernal pool shall be presumptive under this chapter for three years but does not indicate that it is not otherwise a resource area. The fee for this work shall be made payable to the City or its agent, as applicable, and shall be the same fee as being charged for the Massachusetts Department of Environmental Protection notice of resource area delineation.
As part of a permit issued under this chapter, except for permits issued for work being performed or contracted by any department or agency of the City of Northampton, and in addition to any security required by any other municipal or state board or agency, the Commission may require that the performance and observance of the conditions imposed hereunder be secured wholly or in part by one or more of the methods described below:
A financial guarantee, such as a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission. Surety performance bonds, cash escrows, and standby letters of credit are the usual forms of financial guarantees that will be accepted. Property escrows will not be accepted. Permittees shall submit their estimates of what the required improvements will cost, preferably with contractors' bids to perform the work
The term of any financial guarantees must be at least nine months longer than the time a permittee has to complete a project. The Commission, at its discretion, may allow partial or complete release of guaranteed funds as sections of a project are completed. The Commission has the right not to release part of the guaranteed funds until after the project is finished and a certificate of compliance is issued.
The Commission has the right to reject the terms of a proposed financial guarantee, including the financial institution holding guaranteed funds if it is not a local bank, and to determine the amount of funds that must be guaranteed. The Commission's only duty to secure release of guaranteed funds is to certify that required improvements or conditions have not been completed on time or to a satisfactory standard, as defined by the Commission.
At the discretion of the Commission, a joint financial guarantee may be used to comply with Commission requirements and that of other agencies, boards, and commissions in the City of Northampton; provided, however, that all relevant parties agree on the terms and the principal and that the guarantee is structured so that all relevant parties agree before any funds are released.
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.
The Commission, 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 sampling as the Commission deems necessary. Any request for determination, application/notice of intent, or request for certificate of compliance is evidence of the landowner's permission for said parties to enter private land, and all forms shall include this as a condition.
The Commission shall have the responsibility, duty, and authority to enforce this chapter, its regulations, and permits issued thereunder by violation notices, administrative orders, and civil and criminal court actions.
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 or other appropriate official shall take legal action for enforcement under criminal law.
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, including any causing, suffering, or allowing of illegal work, any failure or refusal to comply with an enforcement order, violation notice or administrative order, and any failure or refusal to remove illegal fill, restore property, or obtain necessary Commission approval, or any person who violates the permits issued hereunder, shall be punished as set forth in Chapter 1, § 1-17, General penalty. Each day, or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the ordinance or permit violated shall constitute a separate offense.
In the alternative to criminal prosecution, the Commission may utilize the noncriminal disposition procedure set forth in MGL c. 40, § 21D, in accordance with City ordinance. Each day or portion thereof during which a violation continues shall constitute a separate offense and each provision of the ordinance 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 the credible evidence that the work proposed in the application will not have, in the opinion of the Conservation Commission, unacceptable significant or cumulative 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.
A decision of the Commission shall be reviewable in the Superior Court in accordance with MGL c. 249, § 4. Appeals shall be made within 10 business days of the date of the decision by the Commission, or the date of the signing and/or notarization of said decision, whichever is the later. Notice of said appeal and a copy of the complaint shall be sent, certified mail, or hand-delivered, to the Conservation Commission so as to be received within said 10 days.
Editor's Note: This ordinance also renumbered former § 337-14 as § 227-15.
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.
Unless otherwise stated in this chapter, the definitions, procedures, and performance standards of the Wetlands Protection Act, MGL c. 131, § 40, and associated regulations, 310 CMR 10.00, shall apply.