[HISTORY: Adopted by the Municipal Council
of the Town of Amesbury 7-8-2008 by Bill No. 2008-050. Amendments noted where applicable.]
The purpose of this chapter is to protect and
preserve the wetlands, related water resources, and adjoining land
areas in Amesbury by controlling activities deemed by the Conservation
Commission likely to have a significant or cumulative effect upon
resource area values, including but not limited to the following:
public or private water supply, groundwater, flood control, erosion
and sedimentation control, storm damage prevention, including coastal
storm flowage, water quality, water pollution control, fisheries,
shellfish, wildlife habitat, rare species habitat, including rare
plant species, agriculture, aquaculture, and recreational values,
deemed important to the community (collectively, the "resource area
values protected by this chapter"). This chapter 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.
A.
Except as permitted in writing by the Conservation
Commission or as provided in this chapter, no person shall engage
in the following activities: removal, filling, dredging, discharging
into, building upon, or otherwise altering or degrading the wetland
resource areas described in the following sentence. Amesbury's wetland
resource areas consist of:
(1)
Any freshwater wetland bordering on any creek, river,
stream, pond or lake;
(2)
Any bank, beach, dune, flat, marsh, wet meadow, bog
or swamp;
(3)
Any isolated vegetated wetland;
(4)
Any vernal pool;
(5)
Any coastal wetland bordering on any ocean, estuary,
creek, river, stream, pond or lake;
(8)
Any land subject to tidal action, storm flowage, or
flooding by groundwater or surface water; and
(9)
The two-hundred-foot riverfront area.
B.
These resource areas are, collectively, the resource
areas protected by this chapter.
C.
The following water bodies and contiguous two-hundred-foot
zones on either side of the water body in Amesbury have been identified
by the Commission as riverfront areas: Merrimack River, Powwow River,
Back River, Goodwin Creek, Presbus Creek and any unnamed perennial
stream as defined under 310 CMR 10.58(2), as amended.
D.
The wetland resource areas listed in Subsection A(1) to (9) above are protected in addition to the wetland resource areas under the Massachusetts Wetlands Protection Act, MGL c. 131, § 40 ("the Act"), and its accompanying regulations, 310 CMR 10.00. The Commission shall not grant such permission without receiving written notice of the intention to conduct such activity and without issuing written permission to do all in compliance with the provisions of this chapter.
A.
The application and permit required by this chapter
shall not be required for the following activities but shall for all
others:
(1)
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 Commission prior
to commencement of work, and provided that the work conforms to performance
standards and design specifications in regulations adopted by the
Commission.
(2)
Work performed for normal maintenance or improvement
of land which is lawfully in agricultural and aquacultural use as
defined by the Massachusetts Wetlands Protection Act regulations at
310 CMR 10.04, as amended, and provided that the work conforms to
performance standards and design specifications in regulations adopted
by the Commission. Prior to the commencement of work, written notice
shall be submitted to the Commission.
(3)
Maintenance and repair of existing public ways, provided
that written notice has been given to the Commission prior to commencement
of work, and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
(4)
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.
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. Other than stated in this section, the exceptions provided
in the Wetlands Protection Act, MGL c. 131, § 40, and regulations,
310 CMR 10.00, shall not apply under this chapter.
(5)
Work within an isolated vegetated wetland resource
area or its buffer zone if the isolated vegetated wetland was created
by the negligent acts of Amesbury or third parties other than the
owner(s) of the real property on which the isolated vegetated wetland
exists.
B.
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.
All applications to perform activities in Amesbury's
resource areas shall be either in the form of a request for determination
of applicability or a notice of intent, or both. 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 under this chapter. No activities shall
commence without receiving and obtaining a permit issued pursuant
to this chapter. The Commission, in an appropriate case, may accept
as the permit application and plans under this chapter the notice
of intent and plans filed under the Wetlands Protection Act, MGL c.
131, § 40, and regulations, 310 CMR 10.00. At the time of
the submission of a permit application, the applicant shall pay a
filing fee specified in regulations of the Commission and in accordance
with the provisions of MGL c. 40, § 22F. The fee is in addition
to that required by the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10. The date which serves to commence the
Commission's deliberation period is the date of receipt of the application
at its offices, during regular business office hours. In order to
comply with the provisions of this chapter, each application must
be complete as filed and must comply with the rules set forth herein.
Amesbury's Conservation Agent shall be granted the power to make determinations
of completeness for applications submitted to the Commission and reject
within two business days those applications that do not meet the minimum
submittal requirements of this chapter. In order to provide sufficient
review time, the Commission may continue a public hearing or public
meeting if new information is submitted by the applicant or its representative
less than seven business days prior to the scheduled public hearing
or meeting.
B.
No such application shall be accepted as complete
before all permits, variances, and approvals required by this chapter
or ordinances of Amesbury with respect to the proposed activity, at
the time of such notice, have been applied for or obtained. Such application
shall also include any information submitted in connection with such
permits, variances, and approvals that is necessary to describe the
effect of the proposed activity on the resource areas. Notwithstanding
the foregoing, and where the Board of Appeals requires the applicant
to submit a permit application to the Commission, the Commission may,
in its sole and absolute discretion, accept an application for a proposed
development filed with the Board of Appeals pursuant to MGL c. 40B,
§§ 20 to 23.
C.
Amesbury hereby accepts the provisions of MGL c. 44,
§ 53E for purposes of administering jointly the filing fee
and the consultant fee provisions of this chapter.
D.
Pursuant to MGL c. 44, § 53G and regulations
promulgated by the Conservation Commission, the Commission may impose
reasonable fees upon applicants for the purpose of securing outside
consultants, including engineers, wetland scientists, wildlife biologists
or other experts, in order to aid in the review of proposed projects,
including but not limited to resource area survey and delineation,
analysis of resource area values, including wildlife habitat evaluations,
on-site environmental monitoring during construction, hydrogeologic
and drainage analysis, and environmental or land use law. Such funds
shall be deposited with the 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.
E.
Only costs relating to consultant work done in connection
with a project for which a consultant fee has been collected shall
be paid from this account, and expenditures may be made at the sole
discretion of the Commission. Any consultant or legal counsel 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 or legal counsel, identifying
the consultant and the amount of the fee to be charged to the applicant,
and 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 of notice given without incurring any costs or expenses. 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 the Massachusetts Department
of Environmental Protection (MA DEP) of such a decision in writing.
The Commission shall not issue a permit until all outstanding consulting
fees have been paid for. The Commission shall return any unused portion
or the consultant fee to the applicant unless the Commission decides
at a public meeting that other action is necessary.
F.
The applicant may appeal the selection of an outside
consultant or legal counsel to the Municipal Council 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
a related field. The applicant shall make such appeal in writing,
and the appeal 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.
Combination with state law hearing. The Commission,
in its discretion, may hear any oral presentation under this chapter
at the same public hearing required to be held under the provisions
of MGL c. 131, § 40. Notice of the time and place of such
hearing(s) shall be given as required below.
B.
Notice.
(1)
Any person filing a permit application with the Commission
at the same time shall give written notice thereof, by certified mail
(return receipt requested) or hand delivered, to all abutters at their
mailing addresses shown on the most recent applicable tax list of
the Assessors, including owners of land directly opposite on any public
or private street or way and abutters to the abutters within 300 feet
of the property line of the applicant, including any in another municipality.
The notice to abutters 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. Mailing at least seven calendar days prior to the
public hearing shall constitute as timely notice.
(2)
The applicant shall also post a legal advertisement
in the Newburyport Daily News at least seven calendar days prior to
the public hearing. All publications and notices shall contain the
name of the applicant, a description of the area where the activity
is proposed by street address or map(s) and parcel number(s), the
date, time and place of the public hearing, the subject matter of
the hearing and the nature of the action or relief requested, if any.
C.
Hearing. The Commission shall commence the public
hearing within 21 days from receipt of a completed permit application
or request for determination unless an extension is authorized in
writing by the applicant.
D.
Proof.
(1)
The applicant shall have the burden of proving by
a preponderance of credible evidence that the activity proposed in
the notice of intent or request for determination of applicability
will not cause adverse impacts to any of the interests and values
sought to be protected by this chapter. Failure to provide to the
Commission adequate evidence for it to determine that the proposed
activity does not cause adverse impacts shall be sufficient cause
for the Commission to deny permission or to grant such permission
with such conditions as it deems reasonable, necessary or desirable
to carry out the purpose of this chapter or to postpone or continue
the hearing to another date certain to enable the applicant and others
to present additional evidence, upon such terms and conditions as
seem to the Commission to be reasonable.
(2)
The Commission shall presume the buffer zones are
important to the protection of other resource areas because activities
undertaken in close proximity to resource areas have a high likelihood
of adverse impact to these resources, either immediately, as a consequence
of construction, or over time, as a consequence of daily operations.
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 therefore
may require that the applicant maintain a strip of continuous, undisturbed
vegetative cover within this area, unless the applicant demonstrates
to the satisfaction of the Commission that the area or part of it
may be disturbed without harm to the values protected by this chapter.
(3)
The Commission shall presume the riverfront area is
important to all the resource area values unless demonstrated otherwise,
and no permit issued thereunder 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 technically demonstrated feasible alternative to the 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 closer an activity
is proposed to a resource area, the more scrutiny will be given to
the potential impacts of a proposed project.
(4)
The Commission shall regard as practicable an alternative
which is reasonably available and capable of being done after taking
into consideration the proposed property used, overall project purpose
(e.g., residential, institutional, commercial or industrial), logistics,
existing technology, costs of the alternatives and overall project
costs.
(5)
To prevent resource area loss, the Commission shall
require applicants to avoid alteration wherever feasible, to minimize
alteration, and, where alteration is unavoidable and has been minimized,
to provide full mitigation to a ratio of 2:1. Specific plans, professional
design, proper safeguards, adequate security, and professional monitoring
and reporting to assure success shall be required due to the high
likelihood of failure of replication areas. The Commission may require
a wildlife habitat study of the project area, to be paid for by the
applicant, whenever it deems appropriate, regardless of 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 resource 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).
(6)
The Commission shall presume that all areas meeting
the definition of "vernal pools" shall include, in addition to scientific
definitions found in the regulations under the Wetlands Protection
Act, any confined basin or depression not occurring in existing lawns,
gardens, landscaped areas or driveways which, at least in most years,
holds water for a minimum of two continuous months during the spring
and/or summer, contains at least 200 cubic feet of water at some time
during most years, is free of adult predatory fish populations, and
provides essential breeding and rearing habitat functions for amphibian,
reptile or other vernal pool community species, regardless of whether
the site has been certified by the Massachusetts Division of Fisheries
and Wildlife. The boundary of the resource area for vernal pools shall
be 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
in this chapter shall be as set forth in the Wetlands Protection Act
(MGL c. 131, § 40) and regulations (310 CMR 10.00).
(7)
The Commission shall presume that all areas meeting
the definition of "vernal pools" above, including the adjacent area,
perform essential habitat functions. This presumption may be overcome
only by the presentation of credible evidence which, in the judgment
of the Commission, demonstrates that the basin or depression does
not provide essential habitat functions. Any formal evaluation should
be performed by an individual who at least meets the qualifications
under the wildlife habitat section of the Wetlands Protection Act
regulations.
(8)
Alteration of resource areas protected by this chapter
shall not be permitted, except that the Conservation Commission is
authorized to permit, in its discretion, wetland alteration necessary
for water-dependent uses, public projects, or the construction and
maintenance of utilities. Where such alteration is unavoidable, it
shall be minimized and the Conservation Commission shall require mitigation
sufficient to ensure the protection of the wetland values in this
chapter. In order to promote the wetland values and interests of this
chapter, no wetland alteration shall be mitigated by or compensated
for in any way by the creation of a substitute or artificial freshwater
wetland, coastal wetland, marsh, meadow, bog, swamp, pond or any land
subject to tidal action, coastal storm flowage or flooding.
(9)
Any activity proposed or undertaken outside of the
resource areas protected by this chapter, as specified above, shall
not be subject to jurisdiction of the Conservation Commission unless,
in the judgment of the Conservation Commission, said activity will
result or has resulted in the alteration of a resource area protected
by this chapter.
(10)
Due consideration shall be given to possible
effects of the proposal on all interests and values to be protected
under this chapter and to any demonstrated hardship on the petitioner
by reason of a denial, as brought forth at the public hearing.
E.
Continuances. The Commission shall have the authority
to continue the hearing to a date certain announced at the hearing,
for reasons stated at the hearing, which may include receipt of additional
information offered by the applicant deemed necessary by the Commission,
in its discretion, or comments and recommendations of other Amesbury
boards and officials, as appropriate. In the event that 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.
F.
Investigations. The Commission and its agent(s) may
enter upon privately owned land for the purposes of carrying out its
duties under this chapter and may make or cause to be made such examination
or survey as deemed necessary.
A.
All orders and decisions.
(1)
If the Commission determines that the proposed activity
does not require imposition of conditions to preserve and protect
the interest of this chapter, the applicant shall be so notified in
writing.
(2)
If, after the close of the public hearing, the Commission
determines that the activities which are subject to the permit application
are likely to have a significant or cumulative effect upon the resource
area values protected by this chapter, the Commission may vote to
issue written orders of conditions or determination of applicability
within 21 days of the close of the public hearing. The Commission
shall impose conditions, safeguards and limitations on the time and
use upon such activity which the Commission deems necessary or desirable
to protect those values, and all activities shall be done in accordance
with those conditions.
(3)
The Commission is empowered to deny a permit for failure
to meet the requirements of this chapter; for failure to submit the
necessary information and plans requested by the Commission; for failure
to meet the design specifications, performance standards and other
requirements in regulations of the Commission; for failure to avoid
or prevent unacceptable significant or cumulative effects upon the
resource area values protected by this chapter; and where no conditions
are adequate to protect those values. Due consideration shall be given
to any demonstrated hardship on the applicant by reason of denial,
as presented at the public hearing.
(4)
The Commission, in an appropriate case, may combine
the permit or determination issued under this chapter with the order
of conditions or determination of applicability issued under the Wetlands
Protection Act, MGL c. 131, § 40, and regulations, 310 CMR
10.00.
B.
Duration of orders and determinations.
(1)
A permit shall expire three years from the date of
issuance. Notwithstanding the above, the Commission, in its discretion,
may issue a permit expiring three 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 one-year period, provided
that a request for renewal is received in writing by the Commission
30 days prior to expiration. The Commission may not renew a permit
unless request for it is received in writing by the Commission 30
days prior to expiration. Notwithstanding the above, a permit may
contain requirements which shall be enforceable for a stated number
of years, indefinitely, or until permanent protection is in place.
(2)
No activity governed by an order of conditions shall
be performed unless and until all permits, approvals and variances
required by the ordinances of Amesbury have been obtained, such order
of conditions or notification shall have been recorded or registered
at the Essex South District Registry of Deeds, and all applicable
appeal periods have expired.
C.
Modifications, amendments and revocations.
(1)
For good cause, the Commission may revoke, amend or
modify a permit or determination issued under this chapter after notice
to the holder of the permit or determination, notice to the public,
abutters and other boards, pursuant to this chapter, and a public
hearing.
(2)
In revoking an order of conditions, the Commission
shall officially notify the interested parties through certified mail
and hold a public hearing within 21 days of the notification date.
In the case of an amendment to the order of conditions, the Commission
shall have the discretion to decide if a public hearing is warranted.
This decision shall be based on the potential impact of proposed work
and its effect on the ability of the identified wetland resource areas
to protect those interests as defined under the Act and this chapter.
No public hearing is required for a modification to an order of conditions.
Written notification to the applicant by certified mail is required
in all cases where the Commission initiates a modification, amendment
or revocation of an order of conditions.
D.
Certificate of compliance. The Commission shall, upon
receiving written request and weather permitting, inspect the resource
area(s) and the overall completed project for compliance with the
order of conditions, and if found to be in compliance the Commission
shall issue a certificate of compliance (or partial certificate of
compliance) to the owner of the property, applicant or applicant's
representative, in a form suitable for recording or registering. The
Commission shall act to approve or disapprove a request for a certificate
of compliance within 60 days of receipt thereof. By written authorization
from the party requesting the certificate of compliance, said sixty-day
period may be extended. If the Commission fails to approve or disapprove
a request for a certificate of compliance within said sixty-day period
and where said period has not been extended by written agreement,
the Clerk shall issue a signed certificate, suitable for recording
with the Registry of Deeds, that the Commission has constructively
approved the requested certificate of compliance by virtue of its
failure to act within the required period of time.[1]
E.
Responsibility for compliance. After recording the
order of conditions, or issuance of a violation notice or enforcement
order, any person who purchases, inherits or otherwise acquires real
estate upon which work has been done in violation of the provisions
of this chapter or in violation of any order issued under this chapter
shall forthwith comply with any such order or restore such land to
its preexisting condition; provided, however, that no action, civil
or criminal, shall be brought against such person unless such action
is commenced within three years following the recording of the deed
or the date of the death by which such real estate was acquired by
such person.
A.
After public notice and public hearing, the Commission
shall promulgate rules and regulations to effectuate the purposes
of this chapter. Notice shall be given at least two weeks prior to
the public hearing by publication in a newspaper of general circulation
in Amesbury and by posting with Amesbury's 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.
B.
At a minimum, these regulations shall define key terms
in this chapter, not inconsistent with this chapter, and procedures
governing the amount and filing of fees.
C.
After due notice and public hearing, the Conservation
Commission may promulgate policy guidelines in the form of additional
rules, regulations and definitions consistent with the provisions
and objectives of this chapter and designed to clarify and implement
its purpose. Notice shall be given at least two weeks prior to such
hearing by publication in a newspaper of general circulation in Amesbury
and by posting with Amesbury's Clerk. The Conservation Commission,
by regulation, duly advertised and heard, may set fees for services
performed, subject to the provisions of MGL c. 40, § 22F.
No fees shall be in excess of demonstrated true costs to Amesbury
of the services performed by the Commission.
A.
AGRICULTURE
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
BANK
FRESHWATER WETLANDS
PERSON
POND
RARE SPECIES
VERNAL POOL
The following definitions shall apply in the interpretation
and implementation of this chapter.
Refer to the definition as provided by MGL c. 128, § 1A.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
Removal, excavation, or dredging of soil, sand,
gravel, or aggregate materials of any kind.
Changing of preexisting drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns, or flood retention characteristics.
Drainage or other disturbance of water level
or water table.
Dumping, discharging, or filling with any material
which may degrade water quality.
Placing of fill, or removal of material, which
would alter elevation.
Driving of piles or erection or repair of buildings
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting
of trees.
Changing 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.
Application of pesticides or herbicides.
Incremental activities which have, or might
have, a cumulative adverse impact on the resource areas protected
by this chapter.
Includes the land area which normally abuts and confines
a water body, the lower boundary being the mean annual low flow level
and the upper boundary being the first observable break in the slope
or the mean annual flood level, whichever is higher.
Includes all wetlands whether or not they border on a water
body. For the purposes of this chapter, all bordering vegetated wetlands,
as well as all isolated vegetated wetlands encompassing at least 500
square feet in area, shall be regulated by this chapter.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to Amesbury ordinances, administrative agency, public or quasi-public
corporation or body, this municipality, and any other legal entity,
its legal representatives, agents, or assigns.
Follow the definition of 310 CMR 10.04, except that the size
threshold of 10,000 square feet shall not apply.
Includes, without limitation, all vertebrate and invertebrate
animals and plant species listed as endangered, threatened, or of
special concern by the Massachusetts Division of Fisheries and Wildlife,
regardless of whether the site in which they occur has been previously
identified by the Division.
Includes, in addition to scientific definitions found in
the regulations under the Wetlands Protection Act, any confined basin
or depression not occurring in existing lawns, gardens, landscaped
areas or driveways which, at least in most years, holds water for
a minimum of two continuous months during the spring and/or summer,
contains at least 200 cubic feet of water at some time during most
years, is free of adult predatory fish populations, and provides essential
breeding and rearing habitat functions for amphibian, reptile or other
vernal pool community species, regardless of whether the site has
been certified by the Massachusetts Division of Fisheries and Wildlife.
The boundary of the resource area for vernal pools shall be the mean
annual high-water line defining the depression.
B.
Except as otherwise provided in this chapter or in
regulations of the Commission, the definitions of terms in this chapter
shall be set forth in the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00.
As part of a permit issued under this chapter,
in addition to any security required by any other municipal or state
board, agency, or official, the Commission may require that the performance
and observance of the conditions imposed thereunder (including conditions
requiring mitigation work) be secured wholly or in part by one or
more methods described below:
A.
By the deposit of money sufficient to complete the
work as proposed, to secure performance of the conditions and observance
of the safeguards of such order of conditions. Such security, if filed
or deposited, shall be approved as to form and manner of execution
by Amesbury's Attorney or Amesbury's Treasurer. The performance bond
shall be released in whole or in part upon issuance of a certificate
of compliance for work performed pursuant to the permit.[1]
B.
By 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.
A.
In accordance with the provisions of MGL c. 40, §§ 21D
and 31, as well as every other authority and power that may have been
or may hereafter be conferred upon it, Amesbury may enforce the provisions
of this chapter, restrain violations thereof and seek injunctions
and judgments to secure compliance with its order of conditions.
B.
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.
C.
The Commission, its agents, officers, and employees
shall have authority to enter upon privately owned land with the consent
of the landowner 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 subject to the constitutions
and laws of the United States and the commonwealth.
D.
The Commission shall have authority to enforce this
chapter, its regulations, and permits issued thereunder by violation
notices, administrative orders 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.
Upon request of the Commission, the Mayor and Municipal Attorney shall
take legal action for enforcement under civil law.[1]
E.
Any person who violates any provision of this chapter,
or regulations, permits, or administrative orders issued thereunder,
shall be punished by a fine pursuant to MGL c. 40, § 21.
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.
F.
In accordance with MGL c. 40, § 21D, violators
shall, at the discretion of the enforcement authorities, be charged
a penalty. The penalties for violations of this chapter or regulations
promulgated hereunder may be assessed as follows:
(1)
Alteration of any wetland resource area identified
in this chapter: $100 per day for each violation.
(2)
Violation of any order of condition: $100 per day
for each violation.
(3)
Depositing any refuse, debris, yard waste or construction
material in a wetland or water body: $100 per day for each violation.
(4)
Alteration of any stream or water body: $100 per day
for each violation.
(5)
Any violation of any section of this chapter that
occurs in the Powwow River Water Resource Protection District, as
defined in Section XVI of the Amesbury Zoning Ordinance: $100 per
day for each violation.
G.
In the event of a violation of this chapter or of
any order issued thereunder, the Commission or its agent may issue
a stop-work order to the owner, the applicant or applicant's agent
by certified mail, return receipt requested, or by posting the same
in a conspicuous location on said site. Any person who shall violate
the provisions of a stop-work order shall be deemed in violation of
this chapter, but the failure of the Commission to issue a stop-work
order for any reason shall not prevent Amesbury from pursuing any
other legal remedy at law or in equity to restrain violations of this
chapter or promulgated regulations and to secure compliance with its
orders.
The applicant for a permit shall have the burden
of proving by a preponderance of the credible evidence that the work
proposed in the permit application will not have unacceptable significant
or cumulative effect upon the resource area values protected by this
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
by the Superior or Land Court in an action filed within 60 days thereof,
in accordance with MGL c. 249, § 4.
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 regulations, 310 CMR 10, thereunder. It is the intention of this
chapter that the purposes, jurisdiction, authority, exemptions, regulations,
specifications, standards, and other requirements shall be interpreted
and administered as stricter than those under the Wetlands Protection
Act and regulations.
The invalidity of any section or provision of this chapter by
a court or agency of competent jurisdiction shall not invalidate any
other section or provision thereof, nor shall it invalidate any permit
or determination which previously had been issued.
