[HISTORY: Adopted by the Annual Town Meeting of the Town
of Harvard 3-25-2006 by
Art. 21.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Protective Bylaw — See Ch. 125.
Subdivision control — See Ch. 130.
Wetlands Protection Bylaw Rules — See Ch. 147.
[1]
Editor's Note: This article repealed former Ch. 119,
Wetlands Protection, adopted 3-28-1987 ATM by Art. 40, as amended.
The purpose of this bylaw is to protect the wetlands, water
resources and adjoining land areas in the Town of Harvard by controlling
activities deemed by the Conservation Commission likely to have a
significant or cumulative impact 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, water quality, water pollution control, fisheries,
shellfisheries, wildlife habitat, rare species habitat including rare
plant species, agriculture, aquaculture, and recreation values deemed
important to the community (collectively, the "resource area values
protected by this bylaw"). This bylaw is intended to utilize the Home
Rule authority of the Town of Harvard 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 promulgated 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.
Except as permitted by the Conservation Commission (sometimes hereinafter "Commission") or as provided in this bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resources: any wetlands; marshes; wet meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds of any size; rivers; streams; creeks; beaches; dunes; estuaries; land subject to flooding; land under water bodies; and lands abutting any of the aforesaid resources as set out in § 119-7 of this bylaw (collectively, the "resource areas protected by this bylaw"). Said resource areas shall be protected whether or not they border surface waters.
A.
The application and permit required by this bylaw shall not be required
for work performed for normal maintenance or improvement of land in
agricultural use.
B.
The application and permit required by this bylaw shall not be required
for maintaining, repairing or replacing, but not substantially changing
or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water,
telephone, telegraph or other telecommunication services, provided
that written notice has been given to the 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.
The application and permit required by this bylaw shall not be required
for emergency projects necessary for the protection of the health
and safety of the public, provided that the work is to be performed
by or has been ordered to be performed by an agency of the commonwealth
or a political subdivision thereof; provided that advance notice,
oral or written, has been given to the Commission prior to commencement
of work or within 24 hours after commencement; provided that the Commission
or its agent certifies the work as an emergency project; provided
that the work is performed only for the time and place certified by
the Commission for the limited purposes necessary to abate the emergency;
and provided that within 21 days of commencement of an emergency project
a permit application shall be filed with the Conservation Commission
for review as provided by this bylaw. Upon failure to meet these and
other requirements of the Conservation Commission, the Commission
may, after notice and a public hearing, revoke or modify an emergency
project approval and order restoration and mitigation measures.
D.
Other than stated in this section, the exceptions provided in the
Wetlands Protection Act and regulations promulgated thereunder shall
not apply under this bylaw.
A.
Written application shall be filed with the Conservation Commission
to perform activities affecting resource areas protected by this bylaw.
The permit application or notice of intent (NOI) shall include such
information and plans as are deemed necessary by the Commission to
describe proposed activities and their effects on the resource areas
protected by this bylaw. No activities shall commence without receiving
and complying with a permit issued pursuant to this bylaw.
B.
The Commission in an appropriate case may accept as the application
and plans under this bylaw any application and plans filed under the
Wetlands Protection Act and the regulations promulgated thereunder.
C.
Any person desiring to know whether or not a proposed activity or
an area is subject to this bylaw may in writing request a determination
from the Commission. Such a request for determination (RFD) shall
include information and plans as are deemed necessary by the Commission.
D.
Any person desiring to know where a resource area or a wetland line
lies may in writing submit an abbreviated notice of resource delineation
(ANRAD) from the Commission. Such a request for delineation shall
include information and plans as are deemed necessary by the Commission.
E.
At the time of an application, the applicant shall pay a filing fee
specified in regulations of the Commission. The fee is in addition
to that required by the Wetlands Protection Act and the regulations
promulgated thereunder.
F.
Upon receipt of an application or at any point during the hearing
process, the Conservation Commission is authorized to require an applicant
to pay a fee for the reasonable costs and expenses borne by the Commission
for specific expert engineering and other consultant services deemed
necessary by the Commission to reach a final decision on the application.
This fee is called the "consultant fee." The specific consultant services
may include, but are not limited to, performing or verifying the accuracy
of resource area survey and delineation; analyzing resource area functions
and values, including wildlife habitat evaluations, hydrogeologic
and drainage analysis; and researching environmental or land use law.
G.
Filing and/or consultant fees shall be deposited in a separate account
(a revolving fund) for uses set out in the vote establishing it. This
account will be kept separate from the account established for filing
fees paid under the state Wetlands Protection Act.
H.
The exercise of discretion by the Commission in making its determination
to require the payment of a consultant fee shall be based upon its
reasonable finding that additional information available through outside
consultants is necessary for the making of an objective decision.
Any applicant aggrieved by the imposition of, or size of, the consultant
fee, or any act related thereto, may appeal according to the provisions
of the Massachusetts General Laws.
I.
The Commission may waive the filing fee, consultant fee and costs
and expenses for a permit or other application or RFD filed by a government
agency, the Town, or a nongovernmental organization working in the
interest of the Town.
A.
Any person filing a permit or other application or RFD with the Conservation
Commission at the same time shall give to all abutters (as described
below) written notice thereof, delivered by hand or by certified mail
(return receipt requested) to their mailing addresses shown on the
most recent applicable tax list of the Assessors of the Town. These
abutters include 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 to abutters shall have enclosed
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.
B.
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.
C.
The Commission shall conduct a public hearing on any permit application,
NOI, ANRAD or RFD, with written notice given in a newspaper of general
circulation in the Town at the expense of the applicant at least five
business days prior to the hearing.
D.
The Commission shall commence the public hearing within 21 days from receipt of a completed permit application, NOI, ANRAD or RFD unless an extension is authorized in writing by the applicant. The Commission shall have authority to continue the hearing to a specific date and time announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or others deemed necessary by the Commission in its discretion, based on comments and recommendations of the boards and officials listed in § 119-6.
E.
The Commission shall issue its permit, order, delineation or determination (See § 119-7, Permits and conditions.) in writing within 21 days of the close of the public hearing thereon unless an extension is authorized in writing by the applicant.
F.
The Commission in an appropriate case may combine its hearing under
this bylaw with the hearing conducted under the Wetlands Protection
Act and the regulations promulgated thereunder.
A.
Any person filing a permit application, NOI, ANRAD or RFD with the
Conservation Commission may be required to provide a copy thereof,
by certified mail (return receipt requested) or hand delivery, to
the Town's Select Board, Planning Board, Board of Appeals, Board
of Health, Building Commissioner, Fire Chief or Police Chief. A copy
shall be provided in the same manner to the Conservation Commission
of the adjoining municipality if the application 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 Town 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.
[Amended 10-22-2018 STM by Art.
1]
B.
Any person filing a permit application, NOI, ANRAD or RFD with the
Conservation Commission shall, if other permits from other boards
are required for their project, file simultaneously with those boards.
Any information or plans communicated to those boards shall also be
sent to the Commission.
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 specific or cumulative effect upon the resource
area values protected by this bylaw, the Commission, within 21 days
of the close of the hearing, shall issue or deny a permit for the
activities requested. If it issues a permit, the Commission shall
impose conditions that the Commission deems necessary or desirable
to protect those values, and all activities shall be done in accordance
with those conditions. The Commission shall take into account the
cumulative adverse effects of loss, degradation, isolation and replication
of protected resource areas throughout the Town and the watershed
resulting from past activities, permitted and exempt, and foreseeable
future activities.
B.
Where no conditions are adequate to protect those resource values,
the Commission is empowered to deny a permit for failure to meet the
requirements of this bylaw. It may also deny a permit: for failure
to submit 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; or for failure
to avoid or prevent unacceptable significant or cumulative effects
upon the resource area values protected by this bylaw. Due consideration
shall be given to any demonstrated hardship on the applicant by reason
of denial, as presented at the public hearing.
C.
Resource areas are presumed to be important for the protection of the resources enumerated in § 119-2 because activities undertaken in close proximity to resource areas have a high likelihood of adverse impact upon the wetland or other resource, either immediately as a consequence of construction or over time as a consequence of daily operations 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, therefore, establish performance standards for protection of such lands, including without limitation strips of continuous, undisturbed vegetative cover within the two-hundred-foot or one-hundred-foot area, or other form of work limit or setback to buildings, roads, landscaping and other features, unless the applicant convinces the Commission that the area or part of it may be disturbed without harm to the values protected by the bylaw. The specific size and type of protected area may be established by regulations of the Commission.
D.
In the review of resource areas, no permit issued hereunder shall
permit any activities unless the applicant, in addition to meeting
the otherwise applicable requirements of this bylaw, has proved by
a preponderance of the evidence that: 1) there is no practicable alternative
to the proposed project with less adverse effects, and that 2) such
activities, including proposed mitigation measures, will have no significant
adverse impact on the areas or values protected by this bylaw. The
Commission shall regard as practicable an alternative that is reasonably
available and capable of being done after taking into consideration
the proposed property use, overall project purpose (e.g., its residential,
institutional, commercial, or industrial purpose), logistics, existing
technology, costs of the alternatives, and overall project costs.
E.
To prevent wetlands loss, the Commission shall require applicants
to avoid wetlands alteration wherever feasible; to minimize wetlands
alteration; and, where alteration is unavoidable, to install full
mitigation. The Commission may authorize or require replication of
wetlands as a form of mitigation, but only with adequate security,
professional design and monitoring to ensure success because of the
high likelihood of failure of replication.
F.
The Commission is authorized to require an applicant to pay a fee
for the reasonable costs borne by the Commission for a wildlife habitat
study of the project area 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 areas suitable for wildlife,
the importance of wildlife corridors in the area, or the possible
presence of rare 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 is further authorized to require an
applicant or requester to pay the costs of an outside consultant,
employed pursuant to the provisions of Massachusetts General Laws,
Chapter 44, Section 53G, when it requires expert advice unavailable
from municipal employees.
[Amended 5-2-2009 ATM
by Art. 39]
G.
The Commission shall presume that all areas meeting the definition of "vernal pool" under § 119-9 of this bylaw, including the two-hundred-foot adjacent area, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence that, 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 set out in the wildlife habitat section of the Wetlands Protection Act Regulations (310 CMR 10.60).
H.
A permit shall expire three years from the date of issuance. Any
permit may be renewed once for an additional one-year period, provided
that the Commission, prior to expiration, receives a request for a
renewal in writing. The Conservation 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. A permit
may identify requirements that shall be enforceable for a stated number
of years, in perpetuity, or until permanent protection is in place,
and shall apply to current and subsequent owners of the land affected
thereby.
I.
For good cause, the Commission may revoke any permit, delineation, determination or other decision issued under this bylaw after notice to the holder of the permit, the public, abutters and Town boards pursuant to §§ 119-5 and 119-6 of this bylaw and a public hearing. Amendments to permits, delineations or determinations shall be handled in the manner set out in the Wetlands Protection Act Regulations and policies adopted thereunder.
J.
The Conservation Commission in appropriate cases may combine the
decision issued under the bylaw with the order of conditions (OOC),
order of resource area delineation (ORAD), determination of applicability
(DOA) or certificate of compliance (COC) issued under the Wetland
Protection Act and the regulations promulgated thereunder.
K.
No work proposed in any application shall be undertaken until the
permit, OOC, ORAD or DOA issued by the Commission with respect to
such work has been recorded in the Worcester County Registry of Deeds
or, if the land affected is registered land, in the registry section
of the Land Court for Worcester County, and until the holder of the
permit certifies in writing to the Commission that the document has
been recorded. If the applicant fails to perform, the Commission may
record the document.
A.
After public notice and public hearing, the Conservation Commission
shall promulgate rules and regulations to effectuate the purposes
of this bylaw, effective when adopted by the Commission and filed
with the Town Clerk. Failure by the Commission to promulgate such
rules and regulations or a legal declaration of their invalidity by
a court of law shall not operate to suspend or invalidate the effect
of this bylaw.
B.
At a minimum these regulations shall define key terms in this bylaw
not inconsistent with the bylaw, and procedures governing the amount
and filing of fees.
A.
The following definitions shall apply in the interpretation and implementation
of this bylaw.
(1)
The term "abutter" shall mean, in addition to the usual meaning of
the term, owners of land directly opposite on any public or private
street or way, and abutters to abutters within 300 feet of the property
line of the applicant, including any in another municipality or across
a body of water.
(2)
The term "alter" shall include, without limitation, the following
activities when undertaken to, upon, within, or affecting resource
areas protected by this bylaw:
(a)
Removal, excavation or dredging of soil, sand, gravel or aggregate
materials of any kind.
(b)
Changing of preexisting drainage characteristics, flushing characteristics,
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 matter that would alter elevation.
(f)
Driving of piles, erection, expansion or repair of buildings
or structures of any kind.
(g)
Placing obstructions or objects in water.
(h)
Destruction of plant life including cutting or trimming of trees
and shrubs.
(i)
Changing temperature, biochemical oxygen demand or other physical,
biological or chemical characteristics of any waters.
(j)
Any activities, changes or work that may cause or tend to contribute
to pollution of any body of water or groundwater.
(k)
Incremental activities that have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
(3)
The term "bank" shall include 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.
(4)
The phrase "land in agricultural use" shall mean land within resource
areas presently and primarily used in producing or raising the following
agricultural commodities for commercial purposes:
(a)
Animals, including but not limited to livestock, poultry and
bees;
(b)
Fruits, vegetables, berries, nuts, maple sap and other foods
for human consumption;
(c)
Feed, seed, forage, tobacco, sod, nursery or greenhouse products
and ornamental plants or shrubs; and
(d)
Forest products on land maintained in forest use, including
but not limited to biomass, saw logs and cordwood, but not including
the agricultural commodities described in 310 CMR 10.4 (Agriculture)(a)1.
through 3.
(5)
The abbreviated term "MGL" shall mean the General Laws of the Commonwealth
of Massachusetts.
(6)
The term "person" shall include any individual, group of individuals,
association, partnership, corporation, company, business organization,
trust, estate, the commonwealth or political subdivision thereof to
the extent subject to Town bylaw, administrative agency, public or
quasi-public corporation or body, the Town of Harvard, and any other
legal entity, its legal representatives, agents or assigns.
(7)
The term "pond" shall follow the definition of 310 CMR 10.04 except
that the size threshold of 10,000 square feet shall not apply.
(8)
The term "rare species" shall include, without limitation, all vertebrate
and invertebrate animal and all 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.
(9)
The term "resource area" shall mean any wetlands; marshes; wet meadows;
bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds of any
size; rivers; streams; creeks; beaches; dunes; estuaries; land subject
to flooding; land under water bodies and lands within 200 feet of
rivers, ponds, vernal pools, and lakes, and lands within 100 feet
of other resources.
(10)
The term "Town" shall mean the Town of Harvard.
(11)
The term "vernal pool" shall include, in addition to scientific
definitions found in the regulations under the Wetlands Protection
Act, any confined basin or depression 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 200 feet outward from the mean annual high-water line defining
the depression.
B.
Except as otherwise provided in this bylaw or in regulations of the
Conservation Commission, the definitions of terms and procedures in
this bylaw shall be as set forth in the Wetlands Protection Act (MGL
Ch. 131 Section 40) and Regulations (310 CMR 10.00).
A.
As part of a permit issued under this bylaw, in addition to any security
required by any other Town board 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 of the
methods described below:
(1)
By a proper bond or deposit of money or negotiable securities or
other undertaking of financial responsibility sufficient in the opinion
of the Conservation Commission, to be released in whole or in part
upon issuance of a certificate of compliance for work performed pursuant
to the permit.
(2)
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 the Town of Harvard,
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.
No person shall remove, fill, dredge, build upon, degrade or otherwise
alter resource areas protected by this bylaw, or cause, suffer or
allow such activity, or leave in place unauthorized fill, or otherwise
fail to restore illegally altered land to its original condition,
or fail to comply with a permit or an enforcement order issued pursuant
to this bylaw.
B.
The Commission, its agents, officers and employees shall have authority
to enter upon privately owned land for the purpose of performing their
duties under this bylaw 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.
C.
The Commission shall have authority to enforce this bylaw, its regulations
and permits issued thereunder by violation notices, noncriminal disposition
under MGL Chapter 40, Section 21D, and civil and criminal court actions.
Any person who violates provisions of this bylaw 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.
D.
Upon request of the Conservation Commission, the Town's Select
Board and Town Counsel may take civil legal action to enforce said
provisions. Upon request of the Conservation Commission, the Town's
Chief of Police may criminally prosecute violations of said provisions.
[Amended 3-31-2007 ATM by Art. 39; 10-22-2018 STM
by Art. 1]
E.
Town boards and officers, including any police officer of the Town
or other officer having police powers, shall have authority to assist
the Commission in the enforcement of said provisions.
F.
Any person who violates any provision of this bylaw, or the regulations adopted by the Commission pursuant to § 119-8 of this bylaw, permits or administrative orders issued hereunder, shall be punished by a fine of $300. 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 the bylaw, regulations, permits or administrative orders violated shall constitute a separate offense.
[Amended 3-31-2007 ATM by Art. 39]
G.
As an alternative to criminal prosecution in a specific case, the
Conservation Commission may issue citations under the noncriminal
disposition procedure set forth in MGL Chapter 40 Section 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 effect upon the resource area values protected by the bylaw.
Failure to provide adequate evidence to the Conservation Commission
supporting this burden shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
A decision of the Conservation Commission under this bylaw shall
be reviewable in the Superior Court Department of the Trial Court
of the commonwealth in accordance with MGL Chapter 249, Section 4.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts
Constitution and the Home Rule statutes, independent of the Wetlands
Protection Act (MGL Chapter 131, Section 40) and the Regulations (310
CMR 1.00) promulgated thereunder.
The invalidity of any section or provision of this bylaw shall
not invalidate any other section or provision thereof, nor shall it
invalidate any permit, approval or determination which previously
has been issued.
