[HISTORY: Adopted at Special Town Meeting, October, 1985,
with amendments (including a rewriting) adopted at Annual Town Meeting,
May 5, 1987]
GENERAL REFERENCES
Zoning — See Ch. 164.
[Amended 10-7-1991 STM, Art. 22]
The purpose of this chapter is to protect the wetlands, related
water resources and adjoining land areas in the Town of Orleans by
controlling activities deemed by the Conservation Commission likely
to have a significant or cumulative effect upon wetland values, including
but not limited to the following: public or private water supply,
groundwater, flood control, erosion and sedimentation control, storm
damage prevention, water pollution prevention, fisheries, shellfish
habitat, wildlife habitat, recreation, aesthetics, agriculture and
aquaculture values (collectively, the public interests or the wetland
values protected by this chapter).
[Amended 11-7-2005 STM, Art. 12]
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall remove, fill, dredge, alter or build
upon or within one hundred (100) feet of any bank, beach, dune or
flat; upon or within one hundred (100) feet of any freshwater wetland,
coastal wetland, marsh, wet meadow, bog or swamp; upon or within one
hundred (100) feet of any lake, pond, creek, river, stream, estuary
or the ocean; upon any land under said waters; or upon or within one
hundred (100) feet of any land subject to flooding or inundation by
groundwater, surface water or tidal action; or upon land subject to
coastal storm flowage; or upon an Area of Critical Environmental Concern
(ACEC). Any activity proposed or undertaken outside any area specified
above shall not be subject to regulation under this chapter unless,
in the judgment of the Conservation Commission, said activity will
result or has resulted in the removing, filling, altering or building
upon any area specified above.
In order to promote the wetland values and interests listed in § 160-1, no removal, filling, dredging or altering 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.
[Amended 10-7-1991 STM, Art. 22]
The following definitions together with the regulations promulgated by the Conservation Commission pursuant to § 160-11 shall apply to the interpretation of the bylaw. Unless otherwise defined in this section or in the regulations promulgated under this bylaw, the definitions contained in GL Chapter 131 Sec. 40 and in the regulations issued by the Department of Environmental Protection thereunder (310 CMR 10.00) as of October 16, 1987, shall also apply to this bylaw. Where definitions contained in GL Chapter 131 Sec. 40 and the regulations promulgated thereunder are determined to apply, all references contained therein to the Act shall be deemed to include a reference to this bylaw and the regulations promulgated hereunder.
An Area of Critical Environmental Concern (ACEC) established
pursuant to M.G.L. c. 21A, § 2(7) and any applicable provisions
of the Code of Massachusetts Regulations.
[Added 11-7-2005 STM, Art. 12]
The natural scenery and appearance of any resource area,
visually accessible to the public.
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 pre-existing drainage characteristics, flushing characteristics,
sanitary distribution, sedimentation patterns, flow patterns or flood
retention characteristics.
Drainage or other disturbance of the water level or water table.
Dumping, discharging, or filling with any material which may
degrade water quality.
Placing of fill or removal of materials, 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 or pruning of trees
and shrubs.
Changing water temperature, biochemical oxygen demand or other
physical or chemical characteristics of water.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
The effect of activities regulated under this bylaw which
may be individually insignificant to the interests and values under
this bylaw, but when considered in relation to other past, present
activities in a given area may be significant to said interests and
values in the aggregate.
Erosion Control means the regulation
of activities or processes which would threaten, by wearing away the
surface soil or by undermining the interior portions of the landforms,
the stability of landforms and resource areas, and the soil and/or
vegetation associated with protected resources and adjoining land
areas.
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Sedimentation Control means the regulation
of activities, or processes which would threaten the ability of wetlands
to settle out sediments and other water-borne material beyond their
capacity to do so without adverse effect on other wetland functions.
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Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof, including the Town
of Orleans, administrative agency, public or quasi-public corporation
or body or any other legal entity or its legal representatives, agents
or assigns.
Any open body of fresh water, either naturally occurring
or man-made by impoundment, which is never without standing water
due to natural causes, except during periods of extended drought.
For purposes of this definition, "extended period of drought" shall
mean any period of four (4) or more months during which the average
rainfall for each month is fifty percent (50%) or less of the ten
year average for that same month. Basins or lagoons which are part
of wastewater treatment plants shall not be considered nor shall swimming
pools or other impervious man-made retention basins.
Any leisure activity or sport taking place in, on, or within
100 feet of a resource area which is dependent on the resource area
directly or indirectly for its conduct and enjoyment. Recreational
activities include, but are not limited to, the following: non-commercial
fishing and shellfishing, hunting, boating, swimming, walking, painting,
birdwatching, and aesthetic enjoyment.
Mollusks including but not limited to the following: clams,
conchs, mussels, oysters, periwinkles, quahaugs, razor clams, scallops,
sea clams; Crustaceans including lobsters and crabs.
Those areas below the mean high water line in any coastal
resource area subject to this bylaw that provides or has provided
the characteristics including but not limited to sediment type and
grain size, circulation patterns, hydrologic regime, water chemistry,
plant communities and food supply, necessary to support shellfish
species.
These resource areas subject to Conservation Commission jurisdiction
which, due to their plant community composition and structure, hydrologic
regime or other characteristics, provide important food, shelter,
migratory or overwintering areas or breeding areas for wildlife.
A.
The application required by this chapter shall not be required for
maintaining or repairing an existing and lawfully located structure
or facility on private property or which is used in the service of
the public to provide sewer, electric, gas, water, sanitary sewer,
storm drainage, public roadway, telephone, telegraph or other telecommunication
services, provided that written notice has been given to the Conservation
Commission prior to the commencement of work, and provided that the
structure or facility will not be, in the opinion of the Conservation
Commission, substantially changed or enlarged, and provided that any
work done conforms to the performance standards and design specifications
in regulations, policies or guidelines adopted by the Conservation
Commission.
B.
The application 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, and provided that advance notice, oral or written, has been
given to the Commission prior to commencement of work or within twenty-four
(24) hours after commencement, and provided that the Conservation
Commission or its agent certifies the work as an emergency project,
and provided that the work is performed only for the time and place
certified by the Conservation Commission for the limited purposes
necessary to abate the emergency, and provided that, within twenty-one
(21) days of commencement of an emergency project, an application
shall be filed with the Commission for review as provided in 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.
C.
Other than stated in this section, the exceptions provided in the
Wetlands Protection Act shall not apply.
A.
A written application shall be filed with the Conservation Commission
to perform any work which will or which, in the opinion of the Conservation
Commission, may affect resource areas within the jurisdiction of this
chapter. Such application shall be sent by certified mail or be hand-delivered
to the Commission at the town offices and shall include such plans
and data as are deemed necessary by the Conservation Commission to
describe the proposed activities and their effects on the wetland
values and interests protected by this chapter. The Conservation Commission
may require an application and plans under this chapter in addition
to the Notice of Intent and plans filed pursuant to the Wetlands Protection
Act, MGL C. 131, § 40.
B.
No work or alteration shall commence without receiving and complying
with Orders issued pursuant to this chapter nor until all appeal periods
have elapsed. Upon its own initiative or upon the petition of any
ten (10) registered voters of the Town, the Commission shall require
any work commenced within the jurisdiction of this chapter without
a set of Orders or before all appeal periods have elapsed to be ordered
stopped and shall require a written application as provided in this
section.
C.
Any person desiring to know whether or not proposed work or an area
is subject to this chapter may, in writing, request a Determination
from the Conservation Commission. Such a Request for Determination
shall contain data and plans, as specified by the Commission, pursuant
to this chapter, and any regulations, policies and guidelines adopted
pursuant thereto.
D.
At the time of the application or Request for Determination, the
applicant shall pay a filing fee specified in the regulations, policies
or guidelines of the Commission. This fee is in addition to that required
by the Wetlands Protection Act, MGL C. 131, § 40. The Commission
may waive the filing fee and costs and expenses for an application
or request for determination filed by a government agency.
A.
Any person filing a Notice of Intent or requesting a prior Determination
under this chapter shall, at the same time, give written notice thereof
by certified mail, return receipt requested, or by hand delivery to
all abutters according to the most recent records of the Assessor,
including those across a traveled way or stream and the owner of the
subject property if such owner is different from the petitioner. The
notice shall enclose a copy of the application or request with plans
or state where copies may be examined and obtained by those so notified.
A list of persons to whom notice must be given shall be presented
to the Conservation Commission with said Notice of Intent or request
for prior Determination, along with proof of notice either by affidavit
or postal receipts. 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.
B.
The Commission shall conduct a public hearing on any application
or Request for Determination, with written notice given at the expense
of the applicant and published at least five (5) working days prior
to the hearing in a newspaper of general circulation in the municipality.
C.
The Commission shall commence the public hearing within twenty-one
(21) days from receipt of the completed application or Request for
Determination.
D.
The Commission shall issue its Determination, in writing, within
twenty-one (21) days of the filing of the Request for Determination
and shall issue its Orders, in writing, within twenty-one (21) days
of the close of the public hearing called to consider the Notice of
Intent.
E.
The Commission shall have authority to continue or postpone 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 or others or for information and plans required of
the applicant, deemed necessary by the Commission in its discretion.
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.
The Commission, in its discretion, may hear oral presentation under
this chapter at the same public hearing required to be held under
the provisions of MGL C. 131, § 40.
A.
[Amended 10-7-1991 STM, Art. 22]
1.
If, after a public hearing, the Conservation Commission determines
that the activities which are the subject of a Notice of Intent are
likely to have a significant or cumulative effect upon the wetland
or buffer zone values protected by this bylaw, the Commission shall,
within 21 days of the close of the hearing, issue an Order of Conditions
denying the requested activity or permitting it subject to such conditions
deemed necessary to protect those values and all activities shall
be done in accordance with those conditions.
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The Commission is empowered to deny a permit for any of the
following reasons:
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a)
Failure to submit necessary information and plans required or requested
by the Commission;
b)
Failure to meet the design specifications, performance standards,
policy guidelines or other requirements in regulations of the Commission;
c)
Where no Order of Conditions is adequate to avoid or prevent unacceptable
significant or cumulative effects upon the wetlands values protected
by this by-law.
2.
The applicant for an Order of Conditions shall have the burden of
proving by clear and convincing evidence that the activity proposed
in the Notice of Intent will not have an unacceptable significant
or cumulative effect upon the wetland values protected by this bylaw.
B.
If the Commission, after a public hearing, determines that the activities
which are the subject of a request for prior Determination are not
likely to have a significant or cumulative effect upon the wetland
interests and values protected by this chapter, the Commission shall,
within twenty-one (21) days of the filing of the request, issue a
Negative Determination.
C.
Due consideration shall be given to any demonstrated hardship on
the applicant by reason of denial, as presented at the public hearing.
D.
The Orders shall expire three (3) years from the date of issuance.
Notwithstanding the above, the Commission, in its discretion, may
issue Orders expiring five (5) years from the date of issuance for
recurring or continuous maintenance work, provided that annual notification
of the time and location of work is given to the Commission. Any Orders
may be renewed once for an additional one-year period, provided that
a request for a renewal is received, in writing, by the Commission
thirty (30) days prior to expiration.
E.
The Commission, in an appropriate case, may combine the Orders issued
under this chapter with the orders issued under the Wetlands Protection
Act.
[Amended 11-7-2005 ATM, Art. 12]
If the Conservation Commission has failed to hold a hearing
within twenty-one (21) days of filing a Notice of Intent under this
chapter, or if the Commission, after holding such hearing, has failed,
within twenty-one (21) days therefrom, to issue an Order or if the
Commission, upon written request by any person to determine whether
this chapter is applicable to any work, fails, within twenty-one (21)
days, to make said Determination or where an Order is issued by the
Commission, the applicant, any person aggrieved by said Commission's
Order or failure to act or any ten (10) residents of the Town of Orleans
may, within twenty-one (21) days of the Commission's Order or
failure to act, appeal therefrom to the Second Barnstable Division
of the Trial Courts of the Commonwealth. Appeal shall be perfected
by filing a Complaint with the Second Barnstable Division of the Trial
Courts of the Commonwealth and by sending a copy thereof, certified
mail, return receipt requested, to the Town Clerk and the Conservation
Commission of the Town of Orleans and, if the appellant is other than
the petitioner, to the petitioner, all within twenty-one (21) days
of said Order or failure to act. The Court shall hear all evidence
pertinent to the authority and findings of the Commission and determine
the facts and, upon the facts so determined, annul such decision if
found to exceed the authority of the Commission or make such other
decree as justice and equity may require.
A.
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 chapter and may make or cause to be made such examinations,
surveys or sampling as the Commission deems necessary.
B.
The Police Department, Conservation Commission and the Conservation
Agent shall have the authority to enforce this chapter, its regulations
and orders issued thereunder by violation notices, administrative
orders and civil and criminal actions.
[Amended 5-8-2000 ATM, Art. 25]
C.
Upon request of the Commission or upon written request of any ten
(10) residents of the Commonwealth, the Board of Selectmen and the
Town Counsel shall take legal action for enforcement under civil law.
Upon request of the Commission, the Chief of Police shall take legal
action for enforcement under criminal law. In the alternative to criminal
prosecution, the Commission may elect to utilize the noncriminal disposition
procedure set forth in MGL C. 40, § 21D.
D.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Conservation
Commission in enforcement.
E.
Any person who violates any provision of this bylaw, regulations
thereunder or Orders issued thereunder may be punished by a fine of
two hundred dollars ($200.00) for a first offense and three hundred
dollars ($300.00) for each offense thereafter. Each day or portion
thereof during which a violation continues shall constitute a separate
offense and each provision of the bylaw, regulations or Orders violated
shall constitute a separate offense.
[Amended 5-8-2000 ATM, Art. 25]
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Violations may include but are not limited to:
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1.
Any activity subject to regulation under the bylaw as enumerated
in § 196A-2.B.(1) and (2) of the Orleans Wetlands Regulations
that is undertaken without a valid Order of Conditions.
2.
Any activity undertaken without a valid Order of Conditions or Determination
of Non-Significance by the Conservation Commission within the wetland
resource areas and buffer zone (0 to 100 feet) enumerated in § 196A-2.A.
of the Orleans Wetlands Regulations.
3.
Failure to comply with Conditions contained in any Orders issued
pursuant to 310 CMR Section 10.08 of the Wetlands Protection Act.
4.
Violation of an Enforcement Order issued by the Orleans Conservation
Commission or its agent.
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purpose of this
chapter. Public notice shall include publication of all proposed regulations
in a newspaper of general circulation in the town not less than twenty-one
(21) days prior to the public hearing. 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.
As part of Orders issued under this chapter, in addition to
any security required by any other town or state board, agency or
official, the Commission may require that the performance and observance
of the Conditions imposed hereunder be secured wholly or in part by
one (1) or more of the methods described below:
A.
By a proper bond or deposit of money or negotiable securities or
by other undertaking of financial responsibility sufficient in the
opinion of the Commission.
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 and members
of the public, whereby the Order of Conditions shall be performed
and observed before any lot may be conveyed other than by mortgage
deed.
A.
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision thereof, nor shall it
invalidate any Order of Conditions which previously has been issued.
B.
If any court of the commonwealth shall invalidate any provision of this chapter or any regulation thereunder, the Conservation Commission shall present to the next Town Meeting after such invalidation amendments to this chapter which are designed to comply with any court decision invalidating such provision or shall promulgate such amendments to regulations promulgated hereunder pursuant to § 160-11.
