[HISTORY: Adopted by the City Council of the City of Springfield 5-5-1993 (Title 10, Ch. 10.20, of the 1986 Code). Amendments noted where applicable.]
The purpose of this chapter is to protect the wetlands, related water resources, and adjoining land areas in the City by prior review and control of activities deemed by the Conservation Commission to have, or likely to have, an effect or cumulative effect upon wetland values, including but not limited to the following: public water supply, private water supply, groundwater and ground erosion and sedimentation control, storm damage prevention, prevention of water pollution, fisheries, endangered species, wildlife and wildlife habitat, and aesthetics (collectively, the "interests protected by this chapter"). This chapter is further intended to provide a means for review and correction of activities performed by any person in violation of any provision contained herein.
The following definitions shall apply in the interpretation and implementation of this chapter:
- Includes, without limitation, the following actions when undertaken in resource areas subject to this chapter:
- (1) Removal, excavation or dredging of soil, sand, gravel or aggregate materials of any kind.
- (2) Changing of preexisting drainage characteristic, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns, or flood retention characteristics.
- (3) Drainage or other disturbance of water level of water table.
- (4) Dumping, discharging, or filling with any material or in any manner which may degrade water quality or interfere with any of the interests protected by this chapter.
- (5) Driving of piles, erection of building or structures of any kind.
- (6) Placing of obstructions or objects in water.
- (7) Destruction of plant life, including cutting of trees.
- (8) Changing water temperature, biochemical oxygen demand, or the physical or chemical characteristics of water.
- (9) Any activities, changes, or work which pollutes in any way any body of water or groundwater.
- A person giving notice of intention to build, remove, fill, dredge or alter or making a request for determination.
- BANKS, BORDERING FRESHWATER WETLAND, FLAT, MARSH, WET MEADOW, BOG, SWAMP, ESTUARY, CREEK, RIVER, POND, LAKE AND BORDERING AND ISOLATED LAND SUBJECT TO FLOODING
- Unless otherwise defined in this chapter, have the same meaning as in the Wetlands Protection Act and the regulations thereunder.
- CUMULATIVE EFFECT
- An activity has cumulative effect on the interests protected by this chapter if such activity, added to or in conjunction with similar activity which has occurred or has been proposed and which affects the same resource area, has a measurable impact on a resource area covered by this chapter and tends to reduce the capacity of that resource area to support or sustain the interests protected by this chapter. The applicant shall have the burden of proving by a preponderance of credible evidence that the activity has no cumulative effects on the values protected by this chapter.
- ISOLATED WETLANDS
- Areas of wetland vegetation (as defined above in this chapter) which are subject to flooding and consists of isolated depressions or closed basins which serve as a ponding area for run-off or high groundwater. Such areas must be at least 400 square feet in area and may include kettle holes and bogs.
- 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 City ordinance, administrative agencies, public or quasi-public corporations or bodies, this municipality, and any other legal entity, its legal representatives, agents or assigns.
- SIGNIFICANT EFFECT
- An activity has a significant effect on the interests protected by this chapter if it tends to reduce the capacity of that resource area to support or sustain the interests protected by this chapter.
- TEMPORARY WETLANDS
- Those areas of at least 400 square feet in area which are periodically flooded on a purely seasonal basis by high groundwater and/or run-off and include vernal and autumnal ponds. These areas can be either natural or artificial. If artificial, they must support a vegetative community that has naturally populated the subject area.
Other definitions. The Commission may adopt additional definitions not inconsistent with this chapter in its regulation.
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 any of the following resource areas: on or within 100 feet of any bank, beach, or flat; on or within 100 feet of any freshwater wetland, marsh, meadow, bog, or swamp; upon or within 100 feet of any lake, pond, river, stream, whether intermittent or permanent, natural or man-made; upon any land subject to flooding or inundation by groundwater or surface water or storm flowage; and upon or within 100 feet of any seasonal or temporary wetland, including certified or uncertified but known vernal pools. Any activity proposed or undertaken outside any area specified above shall be subject to regulation under this chapter if, in the judgment of the Conservation Commission or its agent, said activity may result or has resulted in the removing, filling, altering, or building upon any area specified above.
A minimum of a fifty-foot undisturbed buffer shall be established adjacent to any vegetated wetland, bank, lake, stream or river, intermittent or continuous, natural or artificial, and certified or uncertified vernal pools. No work, structures or alterations will be allowed within the fifty-foot buffer.
Variances may be granted by the Commission allowing work closer than 50 feet when it can be demonstrated by the applicant that work or alterations within the fifty-foot buffer will enhance the wetland interests specified under this chapter.
The permit and application required by this chapter shall not be required for maintaining, repairing, or replacing an existing and lawfully located structure or facility which is used in the service of the public to provide electric, gas, water, sanitary sewer, storm drainage, public roadways, telephone, telegraph or other telecommunication services, provided that any work done conforms to the performance standards and design specifications in regulations adopted by the Conservation Commission.
The permit and 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, 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 Conservation Commission certifies the work as an emergency project, and provided that the work is performed only for the time and certified by the Conservation Commission for the limited purpose necessary to abate the emergency. Within 21 days of commencement of an emergency project, a permit application shall be filed with the Conservation Commission for review as provided in this chapter.
The Commission may exempt by regulation the application of this chapter to work performed for normal maintenance or improvement of land actively devoted to agricultural use at the time of the application, provided that such regulations are consistent with the provision applying to agricultural exemptions in the regulations promulgated under the Wetlands Protection Act.
Other than as stated in this section, the exemptions provided in the Wetlands Protection Act and the regulations promulgated thereunder shall not apply.
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. The application shall include such plans as are deemed necessary by the Conservation Commission to describe the proposed activities and their effects on the environment. No work or alteration shall commence without receiving and complying with a permit issued pursuant to the Wetlands Protection Act, MGL c. 131, § 40.
At the time of application, the applicant shall pay a filing fee specified in the regulations of the Conservation Commission promulgated pursuant to this chapter, which shall be in addition to any fee required by the Act. The Commission may waive the filing fee and costs and expenses for any application or request filed by a government agency.
In addition, the Commission is authorized to assess the applicant any costs and expenses associated with the retaining of an expert consultant by the Commission for necessary and appropriate reviews of an application or request. A fee schedule will be established under the regulations. The schedule will be commensurate with the size of the project.
Any person desiring to know whether or not proposed work or an area is subject to this chapter may request a determination in writing from the Conservation Commission. Such a request for determination shall contain data and plans as specified by the regulations of the Conservation Commission promulgated pursuant to this chapter. All requests shall be subject to the policies and fee schedules established under the regulations. The fee shall not exceed the reasonable cost of investigation or determination, and shall be uniform for everyone.
Any person filing an application or request for determination with the Commission at the same time shall give written notice thereof, by certified mail or hand delivery, to all abutters according to the most recent records of the Assessors, and to all other persons, boards or agencies as the Conservation Commission shall in writing require. An "abutter" shall be defined as any person whose property is directly abutting the project site or is directly across a street or right-of-way from the project area. The notice shall include a copy of the application or request with plans, or shall state where copies may be examined and obtained by abutters. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered and a listing of those abutters notified, shall be filed with the Commission prior to the commencement of the public hearing. 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.
The Commission shall conduct a public hearing on any application or request for determination, with written notice, published at the expense of the applicant, five working days prior to the hearing in a newspaper of general circulation in the City.
The Commission shall commence the public hearing on any application or request for determination within 21 days from the receipt of a properly completed application or request.
The Commission shall issue its permit or other action, or determination, in writing within 21 days of the close of the public hearing thereon, or within 21 days of the close of any continuance of the prior public hearings.
The Commission may combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act.
For reasons announced by the Conservation Commission at the hearing, the Commission shall have authority to continue or postpone the hearing to a certain date announced at the hearing, either for receipt of additional information offered by the applicant or others, or for information required of the applicant, deemed necessary by the Conservation Commission in its discretion, or comments and recommendations of boards, officials and/or agencies of the City.
The Conservation Commission shall take action on the application at the continuance date, provided that the applicant has complied in all respects with the request of the Conservation Commission for further information pursuant to this section unless further continuances are consented to by the applicant.
The Commission shall develop a set of presubmission requirements for the assistance of persons making application before the Commission, a current copy of which shall be on file with the Commission. Any person filing a request for determination or a notice of intent with the Commission shall complete the filing in accordance with such of those requirements as are necessary as determined by the Commission or its staff. The Commission reserves the right to ask for any additional information it deems necessary to evaluate a project.
Any person filing a permit application or request for determination with the Commission shall, if requested in writing by the Conservation Commission or its agent, provide a copy thereof at the same time, by certified mail or hand delivery, to the Mayor, Planning Board, Board of Appeals, Department of Public Works, Board of Health, and Department of Code Enforcement, Building Division, who shall, if requested by the Conservation Commission in writing, file written comments and recommendations with the Commission.
The Commission shall not take final action until such boards and officials have had 14 days from the receipt of notice to file said written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission.
If the Commission, after a public hearing, determines that the area which is subject to the application is likely to be significant to the interests protected by this chapter, the Commission, within 21 days of the close of the hearing or a continuance thereof, shall issue or deny a permit for the work requested. If it issues a permit, the Commission shall impose conditions which the Commission deems necessary or desirable to protect those interests, and all work shall be done in accordance with those conditions.
If the Commission determines that the activities which are subject to an application are not likely to have a significant or cumulative effect upon the interests protected by this chapter, the Commission shall so inform the applicant that the activities do not require a permit.
The Commission is empowered to deny a permit for failure to meet the requirements of this chapter; the reasons include, but are not limited to, failure to submit necessary information and plans requested by the Commission; failure to meet the design specification, performance standards and other requirements which the Commission may adopt in regulations of the Commission; failure to avoid or prevent unacceptable significant or cumulative effects upon the interest 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, and all work shall be completed prior to expiration. The Commission may extend a permit for additional one-year periods.
For good cause, the Commission may revoke or modify a permit issued under this chapter.
The Conservation Commission shall issue permits under this chapter in addition to any order of conditions issued under the Wetlands Protection Act.
No work proposed in any application shall be undertaken until the permit or determination issued by the Commission with respect to such work has been recorded by the holder of the permit in the Hampden County Registry of Deeds or court for the district wherein the land lies, and the holder of the permit has certified in writing to the Commission that the permit has been so recorded.
Any person(s) who purchases, inherits or otherwise acquires real estate upon which work has been performed in violation of the provisions of this chapter shall forthwith comply with any order of conditions or restore such land to its conditions prior to any such violation; provided, however, that unless the violation is found by the Commission, after notice and hearing, to pose a substantial and material threat to the interests protected by this chapter, 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 and the order of conditions which is being violated or any enforcement order relating to the violation was appropriately recorded.
Any person(s) who receives an enforcement order from the Commission for a violation of this chapter shall, within 10 working days of receipt of the order, file said order at the Registry of Deeds or, if registered land, in the Registry Section of the Land Court as an attachment on the deed of the property on which said violation occurred.
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.
The Police Department and the Conservation 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.
Upon request of the Commission, the City Solicitor shall take whatever legal action is necessary for enforcement under civil and criminal court actions.
As an alternative to criminal prosecution, the Commission may elect to utilize the noncriminal disposition procedure set forth in MGL c. 40, § 21D.
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Conservation Commission in enforcement.
Any person who violates any provisions of this chapter, regulations thereunder, or permits issued thereunder shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the ordinance, regulations, or permit violated shall constitute a separate offense.
After public notice and public hearing, the Commission shall promulgate rules and regulation to effectuate the purposes of this chapter. Public notice shall include publication of all proposed regulations in a newspaper of general circulation in the City not less than 21 days prior to 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.
At a minimum, these regulations shall define key terms in this chapter not inconsistent with this chapter.
Unless otherwise stated in this chapter or in the rules and regulations promulgated under this chapter, the definitions, procedures and performance standards of the Wetlands Protection Act and associated regulations, 310 CMR 10.00, in effect as of the effective date of this chapter shall apply.
The applicant for a permit shall have the burden of proving by clear and convincing evidence that the work proposed in the application will not harm the interests protected by this chapter. Failure to provide adequate evidence to the Commission supporting a determination that the proposed work will not harm the interests protected by this chapter shall be sufficient cause for the Commission to deny a permit.
This chapter is adopted under Massachusetts General Laws Chapter 21, independent of the Wetlands Protection Act, MGL c. 131, § 40, and regulations thereunder.
As part of a permit 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 or more of the methods described below:
By a proper bond or deposit of money or negotiable securities sufficient in the opinion of the Commission.
By a conservation restriction, easement or other covenant enforceable in a court of law, executed and duly recorded (or registered in the case of registered land), running with the land to the benefit of this municipality and members of the public, whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by a mortgage deed.
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 had been issued.
If any court of the Commonwealth shall invalidate any provision of this chapter or any regulation promulgated thereunder, the Conservation Commission shall present to the next City Council meeting after such invalidation amendments to this chapter which are designed to comply with any court decision invalidating such provision, and shall amend the regulations pursuant this chapter to comply with such decision.