[Amended 5-5-1998 ATM, Art. 21; 5-5-1998 ATM, Art. 22; 5-6-2008 ATM, Art. 21]
The purpose of this chapter is to protect the wetlands, water
resources, flood-prone areas and adjoining upland areas in the Town
of Northbridge by controlling activities deemed by the Northbridge
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 supply, flood
control, erosion and sedimentation control, storm damage prevention,
water quality, prevention and control of pollution, fisheries, wildlife
habitat, rare species habitat including rare plant and animal species,
recreation, agriculture and aquaculture value (collectively, the "wetland
values protected by this chapter").
This bylaw is intended to utilize the Home Rule authority of
Northbridge so as to protect the resource areas under the Wetlands
Protection Act (MGL c. 131, § 40; the Act) to a greater
degree, to protect additional resource areas beyond the Act recognized
by the Town as significant, to protect all resource areas for their
additional values beyond those recognized in the Act, and to impose
in local regulations and permits additional standards and procedures
stricter than those of the Act and regulations thereunder (310 CMR
10.00), subject, however, to the rights and benefits accorded to agricultural
uses and structures of all kinds under the laws of the Commonwealth
and other relevant bylaws of the Town of Northbridge.
[Amended 10-23-2018 ATM,
Art. 4]
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall commence to remove, fill, dredge,
build upon, degrade, discharge into or otherwise alter the following
resource areas: any freshwater wetlands, marshes, wet meadows, bogs,
swamps, vernal pools, springs, banks, beaches, reservoirs, lakes,
ponds of any size, and lands under water bodies; intermittent streams,
brooks and creeks; and adjoining these resource areas out to a distance
of 100 feet known as the buffer zone; perennial rivers, streams, brooks
and creeks; lands adjoining these resource areas out to a distance
of 200 feet, known as the riverfront area; and lands subject to flooding
or inundation by groundwater or surface water; (collectively the "resource
areas protected by this chapter"). Said resource areas shall be protected
whether or not they border surface waters. The jurisdiction of this
bylaw shall not extend to uses and structures of agriculture that
enjoy the rights and privileges of laws and regulations of the Commonwealth
governing agriculture, including work performed for normal maintenance
or improvement of land in agricultural or aquacultural uses as defined
by the Wetlands Protection Act regulations, found at 310 CMR 10.04.
The jurisdiction of this bylaw does extend to the cutting and removal
of trees for the purpose of selling the trees or products derived
therefrom.
A.
The permit and application required by this chapter 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 the structure or facility is not substantially changed
or enlarged, provided that written notice has been given to the Commission
prior to commencement of the work, and provided that the work conforms
to performance standards and design specifications in regulations
adopted by the Commission.
B.
The application and permit required by this chapter shall not
apply 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 Conservation
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 Conservation 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.
C.
The application and permit required by this chapter shall not
be required for work performed for normal maintenance or improvement
of land in agricultural use as defined by the Wetlands Protection
Act Regulations at 310 CMR 10.04, but shall be required for cutting
and removal of trees for the purpose of selling the trees.
[Amended 10-23-2018 ATM,
Art. 4]
D.
The application and permit required by this chapter shall not
be required for single-family home lots in existence prior to the
adoption of this chapter.
E.
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.
A.
Written application shall be filed with the Commission to perform
activities affecting resource areas protected by this chapter. The
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 by this chapter. No activities
shall commence without receiving and complying with a permit issued
pursuant to this chapter.
B.
The Commission in an appropriate case may accept as the application
and plans under this chapter the Notice of Intent any application
and plans filed under the Wetlands Protection Act (MGL c. 131, § 40)
and Regulations (310 CMR 10.00), but the Commission is not obliged
to do so.
C.
Any person desiring to know whether or not a proposed activity
or an area is subject to this chapter may, in writing, request a determination
from the Commission. Such a Request for Determination of Applicability
(RDA) or Abbreviated Notice of Resource Area Delineation (ANRAD) filed
under the Act shall include information and plans as are deemed necessary
by the Commission.
D.
At the time of an application or request the applicant shall
pay a filing fee specified in regulations of the Commission. This
fee is in addition to that required by the Wetlands Protection Act
(MGL c. 131, § 40) and Regulations. The Commission may waive
the filing fee and costs and expenses for an application or request
filed by a government agency and shall waive them for a request for
determination filed by a person having no financial connection with
the property which is the subject of the request.
E.
Pursuant to MGL c. 44, § 53G and regulations promulgated
by the Commission, the Commission may impose reasonable fees upon
applicants for the purpose of securing outside consultants including
engineers, wetlands scientists, wildlife biologists or other experts
in order to aid in the review of proposed projects. Such funds shall
be deposited with the Town 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.
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 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,
identifying the consultant, the amount of the fee to be charged to
the applicant, and a 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 notice is given without incurring any costs
or expenses.
F.
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 Department of Environmental
Protection (DEP) of such a decision in writing.
G.
The applicant may appeal the selection of an outside consultant
to the Board of Selectmen, who may disqualify the consultant only
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
an appeal in writing, and it 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.
Any person filing a permit or other application or a Request
for Determination of Applicability (RDA) or Abbreviated Notice of
Resource Area Delineation (ANRAD) or other request with the Commission
at the same time shall give written notice thereof, by certified mail
(return receipt requested), certificates of mailing or hand delivery
to all abutters according to the most recent records of the Board
of Assessors, including owners of land directly opposite on any public
or private street or those across a traveled way, and abutters to
the abutters within three hundred (300) feet of the property line
of the applicant, including any in another municipality or across
a body of water. The notice shall state a brief description of the
project or other proposal and the date of any Commission hearing or
meeting date if known. The notice to abutters shall enclose 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. 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.
[Amended 5-1-2018 ATM,
Art. 24]
B.
The Commission shall advertise a public hearing on any permit
application, RDA or ANRAD with written notice given, at the expense
of the applicant, at least five (5) working days prior to the hearing,
in a newspaper of general circulation in the Town of Northbridge.
[Amended 5-1-2018 ATM,
Art. 24]
C.
The Commission shall commence the public hearing within twenty-one
(21) calendar days from receipt of a completed permit application,
RDA or ANRAD.
[Amended 5-1-2018 ATM,
Art. 24]
D.
The Commission shall issue its permit, other order or determination
in writing within twenty-one (21) calendar days of the close of the
public hearing thereon unless an extension is authorized in writing
by the applicant.
[Amended 5-1-2018 ATM,
Art. 24]
E.
The Commission in an appropriate case may combine its hearing
under this chapter with the hearing conducted under the Wetlands Protection
Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00).
F.
The Commission shall have the authority to continue the hearing
to a specific date announced at the hearing, for reasons stated at
the hearing, which may include receipt of additional information offered
by the applicant or others, information and plans required of the
applicant, deemed necessary by the Commission in its discretion, or
comments and recommendations of boards and officials listed in § 7-706.
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.
[Amended 5-1-2018 ATM,
Art. 24]
Any person filing a permit application, Request for Determination
of Applicability or ANRAD with the Conservation Commission shall provide
an electronic copy thereof at the same time to the Conservation Commission
for distribution to the Board of Selectmen, Planning Board, Board
of Appeals, Board of Health, and Building Inspector. An electronic
copy shall be provided in the same manner to the Conservation Commission
of the adjoining municipality, if the application or RDA pertains
to property within three hundred (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 such boards and officials have had
fourteen (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 such comments and
recommendations, and to respond to them at a hearing of the Commission,
prior to final action.
A.
If the 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
individual or cumulative effect on the resource area values protected
by this chapter, the Commission, within 21 days of the close of the
hearing, shall issue or deny a permit for the activities requested.
The Commission shall take into account the extent to which the applicant
has avoided, minimized and mitigated any such effect. The Commission
also shall take into account any loss, degradation, isolation, and
replacement or replication of such protected resource areas elsewhere
in the community and the watershed, resulting from past activities,
whether permitted, unpermitted or exempt, and foreseeable future activities.
If it issues a permit, the Commission shall impose conditions which
the Commission deems necessary or desirable to protect said resource
area values, and all activities shall be done in accordance with those
conditions.
B.
Where no conditions are adequate to protect said resource area
values, the Commission is empowered to deny a permit for failure to
meet the requirements of this chapter. It may also deny a permit:
for failure to submit necessary information and plans requested by
the Commission; for failure to comply with the procedures, design
specifications, performance standards, and other requirements in regulations
of the Commission; or for failure to avoid, minimize or mitigate unacceptable
significant or cumulative effects upon the resource area values protected
by this chapter. Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing. The Commission may waive specifically identified and
requested procedures, design specifications, performance standards,
or other requirements set forth in its regulations, provided that:
the Commission finds in writing after said public hearing that there
are no reasonable conditions or alternatives that would allow the
proposed activity to proceed in compliance with said regulations;
that avoidance, minimization and mitigation have been employed to
the maximum extent feasible; and that the waiver is necessary to accommodate
an overriding public interest or to avoid a decision that so restricts
the use of the property as to constitute an unconstitutional taking
without compensation.
C.
In reviewing activities within the buffer zone, the Commission
shall presume the buffer zone is important to the protection of other
resource areas because activities undertaken in close proximity have
a high likelihood of adverse impact, either immediately, as a consequence
of construction, or over time, as a consequence of daily operation
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 establish, in its regulations, design
specifications, performance standards, and other measures and safeguards,
including setbacks, no-disturb areas, no-build areas, and other work
limits for protection of such lands, including without limitation
strips of continuous, undisturbed vegetative cover, unless the applicant
convinces the Commission that the area or part of it may be disturbed
without harm to the values protected by this chapter.
D.
In reviewing activities within the riverfront area, the Commission
shall presume the riverfront area is important to all the resource
area values unless demonstrated otherwise, and 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 chapter. The
Commission shall regard as practicable an alternative which is reasonably
available and capable of being done after taking into consideration
the proposed property use, overall project purpose (e.g., residential,
institutional, commercial, or industrial), logistics, existing technology,
costs of the alternatives, and overall project costs.
E.
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. The Commission may authorize or require replication
of wetlands as a form of mitigation, but only with specific plans,
professional design, proper safeguards, adequate security, and professional
monitoring and reporting to assure success, because of the high likelihood
of failure of replication. 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 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).
F.
The Commission shall presume that all areas meeting the definition
of "vernal pools" under § 7-709 of this chapter, 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.
G.
A permit, Determination of Applicability (DOA), or Order of
Resource Area Delineation (ORAD) shall expire three years from the
date of issuance. Notwithstanding the above, the Commission in its
discretion may issue a permit expiring five years from the date of
issuance for recurring or continuous maintenance work, provided that
annual notification of time and location of work is given to the Commission.
Any permit may be renewed once for an additional one-year period,
provided that a request for a renewal is received in writing by the
Commission prior to expiration. Notwithstanding the above, a permit
may identify requirements which shall be enforceable for a stated
number of years, indefinitely, or until permanent protection is in
place, and shall apply to all present and future owners of the land.
H.
For good cause the Commission may revoke or modify any permit,
Determination of Applicability (DOA), Order of Resource Area Delineation
(ORAD) or any other order, determination or other decision issued
under this chapter after notice to the holder, the public, abutters,
and town boards, pursuant to § 7-705 and § 7-706,
and after a public hearing.
I.
Amendments to permits, DOAs or ORADs shall be handled in the
manner set out in the Wetlands Protection Act regulations and policies
thereunder.
J.
The Commission, in an appropriate case, may combine the decision
issued under this chapter with the Order of Conditions, permit, DOA,
ORAD or Certificate of Compliance (COC) issued under the Wetlands
Protection Act and Regulations.
K.
No work proposed in any application shall be undertaken until
the permit or ORAD issued by the Commission with respect to such work
has been recorded in the registry of deeds or, if the land affected
is registered land, in the registry section of the Land Court for
the district wherein the land lies, 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 such recording, the Commission
may record the documents itself and require the applicant to furnish
the recording fee therefor, either at the time of recording or as
a condition precedent to the issuance of a COC.
A.
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
chapter, effective when voted 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 act to
suspend or invalidate the effect of this chapter.
B.
At a minimum, these regulations shall reiterate the terms defined
in this chapter, define additional terms not inconsistent with the
chapter, and impose filing and consultant fees.
[Amended 5-1-2018 ATM,
Art. 24]
Refer to the definition provided by G.L. Ch. 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, expansion or repair of buildings,
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting or trimming of
trees and shrubs.
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.
Incremental activities which have, or may 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 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 bylaws, administrative agency, public or quasi-public corporation
or body, the Town of Northbridge and any other legal entity, its legal
representatives, agents, or assigns.
Shall follow the definition of 310 CMR 10.04 except that
the size threshold of ten thousand (10,000) square feet shall not
apply.
Includes, without limitation, all vertebrate and invertebrate
animals 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.
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 two hundred (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 regulations
of the Conservation Commission, the definitions of terms and procedures
in this chapter shall be as 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 another municipal or state board, agency,
or official, the Commission may require that the performance and observance
of the conditions imposed hereunder (including conditions requiring
mitigation work) be secured wholly or in part by one or more of the
methods described below:
A.
By a proper bond or deposit of money or negotiable securities
under a written third-party escrow arrangement, or other undertaking
of financial responsibility sufficient, in the opinion of the Commission,
to be released in whole or in part upon issuance of a Certificate
of Compliance (COC) for work performed pursuant to the permit.
B.
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 Northbridge, 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 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.
B.
The Northbridge Conservation 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 subject to the constitutions and
laws of the United States and the Commonwealth.
C.
The Commission shall have authority to enforce this chapter,
its regulations, and permits issued thereunder by letters, phone calls,
electronic communication and other informal methods, violation notices,
noncriminal citations under MGL c. 40, § 21D, and civil
and criminal court actions. Any person who violates the 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.
D.
Upon request of the Commission, the Board of Selectmen and 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. Town of Northbridge boards and
officers, including any police officer or other officer having police
powers, shall have authority to assist the Commission in enforcement.
E.
As an alternative to criminal prosecution in a specific case,
the Commission may issue citations with specific penalties pursuant
to the noncriminal disposition procedure set forth in MGL c. 40, § 21D,
which has been adopted by the Town of Northbridge in § 1-109
of the general bylaws.
F.
Any person who violates any provision of this chapter, regulations
thereunder or permits or administrative orders issued thereunder,
shall be punished by a fine of not more than $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 chapter, regulations, permits, or administrative
orders violated shall constitute a separate offense.
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.
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 10.00) 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 shall
not invalidate any other section or provision thereof, nor shall it
invalidate any permit, approval or determination which previously
has been issued.
A decision of the Conservation Commission shall be reviewable in the Superior Court in accordance with MG. c. 249, § 4.
