City of Melrose, MA Chapter 231 Wetlands Protection

[HISTORY: Adopted by the Board of Aldermen of the City of Melrose 5-7-2007 by Ord. No. 07-008.[1] Amendments noted where applicable.]

[1] Editor's Note: This order was originally adopted as § 15-10 of the Code but was renumbered, with the approval of the City, as Ch. 231 to facilitate use of the Code.

§ 231-1 Purpose.

A. The purpose of this chapter is to protect the wetlands, water resources, and adjoining land areas in the City of Melrose by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon resource area values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water quality, water pollution control, fisheries, shell fisheries, wildlife habitat, rare species habitats, including rare plant species, native plant species, and recreation values (collectively, the "resource area values protected by this chapter").

B. This chapter is intended to utilize the home rule authority of the City of Melrose 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 the regulations promulgated thereunder at 310 CMR 10.00.

§ 231-2 Jurisdiction.

A. Except as permitted by the Conservation Commission or as provided in this chapter, no person shall cause, suffer, allow, or commence to remove, fill, dredge, build upon, degrade, discharge into, excavate, clear, landscape, pollute, drain, construct upon, change the physical, chemical, vegetative or biological characteristics of or otherwise alter the following resource areas: any freshwater wetlands; marshes; wet meadows; bogs; swamps; vernal pools; banks; lakes; ponds of any size; rivers; streams (including intermittent streams); creeks; lands under water bodies; 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.

B. In addition, lands abutting resource areas are integral in protecting and preserving the resource areas and resource area values protected by this chapter. Accordingly, land within 100 feet horizontally from resource areas other than land subject to flooding or inundation by groundwater or surface water is subject to regulation by the Commission to the same extent as the resource area itself.

§ 231-3 Exemptions and exceptions.

A. The application and permit required by this chapter 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 Commission for review as provided by this chapter. Upon failure to meet these and other requirements of the Commission, the Commission may, in its sole discretion, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.

B. Any existing structure or use of such structure lawful at the effective date of this chapter may continue although such structure or use does not conform to this chapter. Any existing structure may be repaired, maintained and improved but in no event made larger. Any nonconforming structure which is destroyed may be rebuilt on the same location but no larger than the original overall square footage.

§ 231-4 Applications and fees.

A. Permit applications.

(1) No person may undertake any activity within the jurisdiction of the Commission, as defined in § 231-2 of this chapter, without first applying for, obtaining from, and complying with a permit from the Conservation Commission. Applications shall be filed with the Conservation Commission at the following address:

Melrose City Clerk's Office Melrose City Hall 562 Main Street Melrose, MA 02176

(2) The Commission will accept as the application and plans under this chapter any application and plans filed under the Wetlands Protection Act if such application and plans also satisfy the filing requirements set forth in this chapter. The Commission reserves the right to require such other information as it deems necessary to render a decision or take action under this chapter.

B. Request for determination. Any person desiring to know whether or not a proposed activity is subject to this chapter may, in writing, request a determination from the Commission. Such a request for determination (RFD) shall include a narrative describing the proposed project and a site plan illustrating the proposed project, as further described in § 231-5B. The Commission will accept as the RFD under this chapter a request for determination of applicability under the Wetlands Protection Act if such application and plans also satisfy the filing requirements set forth in this chapter. The Commission reserves the right to require such other information as it deems necessary to render a decision or take action under this chapter.

C. Filing fees.

(1) At the time that an application is submitted, the applicant shall pay a filing fee as set forth in this section. The fee is in addition to that required by the Wetlands Protection Act. The fees shall be calculated in accordance with the schedule listed below. Projects conducted by the City and its departments are exempt from fees.

(2) The following fee schedule has been determined by the Commission to be commensurate with the expense of providing review services to applicants, exclusive of consultant fees as set forth in Subsection D, notification costs as described in § 231-7A(1), and legal advertisement costs as described in § 231-7A(1):

(a) Request for determination: no charge.

(b) Request for permit: $50.

(c) Request for permit extension: $50.

(d) Modification/amendment request: $50.

(e) Certificate of compliance: no charge.

(f) Emergency certification request: no charge.

D. Consultant fee.

(1) Upon receipt of an application, or at any point during the hearing process, the Commission, in its sole discretion, 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 come to 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. The minimum qualifications of any consultant selected by the Commission shall consist of either a bachelor's degree in or related to the field at issue or three or more years of practice in the field at issue or a related field.

(2) If a municipal revolving fund has been established pursuant to MGL c. 44, § 53E, or a special act for deposit and Commission use of filing and/or consultant fees described above, then such filing and/or consultant fees shall be deposited therein, for uses set out in the vote establishing the fund. This account shall be kept separate from the account established for filing fees paid under the Wetlands Protection Act.

(3) 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 only through outside consultants is necessary to make 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. Any unused portion of the consultant fee shall be returned to the applicant.

(a) The maximum consultant fee charged to reimburse the Commission for reasonable costs and expenses shall be according to the following schedule:

	Project Cost	Maximum Fee
	Up to $100,000	Up to $500
	$100,001 to $500,000	Up to $2,500
	$500,001 to $1,000,000	Up to $5,000
	$1,000,001 to $1,500,000	Up to $7,500
	$1,500,001 to $2,000,000	Up to $10,000

(b) Each additional project cost increment of $500,000 (over $2,000,000) may be charged not more than an additional maximum fee of $2,500 per increment.

(c) The "project cost" means the estimated entire cost of the project, including but not limited to resource area delineation, building design and construction, site preparation, landscaping, and all site improvements. The project shall not be segmented to avoid the consultant fee. The applicant shall submit estimated project costs at the Commission's request, but the lack of such estimated project costs shall not impact payment of the consultant fee.

E. Deadlines.

(1) The Commission will hold a public hearing within 21 days of the date of receipt of a complete application for permit. The Commission may also schedule a site visit of the property, as set forth in § 231-7C.

(2) If the Commission determines that the application does not contain all required documentation, the Commission will notify the applicant of the information or materials that still need to be provided. The applicant will deliver all such outstanding documentation at least six business days prior to the next public hearing. Submission of material by the applicant five business days or fewer before the public hearing will constitute a constructive request by the applicant for a continuation of the hearing if, in the sole opinion of the Commission, the Commission, staff, or public has not had adequate or sufficient time to properly consider said material. Omission of information at any stage may require that the public hearing be continued pending receipt of the information.

§ 231-5 Materials in support of permit applications.

A. Site work prior to filing and the public hearing. In order to clarify the review process for the Commission and/or its agent, flagged stakes shall be installed at the project site for the Commission's site visit to mark the following locations:

(1) All wetlands within 100 feet of the edge of the proposed alteration shall be marked with numbered flagging tape, which will correspond to the edge of wetlands numerically indicated on the plans as set forth in Subsection B; and

(2) The corners of proposed buildings and drainage systems and delineation of roadways nearest the protected resource areas shall be marked, with the specific location noted on the flags to correspond to the plan.

B. Submission requirements applicable to all projects. Any application for a permit under this chapter 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. At a minimum, the application shall include the following:

(1) Narrative detailing the proposed project; and

(2) Site plan showing details of the proposed project as follows:

(a) The following information shall be delineated:

[1] Boundary of the resource area, showing flags numbered to correspond with numbered flags installed at the site;

[2] FEMA floodplain delineation, if applicable.

[3] The fifteen- and twenty-foot setback requirements for the proposed project as set forth in § 231-6;

[4] The one-hundred-foot buffer zones to the resource area;

[5] One-hundred-foot inner and two-hundred-foot outer riparian zones, if applicable;

[6] Proposed erosion and sedimentation controls (e.g., stacked hay bales and silt fences);

[7] The limit-of-work line or note if the same as the erosion control barrier;

[8] Recorded easements or restrictions on or crossing the property and metes and bounds of proposed conservation restrictions noting the total restricted area;

[9] Abutting property owners and map and parcel identification;

[10] Elevation or sections of buildings, retaining walls or other structures if any change in grade or elevation is proposed;

[11] Proposed location of any fill or construction material to be stored on site;

[12] Extent of any new impervious surfaces and infiltration measures proposed for runoff from such surfaces (e.g., dry wells, porous pavement);

[13] Utility connections, if applicable;

[14] Drainage details for any proposed stormwater management system to mitigate stormwater runoff, if applicable; and

[15] Landscape plan or buffer zone enhancement plan to detail the approach to protect/enhance the buffer zone.

(b) If the proposed project involves construction of residential, commercial, or similar structure, or if it involves addition of structures or change in elevation or grading within the one-hundred-year floodplain, the plan shall contain a stamped and signed certification by a professional land surveyor, a professional civil engineer (if applicable), or a registered landscape architect (if applicable).

(c) Provide one original stamped plan and seven copies of the plan.

(3) Erosion and sedimentation control. Applicants shall be required to show appropriate erosion control measures, including but not limited to silt prevention devices, silt fences and/or hay bales. A narrative erosion control plan shall be provided for all resource areas protected by this chapter. Specifications shall be provided for both temporary and permanent ground covers. The erosion control plan shall describe all temporary and permanent methods to control erosion and siltation on site.

§ 231-6 Standards.

No permit shall be granted unless the applicant's proposed project complies with the following requirements or unless the Commission, in its sole discretion, deems it necessary or desirable to waive any provision herein.

A. Setbacks. The following setbacks are minimum setbacks and may be extended further if the Commission, in its sole discretion, deems it necessary for the protection of the resource values protected by this chapter. Minimum setbacks will be viewed on a case-by-case basis. The Commission shall take into account the cumulative adverse effects of loss, degradation, isolation, and replication of the resource areas protected by this chapter. Information to be assessed includes, but is not limited to, leaching, erosion, drainage, on-site ponding, and general effect on wetlands.

(1) General. No permit for any alteration or structure shall be issued unless the proposed project complies with the following minimum setbacks:

(a) No disturbance zone. A no disturbance zone shall be provided and maintained in the area of land situated between a wetland and a parallel line located 15 feet away, measured outward horizontally from the edge of the wetland. The no disturbance zone shall be naturally vegetated and free from oil, hazardous materials, and chemicals (including, without limitation, fertilizers, herbicides and pesticides).

(b) No construction zone. A no construction zone shall be provided and maintained in the area of land situated between a wetland and a parallel line located 20 feet away, measured outward horizontally from the edge of the wetland. Lawns and landscaping are permitted but structures and appurtenances thereto are prohibited in the no construction zone.

(2) Wetland-dependent structures. A zero-foot setback for wetland dependent structures (drain outfalls, weirs, etc.) will be permitted where the Commission, in its sole discretion, deems reasonable.

(3) Upland access. A zero-foot setback for site improvements necessary for upland access will be permitted where the Commission, in its sole discretion, deems reasonable alternative access to be unavailable.

(4) Wetland setbacks for preexisting structures. Projects associated with preexisting structures or projects not presently in compliance with this chapter may not increase the degree of nonconformance of those structures or projects. No new alteration shall be commenced and no new structure shall be located within the no construction zone or no disturbance zone, as set forth in this chapter.

B. Floodplain requirements. There shall be no net loss of flood storage volume at any elevation. There shall be no increase in the rate of runoff as a result of any project. The Commission may impose specific planting and/or maintenance requirements in order to achieve floodplain requirements. The Commission may also require the applicant to conduct drainage calculation studies and to take other mitigation measures as appropriate.

C. Wildlife habitat. No project may result in the loss of critical habitat or cause negative impacts on critical habitat of rare, threatened, or endangered species, or species of special concern. Any applicant proposing an alteration near a critical habitat area shall be required to include a description of wildlife habitat characteristics observed on the property. 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 to perform a wildlife habitat study 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 possible presence of rare species in the area. The work shall be performed by an individual who, at a minimum, meets the qualifications set out in the wildlife habitat section of the Wetlands Protection Act.

D. Stormwater management.

(1) Any applicant proposing an increase of impervious area greater than 500 square feet within a buffer zone or land subject to flooding must demonstrate that there will be no net increase in runoff peak discharge rate and no net loss of recharge to groundwater.

(2) This requirement may be met in one of two ways:

(a) DEP Stormwater Policy method. An applicant may submit engineering calculations using methods approved in the Massachusetts DEP Stormwater Management Policy and guidance documents in effect at the time of the application, showing pre- and post-development recharge and peak discharge rates for a one-, two-, and ten-year storm. Drainage calculations submitted in compliance with the DEP Stormwater Policy may be used to satisfy this requirement but must include calculations for a one-year storm in addition to those required under the DEP policy.

(b) Low-impact development method.

[1] As an alternative to the DEP method, applicants may receive a presumption that the stormwater performance standard is met by applying low-impact development (LID) best management practices to all new impervious surfaces. The applicant may utilize as many or as few of the following techniques as needed to effectively manage stormwater on site, subject to the approval of the Commission:

[a] Removal of preexisting impervious area of the same or greater size in the same drainage area;

[b] Use of permeable pavers in place of impervious materials;

[c] Design of surfaces so that runoff will be in the form of sheet flow directed towards a naturally vegetated buffer area. The width of the naturally vegetated area must be at least equal to the width of the impervious area;

[d] Direction of runoff flow to rain gardens or bioretention areas. These areas should be large enough to accommodate the volume of one inch of runoff over the area of contributing impervious surface;

[e] Use of green roof systems;

[f] Connection of runoff from new impervious areas to dry wells or other infiltration devices. Said devices should be large enough to accommodate the volume one inch of runoff over the area of contributing impervious surface; or

[g] Other similar stormwater management practices as may be approved by the Commission on a case-by-case basis.

[2] Applicants electing to apply LID methods are not required to submit drainage studies unless required to do so under the Massachusetts DEP Stormwater Management Policy. Use of low-impact development practices is encouraged for all projects, including those involving under 500 square feet and those subject to the DEP Stormwater Management Policy. The Commission may require the use of LID practices in any project where the Commission deems such use necessary to preserve the values protected under this chapter.

§ 231-7 Notice and hearings.

A public hearing shall be held for each filing. At the hearing, the information is presented to the Commission and the public by the applicant and/or the applicant's representative(s).

A. Notice of this hearing is given as follows:

(1) Notice to abutters.

(a) Any person filing an application with the Conservation Commission for anything other than an RFD shall at the same time send written notice thereof, by hand delivery or form of mailing providing proof of mailing (e.g., certified mail or certificate of mailing), to all abutters at their mailing addresses shown on the most recent applicable tax list of the Assessors, including owners of land directly opposite on any public or private street or way, and abutters to the abutters within 100 feet of the property line of the applicant, including any in another municipality or across a body of water. Applications for an RFD do not require abutter notification.

(b) In addition, any person filing an application for an alteration to take place on property bordering Swains Pond, Towners Pond, or Ell Pond shall give written notice thereof to all abutters to such pond.

(c) The notification required under this section shall be made at the expense of the applicant and shall have enclosed a copy of the application, with plans, or shall state where copies may be examined or obtained by abutters. The notification shall also state where information regarding the date, time, and place of the public hearing may be obtained. The applicant shall mail, send by overnight delivery or hand deliver to the Commission a copy of the notice sent to abutters as required under this section.

(d) An applicant may use the notice forms provided by the Department of Environmental Protection pursuant to the Wetlands Protection Act to satisfy the notice requirements of this chapter, provided that all other applicable requirements under this chapter are also satisfied.

(e) The applicant shall present either the certified mail receipts or certificate of mailing receipts for all abutters at the beginning of the public hearing. The presentation of the receipts for all abutters identified on the tax list shall constitute compliance with abutter notification requirements. The Conservation Commission shall determine whether the applicant has complied with abutter notification requirements.

(f) When a person requesting a permit or determination is other than the owner of the subject property, 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.

(2) Legal notice. Notice of the date, time and place of the public hearing shall be given by the Commission at the expense of the applicant, not less than five days prior to such hearing, by publication in a newspaper of general circulation in Melrose, and by mailing a notice to the applicant.

B. Public hearing.

(1) The Commission shall commence the public hearing within 21 days from receipt of a complete application, unless the applicant authorizes an extension for the hearing. The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or other reasons deemed necessary by the Commission in its sole discretion.

(2) The Commission in an appropriate case may elect to combine its hearing under this chapter with the hearing or meeting conducted under the Wetlands Protection Act.

C. Investigations. The Commission, its agents, officers, consultants and employees may enter upon the land that is the subject of an application for the purpose of carrying out its duties under this chapter and may make or cause to be made such examination or survey as the Commission, in its sole discretion, deems necessary.

§ 231-8 Permits and conditions.

A. The Commission shall make its determination in writing within 21 days of the close of the public hearing. The Commission shall either:

(1) Make a determination that the applicant's proposed project is not likely to have a significant individual or cumulative adverse effect upon any resource area protected by this chapter, in which case the Commission may issue a permit or other order with or without conditions; or

(2) Make a determination that the applicant's proposed project is likely to have a significant individual or cumulative adverse effect upon any resource area protected by this chapter, in which case the Commission shall deny or grant the applicant a permit or other order, with or without conditions.

B. Issuance.

(1) If it issues a permit, the Commission shall impose conditions which the Commission, in its sole discretion, deems necessary or desirable to protect the values protected by this chapter, 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 community and the watershed, resulting from past activities, permitted and exempt, and foreseeable future activities.

(2) The Commission in an appropriate case may combine the decision issued under this chapter with the order of conditions, order of resource area delineation, determination of applicability, or certificate of compliance issued under the Wetlands Protection Act.

(3) No work proposed in any application shall be undertaken until the permit or other determination issued by the Commission with respect to such work has been recorded by the applicant 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.

C. Expiration. A permit shall expire three years from the date of issuance. Notwithstanding the above, the Commission, in its sole 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, in the Commission's sole discretion, 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 owners, current and future, of the land.

D. Denial of permit.

(1) Where no conditions are adequate to protect the resource values protected by this chapter, the Commission is empowered, in its sole discretion, to deny a permit for failure to meet the requirements of this chapter. It may also deny a permit for the following reasons: for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications, performance standards, or other requirements of this chapter; or for failure to avoid or prevent unacceptable, significant, or cumulative effects upon the resource area values protected by this chapter.

(2) Applicants shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the 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 an application or grant a permit with conditions.

E. Responsibility of compliance. After the recording of a permit hereunder, any person who purchases, inherits or otherwise acquires real estate upon which activities have been conducted in violation of the provisions of this chapter or in violation of any permit issued under this chapter shall comply with any such permit or restore such land to its condition prior to any such violation.

F. Certificate of compliance. When an applicant has completed a project, it shall obtain a certification of compliance from the Commission by filing a written request with the Commission. The written request shall include a certification by an applicable professional that the project was completed in compliance with the permit and shall set forth what deviation (if any) exists from the permit. Prior to the issuance of a certificate of compliance, the Commission shall make a site inspection. The applicant or applicant's agent shall be present for the site inspection. Within 21 days of receipt of the applicant's written request for a certificate of compliance, the Commission shall determine whether the project was completed in compliance with the permit. If the Commission determines, in its sole discretion, after review and inspection, that the project has not been completed in compliance with the permit, it may refuse to issue a certificate of compliance. Such refusal shall be in writing and shall specify the reasons for denial. If the Commission determines, in its sole discretion, after review and inspection, that the project has been completed in accordance with the permit, the Commission shall issue a written certificate of compliance.

G. Revocations; modifications; amendments. For good cause, the Commission at a public hearing may, in its sole discretion, revoke, modify or amend a permit or other determination issued pursuant to this chapter or the Wetlands Protection Act, after notice to the holder of such permit or other determination, and notice to the public, abutters and City boards. Good cause for such revocation or modification shall include, but is not limited to, the following:

(1) Failure by the applicant or his successors to comply with the terms of a permit or other determination issued pursuant to this chapter or the Wetlands Protection Act;

(2) The receipt of new information relating to the project which indicates that previous information presented to the Commission was inaccurate; or

(3) Changes to the project after completion of the Commission's review.

§ 231-9 Waiver.

A. Strict compliance with this chapter may be waived when, in the sole judgment of the Commission, such action is in the public interest and is consistent with the intent and purpose of the chapter. In addition, any person may request a waiver by submitting a waiver request to the Commission in writing. The waiver request shall be presented at the time of filing the application, along with a written justification stating why a waiver is desired or needed, is in the public benefit, or otherwise is in the interest of justice, and is consistent with the intent and purpose of the chapter. In evaluating whether a waiver shall be granted, the Commission shall consider whether there are any practicable alternatives to the proposed project with less adverse impacts upon the resource areas protected by this chapter. The Commission may require the applicant to conduct an analysis of alternatives to show that there are no practicable alternatives.

B. The Commission may waive the filing fee, consultant fee, and costs and expenses for an application filed by a government agency.

§ 231-10 Rules and regulations.

[Amended 8-21-2017 by Ord. No. 2018-4]

After public notice and public hearing, the Commission may promulgate rules and regulations to effectuate the purposes of this chapter, effective when voted and filed with the City Clerk. Such regulations may impose reasonable fees upon applicants to cover the Commission's administrative costs. 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.

§ 231-11 Definitions.

The following definitions shall apply in the interpretation and implementation of this chapter. Terms not defined herein shall have the meanings given in the Wetlands Protection Act.

ABUTTER

Owner of land abutting the activity.

ALTER or ALTERATION

Includes, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this chapter:

A. Removal, excavation, or dredging of soil, sand, gravel, or aggregate materials of any kind;

B. Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, 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 material, which would alter elevation;

F. Driving of piles, erection, expansion or repair of buildings, or structures of any kind, including temporary structures;

G. Introducing chemicals (including, without limitation, pesticides, herbicides or fertilizers), oil or hazardous materials;

H. Placing of obstructions or objects in water;

I. Harming or destroying of plant life;

J. Changing temperature, biochemical oxygen demand, or other physical, biological, or chemical characteristics of any waters;

K. Any activities, changes, or work which may cause or tend to contribute to pollution of any body of water or groundwater; and

L. Incremental activities that have, or may have, a cumulative adverse impact on the resource areas protected by this chapter.

APPLICANT

Any person submitting an application to the Commission.

APPLICATION

Any written request for action or determination by the Commission, including but not limited to a request for a permit, RFD, waiver, certificate of compliance, or any request pursuant to the Wetlands Protection Act.

BANK

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.

BUFFER ZONE

Lands abutting within 100 feet horizontally outward from any resource area.

CITY

The City of Melrose, Massachusetts, a municipal corporation.

COMMISSION

The Conservation Commission of the City of Melrose.

COMMONWEALTH

The Commonwealth of Massachusetts.

CONSULTANT FEE

The fee charged to an applicant to cover the reasonable costs and expenses borne by the Commission for specific expert engineering and other consultant services.

DAYS

In calculating time periods under this chapter, shall mean business days for periods less than or equal to five days and calendar days for periods of greater than five days.

LAND SUBJECT TO FLOODING

The area bounded by the estimated maximum lateral extent of floodwater which would result from the statistical one-hundred-year frequency storm. Said boundary shall be that determined by reference to the most recently available data prepared for the community under the National Flood Insurance Program (NFIP, currently administered by the Federal Emergency Management Agency, successor to the U.S. Department of Housing and Urban Development). Where NFIP profile data is unavailable, the boundary of bordering land subject to flooding shall be the maximum lateral extent of floodwater which has been observed or recorded. In the event of a conflict, the issuing authority may require the applicant to determine the boundary of bordering land subject to flooding by engineering calculations which shall be:

[Amended 8-21-2017 by Ord. No. 2018-4]

(1) Based upon a design storm of seven inches of precipitation in 24 hours (i.e., a Type III Rainfall, as defined by the U.S. Natural Resources Conservation Service);

(2) Based upon the standard methodologies set forth in U.S. Natural Resources Conservation Service Technical Release No. 55, Urban Hydrology for Small Watersheds, and Section 4 of the U.S. Natural Resources Conservation Service, National Engineering Hydrology Handbook; and

(3) Prepared by a registered professional engineer or other professional competent in such matters.

PERSON

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 ordinances, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.

POND

Shall follow the definition of 310 CMR § 10.04.

RARE SPECIES

Includes, 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 (the Division), regardless of whether the site in which they occur has been previously identified by the Division.

RFD

A request for determination from the Commission.

VERNAL POOL

An intermittent pond that meets the criteria set forth in "Guidelines for Certification of Vernal Pool Habitat" issued by the Massachusetts Division of Fisheries and Wildlife. Prior certification is not required. Vernal pools function as essential breeding habitat for a variety of amphibian species, such as wood frog (Rana sylvatica) and mole salamanders, and provide other important wildlife habitat functions for amphibians and other wildlife. Vernal pool habitat includes a one-hundred-foot setback area.

WETLANDS

Any freshwater wetlands, marshes, wet meadows, bogs, swamps, vernal pools, banks, lakes, ponds of any size, rivers, streams (including intermittent streams), creeks, or lands subject to flooding or inundation by groundwater or surface water.

WETLANDS PROTECTION ACT

The Wetlands Protection Act at MGL c. 131, § 40, and the regulations promulgated thereunder at 310 CMR 10.00.

§ 231-12 Security.

As part of a permit issued under this chapter, in addition to any security required by any other municipal or state board, agency, or official, the Commission may require that the performance and observance of the conditions imposed 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 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 for work performed pursuant to the permit. If the applicant fails to perform and observe the required conditions within a reasonable time and, in the case of a wetlands replication project, within two years, the applicant shall forfeit such bond, deposit or security, and a certificate of compliance shall not be granted until the conditions are satisfied.

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 this municipality, whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed. This method shall be used only with the consent of the applicant.

§ 231-13 Land owned by Commission.

[Amended 8-21-2017 by Ord. No. 2018-4]

Any land held by the Commission, no matter how such land originally came to be under the Commission's control, shall be held by the Commission for the purpose of protecting open space and promoting the resource values protected by this chapter for the benefit of the residents of the City. Pursuant to the Conservation Commission Act (HB § 18.9)[1] and MGL c. 40, § 15A, such land may not be transferred without a unanimous vote of the Commission, a vote of the City Council and a two-thirds vote of the Legislature of the commonwealth.

[1] Editor's Note: See MGL c. 40, § 8C.

§ 231-14 Enforcement.

A. Enforcement shall be taken upon any person who commences an activity under the jurisdiction of the Commission without a permit or otherwise fails to restore illegally altered land to its original condition, or fails to comply with a permit, order of conditions or an enforcement order (including a stop-work order) issued pursuant to this chapter.

B. No person shall subdivide or segment land for the purpose of circumventing the requirements of this chapter. No person shall injure or destroy plant life located in any of the resource areas protected by this chapter, including but not limited to cutting trees or their roots.

C. 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, subject to the constitutions and laws of the United States and the commonwealth.

D. The Commission shall have authority to enforce this chapter, its regulations, and permits issued thereunder by:

(1) In the case of minor infractions, administration actions, violation notices, and enforcement orders (including stop-work orders);

(2) In the case of major infractions, civil actions including injunctions and fines; and

(3) In the case of repeat offenders and major violations, criminal court actions.

E. Any person who violates provisions of this chapter may be ordered to restore the property to its original condition and take any other action that the Commission, in its sole discretion, deems necessary to remedy such violation, or may be fined, or both.

F. If a civil action, administration action, final order, penalty, violation notice, enforcement order, stop-work order, criminal court action, fine or an adjustment for a violation is contemplated, the Commission will discuss this matter at a public meeting with notice and an invitation to participate to the City Solicitor. The property owner will be given at least 48 hours' notice in writing of the date, time and place of the public meeting, by certified mail, return receipt requested, or hand delivery. If a majority of the Commission present at the meeting finds, by a preponderance of the evidence, that a violation has occurred, then the owner may be fined not more than $300 per offense per day. Each violation may be considered a separate offense. Each day the violation continues constitutes a separate violation under this chapter.

G. Upon request of the Commission, the case may be referred to the City for enforcement. Upon request of the Commission, the Chief of Police shall take legal action for enforcement under criminal law.

H. Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement. Any enforcement order shall be published, at the applicant's expense, in one or more local newspapers. In addition, the enforcement order shall be recorded on the deed for the property at issue.

I. As an alternative to criminal prosecution in a specific case, the Commission may issue citations under the noncriminal disposition procedure set forth in MGL c. 40, § 21D. The following fine structure shall be utilized to maintain fairness and consistency. Each violation may be considered a separate offense. Each day the violation continues constitutes a separate violation under this chapter.

[Amended 8-21-2017 by Ord. No. 2018-4]

(1) Unpermitted alteration of the buffer zone carries a fine of $150.

(2) Unpermitted alteration of the no disturbance zone carries a fine of $200.

(3) Unpermitted alteration of a resource area carries a fine of $300 for each resource area altered.

(4) Failure to secure necessary permits required to perform work within an area subject to protection under this chapter carries a fine of $150.

(5) Leaving unpermitted fill in place within a resource area and/or buffer zone carries a fine of $300.

(6) Failure to record with the Registry of Deeds an order of conditions issued under the chapter carries a fine of $150.

(7) Failure to notify the Commission prior to start of work carries a fine of $100.

(8) Failure to comply with all conditions of a permit issued under the chapter carries a fine of $300.

(9) Failure to have the necessary permits and approved drawings and plans available at the project site at all times carries a fine of $300.

(10) Failure to properly use, maintain, and/or install erosion controls carries a fine of $100 for the first offense, $200 for the second offense, and $300 for each subsequent offense.

(11) Conducting work outside the scope shown on an approved plan approved under this chapter carries a fine of $300.

(12) Failure to notify the Commission in writing in regard to any changes to an approved plan under this chapter carries a fine of $300.

(13) Failure to properly secure any stockpiled material within the one-hundred-foot buffer zone associated with an approved project carries a fine of $300.

(14) Failure to permanently stabilize all disturbed areas associated with an approved project within 30 days of completion of the project carries a fine of $300.

(15) Failure to request a certificate of compliance or an order of conditions within six months of completion of the project carries a fine of $300.

(16) Failure to submit required replication monitoring reports carries a fine of $300.

(17) Failure to design required replication area as specified in approved plans carries a fine of $300.

(18) Failure to record the certificate of compliance with the Registry of Deeds carries a fine of $150.

(19) Failure to comply with requirements listed on the City of Melrose's notice of violation or enforcement order carries a fine of $300 per day.

§ 231-15 Appeals.

A decision of the Commission shall be reviewable in the Superior Court in accordance with MGL c. 249, § 4.

§ 231-16 Relation to the Wetlands Protection Act.

This chapter is adopted under the Home Rule Amendment of the Massachusetts Constitution and the home rule statutes, independent of the Wetlands Protection Act.

§ 231-17 Severability.

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.