This chapter shall be known as the "Wetlands Protection Ordinance"
and may also hereafter be referred to as "this chapter."
The purpose of this chapter is to preserve and exercise jurisdiction
over the protected resource areas, as defined below, and adjoining
land areas in the City by means of the regulation and control of activities
deemed by the Conservation Commission (the "Commission") as likely
to have significant or cumulative adverse effect on any or all resource
area values, which include, without limitation, the protection of
public water supply, private water supply and groundwater; the prevention
and control of flooding, erosion and sedimentation; the prevention
of storm damage; the prevention and control of pollution; the protection
of water quality, agriculture and aquaculture; the protection of wildlife,
wildlife habitat and rare species habitat, including rare plant species;
and the protection and promotion of aesthetic values, recreation values,
education values, and similar concerns. This chapter is intended to
use the authority of the City, under the Home Rule Amendment of the
Massachusetts Constitution and the Home Rule Statutes, to protect
additional resource areas, independent of, and to provide more stringent
protection by the Commission than that provided by, MGL c. 131, § 40
(the Wetlands Protection Act), and the regulations issued thereunder,
310 CMR 10 (the Wetlands Protection Regulations).
The definitions of certain words used in the interpretation
and implementation of this chapter follow. Terms used herein and not
defined below, or elsewhere in this chapter, or in the rules and regulations
adopted by the Commission, shall be defined as provided in the Wetlands
Protection Act and the Wetlands Protection Regulations.
ALTER/ALTERATION
This term includes, without limitation, the following activities
when undertaken to, upon, within or affecting protected resource areas
and associated buffer zones:
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, pollution 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 that may
degrade water quality.
E.
Placing of fill, or removal of material, that would change elevation.
F.
Driving of piles or placement, erection, or exterior repair
of structures.
G.
Placing of obstructions or objects in water.
H.
Destruction of plant life, including cutting of trees.
I.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters.
J.
Any activities, changes, or work that may cause or tend to contribute
to pollution of any body of water or groundwater.
BANK
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 within 100 feet of any protected resource area except
floodplain land and riverfront area.
FLOODLINE
The limits of flooding from a particular body of water as
defined by the National Flood Insurance Program as a Zone A (including
Zone A subcategories) and Zone B.
FLOODPLAIN
The land area that lies between a body of water and the floodline
for that particular body of water.
NO BUILD ZONE
Lands within 30 feet of any no disturbance zone, beginning
at the upland edge of the no disturbance zone and extending for 30
feet into the upland.
NO DISTURBANCE ZONE
Lands within 30 feet of any protected resource area except
floodplain and riverfront area.
PROTECTED RESOURCE AREA
Any freshwater wetland as defined in MGL c. 131, § 40,
and as determined by vegetation community, soil composition or hydrologic
regime, bank, beach, marsh, wet meadow; bog or swamp lands bordering
any creek, river, perennial stream, intermittent stream, reservoir,
pond or lake; vernal pool; riverfront area; any floodplain; and any
lands under or any lands subject to flooding or inundation by groundwater,
surface water or storm flow that are determined by the Commission
to fall within the purpose and intent of this chapter.
RARE SPECIES
All vertebrate and invertebrate animal and plant species
listed as endangered, threatened, or of special concern by the Massachusetts
Division of Fisheries and Wildlife, or any successor organization,
regardless of whether the site in which they occur has been previously
identified by the Massachusetts Division of Fisheries and Wildlife.
STRUCTURE
A combination of materials assembled at a fixed location
to give support or shelter, such as a building, house, barn, garage,
or shed. The word "structure" shall be construed, where the context
requires, as though followed by the words "or part or parts thereof."
However, in reference to the no build zone, "structure" shall not
include fences, retaining walls, decks, patios, gazebos, lawn furniture,
children's toys such as sandboxes and swing-sets, riprapped areas,
driveways, parking areas, or the like.
VERNAL POOL
The term "vernal pool" shall include, in addition to scientific
definitions found in the regulations under the Wetlands Protection
Act, any confined basin or depression 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 100 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.
Except as otherwise provided hereunder, no person shall alter
any protected resource area or the buffer zone thereof (hereafter
"regulated activity") without first having received and complied with
a permit issued pursuant to this chapter. Such permit shall be in
the form of an order of conditions issued by the Commission in accordance
with its rules and regulations.
The application and permit required by this chapter shall not
be required for the following activities, subject to the conditions
provided below:
A. Emergency projects.
(1) Projects necessary for the protection of the health and safety of
the public, provided that:
(a)
The work that is to be performed has been ordered to be so performed
by an agency of the commonwealth or a political subdivision thereof;
(b)
Advance written notice has been given to the Commission prior
to the commencement of the work or within 14 hours after commencement
in the event of extreme emergency; and
(c)
The Commission or its agent certifies the work as an emergency
project or fails to act within 10 business days after receiving written
notice thereof.
(2) The work to be performed shall be limited as to the time and place
certified by the Commission and for the limited purposes necessary
to abate the emergency. Notwithstanding the above exception, within
11 days of commencement of an emergency project, a permit application
shall be filed with the Commission for review as provided in this
chapter. If any of the conditions specified above are not met, or
if any of the conditions contained in any determination of the Commission
regarding such project are not fulfilled, the Commission may, after
notice and a public hearing, revoke or modify any determination or
order it has issued regarding an emergency project and/or may order
restoration and mitigation measures to be performed.
B. Public service structures and facilities. Maintenance, repair or
replacement, without substantial change or enlargement, of existing
and lawfully located structures or facilities used in the service
of the public and used to provide electric, gas, water, storm drainage,
sewer, telephone or other telecommunication services to the public,
provided that written notice has been given to the Commission prior
to commencement of work and provided that the work conforms to the
rules and regulations of the Commission, including any performance
standards and design specifications.
C. Public ways. Maintenance and repair of existing public ways, provided
that written notice has been given to the Commission prior to commencement
of work, and provided that the work conforms to the rules and regulations
of the Commission, including any applicable performance standards
and design specifications.
After public notice and public hearing, the Commission shall
adopt rules and regulations to carry out the purpose and intent of
this chapter (the "rules and regulations"). The rules and regulations
shall include procedures to conduct hearings, issue, deny, revoke
and/or modify permits and to appeal, and shall also provide guidance
generally to persons seeking to conduct a regulated activity. Such
rules and regulations may also provide, as the Commission deems necessary,
additional definitions and procedures not inconsistent with this chapter
and a schedule of fees to be charged, which may be based on estimated
project cost, including but not limited to building construction,
site preparation, landscaping, and all site improvements. Such rules
and regulations shall become effective when voted by the Commission,
approved by the Gardner City Council and filed with the City Clerk.
Failure by the Commission to promulgate such rules and regulations,
or a final decision by a court which cannot be appealed of the invalidity
of any part of such rules and regulations, shall not act to suspend
or invalidate the effect of this chapter other than in accordance
with such decision.
The Commission may require, in addition to any security required
by any other municipal or state agency, that the performance and observance
of the conditions imposed under a permit issued under this chapter,
including conditions requiring mitigation work, be secured wholly
or in part by one or more of the methods described below, or combinations
thereof:
A. Surety. By a proper bond or deposit of money or other undertaking
of financial responsibility acceptable to the City Treasurer 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.
B. Restrictions. By a conservation restriction, easement, or other covenant
executed and duly recorded by the owner of record, running with the
land, to the benefit of the City whereby the permit conditions shall
be performed and observed by all owners, including successors.
[Amended 11-18-2013 by Ord. No. 1563]
Upon receipt of an RDA or NOI, the Commission or its agents
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 Commission shall have the authority to enforce
this chapter and its rules and regulations, and the Commission, any
member thereof, or its agent may issue citations under the noncriminal
disposition procedure set forth in MGL c. 40, § 21D, which
has been adopted by the Gardner City Council, and by civil and criminal
court actions. Any person who violates 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.
Any decision of the Commission may be reviewed in the Superior
Court in accordance with MGL c. 249, § 4.
[Amended 11-18-2013 by Ord. No. 1563]
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision thereof, nor shall it
invalidate a permit or determination which previously has been issued.
The provisions of this chapter shall not apply to:
A. That work for which a notice of intent has been filed with, or an
order of conditions has been obtained from, the Commission at the
time of the effective date of this chapter, but such work has not
yet been commenced or completed, so long as such order of conditions
issued for such work remains valid, unexpired and unmodified; and
B. The initial notice of intent filing or permit application for construction
on an individual lot that is part of the development for which an
order of conditions has been obtained from the Commission at the time
of the effective date of this chapter but has not yet been commenced
or completed, so long as the order of conditions remains valid, unexpired
and unmodified, and provided further that the proposed work is, in
the determination of the Commission, consistent with and not an expansion
of the previously approved development.
The Commission may, in its discretion, grant variances from
the specific requirements of these regulations pursuant to this section.
The Commission may grant a variance from these regulations when an
overriding public interest is demonstrated or when strict enforcement
makes an otherwise buildable lot unbuildable. The intent of this section
is to ensure that the Commission may permit activities within the
buffer zone when the applicant has demonstrated to the Commission's
satisfaction that the proposed work has been designed to minimize
impacts to the buffer zone. In all cases, the burden of proof shall
be on the applicant to demonstrate maximum feasible compliance with
the requirements of this chapter and regulations. The Commission may
require mitigation to offset adverse impacts to buffer zones and resource
areas protected by this chapter.