[HISTORY: Adopted 5-11-1999 Annual Town Meeting, Art. 75. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning By-law — See Article VIII.
Subdivision Rules and Regulations — See Article
XIII.
The purpose of this by-law is to protect the wetlands, related
water resources and adjoining land areas in the Town of Andover by
controlling activities likely to have a significant or cumulative
effect upon the important public values of those areas, which include,
without limitation, the following: public or private water supply,
groundwater supply, flood control, erosion and sedimentation control,
storm damage prevention, protection of surrounding land and other
homes or buildings, prevention of pollution of groundwater and surface
water, fisheries, wildlife habitat, recreation and the historic and
natural scenic character of wetland resource areas, watercourses,
lakes and ponds (collectively, the "values protected by this by-law").
Except as permitted by the Conservation Commission or as provided
in § 3 of this by-law, no person shall remove, fill, dredge,
build upon, degrade or otherwise alter the following resource areas:
any bank, freshwater wetland, marsh, wet meadow, bog, swamp, vernal
pool, reservoir, lake, pond, creek, river or stream, or any land under
said waters, or any land within 100 feet of any of the aforesaid resource
areas, or any land subject to flooding or inundation by groundwater
or surface water, or within 200 feet of any river (collectively, the
"resource areas protected by this by-law").
The application and permit required by this by-law 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 and used to provide
electric, gas, water, sewer, telephone, telegraph and other telecommunication
services, or the installation of new municipal utilities, provided
that written notice has been given to the Commission prior to the
commencement of the work, and provided that the work conforms to performance
standards and design specifications in any regulations adopted by
the Commission.
The application and permit required by this by-law shall not
be required for work performed for normal maintenance or improvement
of land in agricultural use.
The application and permit required by this by-law shall not
apply to 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 by-law. 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.
The application and permit required by this by-law shall not
be required for work which is performed in connection with the ordinary
maintenance or improvement of a single- or two-family house lawfully
in existence or for which a building permit had been issued on or
before January 1, 1999, including, but not limited to, building additions,
septic system replacements and sewer connections, and the conversion
of lawn to accessory uses such as decks, sheds, patios and pools;
except the application and permit required by this by-law shall apply
to the construction of freestanding structures which have a footprint
greater than 500 square feet. [Amended 4-23-2007 ATM, Art. 53]
The application and permit required by this by-law shall not
be required for the maintenance and repair of buildings, other structures,
driveways, roads, parking areas, drainage structures and basins, lawns
or athletic fields in existence on January 1, 1999, provided that
such work is conducted in conformity with any general guidelines or
performance standards which the Conservation Commission may, by regulation,
adopt to protect the interests identified in § 1 of this
by-law.
Other than stated in this section, the exceptions, exemptions
and grandfathered activities provided in the Wetlands Protection Act,
MGL c. 131, § 40, and regulations, 310 CMR 10.00, shall
not apply under this by-law.
Written application shall be filed with the Commission to perform
activities affecting resource areas protected by this by-law. The
permit 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 by-law.
No activities shall commence without receiving and complying with
a permit issued pursuant to the by-law.
The Commission in an appropriate case may accept as the permit
application and plans under this by-law the notice of intent and plans
filed under the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00.
Any person desiring to know whether or not a proposed activity
or an area is subject to this by-law may, in writing, request a determination
from the Commission. Such a request for determination shall include
information and plans as are deemed necessary by the Commission. The
Commission may determine that a proposed activity or an area is not
subject to this by-law subject to the observance of conditions by
the applicant.
(a)
Administrative fee. The Commission is authorized to include in any
regulations adopted under this by-law a fee schedule imposing fees
for permits, determinations and certificates of compliance. Such fees
must be based on a reasonable estimate of the actual costs incurred
by the Commission in carrying out its duties under this by-law, taking
into account any fees provided under the Wetlands Protection Act.
Failure to pay any fee required by regulations duly promulgated by
the Commission shall be grounds for denial of the application.
(b)
Consultant fees. Pursuant to Massachusetts General Laws Chapter 44,
Section 53G and any rules and regulations thereunder, the Commission
is authorized to require the applicant to pay the reasonable costs
and expenses borne by the Commission for specific expert engineering
and consulting services deemed necessary by the Commission to review
any application.
[Amended 4-28-2010 ATM, Art. 39]
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The Commission may also impose fees when requested to make a
determination of the boundary line of any resource area to be performed
by an agent for the Commission pursuant to a request for determination
of applicability, notice of intent or abbreviated notice of resource
area delineation relative to any wetlands boundary exceeding 250 linear
feet. [Amended 4-28-2010 ATM, Art. 39]
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(c)
Waiver/nonapplicability of fees. No application or consultant fees
shall be due from the Town of Andover or the Commonwealth of Massachusetts
in connection with any project performed by the town or on its behalf,
or from any person having no financial connection with a property
which is the subject of a request for determination.
Any person filing a permit application or a request for determination
with the Commission at the same time shall give written notice thereof,
by certified mail (return receipt requested) or hand delivered or
by certificates of mailing confirmed by the United States Postal Service,
to all abutters at their mailing addresses shown on the most recent
applicable tax list of the assessors. The notice to abutters shall
enclose a copy of the permit 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 4-28-2010 ATM, Art. 38]
The Commission shall conduct a public hearing on any permit
application or request for determination, with written notice given
at the expense of the applicant, not less than five business days
prior to the hearing, in a newspaper of general circulation in the
Town of Andover.
The Commission shall commence the public hearing within 21 days
from receipt of a completed permit application or request for determination
unless an extension is authorized, in writing, by the applicant.
The Commission shall issue its permit or determination, in writing,
within 21 days of a close of the public hearing thereon unless an
extension is authorized, in writing, by the applicant.
The Commission in an appropriate case may combine its hearing
under this by-law with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00. Notice
of a hearing so combined shall not be considered defective solely
because it fails to make reference to this by-law.
The Commission shall have authority to continue the hearing
to a date certain announced at the hearing, for reasons stated at
the hearings, which may include receipt of additional information
offered by the applicant deemed necessary by the Commission in its
discretion, or comments and recommendations of the boards and officials
listed in § 9. In the event 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.
The applicant 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
values protected by this by-law. Failure to provide adequate evidence
to the Commission supporting this burden shall be sufficient cause
for the Commission to deny such permit or to grant a permit with conditions.
If, after said hearing, the Commission determines that the activities
which are subject to the permit application are likely to have a significant
or cumulative effect upon the values protected by this by-law, the
Commission, within 21 days of the close of the public hearing or such
further time as the Commission and the applicant shall agree on, shall
issue or deny a permit for the activities proposed. If it issues a
permit, the Commission shall impose conditions which it deems necessary
or desirable to protect those values, and all work shall be done in
accordance with those conditions.
The Commission is empowered to deny a permit for failure to
meet the requirements of this by-law; for failure to submit necessary
information and plans requested by the Commission; for failure to
meet the design specifications, performance standards and other requirements
in regulations of the Commission; for failure to avoid or prevent
unacceptable significant or cumulative effects upon the values protected
by this by-law; and where no conditions are adequate to protect those
values. The Commission may waive the provisions of this by-law upon
the written request of any applicant for a determination or permit,
when, in its judgment, such action is consistent with the purpose
and intent of this by-law, and when strict enforcement of the requirements
of this by-law would result in hardship to the applicant.
Lands within 200 feet of rivers, and lands within 100 feet of
other resource areas, are presumed important to the protection of
these resources because activities undertaken in close proximity to
resource areas have a high likelihood of adverse impact upon the wetland
or watercourse, either immediately, as a consequence of construction,
or over time as a consequence of daily operation or existence of those
activities. In addition, such areas are often vital to the preservation
of species that depend on wetlands for food or reproduction. The Commission
may therefore require that the applicant maintain a continuous strip
of continuous, undisturbed vegetative cover within the two-hundred-foot
(or one-hundred-foot) area, unless the applicant demonstrates that
the area or part of it may be disturbed without harm to the values
protected by this by-law.
In reviewing proposed activity in areas within 200 feet of rivers,
no permit issued hereunder shall permit any activities unless the
applicant, in addition to meeting the otherwise applicable requirements
of this by-law, has proved by a preponderance of the evidence that
there is no practicable alternative to the proposed project with less
adverse effects and that such activities, taking into account proposed
mitigation measures, will have no significant impact on the values
protected by this by-law. The Commission shall regard as practicable
an alternative which is reasonably available and capable of being
done after taking into consideration the proposed use of the property,
the overall project purpose (e.g., residential, institutional, commercial
or industrial purpose), logistics, existing technology and costs.
To prevent wetlands loss, the Commission shall require applicants
to avoid wetlands alteration wherever feasible, to minimize wetlands
alteration and, where alteration is unavoidable, to incorporate mitigation
measures into the project design.
A permit shall expire three years from the date of issuance.
Notwithstanding the above, the Commission in its discretion may issue
a permit of unlimited duration 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 for one or more
additional periods of up to three years, provided that a request for
a renewal is received in writing by the Commission at least 30 days
prior to expiration.
For good cause the Commission may revoke or modify a permit
or determination issued under this by-law after notice to the holder
of the permit or determination, notice to the public, abutters and
town boards, pursuant to §§ 5 and 6, and a public hearing.
The Commission in an appropriate case may combine the permit
or determination issued under this by-law with the order of conditions
or determination of applicability issued under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
No work proposed in any permit application shall be undertaken
until the permit 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 permit has been
recorded.
Any person filing a permit application or request for determination
of applicability shall give notice thereof, by certified mail or hand
delivery to the Planning Board, the Board of Health and Select Board.
If a permit is required from the Board of Appeals, the applicant shall
also furnish a copy to that Board.
The Commission shall, to the extent practicable, coordinate
with any other board reviewing the project, and having similar authority
to recover its consulting fees from the applicant, in an effort to
avoid duplication of consulting services.
As part of a permit issued under this by-law, the Commission
may require, in addition to any security required by any other town
or state board, commission, agency or officer, that the performance
and observance of the conditions imposed hereunder be secured wholly
or in part by one or more of the methods described below:
(a)
By a proper bond or deposit of money or negotiable securities, sufficient
in the opinion of the Conservation Commission to secure performance
of the conditions and observance of the safeguards of such permit,
to be released upon the issuance of a certificate of compliance for
work performed pursuant to the permit; or
(b)
By a conservation restriction, easement or other covenant enforceable
in a court of law, executed and duly recorded by the owner of record,
running with the land to the benefit of the Commission, whereby the
permit conditions shall be performed and observed before any lot may
be conveyed other than by mortgage deed.
The Commission shall promulgate after due notice and public
hearing rules and regulations to effectuate the purposes of this by-law,
including rules requiring the maintenance of an undisturbed vegetated
buffer of not more than 25 feet from the edge of any bank, freshwater
wetland, marsh, wet meadow, bog, swamp, reservoir, lake, pond, creek,
river or stream, or any land under said waters, except in the Fish
Brook/Haggetts Pond Watershed Protection Overlay District, and/or
a vernal pool, where such rules may require an undisturbed vegetated
buffer of not more than 50 feet from those resource areas. 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
invalidate or suspend the effect of this by-law.
No person shall remove, fill, dredge, build upon, degrade or
otherwise alter resource areas protected by this by-law, or cause,
suffer or allow such activity to continue or allow such fill or other
alteration to be left in place, without the required authorization
pursuant to this by-law.
The Commission, its agents, officers and employees shall have
authority, with prior approval from the property owner or pursuant
to court process, to enter upon privately owned land for the purpose
of performing their duties under this by-law and may make or cause
to be made such examinations, surveys or sampling as the Commission
deems necessary.
The Commission shall have authority to enforce this by-law,
its regulations and permits issued thereunder by violation notices,
administrative orders and civil and criminal court actions. Any person
who violates provisions of this by-law may be ordered to restore the
property to its original condition and take other action deemed necessary
to remedy such violations.
Upon request of the Commission, the Town Manager and Town Counsel,
with the approval of the Select Board, may take legal action for enforcement
under civil law. Upon request of the Commission, the Chief of Police
may take legal action for enforcement under criminal law.
Municipal boards and officers, including any police officer
or other officer having police powers, shall have authority to assist
the Commission in enforcement.
As an alternative to criminal prosecution in a specific case,
the Commission may issue citations under the noncriminal disposition
procedures set forth in Massachusetts General Laws Chapter 40, Section
21D. Any person who violates any provision of this by-law or regulations
issued thereunder shall be punished by a fine of $200. 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 by-law, regulations, permit or
administrative order violated shall constitute a separate offense. [Amended 4-23-2002 ATM, Art. 29]
This by-law 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.
The invalidity of any section or provision of this by-law shall
not invalidate any other section or provision thereto, nor shall it
invalidate any order of conditions which has previously become final.
This by-law shall take effect as provided in MGL, c. 40, § 32,
and shall apply to any activity described herein which occurs after
its effective date, except that this by-law shall not apply to any
activity described in a notice of intent or request for determination
of applicability filed with the Conservation Commission under the
Wetlands Protection Act on or before the date of its adoption by Town
Meeting vote, provided that such activity is subsequently approved
in a final order of conditions or determination of applicability issued
under the said Act.
The following definitions shall apply in the interpretation
and implementation of this by-law:
The owner of any land within 100 feet of the property line
of the land where the activity is proposed, as determined by the most
recent Assessors' records, including any land located directly
across a street, way, river, stream or pond.
To change the conditions of any area subject to protection
by this by-law and shall include but not be limited to one or more
of the following actions upon areas described in this by-law:
The removal, excavation or dredging of soil, sand, gravel or
aggregate material of any kind.
The changing of preexisting drainage characteristics, flushing
characteristics, salinity distribution, sedimentation patterns, flow
patterns and flood storage retention areas.
The drainage, disturbance or lowering of the water level or
water table.
The dumping, discharging or filling with any material which
could degrade the water quality.
The driving of piling, erection of buildings or structures of
any kind.
The placing of any object or obstruction whether or not it interferes
with the flow of water.
The destruction of plant life, including the cutting of trees.
The changing of water temperature, biochemical oxygen demand
and other natural characteristics of the receiving water.
Any activities, changes or work which pollutes any body of water
or groundwater.
The application of pesticides or herbicides.
An effect that is significant when considered in combination
with other activities that have occurred, are going on simultaneously
or that are likely to occur, whether such other activities have occurred
or are contemplated as a separate phase of the same project, such
as the build-out of a subdivision or an industrial park, or unrelated
but reasonably foreseeable actions, including other development projects
that are currently under construction, under review or that may be
expected to come forward.
Includes any area bordering a water body or, if not bordering
a water body, consisting of at least 5,000 square feet, where surface
or groundwater, or ice, at or near the surface of the ground support
the presence of hydric soils and/or a plant community dominated (at
least 50% by wetland species. To avoid inconsistencies in delineation
of such resource areas under this by-law and the Wetlands Protection
Act, the method for determining the edge of any such wetland shall
be the same as that approved by the Massachusetts Department of Environmental
Protection for delineating the edge of bordering vegetated wetlands
under the said Act, as such rules or regulations may be amended from
time to time.
All subsurface water contained in natural geologic formations
or artificial fill, including soil water in the zone of aeration.
Activities in or within 100 feet of resource areas shall not significantly
alter the existing quality or elevation of naturally occurring groundwater.
Any individual, group of individuals, association, partnership,
corporation, business organization, trust, estate the Commonwealth
of Massachusetts when subject to town by-laws, any public or quasi-public
corporation or body when subject to town by-laws or any other legal
entity, including the Town of Andover or its legal representative,
agents or assigns.
Any source or volume of surface or groundwater demonstrated
to be in private use or shown to have potential for private use, including
ground or surface water in the zone of contribution around a private
well. Activities in or within 100 feet of a resource area shall not
have a significant effect on the quality of a private water supply.
Any source or volume of surface or groundwater demonstrated
to be in public use or approved for water supply pursuant to MGL c.
111, § 160, by the Department of Environmental Protection
Division of Water Supply, or demonstrated to have a potential for
public use, in addition to all surface and groundwater in zones of
contribution. Activities subject to the Commission's jurisdiction
under this by-law shall not have a significant effect on the quality
of a public water supply.
An area that provides breeding and nesting habitat, shelter,
food and water to animal species. Includes areas identified as containing
rare, threatened or endangered species as listed by the Massachusetts
Natural Heritage Program. Structures and activities in any resource
area shall not have a significant adverse effect on wildlife habitat.
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Except as otherwise provided in this by-law or in regulations
of the Commission, the definitions of terms in this by-law shall be
as set forth in the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00, thereunder.
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