[HISTORY: Adopted by the Town Meeting of the Town of Mansfield 5-19-2015 ATM by Art. 21. Amendments noted where applicable.]
The purpose of this bylaw is to protect the wetlands, related water resources, and adjacent land areas in the Town of Mansfield by controlling activities deemed by the Conservation Commission likely to have a significant impact, or cumulative effect, upon wetland values, including, but not limited to, the following: protection of public or private water supplies and groundwater, flood control, erosion and sedimentation control, storm damage prevention, water pollution control, protection of fisheries and wildlife habitat, and preservation of open space (collectively, and hereinafter, "the wetland values" protected by this bylaw). This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Statutes, and is independent of the Wetlands Protection Act, MGL c. 131, § 40, and any regulations applicable to such Act.
Except as permitted by the Conservation Commission, or as provided for in this bylaw, no person shall remove, fill, dredge, build upon, or alter in any other way, the following wetland resource areas: any freshwater wetland, marsh, swamp, bog, or wet meadow (hereinafter "bordering vegetated wetland" or "BVW"); any lake or pond, river or stream (hereinafter "water body" or "waterway"); any bank, beach, or other type of edge adjacent to, or land under, said water bodies or waterways, any flood zone, as shown on the federal flood maps, or determined by other engineering methodology, associated with said water bodies or waterways; any vernal pools certified by the commonwealth; any isolated wetland area larger than 5,000 square feet and/or any area defined as "isolated land subject to flooding" (ISLF) under the Wetland Protection Act; wetland which is identified by the commonwealth as the habitat site of a state-listed species (collectively, and hereinafter, the "resource areas"); or any land within 100 feet from the edge of any of the above-referenced resource areas (hereinafter the "buffer zone").
This bylaw shall not apply to the following activities:
Emergency projects necessary for the protection of the health or safety of the residents of the Town of Mansfield.
Maintenance, repair, or replacement, without substantial enlargement, of existing structures and facilities used to provide public (electric, gas, water, sewage, rail transport, and telecommunication) services, and existing public ways and associated drainage facilities, provided that the Commission is notified prior to the initiation of said work.
Normal maintenance or improvement of land in existing agricultural use.
Normal maintenance, repair, replacement, or improvement to any existing private residential property or components, including, but not limited to: fences, hedges, gardens, lawns, retaining or stone walls, patios, lamp posts, flag poles, or mailboxes. Project proponents must thoroughly check with the Commission or its agent for applicability.
To ensure that the resource areas are protected, and the wetland values are preserved for all of the residents of the Town, the Commission is empowered to deny permission for any alteration of any resource area if, in the judgment of the Commission, such denial is necessary for the protection of the identified wetland values. Due consideration shall be given to possible effects of the proposed work on all of the wetland values listed in this bylaw.
To provide minimum protection for the wetland values and resource areas, no activity, unless permitted in Subsection E, shall be allowed within 25 feet of any resource area (hereinafter "the no-disturb zone"). Further, the Commission reserves the right to prohibit, or significantly condition, through the issuance of an order of conditions, work between 25 feet and 50 feet away from any resource area. In determining whether to prohibit or condition work within this area, the Commission will take into account factors including, but not limited to, the slope of the adjacent areas, the existing and proposed drainage patterns, the type of the proposed adjacent land use and its potential for creating long-term impacts on the resource areas and the wetland values.
The following activities may be permitted within 25 feet of a resource area: the creation of wetland replacement or mitigation areas, installment of drainage outfalls, grading work associated with additions to existing single-family homes, work on existing commercial or industrial facilities that does not increase the impervious area and has a positive impact on the resource area and its function and value, the maintenance and construction of trails, resource improvement projects, such as the cleaning of streams or the creation of park areas. These exceptions will be reviewed on a case-by-case basis.
Vernal pools or wetlands which are habitat sites of state-listed species.
Notwithstanding the provision of Subsections D, E and G, no activity, associated with the construction of new subdivisions (including roadways, drainage or utility systems, or individual homes) or commercial/industrial projects, shall be performed within 100 feet of any certified vernal pool, or any wetland which is identified by the commonwealth as the habitat site of a state-listed species. If an addition to an existing residential structure is proposed within 100 feet of a certified vernal pool, the Commission will review this activity on a case-by-case basis, and issue conditions necessary to provide for maximum protection to the pool in question, or deny the project if no conditions are satisfactory to protect the pool.
If the one-hundred-foot radius around such a vernal pool or wetland area intersects an existing public roadway, then work may be allowed, through an order of conditions, by the Commission to occur within the one-hundred-foot radius as long as the proposed work area is on the opposite side of the street from the pool or wetland area. If the State's Natural Heritage Program determines through a site visit that the vernal pool or wetland area is not a significant habitat area, or if the applicant demonstrates through a wildlife study performed by a qualified consultant approved by the Commission that the vernal pool or wetland area is not a significant habitat area, then the Commission may allow, through an order of conditions, activity to occur within 100 feet of said vernal pool or wetland area.
The Commission may permit a project which proposes to alter a resource area as long as the projects meets the definition of a "limited project" as outlined in the DEP wetland regulations [see 310 CMR 10.53(3) of the October 6, 1997 edition, or corresponding section of any future edition]. These proposed projects will also be reviewed on a case-by-case basis.
The Commission may, at its own discretion, require, as part of an order of conditions or as one of the conditions attached to a determination of applicability, the applicant to place a conservation restriction/easement upon the resource area(s) and certain areas with the one-hundred-foot buffer zone.
It is presumed that work which is proposed to occur within any resource area or within the buffer zone of any resource area has the potential to create significant adverse impacts on the resource area. Therefore, any activity proposed to occur within the resource area or the buffer zone area will require the filing of a notice of intent application. The Commission may condition the proposed activity to protect the resource area(s); or if no condition exists to protect the area, then the Commission may deny the project. For activity proposed to occur between 50 feet and 100 feet away from any resource area (except a certified vernal pool), the applicant may file a request for determination of applicability (RDA). If an RDA is filed, the Commission may permit, with any necessary conditions, the work based on the plans submitted or can require the filing of a notice of intent.
The Commission may, following a public hearing, adopt regulations for the administration and enforcement of this bylaw. Until such time that any regulations are in place, the hearing procedures, time frames, definitions, application requirements, and any other administrative activities contained within the Massachusetts Wetlands Protection Act and accompanying DEP regulations shall apply. All hearings held under this bylaw shall be concurrent with hearings required by the Wetlands Protection Act. Failure of the Commission to adopt regulations shall not nullify or invalidate any section or provision of this bylaw. If any section of the regulations is ruled invalid by any court of law, that action shall not invalidate any provisions of this bylaw.
To clarify any section(s) of this bylaw, the Commission may issue policy advisories.
For any property for which an application has been made, the Commission, its agents or employees may enter onto said property for the purpose of carrying out its duties under this bylaw.
Fees may be set and amended from time to time by a vote of a majority of the Conservation Commission and approved by the Select Board. The approved filing fee schedule shall be filed with the Town Clerk.
These fees are in addition to the fees established by the Massachusetts DEP and required under the Wetlands Protection Act, MGL c. 131, § 40, and any applicable regulations.
Costs and expenses; bond.
The Commission is authorized to require any applicant to pay the costs and expenses of any expert or other consultant deemed necessary by the Commission to review and comment on the application and all relevant materials. The Commission shall choose the consultant(s) and outline the scope of work. The vote to require the use of a consultant shall be made by a supermajority of the Commission (five votes out of seven). Only projects that propose to directly alter any of the outlined resource areas shall be subject to this provision.
For any project that involves the alteration of a resource area, the Commission may require the posting of a bond, separate from the bonding requirements of any other Town board or department, to insure the successful completion of the required replication or mitigation procedures.
The person filing an application with the Commission shall have the burden of proving by a preponderance of credible evidence that the work proposed will not have a significant impact, or adverse cumulative effects, upon the resource area(s) in question and the associated wetland values. 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 necessary to provide protection for the resource area.
The invalidity of any section or provision of this bylaw shall not invalidate any other section or provision thereof, nor shall it invalidate any permit or determination which previously has been issued.
[Added 5-19-2015 ATM by Art. 34]
The Commission, at its discretion, may grant variances from strict compliance with this Wetlands Bylaw. Such variances shall be granted only in rare cases and only in accordance with the provisions of this § 220-8.
A variance may be granted only for the following reasons and upon the following conditions:
Lack of alternatives; mitigating measures proposed; unconstitutional takings.
The Commission finds that there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the performance standards in these regulations.
Mitigating measures are proposed that will allow the Commission to set conditions on the project so that it contributes to the protection of the resource values identified in this Wetlands Bylaw.
The variance is necessary to avoid a decision that so restricts the use of the property that it constitutes an unconstitutional taking without compensation.
The variance is necessary to accommodate an overriding community, regional, state, or national public interest. In the case of owner-occupied single- or two-family residences, mitigation which improves the resource area quality may be considered to accommodate the public interest.
Any project proponent seeking a variance must demonstrate that the project results in no adverse impacts to wetland values defined under the Mansfield Wetlands Protection Bylaw and that no feasible alternatives exist. To demonstrate there are no feasible alternatives and that the proposed project will result in no adverse impact to wetland resource areas, an alternatives analysis must be submitted as part of the variance request. The purpose of the alternatives analysis is to design and propose activities so that impacts to resource areas are minimized or avoided. Therefore, the alternatives analysis shall focus on the assessment of impacts from the alternatives being considered.
Guidelines. The scope of alternatives to be considered will be commensurate with the type and size of the proposed project.
The alternatives analysis must include the following:
A brief, clear description of the project, including the type, size and proposed use of project(s) and project objective;
A summary of alternatives to the proposed project;
A summary of potential environmental benefits of the project;
A summary of potential environmental impacts of the project;
A list of any mitigation measures for the project;
A timetable, approximate cost and the methods and timing of construction of the project.
Alternatives to the project. Alternatives shall be considered in terms of the proposed use and objectives of the project. The analysis of alternatives shall highlight the potential environmental impacts of each alternative. This includes both short-term and long-term impacts as well as cumulative impacts.
Examples. The following are examples of the scope of alternatives for various projects:
Single-family house project: The scope of alternatives shall be limited to the lot on which the work is proposed.
Residential subdivisions: The scope of alternatives shall be limited to the original parcel, the subdivided parcels, adjacent parcels and any other adjacent land that can be reasonably obtained.
Commercial development: The scope of alternatives shall include lots that can accommodate the project purpose, be appropriately zoned, are available for sale and be within the Town at the time of application. If no such lot exists, the Commission may request an alternative analysis of lots located within the market area that meet all other specifications.