[HISTORY: Adopted by the City Council of the City of Beverly 12-6-2001 by Ord. No.
234 (Art. XXXVII of the Code of Ordinances). Amendments
noted where applicable.]
The purpose of this chapter is to provide more protection to
the wetland resource areas of the City of Beverly than is already
granted by the Wetland Protection Act, MGL c. 131, § 40,
and the regulations in 310 CMR 10.00. It is intended to be more protective
than the existing regulations and therefore more beneficial to the
specific needs and values of this community. It provides the Conservation
Commission (Commission) more authority to regulate activities that
might have a harmful effect on the following important interests:
public or private water supply, groundwater, flood control, erosion
and sedimentation control, storm damage prevention, water pollution
control, fisheries, shellfish, wildlife and rare species habitat,
agriculture, aquaculture and recreation.
A.
Except as permitted in writing by the Conservation Commission, or
as provided in this chapter, no person shall engage in the following
activities ("activities"): removal, filling, dredging, discharging
into, building upon, or otherwise altering or degrading the City's
wetland resource areas, consisting of:
(1)
Any isolated vegetated wetland.
(2)
Any vernal pool.
(3)
Any vegetated wetland bordering on any creek, river, stream, pond
or lake.
(4)
Any bank, beach, freshwater or saltwater marsh, wet meadow, bog or
swamp.
(5)
Any land under any creek, river stream, pond or lake.
(7)
Any land subject to storm flowage or flooding by groundwater or surface
water.
(8)
The two-hundred-foot riverfront area.
(9)
Ocean.
C.
The Commission shall not grant such permission without receiving
written notice of the intention to conduct such activity and without
issuing written permission to do so, all in compliance with the provisions
of this chapter.
A.
This chapter shall not apply to the following activities:
(1)
Emergency projects as defined in the Commission's regulations; or
(2)
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 distribution, telephone, or other telecommunication services
to the public; or
(3)
Normal maintenance of land in active agricultural use, as defined
in the Commission's regulations; or
(4)
Maintenance and repair of existing public ways.
B.
All appropriate measures should be undertaken to prevent damage to
any resource areas that would have a detrimental effect on the interests
of this chapter and the Act.
A.
All applications to perform activities in the City's resource areas
shall be either in the form of a request for determination of applicability
(RFD) or a notice of intent, or both. Such applications shall contain
data and plans as specified in the Commission's regulations, and shall
be submitted in complete written form to the Commission as required
by this chapter, the regulations, and the application checklist (Appendix
A of the regulations). The date which serves to commence the Commission's
deliberation period is the date of receipt of the application at its
offices, during regular office hours. The City's Conservation Administrator
shall be authorized to make determinations of completeness for applications
submitted to the Commission and shall reject, within two business
days, those applications that do not meet the minimum submittal requirements
of this chapter, the regulations, and the application checklist. In
order to provide sufficient review time, the Commission may continue
a public hearing or public meeting if new information is submitted
by the applicant, or the applicant's agent, fewer than seven business
days before the scheduled public hearing or public meeting.
B.
The applicable forms may be obtained from the Commission and must
be signed by the applicant or the applicant's agent where required.
The Commission may require further information by regulations, guidelines,
or as otherwise deemed necessary by the Commission. No such application
shall be accepted as complete before all permits, variances, and approvals
required by the ordinances of the City with respect to the proposed
activity, at the time of such notice, have been applied for or obtained.
Such application shall also include any information submitted in connection
with such permits, variances, and approvals which is necessary to
describe the effect of the proposed activity on the resource area(s).
C.
Upon receipt of a permit application or RFD for complex projects
such as subdivisions, the Commission is authorized to require the
applicant to pay, with a reasonable cost determined by the Commission
(not to exceed 0.5% or $5,000), for specific expert engineering and
other consultant services deemed necessary by the Commission to finalize
the decision on the application. Any unused portion will be returned
to applicant.
A.
Combination with state law hearing. The Commission, in its discretion,
may hear any oral presentation under this chapter at the same public
hearing required to be held under the provisions of MGL c. 131, § 40.
Notice of the time and place of such hearing(s) shall be given as
required below.
B.
Notice. Notice of the time and place of the hearing shall be given
at the applicant's expense, not less than seven calendar days prior
to the public hearing, by publication in a newspaper of general circulation
in Beverly and by mailing a copy of such notice to all landowners
within 300 feet of the land on which the work is proposed. All publications
and notices shall contain the name of the applicant, a description
of the area where the activity is proposed by street address, if any,
or other adequate identification of the location of the area or premises
which is the subject matter of the hearing, and the nature of the
action or relief requested, if any. Public notice requirements for
continued public hearings under this chapter shall be the same as
the notification requirements set forth in 310 CMR 10.05(5)(b)3.
C.
Proof.
(1)
The applicant shall have the burden of providing by a preponderance
of credible evidence that the activity proposed in the notice of intent
will not cause adverse impacts to any of the interests and values
intended to be protected by this chapter. Failure to provide the Commission
adequate evidence for it to determine that the proposed activity will
not cause adverse impacts shall be sufficient cause for the Commission
to deny permission or to grant such permission with such conditions
as it deems reasonable, necessary, or desirable to carry out the purposes
of this chapter; or to postpone or continue the hearing to another
date certain to enable the applicant and others to present additional
evidence, upon such terms and conditions as deemed by the Commission
to be reasonable.
(2)
Due consideration shall be given to the possible effects of the proposal
on all interests and values to be protected under this chapter and
to any demonstrated hardship on the petitioner by reason of a denial,
as brought forth at the public hearing.
D.
Filing fees are nonrefundable. Review fees not totally expended by
the Commission shall be refunded.
E.
F.
Investigations. The Commission, its agents, officers, and employees
may enter upon privately owned land for the purpose of carrying out
its duties under this chapter and may make or cause to be made such
examination or survey as deemed necessary.
A.
All orders and decisions.
(1)
If the Commission determines that the proposed activity does not
require the imposition of conditions to preserve and protect the interests
of this chapter, the applicant shall be so notified in writing.
(2)
If, after the hearing, the Commission determines that the proposed
activity is significant to one or more interests and values of this
chapter, the Commission may vote to issue written orders of conditions
within 21 days of the close of the public hearing. The Commission
may impose such conditions, safeguards, and limitations on time and
use upon such activity as it deems necessary to protect those interests
and values.
(3)
The Commission may prohibit such activity altogether, in the event
that it finds that the interests and values of this chapter cannot
be preserved and protected by the imposition of such conditions, safeguards,
or limitations.
B.
Security to assure performance. The Commission may, as part of its
order of conditions, require, in addition to any security required
by any other City or state board, commission, agency, or officer,
that the performance and observance of the conditions, safeguards,
and limitations imposed under this chapter on the applicant and owner
be secured by one, or both, of the following methods:
(1)
Deposit: by the deposit of money, sufficient to complete the work
as proposed, to secure performance of the conditions and observance
of the safeguards of such order of conditions. Such security, if filed
or deposited, shall be approved as to form and manner of execution
by City Counsel or the City Treasurer.
(2)
Land restriction(s): by a conservation restriction, easement, or
other covenant running with the land, executed and properly recorded
(or registered, in the case of registered land).
C.
Duration of orders. All orders of conditions shall expire three years
after the date of issuance. An order of conditions may be extended
for one year upon the request of the applicant. The request for an
extension of an order of conditions shall be made to the Commission
at least 30 days prior to the expiration of the order of conditions.
The Commission may grant only two extensions for an individual order
of conditions.
D.
No activity governed by an order of conditions shall be performed
unless and until all permits, approvals, and variances required by
the ordinances of the City shall have been obtained, such order of
conditions or notification shall have been recorded or registered
at the Essex South District Registry of Deeds, and all applicable
appeal periods have expired. The Commission shall have the right to
record or register its order of conditions with said Registry of Deeds.
No work shall proceed until proof is provided that the order of conditions
has been properly recorded at the Registry of Deeds. In the event
that an order of conditions issued pursuant to this chapter is identical
to a final order of conditions issued pursuant to the provisions of
MGL c. 131, § 40, only one such order need be recorded
or registered.
E.
Modifications, amendments and revocations. The Commission shall have
the authority (on its own motion or upon the petition of the applicant,
or any person interested) to modify, amend, or revoke an order of
conditions. In revoking an order of conditions, the Commission shall
officially notify the interested parties through certified mail and
hold a public hearing within 21 days of the notification date. In
the case of an amendment to an order of conditions, the Commission
shall have the discretion to decide if a public hearing is warranted.
This decision shall be based on the potential impact of the proposed
work and its effect on the ability of the identified wetland resource
areas to provide those interests as defined under the Act and this
chapter. No public hearing is required for a modification to an order
of conditions. Written notification to the applicant by certified
mail is required in all cases where the Commission initiates a modification,
amendment, or revocation of an order of conditions.
The Commission shall, upon receiving a written request and weather
permitting, inspect the resource areas where the activity governed
by an order of conditions was carried out and issue a certificate
of compliance (or partial certificate of compliance) to the owner
of the property, applicant, or applicant's representative, in a form
suitable for recording or registering, if it shall determine that
all of the activity(ies), or portions thereof, limited thereby have
been completed in accord with said order.
A.
The Commission shall be empowered to establish rules and regulations
to govern its affairs, including but not limited to fees, definitions,
use of consultants, security to assure performance, performance standards
for work in wetland resource areas, and such other information the
Commission deems necessary to discharge its responsibilities. After
due notice and public hearing, the Commission may promulgate such
rules and regulations to effectuate the purposes of this chapter,
by a majority vote of the duly appointed members.
B.
Failure by the Commission to promulgate such rules and regulations,
or a legal declaration of their validity by a court of law, shall
not act to suspend or invalidate the effect of this chapter.
A.
In accordance with the provisions of MGL c. 40, §§ 21D
and 31, as well as every other authority and power that may have been
or may hereafter be conferred upon it, the City may enforce the provisions
of this chapter, restrain violations thereof, and seek injunctions
and judgments to secure compliance with its orders of conditions.
Without limiting the generality of the foregoing:
(1)
Any person who violates any provision of this chapter or of any condition
of a permit issued pursuant to it may be punished by a fine pursuant
to MGL c. 40, § 21. Each day or portion thereof during which
a violation continues shall constitute a separate offense; if more
than one, each condition violated shall constitute a separate offense.
This chapter may be enforced pursuant to MGL c. 40, § 21D,
by a City police officer, other persons having police powers, Conservation
Commissioners, or the Conservation Administrator.
(2)
In accordance with MGL c. 40, § 21D, violators shall, at
the discretion of the enforcement authorities, be charged a penalty.
The penalties for violations of this chapter or regulations promulgated
hereunder may be assessed as follows:
|
Violation
|
Penalty
(per violation, per day)
| |
|---|---|---|
|
Alteration of any wetland resource area identified in § 287-2, Jurisdiction, of this chapter
|
$100
| |
|
Violation of any order of conditions
|
$100
| |
|
Depositing any refuse, debris, yard waste in a wetland or water
body
|
$100
| |
|
Depositing any construction material in a wetland or water body
|
$100
| |
|
Alteration of any stream or water body
|
$100
| |
|
Violation of any section of this chapter that occurs in the
Watershed Overlay District
|
$100
|
B.
In the event of a violation of this chapter or of any order issued
thereunder, the Commission or its agents may issue a stop-work order
to the owner, the applicant, or the applicant's agent by certified
mail, return receipt requested, or by posting the same in a conspicuous
location on said site. Any person who shall violate the provisions
of a stop-work order shall be deemed in violation of this chapter;
but the failure of the Commission to issue a stop-work order for any
reason shall not prevent the City from pursuing any other legal remedy
at law or in equity to restrain violations of this chapter or promulgated
regulations and to secure compliance with its orders.
C.
The City shall be the beneficiary of all fines imposed on account
of the violation of this chapter or promulgated regulations in order
to defray the expense of enforcing the same.
D.
Upon request of the Commission, the City Council and City Solicitor
shall take such legal action as may be necessary to enforce this chapter
or promulgated regulations and permits issued pursuant to it.
E.
Upon recommendation of the Commission, the City Council may employ
Special Counsel to assist the Commission in carrying out the legal
aspects, duties, and requirements of this chapter and promulgated
regulations.
After the recording of a notice of violation or order, any person
who purchases, inherits, or otherwise acquires real estate upon which
work has been done in violation of the provisions of this chapter
or in violation of any order issued under this chapter shall forthwith
comply with any such order or restore such land to its condition prior
to any such violation; provided, however, that no action, civil or
criminal, shall be brought against such person unless such action
is commenced within three years following the recording of the deed
or the date of death by which such real estate was acquired by such
person.
