The purpose of this bylaw is to protect the wetlands, related
water resources, and adjoining land areas in the Town of Lunenburg
by prior review and control of activities deemed by the Conservation
Commission likely to have a significant or cumulative effect upon
wetland 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, shellfish, wildlife habitat, rare species habitat including
rare plant species, agriculture, aquaculture and recreation values
deemed important to the community (collectively, the "wetland values
protected by this bylaw"). This bylaw is intended to utilize the Home
Rule authority of this municipality to protect additional standards
and procedures stricter than those of the Wetlands Protection Act,
MGL c. 131, § 40, and regulations thereunder, 310 CMR 10.00.
[Amended 5-7-2016 ATM
by Art. 43]
Except as permitted by the Conservation Commission or as provided
in this bylaw, no person shall commence to remove, fill, dredge, build
upon, degrade, discharge into, or otherwise alter the following resource
areas: any freshwater wetlands; marshes; wet meadows; bogs; swamps;
vernal pools; banks; reservoirs; lakes; ponds of any size; creeks;
beaches; lands under water bodies; lands subject to flooding or inundation
by groundwater or surface water; lands subject to flooding; lands
within 100 feet of any of the aforesaid resource areas; perennial
rivers and streams and lands within 200 feet of such rivers and streams
(collectively the "resource areas protected by this bylaw"). Said
resource areas shall be protected whether or not they border surface
waters. Lands within 100 feet of the aforesaid resource areas and
within 200 feet of rivers or perennial streams located within the
corporate boundary of Lunenburg shall be protected regardless of the
location of the wetland with respect to the municipal corporate boundary.
[Amended 5-7-2016 ATM
by Art. 43]
A. Any person filing an application or RDA with the Commission at the
same time shall give written notice thereof, by certified mail (return
receipt requested), certificate of mail or hand delivery, to all abutters
according to the most recent applicable tax list of the Assessors,
including owners of land directly opposite on any public or private
street or way, including any in another municipality or across a body
of water. 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.
B. The Commission shall conduct a public hearing on any application
or RDA, with written notice given at the expense of the applicant,
five business days prior to the hearing, in a newspaper of general
circulation in the municipality.
C. The Commission shall commence the public hearing within 21 days from
receipt of a completed application or request for determination unless
an extension is authorized in writing by the applicant.
D. The Commission shall issue its permit or determination in writing
within 21 days of the close of the public hearing thereon unless an
extension is authorized in writing by the applicant.
E. The Commission, in an appropriate case, may combine its hearing under
this bylaw with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
F. The Commission shall have authority to continue the hearing, with the applicant's consent written or granted verbally on the record during the course of the public hearing or meeting, to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information from the applicant or others deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in §
239-6.
[Amended 5-7-2016 ATM
by Art. 43; 5-7-2022 ATM by Art. 24]
Any person filing a permit application or RDA with the Commission
shall provide written notice thereof at the same time, by certified
mail or hand delivery, to the Select Board, Planning Board, Zoning
Board of Appeals, Board of Health and Building Commissioner. The Commission
shall not take final action until such boards and officials have had
14 days from receipt of notice to file written comments and recommendations
with the Commission, which the Commission shall take into account
but which shall not be binding on the Commission. The applicant shall
have the right to receive any such comments and recommendations, and
to respond to them at a hearing of the Commission, prior to final
action.
[Amended 5-7-2016 ATM
by Art. 43]
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
bylaw. 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 bylaw. At a minimum,
these regulations shall define key terms in this bylaw not inconsistent
with the bylaw and procedures governing the amount and filing of fees.
The Conservation Commission will establish a draft of proposed changes
during regular, properly posted open meetings. Once there is consensus
on the proposed changes, a formal hearing will be scheduled and will
take place over two regularly scheduled meetings. Both hearings will
be televised. A notice of the hearings will be put in a local newspaper
at least five business days prior to the hearing dates. At the discretion
of the Conservation Commission, the hearing may be continued to the
next consecutive open, regularly scheduled meeting. Once the hearing
is closed, the final changes will be drafted and voted on. The proposed
and approved changes will be posted on the Commission's Town website.
The following definitions shall apply in the interpretation
and implementation of this bylaw:
ALTER
Includes, without limitation, the following:
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 or repair of buildings, or structures
of any kind.
G.
Placing of obstructions or objects in water.
H.
Destruction of plant life, including cutting of trees.
I.
Changing water temperature, biochemical oxygen demand, or other
physical, biological, or chemical characteristics of water.
J.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
K.
Application of pesticides or herbicides.
L.
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
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 slope or
the mean annual flood level, whichever is higher.
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 Town bylaws, administrative agency, public or quasi-public corporation
or body, this municipality, and any other legal entity, its legal
representatives, agents or assigns.
RARE SPECIES
Includes, without limitation, all vertebrate and invertebrate
animal and plant species listed as endangered, threatened, or of special
concern by the Massachusetts Division of Fisheries and Wildlife, regardless
of whether the site in which they occur has been previously identified
by the Division.
VERNAL POOL
Includes a confined basin depression which, at least in most
years, holds water for a minimum of two continuous months during the
spring and/or summer, and which is free of adult fish populations,
as well as the area within 100 feet of the mean annual boundary of
such a depression, regardless of whether the site has been certified
by the Massachusetts Division of Fisheries and Wildlife.
As part of a permit issued under this bylaw, 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 thereunder (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.
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.
The applicant for a permit 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 wetland values protected by this bylaw. 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.
A decision of the Commission shall be reviewable in the Superior Court in accordance with MGL c. 249, §
4.
This bylaw 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 thereunder,
310 CMR 10.00.
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.