[Amended 1-10-2018 STM
by Art. 7]
A. Request for Determination of Applicability (RFD). A RFD shall be
submitted by certified mail or hand delivery to the Commission. The
Commission shall conduct a public meeting on the RFD after written
legal notice, given at the expense of the applicant, has been published
at least five business days (not including Saturdays or Sundays) prior
to the meeting, in a newspaper of general circulation in South Hadley.
The Commission shall commence the public meeting on any RFD within
21 days from receipt of the properly completed application, unless
an extension is authorized in writing by the applicant.
B. Notice of Intent (NOI), Abbreviated Notice of Intent, and Abbreviated
Notice of Resource Area Delineation (ANRAD). A permit application
shall be submitted by certified mail or hand delivery to the Commission.
Any person submitting a permit application to perform work in an area
regulated by this bylaw or certify resource boundaries shall at the
same time give written notice thereof, by mailing by certified mail,
return receipt requested, or by hand delivery, to all abutters according
to the most recent records of the Board of Assessors, including those
across a traveled way or across a body of water (excluding the Connecticut
River) from the parcel which is the subject of this application. The
notice shall include a copy of the application or request, with plans,
or shall state where copies may be examined. If the person filing
the permit application is not the owner of the area subject to the
request or application, the applicant shall also give written notice
of the permit application and hearing to the owner of the parcel.
The person providing such notices to abutters or other property owners
shall file an affidavit affirming that notification was done, with
a copy of the notice, with the Commission.
C. The Commission shall conduct a public hearing on any permit application
after written legal notice, given at the expense of the applicant,
has been published at least five working days (not including Saturdays
or Sundays) prior to the hearing, in a newspaper of general circulation
in South Hadley. The Commission shall commence the public hearing
on any permit application within 21 days from receipt of the properly
completed application, unless an extension is authorized in writing
by the applicant.
D. Whenever possible, the Commission shall combine its meeting or hearing
under this bylaw with the meeting or hearing conducted under the Wetlands
Protection Act, MGL c. 131, § 40, and regulations, 310 CMR
10.00, and may combine the public notices thereof.
E. The Commission shall have the authority to continue the meeting or
hearing to a certain date announced at the meeting or hearing, for
reasons stated at the hearing, which may include the receipt of additional
information from the applicant or others deemed reasonable and necessary
by the Commission in its discretion, or comments and recommendations
of the Department of Public Works, Planning Board, Board of Health,
and Building Inspector. In the event that the Commission determines
that snow cover, ice, or other weather conditions prevent the verification
of the wetland boundary line, the Commission shall continue the meeting
or hearing to a date certain when the determination can be made.
[Amended 1-10-2018 STM
by Art. 7]
The Conservation Commission shall include in their regulations
the number and form of applications to be required by all applicants.
Further, the Commission shall also provide in its regulations, that
all applications are distributed to and coordinated with departments,
boards, and officials which the Commission determines may have an
interest in or be impacted by the proposed activity. The Commission
shall consider any comments or recommendations such departments, boards,
and officials may submit to the Commission. Any such comments or recommendations
are deemed a public record and the applicant shall have the right
to receive and respond to any such comments or recommendations.
The applicant for a permit shall have the burden of proving,
by a preponderance of credible evidence, that the work proposed in
the permit application will not have unacceptable significant or cumulative
effects upon the resource area 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.
[Amended 11-30-2022 STM by Art. 2]
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
bylaw. Said regulations may allow for the collection and setting of
permit fees, mitigation payments, or fines all in accordance with
the purpose and intent 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. Public notice shall be given at least three
weeks prior to such hearing by publication in a newspaper of general
circulation in South Hadley and by posting with the Town Clerk. At
a minimum, these regulations shall define key terms in this bylaw
not inconsistent with this bylaw.
Except as otherwise provided in this bylaw or regulations of
the Commission, the definitions of terms in this bylaw shall be as
set forth in the Wetlands Protection Act, which terms, as used herein,
shall include the provisions of MGL c. 131, § 40, and in
the regulations hereunder, 310 CMR 10.00 et seq. The following terms
shall apply in the interpretation and implementation of this bylaw:
ALTER
The following actions, without limitation, when undertaken
in resource areas subject to this bylaw:
A.
Removal, excavation or dredging of soil, sand, gravel, or aggregate
materials of any kind;
B.
Changing of preexisting drainage characteristics, flushing characteristics,
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 change elevation;
F.
Driving of piles, erection, or expansion of buildings, or structures
of any kind;
G.
Placing of obstructions or objects in water or waterways;
H.
Destruction of plant life, including cutting of trees;
I.
Changing water temperature, biochemical oxygen demand or other
physical, biological, or chemical characteristics of any waters;
J.
Any activities, changes or other work which may cause or tend
to contribute to pollution of any body of water or groundwater;
K.
Incremental activities that have or may have a cumulative adverse
impact on the resource areas protected by this bylaw.
APPURTENANCE
Any structural adjunct or incidental construct to a single-family
residential structure or on any parcel of land, such as a septic system,
garage, shed, deck, dock, porch, patio, or swimming pool.
BUFFER ZONE
Lands within 100 feet of any wetland resource area or water
body, except bordering land subject to flooding, isolated land subject
to flooding that is not vernal pool habitat, and riverfront area.
CUMULATIVE EFFECT
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.
ISOLATED LAND SUBJECT TO FLOODING
An isolated depression or closed basin at least 500 square
feet in size, which serves as a ponding area for run-off or high groundwater
which has risen above the ground surface. These may include vernal
pools. Not included are swimming pools, artificially lined ponds or
pools, or wastewater lagoons, the construction of which may be regulated,
but do not themselves constitute resource areas protected under this
bylaw.
MAINTENANCE
Routine and/or periodic activity undertaken to prevent, stop,
or to correct deterioration of an existing condition, facility or
structure so that, after completion, the condition, facility, or structure
is as near as possible to that which originally existed.
PERMIT APPLICATION
Any application for a permit of action under the Massachusetts
Wetlands Protection Act, MGL c. 131, § 40, or the South
Hadley Non-Zoning Wetlands Bylaw. Examples include, but are not limited
to, a notice of intent, abbreviated notice of intent, abbreviated
notice of resource area delineation, or request for an amendment to
a notice of intent or extension to an order of conditions.
PERSON
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 agencies, public or quasi-public corporations or bodies,
the Town of South Hadley, and any other legal entity, its legal representatives,
agents, or assigns.
POND
Any open body of fresh water, either naturally occurring
or man-made, which is never without standing water due to natural
causes except during periods of extended drought. Notwithstanding
the above, the following are not protected as ponds under this bylaw:
swimming pools or other basins lined with impervious material, wastewater
treatment lagoons, and water bodies excavated from upland within active
gravel pits or quarries.
RARE SPECIES
All vertebrate and invertebrate animal and all 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.
RECREATION
Any passive leisure activity that does not conflict with
or diminish other wetland functions and values. Examples include,
but are not limited to, the following: legally licensed fishing or
hunting, boating, swimming, walking and hiking, canoeing, and bird
watching.
RIVER OR PERENNIAL STREAM
A naturally flowing body of water that empties into any ocean,
lake, pond, or other river and which normally flows throughout the
year. The Commission may by regulations set criteria for determining
whether a particular stream or section of stream flows throughout
the year.
RIVERFRONT AREA
The area of land between a river's mean annual high water
line and a parallel line measured horizontally 200 feet away. The
riverfront area may include or overlap other resource areas or their
buffer zones. Further definition of "riverfront" is in 310 CMR 10.58.
STREAM
Any body of running water, including brooks and creeks, which
moves in a definite channel in the ground, due to hydraulic gradient,
and which flows within, into or out of an area subject to protection
under MGL c. 131, § 40. A portion of a stream may flow through
a culvert or beneath a bridge. Such a body of water which does not
flow throughout the year is intermittent. Streams may be perennial
(see "river") or intermittent. For the purposes of this bylaw, only
those streams shown on a map created for the regulations associated
with this bylaw shall be protected under this bylaw.
VERNAL POOL
In addition to that already defined under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations thereunder, 310 CMR
10.00, any confined basin or depression not occurring in existing
lawns, gardens, landscaped areas, or driveways which, in at least
most years, holds water for a minimum of two continuous months during
the spring and/or summer, is at least 500 square feet in size 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 Natural
Heritage and Endangered Species Program. The buffer zone for vernal
pools shall extend 100 feet from the mean annual high water line defining
the depression, but shall not extend over existing lawns, gardens,
landscaped or developed areas. For the purposes of this bylaw, only
certified vernal pools, and potentially certifiable vernal pools as
shown on a map created for the regulations associated with this bylaw
shall be protected, if they meet the certification standards.
A decision of the Conservation Commission may be appealed by
the following persons: the applicant, the owner if not the applicant,
any person aggrieved by a determination or order, any owner of land
abutting the land on which the work is to be done, or any 10 residents
of the Town, in the following manner(s):
A. Local administrative appeal.
(1) Any Commission decision shall become final 10 days after the Commission
mails notice thereof to the applicant unless the applicant, or other
persons listed above, after mailing and before the expiration of 10
days, requests in writing an appeal through a local administrative
review. The appeal shall be heard by a committee appointed by the
Selectboard, and consisting of: two members of the Planning Board,
a Selectboard member, a representative from the Board of Health, and
a representative from the Department of Public Works. This committee
shall be appointed annually in advance of any appeal request. The
request for a local administrative appeal shall state with reasonable
specificity the issues the applicant requests the committee to consider.
(2) Within 10 days of receipt of the request for a local administrative
appeal, the Chair of the Selectboard shall call a meeting of the committee,
and written notice shall be made to the applicant, the Conservation
Commission, and to all committee members. The scope of review shall
be to determine if there was an error of law or abuse of discretion
as measured by the "arbitrary and capricious" standard. After hearing
all the evidence provided by the appellant and the Conservation Commission,
said committee shall, by majority vote, render a written opinion within
14 days of the close of the presentations by both sides.
(3) The Commission shall hold a public meeting to review the opinion
of the local administrative appeal committee. Within 21 days of delivery
of the opinion of the committee to the appellant and the Commission,
the Commission shall issue a further decision, which decision shall
be final upon issuance and mailing to the appellant.
(4) No request for local administrative appeal under this bylaw shall
affect the finality of or appeal deadlines applicable to any decision-making
of the Commission under the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00.
B. Legal appeal. A decision of the Commission shall be reviewable in
the Superior Court in an action filed within 60 days thereof, 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 the regulations thereunder,
310 CMR 10.00.
The invalidity of any section or provision of this bylaw shall
not invalidate any other section or provision or phrase thereof, nor
shall it invalidate any permit which previously has been issued.
The effective date of this bylaw is the date after this bylaw
has been approved by the Attorney General and published by the Town
Clerk as set forth in MGL c. 40, § 32. This bylaw shall
not, however, apply to:
A. Any structure or activity lawfully in existence or lawfully begun
prior to the effective date;
B. Any structure or activity which is the subject of a pending notice
of intent, ANRAD, or request for determination of applicability filed
under the Massachusetts Wetlands Protection Act (MGL c. 131, § 40)
prior to the effective date;
C. Any structure or activity which has an order of conditions, order
of resource area delineation, or determination of applicability or
other Commission decision filed under the Massachusetts Wetlands Protection
Act (MGL c. 131, § 40) and that is still in effect prior
to the effective date. These orders or determinations shall expire
at the end of their legally regulated term, which is usually three
years from date of issuance, after which any new work will be subject
to the provisions of this bylaw;
D. Any structure or activity for which any extensions of or modifications
or amendments to a current order of conditions or notice of intent
were approved prior to the effective date. These extensions, modifications
and amendments shall remain in effect until the end of their legally
regulated term, which is usually three years from date of issuance,
after which any new work will be subject to the provisions of this
bylaw;
E. Any lot or other areas included within a definitive subdivision plan,
special permit plan, site plan, or Form H subdivision plan which has
been submitted to the South Hadley Planning Board and/or has been
approved by the South Hadley Planning Board prior to the effective
date pursuant to Article V of the Subdivision Regulations in regard
to a definitive subdivision plan, Article VI of the Subdivision Regulations
in regard to a Form H subdivision plan, Article IX of the Zoning Bylaw in regard to a special
permit plan, and Article XII of the Zoning Bylaw in regard to a site
plan. In the event the Planning Board fails to endorse the definitive
subdivision plan or Form H subdivision plan before November 8, 2006,
the provisions of this bylaw shall be deemed to apply to the subject
property. If the Planning Board approval of any such definitive subdivision
plan, special permit plan, site plan, or Form H subdivision plan expires
or lapses and is not renewed or extended by the Planning Board, the
provisions of this bylaw shall be deemed to apply to the subject property.
Any new work beyond that shown on the above-referenced plans that
is within a resource area regulated by the Wetlands Bylaw shall be
subject to this bylaw.