[HISTORY: Adopted 5-4-2015 Annual
Town Meeting, Art. 17.[1] Amendments noted where applicable.]
[1]
Editor's Note: These provisions superseded former Ch.
168, Wetlands, adopted by 5-11-1987 ATM, Art. 15, as amended.
A.
The purpose of this chapter is to protect the wetlands, water resources,
and adjoining land areas in the Town of Great Barrington by controlling
activities deemed by the Conservation Commission likely to have a
significant or cumulative effect upon resource area values, including
but not limited to the following: public and private water supply,
groundwater, flood control, erosion and sedimentation control, storm
damage prevention, water quality, water pollution prevention, wildlife
habitat, rare species habitat including rare plant species, agriculture,
and aquaculture (collectively, the "resource area values protected
by this chapter").
B.
The regulatory procedures and paperwork system employed by the Conservation
Commission to administer this chapter are similar to those employed
under the Wetlands Protection Act (MGL c. 131, § 40) and
Wetlands Regulations (310 CMR 10.00). This chapter and the Wetlands
Protection Act and Regulations share much terminology in common. In
both cases, an application for permission to do work in or near a
wetland resource area is known as a "notice of intent" (hereinafter
"NOI"), and the document issued by the Commission that allows that
work to go forward, subject to certain conditions, is known as an
"order of conditions" (hereinafter "OOC").
C.
There are, however, differences between this chapter and the Wetlands
Protection Act and Regulations. Notably, this chapter is intended
to utilize the home rule authority of Great Barrington to protect
additional resource areas, for additional values, with additional
standards and procedures stricter than those of the Wetlands Protection
Act and Regulations thereunder.
A.
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall remove, fill, dredge, build upon,
degrade, discharge into, or otherwise alter the following wetland
resource areas: any freshwater wetland; marsh; wet meadow; bog; swamp;
vernal pool; bank; reservoir; lake; pond; river; creek; intermittent
stream; water within water bodies and land under water bodies; land
subject to flooding or inundation by groundwater, surface water, or
storm flowage; and the following lands abutting wetland resource areas:
land within 100 feet of any freshwater wetland, marsh, wet meadow,
bog, swamp, vernal pool, bank, reservoir, lake, pond or intermittent
stream (hereinafter "buffer zone"); land within 200 feet of the mean
annual high-water line of perennial rivers and streams (hereinafter
"riverfront area"); land within 500 feet of any lake, pond, river
or stream that is a public or private water supply; and land within
200 feet of any lake or pond that is a tributary to any public or
private water supply (collectively, the "wetland resource areas protected
by this chapter").
A.
The NOI from an applicant and the OOC issued by the Conservation
Commission that are required by this chapter 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 to provide electric, gas, water,
telephone, telegraph, or other telecommunication services, sanitary
or storm sewers, or public drinking water systems, provided that written
notice has been given to the Commission prior to the commencement
of work, and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
B.
The NOI and OOC required by this chapter shall not be required for
work performed for normal maintenance or improvement of land which
is lawfully in agricultural use at the time the work takes place.
C.
The NOI and OOC required by this chapter shall not be required for
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 the 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 an NOI shall be filed with the Commission for review
as provided by this chapter. 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.
D.
The NOI and OOC required by this chapter shall not be required for
the exemptions under the Rivers Act amendments to the Wetlands Regulations
[see 310 CMR 10.58(6)].
A.
An NOI shall be filed with the Commission by the person seeking to
perform activities affecting resource areas protected by this chapter.
The NOI shall include such information and plans as are specified
in the Regulations of the Commission to describe proposed activities
and their effects on the resource areas protected by this chapter.
No activities shall commence without the applicant receiving and complying
with an OOC issued pursuant to this chapter.
B.
The Commission may accept as the NOI and plans under this chapter
the notice of intent and plans filed under the Wetlands Protection
Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00).
C.
Any person desiring to know whether or not a proposed activity or
an area is subject to this chapter may request in writing a determination
from the Commission. Such a request for determination of applicability
(hereafter "RDA") shall include information and plans as are deemed
necessary by the Commission to locate the subject property, understand
the proposed work and make the requested determination. The Commission
may accept as the RDA and plans under this chapter the request for
determination of applicability and plans filed under the Wetlands
Protection Act (MGL c. 131, § 40) and Regulations (310 CMR
10.00).
D.
At the time of submission of an NOI or an RDA to the Commission,
the applicant shall pay a filing fee specified in the Regulations
of the Commission. The fee is in addition to that required by the
Wetlands Protection Act (MGL c. 131, § 40) and Regulations
(310 CMR 10.00). The filing fee shall be commensurate with the reasonable
expenses incident to the Commission's process of permitting.
E.
Upon receipt of an NOI or an RDA, or at any point during its deliberative
process, as provided by MGL c. 44, § 53G, the Commission
is authorized to impose upon the applicant a reasonable fee, to be
collected in advance, and estimated to be sufficient to pay for the
employment of outside consultants, engaged by the Commission, for
specific expert services deemed necessary by the Commission to come
to a final decision on the NOI or RDA. This fee is called the "consultant
fee." The specific consultant services may include, but are not limited
to, performing or verifying the accuracy of resource area survey and
delineation; analyzing resource area functions and values, including
wildlife habitat evaluations, hydrogeologic and drainage analysis;
and researching environmental or land use law. The Commission may
require the payment of the consultant fee at any point in its deliberations
prior to a final decision. Any unexpended portion of the consultant
fee shall be returned to the applicant.
F.
The Commission may waive the filing fee, consultant fee, and any
other costs or expenses associated with processing an NOI or an RDA
filed by a government agency.
A.
If an RDA is submitted to the Commission by a person other than the
owner of the subject property, the RDA shall include certification
that the owner of the subject property has been notified that a determination
is being requested.
B.
Within 21 days after the date of receipt of a completed RDA, the
Conservation Commission shall hold a public meeting to consider issuing
a determination of applicability. Notice of the time and place of
the public meeting shall be given by the Conservation Commission not
less than five days prior to such meeting by publication in a newspaper
of general circulation in Great Barrington and by mailing a notice
to the person making the request and the owner. Notice shall also
be given in accordance with the Open Meeting Law, MGL c. 39, § 23B.
The determination shall be issued within 21 days of the closing of
the Commission's deliberations, unless the matter is continued
to a date and time certain, announced at the meeting, and by consent
of the Commission and the person making the request. Said determination
shall be signed by a majority of the Conservation Commission, and
copies thereof shall be sent by the Commission to the person making
the request and to the owner. Delivery of the copy to the person making
the request shall be by hand delivery or certified mail. Said determination
shall be valid for three years from the date of issuance.
C.
Any person filing an NOI with the Commission at the same time shall
give written notice thereof, by certified mail, by hand delivery or
by certificates of mailing, to all abutters at their mailing addresses
shown on the most recent certified tax list of the assessors, including
owners of land directly opposite on any public or private street or
way, and abutters to the abutters within 300 feet of the property
line of the applicant, including any in another municipality or across
a body of water. The notice to abutters shall have enclosed a copy
of the NOI with plans, or shall state where copies may be examined
and whom to contact for additional information or to obtain a copy
of the NOI. An affidavit of the person providing such notice, with
a copy of the abutters list and the notice mailed or delivered, shall
be filed with the Commission.
D.
The Commission shall conduct a public hearing on any complete NOI
it receives, with written notice given no less than five business
days prior to the hearing in a newspaper of general circulation in
Great Barrington. The Commission shall commence the public hearing
within 21 days from receipt of a complete NOI unless an extension
is authorized in writing by the applicant. The Commission shall have
the authority to continue the hearing, with the consent of the applicant,
to a certain date and time announced at the hearing, for reasons stated
at the hearing, which may include the anticipated or requested receipt
of additional information from the applicant or others deemed necessary
by the Commission in its discretion. In the event that the applicant
objects to a continuance, the hearing shall be closed and the Commission
shall take action on such information as is available. The Commission
shall issue an OOC in writing within 21 days of the close of the public
hearing, unless an extension is authorized in writing by the applicant.
E.
The Commission may combine its hearing under this chapter with the
hearing conducted under the Wetlands Protection Act (MGL c. 131, § 40)
and Regulations (310 CMR 10.00).
Upon receipt of a complete NOI, the Commission shall provide
a brief summary thereof, with information as to where the complete
NOI may be reviewed, to the Planning Board, Board of Health, and Building
Commissioner. If the NOI pertains to property within 300 feet of a
neighboring municipality, the Commission will also send a copy of
the same summary to the Conservation Commission of the neighboring
municipality. The Commission shall not take final action until the
above boards and officials have had 14 days 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.
A.
The Commission shall have the authority, after a public meeting,
to determine whether a specific parcel of land contains or does not
contain resource areas protected under this chapter. If the Commission
finds no such resource areas are present, it shall issue a negative
determination.
B.
If the Commission, after a public hearing, determines that the activities
which are the subject of an NOI, or the land and water uses which
will result therefrom, are likely to have a significant individual
or cumulative negative effect upon the resource area values protected
by this chapter, the Commission may disapprove the activities or uses
proposed within 21 days of the close of the hearing. If the Commission
approves the activities or uses proposed, the Commission shall impose
conditions which it deems necessary or desirable to protect those
resource area values, and all activities shall be done in accordance
with those conditions. The document issued by the Commission which
includes its approval and imposed conditions is known as the "OOC."
C.
The Commission is empowered to disapprove an NOI for failure to meet
the requirements of this chapter; 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 resource area
values protected by this chapter; and where no conditions are adequate
to protect those values. Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing.
D.
Lands adjacent to 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 other resource, either immediately, as a consequence of
construction, or over time, as a consequence of daily operation or
existence of the activities. These adverse impacts from construction
and use can include, without limitation, erosion, siltation, loss
of groundwater recharge, poor water quality and loss of wildlife habitat.
The Commission therefore may require that the applicant maintain a
strip of continuous, undisturbed vegetative cover within, or in some
instances up to the full extent of, the two-hundred-foot riverfront
area or one-hundred-foot buffer zone.
E.
To prevent wetlands loss, the Commission: shall require applicants
to avoid wetlands alteration wherever feasible; shall require applicants
to minimize wetlands alteration; and, where alteration is unavoidable,
shall require full mitigation. Because of the high likelihood of failure
of replication, the Commission may authorize or require replication
of wetlands on a 2:1 basis as a form of mitigation, but only with
adequate security (see § 68-10 below) and with professional
design and monitoring by a licensed wetlands specialist to assure
success.
F.
An OOC shall expire three years from the date of issuance. Notwithstanding
this, the Commission at its discretion may issue an OOC expiring five
years from the date of issuance for recurring or continuous maintenance
work, provided that annual notification of time and location of work
is given to the Commission prior to such work. At the Commission's
discretion, an OOC may be renewed for up to an additional three-year
period, provided that a request for a renewal is received in writing
by the Commission more than 30 days prior to expiration. Notwithstanding
the above, an OOC may contain requirements which shall be enforceable
for a stated number of years, indefinitely, or until permanent protection
(e.g., a conservation restriction or easement) is in place and shall
apply to all owners of the land.
H.
The Commission may combine the OOC or determination issued under
this chapter 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).
I.
No work proposed in any NOI shall be undertaken until the OOC 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 OOC notifies the Commission
of its recording and provides the relevant book and page references.
J.
Upon completion of work proposed in any NOI and undertaken according
to an OOC issued by the Commission, the holder of the OOC shall submit
to the Conservation Commission a written request for a certificate
of compliance with the recorded OOC. If the NOI included plans prepared
and signed by a licensed professional(s), the request for a certificate
of compliance must include a signed statement(s) by said licensed
professional(s) that the work has been completed in substantial compliance
with the final plans. If the Commission determines that all work has
been completed according to the OOC, it shall issue a certificate
of compliance, which the holder of the OOC shall have 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 the holder of the OOC shall notify the Commission
of its recording and shall provide the relevant book and page references.
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
chapter effective when voted by the Commission and filed with the
Town Clerk. The Commission may amend the rules and regulations after
public notice and public hearing. 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 chapter. Unless otherwise stated in this chapter or in the
Rules and Regulations, the definitions, procedures, and performance
standards of the Wetlands Protection Act (MGL c. 131, § 40)
and regulations (310 CMR 10.00) as most recently promulgated shall
apply.
A.
The following definitions shall apply in the interpretation and implementation
of this chapter. (For additional definitions, see Wetlands Regulations
310 CMR 10.04 and Regulations promulgated by the Great Barrington
Conservation Commission).
B.
The term "person" shall include 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, Town of Great Barrington, and any
other legal entity, its legal representatives, agents, or assigns.
C.
The term "alter" shall include, without limitation, the following
activities when undertaken to, upon, within, or affecting resource
areas protected by this chapter:
(1)
Removal, excavation, or dredging of soil, sand, gravel, clay, minerals,
or aggregate materials of any kind.
(2)
Changing of preexisting drainage characteristics, flushing characteristics,
sedimentation patterns, flow patterns, or flood retention characteristics.
(3)
Drainage, or other disturbance of water level or water table.
(4)
Dumping, discharging, or filling with any material which may degrade
water quality.
(5)
Placing of fill, or removal of material, which would alter elevation.
(6)
Driving of piles, erection or repair of buildings or structures of
any kind.
(7)
Placing of obstructions or objects in water.
(8)
Destruction of plant life, including cutting or clearing of grasses,
shrubs or trees.
(9)
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters.
(10)
Any activities, changes, or work which may cause or tend to
contribute to pollution of any body of water or groundwater.
(11)
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this chapter.
A.
As part of an OOC issued under this chapter, 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 both of the
methods described below:
(1)
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
OOC.
(2)
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 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.
A.
No person shall remove, fill, dredge, build upon, degrade, or otherwise
alter resource areas protected by this chapter, or cause, suffer,
or allow such activity, or leave in place unauthorized fill, or otherwise
fail to restore illegally altered land to its original condition,
or fail to comply with an OOC or an enforcement order issued pursuant
to this chapter.
B.
The Commission, its agents, officers, and employees shall have authority
to enter upon privately owned land for the purpose of performing their
duties under this chapter and may make or cause to be made such examinations,
surveys, or sampling as the Commission deems necessary, subject to
the Constitutions and laws of the United States and the Commonwealth
of Massachusetts.
C.
The Commission shall have authority to enforce this chapter, its
regulations, and permits issued thereunder by violation notices, administrative
orders, and civil and criminal court actions. Any person who violates
provisions of this chapter may be ordered to restore the property
to its original condition and take other action deemed necessary to
remedy such violations, or may be fined, or both.
D.
Upon request of the Commission, the Selectboard and the Town Counsel
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.
E.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
F.
Any person who violates any provision of this chapter, or Regulations,
or administrative orders issued thereunder, or has failed to obtain
the necessary Commission approval, may be punished by a fine of not
more than $300 per each offense. 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 chapter, regulations, permits, or administrative orders violated
shall constitute a separate offense.
The person who submits an NOI to the Commission shall have the
burden of proving by a preponderance of the credible evidence that
the work proposed in the NOI will not have unacceptable significant
or cumulative effect upon the resource area values protected by this
chapter. Failure to provide adequate evidence to the Commission supporting
this burden shall be sufficient cause for the Commission to disapprove
proposed work or other activities or to approve proposed work or other
activities with strict conditions.
A decision of the Commission under this chapter shall be reviewable
in the Superior Court in accordance with MGL c. 249, § 4.
This chapter 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 chapter shall
not invalidate any other section or provision thereof, nor shall it
invalidate any permit or determination which previously has been issued.
A project for which the NOI was filed or final OOC was issued
prior to the effective date of a change to this chapter shall be subject
to the previous provisions of the chapter.
