MGL c. 131, § 39A
Preamble
We live surrounded by scenic mountains. If a mountain or a related
erodible watershed is to be altered, the regulations that follow provide
protection for the Town's watershed resources and scenic areas in
question and due process for those who propose changes.
§ 217-35.1.
Authority.
The Conservation Commission of the Town of Great Barrington,
having been designated as the hearing authority under MGL c. 131,
§ 39A, the Berkshire Scenic Mountains Act, hereinafter "the
Act," in a vote at the Annual Town Meeting on May 5, 1997, promulgates
these regulations pursuant to the authority granted to it under said
Act.
§ 217-35.2.
Purpose of the law.
The purpose of the law is to regulate removal, filling, excavation,
clearing of vegetation or other alteration of land within mountain
regions designated by the Town. This shall apply to alterations which
are likely to have a significant adverse effect on watershed resources
or natural scenic qualities because of the pollution or diminution
of groundwater or surface water supply, public or private; erosion;
flooding; substantial changes in topographic features; or substantial
destruction of vegetation.
§ 217-35.3.
Purpose of the regulations.
The purpose of the regulations is to protect scenic highlands
and slopes, thereby preventing erosion and safeguarding water resources.
To this end, the regulations aim to create a consistent process and
clarify the provisions of the Act by establishing standard definitions
and procedures.
§ 217-35.4.
Implementation of the regulations.
The Act and these regulations shall take effect when the following
events have occurred:
A.
The map and text delineating the proposed boundaries
have been approved by a two-thirds vote of the Board of Selectmen;
B.
The regulations have been approved by the Commissioner
of the Department of Conservation and Recreation;
C.
The map and text delineating the boundaries of the
mountain regions subject to regulation have been recorded in the Southern
Berkshire District Registry of Deeds, as specified in the Act.
As used in this article, the following terms shall have the
meanings indicated:
Any landowner, as determined by the most-recent Assessors'
records, whose land is within 300 feet of the property that is the
subject of the request for determination or the notice of intent or
whose land lies directly across any street, road, or waterway from
the said property.
The Berkshire County, Watershed Resources, Natural Scenic
Qualities Act, MGL c. 131, § 39A, as amended.
Any removal, filling, excavation or other alteration of any
land situated within the mapped mountain region which is not specifically
exempt from the provisions of this Act.
Includes, but is not limited to, one or more of the following
actions taken within the mapped mountain regions:
Removal, filling, excavation, or dredging of soil, sand, gravel,
or aggregate material of any kind;
Changing of preexisting drainage characteristics, sedimentation
patterns and flow patterns;
Disturbance of existing drainage, watercourses or water table;
Substantial change in topographic or scenic features;
Erection of any building or structures with a footprint in excess
of 500 square feet or a height in excess of 20 feet above the maximum
existing ground elevation;
Dumping or discharging of any material;
Removal or destruction of plant life, including clear-cutting
of trees in a total ground area of more than 500 square feet;
Construction and/or paving of any new road or parking lot larger
than 500 square feet total.
The person giving notice of intention to conduct any regulated
or nonregulated activity.
A buyer for value who has not been informed, verbally or
in writing, or had actual knowledge, that activities have been done
on the purchased property in violation of the Act.
A recordable form issued by Commission that establishes that
conditions set forth in the order of conditions have been met. It
shall be made on Form E of these regulations.
Cutting or otherwise removing 50% or more of canopy coverage
of vegetation.
Commencement of physical work on the premises, not merely
surveying or site testing.
The Great Barrington Conservation Commission.
The Commissioner of the Massachusetts Department of Conservation
and Recreation.
Shall be demonstrated by submission to the Commission of
a copy of the permit issued under that Act.
The Massachusetts Department of Conservation and Recreation
in the Executive Office of Environmental Affairs.
A written finding by the Commission as to whether the land
or proposed activity shall or shall not require the filing of a notice
of intent under the Act. It shall be made on Form B of these regulations.
A full-scale statement issued under the National Environmental
Policy Act or a full-scale environmental impact report issued under
the Massachusetts Environmental Policy Act.
The wearing away of soil or other earth material, caused
by the action of wind or water.
The removal of any material to lower the surface or create
a cavity of any kind, either temporarily or permanently, in any area
subject to the Act.
The placing of any material that raises, either temporarily
or permanently, the elevation of any area subject to the Act.
A local, temporary inundation, or a rise in the surface of
a body of water, however caused, such that it covers land not usually
under water.
The Commission.
Those areas within the Town which are subject to the provisions
of the Act and are designated on the map referred to in these regulations.
Written description of any proposed regulated activity to
be performed in the mapped mountain regions. It shall be submitted
to the Commission on Form C of these regulations.
A document issued by the Commission, or on appeal by the
Commissioner, stating ways in which the activity shall be performed,
modified, regulated, forbidden or otherwise controlled to protect
the interests in the Act. It shall be made on Form D of these regulations.
The person appearing as the owner of record in the most-recent
records of the Southern Berkshire Registry of Deeds.
The requirement under the Act to obtain or apply for all obtainable
permits, variances and approvals required by local bylaw with respect
to the proposed activity and shall mean only those which are feasible
to obtain at the time the notice of intent is filed. Permits, variances
and approvals required by local bylaw may include, among others, zoning
variances, permits from boards of appeals, permits required under
floodplain or wetland zoning bylaws and gravel removal permits.
They do not include, among others, building permits under the
State Building Code, MGL, c. 23B, § 16,[1] or subdivision control approvals under the State Subdivision
Control Law, MGL, c. 41, §§ 81K to 81GG, which are
issued by local authorities. When an applicant for a comprehensive
permit (under MGL c. 40B, §§ 20 to 23) from a board
of appeals has received a determination from the board granting or
denying the permit and, in the case of a denial, has appealed to the
Housing Appeals Committee (established under MGL c. 23B, § 5A),
said applicant shall be deemed to have applied for all permits obtainable
at the time of filing.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or any political subdivision thereof, administrative
agency, public or quasi-public corporation or body, authority, or
any other legal entity or its legal representative, agents or assigns.
A person who has been negatively affected by the Commission's
or Department's order or failure to act.
A written finding by the Commission as to whether the land
or proposed activity shall or shall not require the filing of a notice
of intent under the Act. It shall be issued on Form B of these regulations.
The protection of existing aesthetic and/or historic features
of the environment, as determined by the Commission.
The alteration of land within mapped mountain regions, as defined in this § 217-36, which is likely to have a significant adverse effect on watershed resources or natural scenic qualities because of the pollution or diminution of groundwater or surface water supply, public or private; erosion; flooding; changes in topographic or scenic features; or destruction of vegetation.
The act or process of taking away any type of material that
changes the elevation, either temporarily or permanently, of any area
subject to regulation under the Act.
A written request which shall be made by any person who believes
that the land in question is not within the boundaries of a mountain
region, or that any of the proposed work is subject to an exemption
specifically provided for in MGL c. 131, § 39A. It shall
be submitted on Form A.
A written request which shall be made by any person to the
Commission or the Department for a determination as to whether proposed
work is not a regulated activity subject to MGL c. 131, § 39A.
It shall be submitted on Form A.
The measurement in percent of the natural change in elevation
as expressed in a ratio of the change in elevation over a measured
horizontal distance.
That which is considerable and important with regard to the
essential elements being considered, as determined by the hearing
authority.
Comprise the configuration of the land's surface, including
its relief and relative elevation.
The horizontal area covered by the foliage of a tree in full
vegetation.
The plant life or total plant cover of a given area, including
but not limited to grass, ground cover, shrubs and trees.
The selective thinning of tree branches or understory shrubs,
to establish a specific "window" to improve visibility. Vista pruning
does not include the cutting of trees and does not include the mowing
or removal of understory brush.
An area within which water drains to a particular watercourse
or body of water.
[1]
Editor's Note: MGL c. 23B, § 16, was repealed by
Acts of 1984, c. 348, § 2. See now MGL c. 143.
§ 217-37.1.
Applicants seeking approval under
these regulations must meet all applicable state standards intended
to augment the provisions of MGL c. 131, § 39A, and promulgated
in the Code of Massachusetts Regulations, 310 CMR 10.25 through 10.35
and 10.37, and 310 CMR 10.54 through 10.60. Said standards are herein
incorporated by reference.
§ 217-37.2.
In considering any application
for work within the mapped and designated mountain regions, the Commission
shall make the following presumptions:
A.
Nonnatural or artificial protuberances above ridgelines
damage natural scenic qualities;
B.
Clearing of contiguous "mountain region" lands totaling
1/2 acre or more damages natural scenic qualities and/or causes erosion;
C.
Alteration of slopes steeper than 15% causes erosion
and promotes flooding and damage to water quality.
§ 217-38.1.
Any person who proposes to remove,
fill, excavate, or alter any land within a mountain region and who
believes such proposed work is not a regulated activity may request
a preliminary determination by filing, by certified mail, four copies
of a written notice thereof with the Commission together with such
information or plans as may be necessary to describe in general terms
the nature and scope of the proposed activity and its effect upon
the watershed and scenic resources intended to be protected by this
section; provided, however, that any plans need not be detailed engineering
or architectural plans so long as the nature and scope of the proposed
activity is reasonably described. No such notice shall be sent before
all permits, variances, and approvals required by bylaw or ordinance
with respect to the proposed activity have been applied for.
§ 217-38.2.
Any person who believes that
any land is not within the boundaries of a mountain region or that
any proposed work is subject to an exemption specifically provided
for hereinafter in this section may file with the Commission by certified
mail a request for an exemption determination.
§ 217-38.3.
Either request shall be made
on Form A of these regulations.
§ 217-38.4.
Upon receipt of such notice,
the hearing authority shall designate a file number for such notice
and, within 21 days, shall make a preliminary determination whether
the proposed work is a regulated activity or is exempt.
§ 217-38.5.
The Commission shall issue and
send to the applicant a written preliminary determination of applicability
signed by a majority of the Commission, within 21 days following receipt
of the request. Copies shall be sent to the owner of the land, if
not the applicant, and all persons so requesting. Notice of the determination
shall be posted in the customary place of general public notice within
one day of the finding. The determination shall be made on Form B
of these regulations.
§ 217-38.6.
If the Commission finds that the proposed work is a regulated activity, it shall require the filing of a notice of intent and will hold a public hearing as provided in § 217-41 of these regulations.
§ 217-38.7.
The Commission may rescind an order issued after a preliminary determination and hold a public hearing as provided in § 217-41 of these regulations, if any abutter, or any 10 residents of the Town where the land is located, files an appeal, by certified mail, requesting a hearing within 10 days of the issuance of the determination.
§ 217-38.8.
If the applicant is not notified
within 14 days after an order issues that the hearing authority has
rescinded the order, then the applicant may perform the proposed activity.
§ 217-38.9.
. Any activity shall be limited
to what is described in the submittal.
§ 217-39.1.
Any person(s) proposing a regulated activity subject to the Act as specified in § 217-35 of these regulations shall send to the Commission, by certified mail or hand delivery, four copies of a completed notice of intent and a filing fee of $25, payable to the Town of Great Barrington. The notice must contain such information as may be reasonably required by regulation to describe the nature and scope of the proposed activities and their effect on the watershed or scenic resources protected under the provisions of the Act. Any environmental impact statements filed with any state or federal agency shall be sufficient information with respect to such activity for purposes of complying with this section. The date of filing of said notice shall be the date of receipt of a completed filing by the Commission and all time periods set forth in the Act shall commence from this date. The notice shall be filled out on Form C of these regulations.
§ 217-39.2.
No such notice of intent shall
be sent before all permits, variances, and approvals required by law
or bylaw with respect to the activity have been applied for.
§ 217-39.3.
Upon receipt of a notice of intent, the Commission shall designate a file number and hold a public hearing as provided in § 217-41 of these regulations.
§ 217-39.4.
The applicant must submit any
additional information reasonable and relevant to the project and
the purposes of the statute, if later requested by the Commission.
If such information is not submitted, the Commission may, after a
public hearing, issue an order prohibiting the activity.
§ 217-40.1.
Plans sent with a notice of intent
shall include the following:
A.
Two locus maps indicating the property's location.
One shall be an enlarged section of a United States Geological Survey
Map, and the other shall be a copy of the current Great Barrington
Zoning Map. Each shall have an arrow indicating True North;
B.
Names of all bordering streets, roads, and highways;
C.
Outline of all watershed areas related to the proposed
activity;
D.
Water quality classifications under MGL c. 21;
E.
Environmental data form;
F.
An "alternatives analysis" demonstrating that no
other location on the subject property is suitable for the intended
use and will cause less environmental damage;
G.
Engineering drawings described below.
§ 217-40.2.
Engineering drawings should be
drawn to a scale in which one inch equals no more than 50 feet, with
the title designating the name of the project location and the name(s)
of the person(s) preparing the drawings and the date prepared, including
all the latest revision dates. The drawings shall be stamped and signed
by a registered professional engineer, architect, landscape architect,
or registered land surveyor of the commonwealth, unless the Commission
otherwise allows.
§ 217-40.3.
Engineering drawings and accompanying
documents shall include some or all of the following, as may be applicable
to the proposed property and work:
A.
Present and proposed contours of the entire site
and affected adjacent areas showing contours at elevation intervals
of no more than two feet;
B.
All brooks, creeks, rivers, streams, ponds, lakes,
wetlands, and buffer zones, whether continuous or intermittent, natural
or man-made, regulated by the Wetlands Bylaw and Massachusetts Wetland
Protection Act, MGL c. 131, § 40;
C.
Location, extent and area of all present and proposed
paved areas, roads, driveways, and parking areas;
D.
Location of proposed water retention areas;
E.
Location of areas to be removed, dredged, filled
or otherwise altered in any way;
F.
Location of underground utilities, rights-of-way
or easements of any kind;
G.
Soil characteristics in representative portions
of the site, including the type of soil found in the building, septic
and well sites, if applicable; sampling sites shall be specified;
H.
Location, extent and area of all existing and proposed
structures, including their height and lowest floor elevations thereof;
I.
All calculations necessary to show the effect of
the proposed activity on soil and water;
J.
Cross sections showing slope, bank and bottom treatment
of each watercourse to be altered; locations of cross sections shall
be specified;
K.
Location of any spoil areas;
L.
Existing and proposed water supplies for proposed
activities;
M.
Existing and proposed locations and elevations of
cellars or floors, and bottoms of sewage disposal systems and leaching
fields, together with alternative sites for leaching fields, specifically
showing the type to be used;
N.
Erosion and sedimentation prevention plans for,
during and after construction;
O.
Maximum groundwater elevation at the time of year
when the groundwater table is at its highest, including dates of measurement,
sampling and tests, if any;
P.
Description of the potential impact on natural scenic
qualities of the mapped mountain region and specific measures for
mitigating those impacts;
Q.
Tree canopy coverage and height relative to proposed
structures;
R.
Areas subject to the one-hundred-year flood, as
indicated on maps provided under the National Flood Insurance Program,
or other competent authority;
S.
Proposed alteration to waterways, including present
and proposed location, elevation and invert of all drains, ditches,
culverts and other conductors immediately upstream and downstream
of the site.
§ 217-40.4.
Engineering drawings shall also
include a profile map showing the location of principal features of
the site, such as existing stone walls, fences, large trees, and rock
outcroppings; a profile drawing of site vegetation; and proposed alterations.
These profile maps should be drawn from multiple radians from various
angles.
§ 217-40.5.
The applicant may submit, or
the Commission may require, further information that will assist in
the review if deemed necessary by the Commission to determine the
effect of the proposed activity on the mapped mountain regions.
§ 217-40.6.
Performance standards and engineering
practices acceptable for work to be performed under this Act are contained
in the most-recent versions of the following:
A.
United States Department of Agriculture, Soil Conservation
Service. Guidelines for Soil and Water Conservation in Urbanizing
Areas of Massachusetts, 1975 and subsequent revisions. (Available
in limited quantities from the Great Barrington Conservation Commission)
B.
United States Department of Agriculture, Soil Conservation
Service. Erosion and Sediment Control in Site Development: Massachusetts
Conservation Guide Volume I, September, 1983. (Available from Berkshire
Conservation District)
C.
United States Department of Agriculture, Soil Conservation
Service. Vegetative Practices in Site Development: Massachusetts Conservation
Guide Volume II. (Available from Berkshire Conservation District)
D.
United States Department of Agriculture, Soil Conservation
Service. Soil Survey of Berkshire County, Massachusetts, February
1988. (Available from Berkshire Conservation District)
§ 217-41.1.
The Commission shall hold a public
hearing on the proposed activity within 21 days after receipt of the
notice of intent.
§ 217-41.2.
Notification of the time and
place of the hearing shall be given by the Commission, at the expense
of the applicant, not less than five days prior to such hearing, by
publication in a newspaper of general circulation in the Town of Great
Barrington. The applicant shall notify abutters of the hearing by
certified mail, return receipt requested, not less than five days
prior to such hearing and provide proof of said mailing to the Commission.
§ 217-41.3.
The Commission shall deliver
by hand, or certified mail, a copy of the published notice to the
applicant and to the Board of Health and Planning Board of Great Barrington.
§ 217-41.4.
A hearing may be continued by
the Commission for good cause, provided that notice of continuance
to a specific date, time and place is given at the public hearing
and does not impose a hardship on the applicant.
§ 217-42.1.
Within 21 days after the close
of the hearing, the Commission shall issue a written order which may
impose on the proposed activity such reasonable conditions as may
be necessary to protect watershed resources or natural scenic qualities
against any significant adverse effect because of the pollution or
diminution of groundwater or surface water supply, public or private;
erosion; flooding; substantial changes in topographic features; or
destruction of vegetation. The order shall be made on Form D of these
regulations.
§ 217-42.2.
The order shall be signed by
a majority of the Commission, and a copy thereof shall be sent by
certified mail to the applicant, the owner of the land if other than
the applicant, and the Department. The order shall also be posted
within one day of its issuance in the Commission's customary place
of general public notice.
§ 217-42.3.
Any applicant undertaking an
activity regulated by this section shall record the order in the Southern
Berkshire District Registry of Deeds. No activity shall commence until
the order is recorded and a receipt for this recording from the Registry
of Deeds is sent by the applicant by certified mail or hand-delivered
to the Commission.
§ 217-42.4.
The applicant may request an
extension of an order before it expires. The Commission may grant
two extensions of the order, for a total of no longer than one year.
(Note: The Commission will consider an extension of an order only
under circumstances which, in its opinion, are extraordinary.) Extensions
shall be made on Form F of these regulations.
§ 217-42.5.
If an applicant fails to commence
the proposed activity within one year following the date of issuance
of an order, and thereafter prosecute diligently such activity to
completion, such inaction shall constitute an abandonment of the project,
and the Commission, after reasonable notice to the applicant, may
revoke said order.
§ 217-43.1.
A request for appeal may be made
to the Department in accordance with MGL c. 131, § 39A,
within 10 days after the Commission has acted, or failed to act, as
follows:
§ 217-43.3.
The person(s) appealing may request
the Department to determine:
A.
If such conditions could be modified or eliminated
without any loss of protection; or
B.
If such conditions should be modified or other reasonable
conditions imposed on the proposed activity in order to protect against
any significant adverse effect on watershed resources or natural scenic
qualities.
§ 217-43.4.
The request shall be sent by
certified mail to the Department within 10 days after the Commission
has acted or failed to act. At the same time, the person(s) making
the request shall send copies thereof to the Commission by certified
mail and, if the person(s) appealing is other than the owner and applicant,
to the owner and applicant. Upon receiving a copy of the request,
the Commission shall, within seven days, forward the file on the matter
to the Department.
§ 217-43.5.
If the applicant is not notified
of a request of the Department within 14 days after the issuance of
an order by the Commission, said applicant may conduct any regulated
activities in accordance with the terms of the order.
§ 217-43.6.
Any order issued by the Department
shall supersede the prior order of the Commission, and all work shall
be done in accordance therewith.
§ 217-43.7.
A copy of the superseding order
shall be sent by certified mail to the applicant, to the owner, the
Commission, and to the party requesting the order (if not the applicant).
§ 217-43.8.
Any action by the Department
under this section shall not be considered subject to the provisions
of MGL c. 30, §§ 61 and 62.
§ 217-43.9.
Any person aggrieved by an order
of the Department issued under the provisions of this section may
appeal under the provisions of MGL c. 30A. Such rights of appeal shall
be exclusive.
§ 217-44.1.
Upon completion of an activity
in compliance with an order, the applicant may request, in writing,
a certificate of compliance from the agency which issued the order.
§ 217-44.2.
Where a project has been completed
in accordance with plans stamped by a registered professional engineer,
architect, landscape architect, or land surveyor, a written statement
by the aforesaid professional, certifying compliance with the plans,
shall accompany the request for a certificate.
§ 217-44.3.
After receipt of the request
for a certificate of compliance, the Commission may request an on-site
inspection with the applicant and the Commission.
§ 217-44.4.
If any of the work is not in
compliance with the order, the Commission may refuse to issue a certificate.
§ 217-44.5.
Upon completion of a portion
of work under an order of conditions, the Commission may issue a certificate
of compliance as to that portion, if the applicant so requests.
§ 217-44.6.
The applicant shall record the
certificate of compliance in the Southern Berkshire District Registry
of Deeds and submit a stamped copy to the Commission which shows the
date, book and page of record.
§ 217-45.1.
Any person, except a bona fide
purchaser for value without notice, who purchases or otherwise acquires
land upon which an activity has been done in violation of this Act
shall forthwith comply with the order of conditions or restore the
land to its condition prior to the violation. Failure to do so is
in itself a violation of the Act.
§ 217-45.2.
The Commission, its agents, officers,
and employees may enter upon privately owned land for the purpose
of carrying out the provisions of the Act and may issue a cease-and-desist
order to anyone found in violation of the Act.
§ 217-45.3.
The Commission may revoke an
order if it finds that the applicant has exceeded the scope of the
activity as set forth in the application or has not complied with
the conditions set forth in the order.
§ 217-45.4.
No revocation shall be made without
notice to the applicant of the facts or conduct which warrants the
intended revocation and a hearing at which the applicant is given
an opportunity to show compliance with the conditions of the order.
§ 217-45.5.
Any court having equity jurisdiction
may restrain a violation of this section and enter such orders as
it deems necessary to remedy such violations, upon the petition of
the Attorney General, Commissioner, the Town, an owner or occupant
of property which may be affected by such violation, or any 10 residents
of the commonwealth under MGL c. 214, § 7A.
§ 217-45.6.
Whoever violates any provisions
of this Act shall be punished by a fine of $1,000 or by imprisonment
for not more than six months, or both, as provided in MGL c. 131,
§ 39A. Each day, or portion thereof, of continuing violation
shall constitute a separate offense.
§ 217-45.7.
The Act shall be enforced by
officers of the Executive Office of Environmental Affairs.
§ 217-46.1.
The Act does not apply to owners
of land who propose to cut forest products on land devoted to forest
purposes and who have complied with the provisions of the Forest Cutting
Practices Act, MGL c. 132, §§ 40 to 46, inclusive,
by obtaining a permit thereunder and which has been submitted to the
Commission prior to cutting for review.
§ 217-46.2.
The Act does not apply to any
activity which is subject to the provisions of the Town of Great Barrington
Wetlands. Bylaw or the Wetlands Protection Act, MGL c. 131, § 40,
as demonstrated by a valid order of conditions or positive determination
of applicability issued under either or both of these.
§ 217-46.3.
The Act does not apply to:
A.
Any activity conducted in connection with the construction
or maintenance of any facility as defined in MGL c. 164, § 69G
(Energy Facility Siting Council); or
B.
Any activity conducted in connection with construction
or maintenance of any electrical transmission distribution facilities
or facilities used in transmission of intelligence by electricity
or by telephone or otherwise for which locations in the public ways
have been approved by the Selectmen or under MGL c. 166, § 22;
or
C.
Construction or maintenance of any electrical distribution
facilities required to serve a building or structure whose construction
has been approved under the Act.
§ 217-46.4.
The Act does not apply to maintenance,
repair, reconstruction, replacement or enlargement which is not of
a substantial nature, or change in use, of any lawfully located and
constructed structure; provided, however, that this work does not
involve clearing 1/4 acre or more of contiguous lands or alteration
of the site as defined herein.
