[HISTORY: Adopted by the Town Meeting of the Town of Ipswich 4-3-1990 ATM, approved by Attorney General 6-14-1990; amended 5-11-2010 ATM, approved by Attorney General 6-3-2010 (Ch. XVIII of the 1973 Bylaws). Subsequent amendments noted
where applicable.]
The purpose of this bylaw is to protect the wetlands, flood
plains, water resources, and adjoining land areas in the Town of Ipswich
by prior review and control of activities deemed by the Conservation
Commission ("The Commission") likely to have a significant or cumulative
effect on wetland values, including but not limited to the following:
Public or private water supply
Flood control
Erosion or sedimentation control
Storm damage prevention
Water quality
Water pollution prevention
Fisheries
Land containing shellfish
Wildlife habitat
(collectively, the "interest protected by this bylaw").
A.
Except as permitted by the Conservation Commission or as provided
in this bylaw, no person shall remove soil or vegetation from, fill,
dredge, build upon, discharge into, or alter the following Resource
Areas:
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
(1)
Coastal wetlands,
(2)
Freshwater wetlands,
(3)
Bank, beach, dune, marsh, meadow, swamp, or flat bordering on a water
body; or
(4)
Land within 100 feet of these resource areas; or
(5)
Land under a water body; or
(6)
Land subject to flooding, tidal action or coastal storm flowage;
or
(7)
Vernal pools within a wetland resource area; or
(8)
Land within 150 feet of the Grand Marsh Area of Critical Environmental
Concern; or
(9)
Riverfront Area as defined by MGL c. 131, § 40, as most
recently amended.
B.
In any case where (i) a project or activity exceeds the review threshold contained in § 193-5 of Chapter 193, Stormwater Management, of the General Bylaws as may be amended, (ii) the project or activity does not require Site Plan Review, Definitive Subdivision or Special Permit Approval from the Planning Board, and (iii) only a portion of that project or activity occurs within the above Resource Areas, the entire project or activity shall be subject to the requirements of Section 2.2. V. E, "Stormwater Management" of the Rules and Regulations adopted pursuant to this bylaw as they may be amended from time to time. When acting thereunder, the Conservation Commission shall consult with the Department of Public Works regarding any proposed action. Otherwise any activity proposed or undertaken outside the above areas is not subject to regulation under this bylaw and does not require the filing of a permit application unless and until that activity actually alters any of the said resource areas.
[Amended 10-26-2010 STM,
approved by Attorney General 2-24-2011]
C.
In the event that the commission determines that such activity has
in fact altered a Resource Area as identified in this bylaw, it shall
impose such conditions on the activity or any portion thereof as it
deems necessary to contribute to the protection of the interests identified
in this bylaw.
A.
Except as otherwise provided in this bylaw or regulations of the Commission, including but not limited to § 224-19 of this bylaw, the definitions of terms, exemptions, limited projects, performance standards, time frames, and requirements in this bylaw shall be as set forth in the Wetlands Protection Act, MGL c. 131, § 40, and in 310 CMR 10.00 ("the State regulations") as may be amended from time to time.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
B.
The following definitions shall apply in the interpretation and implementation
of this bylaw:
(1)
The term "Fresh Water Wetland" shall include any marsh, bog, swamp
or wet meadow, whether or not it borders on a water body. Said wetland
may be defined by its vegetational community, soil composition or
hydrologic regime. A wetland not bordering on a body of water and
not exceeding 5,000 square feet shall not be subject to protection
under this bylaw, unless said wetland is or can be certified as a
Vernal Pool, as established by Massachusetts Natural Heritage and
Endangered Species Program's "Guidelines for Certification of
Vernal Pool Habitat."
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
(2)
The term "water body" shall mean any creek, ocean or land subject
to tidal action, lake, pond, river, estuary, or stream, whether intermittent
or not, man-made or natural.
(3)
The term "Land Subject to Flooding" shall mean all land subject to
inundation by ground or surface water, including land within the 100
year floodplain, isolated land subject to flooding, and bordering
land subject to flooding as defined in the State regulations.
(4)
The term "Flood Plain" shall mean Bordering land subject to flooding
as defined by 310 CMR 10.57(2)(a) as may be amended from time to time.
(5)
The term "Great Marsh Area of Critical Environmental Concern" shall
include that portion of the state-approved Great Marsh ACEC identified
in the publication entitled Coastal Areas of Critical Concern prepared
by the Massachusetts Coastal Zone Management office, revised August
1989, and as further shown on a map entitled Great Marsh Area of Critical
Environmental Concern, scale 1" = 1/4 mile, prepared by the Office
of Coastal Zone Management as an enlarged composite of four maps from
the United States Geological Service.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
(6)
The term "vernal pool" shall mean any vernal pool certified by the
Massachusetts Division of Fisheries and Wildlife in accordance with
310 CMR 10.57.
(7)
The term "alter" shall mean to change the condition of any area subject
to protection under this bylaw. Examples of alterations include, but
are not limited to the following:
(a)
Removal, excavation, or dredging of soil, sand, gravel, or aggregate
materials of any kind;
(b)
Changing of pre-existing drainage characteristics, flushing
characteristics, sedimentation patterns, flow patterns, or flood retention
characteristics;
(c)
Drainage or other disturbances 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 other dam-like structures in water;
(h)
Destruction of plant life;
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
(i)
Changing water temperature, biochemical oxygen demand, or other
physical or chemical characteristics of water;
(j)
Any activities, changes or work which may cause or tend to contribute
to pollution of any resource area under the jurisdiction of the Commission;
(k)
Application of pesticides and/or herbicides.
A.
A permit application ("Application"), which may be identical in format to state Wetlands Protection Act forms, as required pursuant to MGL c. 131, § 40, shall, at a minimum, have the same content as that required by these forms. The application shall include such plans as may be necessary to describe the boundaries of wetland resource areas, the proposed activity, and its effects and potential impacts upon the ability of the resource area to protect the interests identified in this bylaw. No work shall begin until the permit, which may be the same as the permits issued under MGL c. 131, § 40, has been issued, all appeal periods have expired, and said permit, if required by MGL c. 131, § 40, has been recorded with the Registry of Deeds or Land Court, in accordance with § 224-18 of this bylaw.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
B.
The application shall be sent by certified mail, return receipt,
or hand delivered to the Office at the Town Hall, or if necessary
to the Planning Office. No such application shall be sent before all
permits, variances, and approvals, except a building permit, required
by local bylaw with respect to the proposed activity have been obtained
except that such application may be filed, at the option of the applicant,
after the filing of an application or applications for said permit,
variances, and approvals; provided that such application shall 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 interests protected by this bylaw.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
C.
Any person filing a notice of intention with a Conservation Commission
shall at the same time give written notification thereof, by delivery
in hand or certified mail, return receipt requested to all abutters
within 100 feet of the property line of the land where the activity
is proposed, at the mailing addresses shown on the most recent application
tax list of the assessors, including but not limited to, owners of
land directly opposite said proposed activity on any public or private
street or way and in another municipality or across a body of water.
Said Notification shall be at the applicant's expense and shall state
where copies of the notice of intention may be examined and obtained
and where information regarding the date, time and place of notice
mailed or delivered shall be filed with the Conservation Commission.
The notification required by this section shall not apply to projects
of the Department of Highways.
D.
The Commission is authorized to require the applicant to pay the
reasonable costs and expenses borne by the Commission for reasonable
expert engineering and consultant services deemed desirable by the
Commission to review the Notice of Intent and/or the Request for Determination
of Applicability. Said payment can be required at any time in the
deliberations prior to a final decision being rendered. Said services
may include, but are not limited to, wetland resource area surveys
and delineations, wetland resource area reports, hydrogeological and
drainage analysis, wildlife evaluations, shellfish surveys, and environmental/land
use law.
[Added 10-22-1990 TM,
approved by Attorney General 1-14-1991]
(1)
The Commission is authorized to require said fee when the Notice
of Intent and/or Request for Determination of applicability proposes
any of the following: alteration of 500 square feet or more of a coastal
or inland wetland resource area; 50 linear feet or greater of bank
alteration to an inland or coastal waterway; 500 square feet or greater
alteration to the buffer zone; alteration of greater than 500 square
feet of land under a water body or the ocean discharge of any pollutants
into or contributing to surface or groundwater or the wetland resource
area or buffer zone; and/or the construction of any detention or retention
basin or water control structure.
(2)
Said fee shall be paid by the applicant to the Town of Ipswich into
a professional service appropriation account of the Ipswich Conservation
Commission set up for this purpose which may be drawn upon by the
Commission for services approved by the Commission at a public hearing.
Any unused portion of said fee shall be returned by the Commission
to the applicant within 45 calendar days of written request by the
applicant, unless the Commission decides in a public meeting that
other action is not necessary. Any applicant aggrieved by the imposition
of, or the size of, the fee, or any act related thereto, may appeal
according to the provisions of Massachusetts General Laws.
E.
The Commission may establish and amend an application fee schedule in addition to that authorized in Subsection D of this Section, to defray the reasonable expenses incurred by the staff of the Commission in its review and processing of applications filed under the provisions of this bylaw. Application fees collected pursuant to this paragraph shall be deposited in the general fund of the Town as unrestricted receipts.
[Added 10-17-1994 STM,
approved by Attorney General 12-6-1994]
The Commission, its agents, officers and employees may enter
upon privately owned land to perform their duties under this bylaw
and make or cause to be made such examinations, surveys or samplings
as the Commission deems necessary.
An applicant may submit a written request to the Commission
for a determination of the applicability of this bylaw to any land
or work thereon. Upon receipt of said request, the Commission shall,
within 21 calendar days, make a written determination as to whether
this bylaw is applicable to land or work as described by plans submitted
with the request, unless an extension is authorized in writing by
the applicant.
When an application for a permit as provided in § 224-4 has been submitted to the Commission, a public hearing on said application shall be scheduled by the Commission within 21 calendar days of the date of submission as determined by the date of receipt, unless an extension is requested or authorized in writing by the applicant. Notice of the time and place of such hearing and of the subject matter, sufficient for the identification, shall be given by the Commission (at the expense of the applicant) by advertisement in a newspaper of general circulation in Ipswich at least five business days prior to the date of such hearing.
A.
The applicant shall have the burden of proving by a preponderance
of the credible evidence that the work proposed in the application
will not adversely affect the interests protected by this bylaw. The
Commission may, if a majority of its members deem it necessary in
order to make a decision before issuing a permit, require that the
applicant provide an engineering, hydrogeological, botanical, or other
study. No engineering, hydrogeological, botanical, or other study
shall commence until such time as the applicant has agreed, in writing,
to the specified study. The costs of such studies are to be borne
by the applicant. Selection of a consultant to perform a required
study shall be subject to the approval of the Commission. Said approval
shall be based on the experience, qualifications and credentials of
the consultant and shall not be unreasonably withheld.
B.
Failure to provide adequate evidence to the Commission supporting
a determination that the proposed work will not adversely affect the
interests protected by this bylaw shall be sufficient cause for the
Commission to deny a permit, or to grant a permit with conditions,
or in the Commission's discretion to continue the hearing to
another date to enable the applicant or others to present additional
evidence. The Commission and the applicant may also mutually agree
to continue the hearing.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
A.
The Commission shall issue a permit to the applicant or, if in the
opinion of the Commission the proposed work described in the application
may adversely affect the interests protected by this bylaw, deny such
permit within 21 calendar days after the conclusion of the public
hearing or such further time as may be agreed upon at the written
request of the applicant. The Commission shall set forth in what manner
the interests of this bylaw are affected in the permit or denial.
The Commission may impose such conditions as it determines are reasonable
to protect those interests. All work shall conform to the conditions
set forth in the permit.
B.
In the event of a denial of an application, the Commission shall
set forth in detail the reasons for the denial, and shall send notice
of such action to the applicant by certified mail, return receipt
requested, to the address stated on the application.
C.
Permits shall expire three years from the date of issuance. An applicant
may apply for an extension before 30 calendar days prior to the expiration
of the permit or extension and the Commission may grant extensions
for one or more periods of up to three years each.
A.
The conditions contained in the permit issued under the provisions of § 224-9 may be amended by the Commission with the consent of the applicant. Amendments that may be approved by the Commission shall be limited to the following:
(1)
Amendments by deletion provided that such deletions do not derogate
the intent and purpose of the permit conditions.
(2)
Perfecting amendments, inclusive of, but not limited to, the correction
of typographical errors, and errors of reference.
(3)
Amendments that alter the scope but not the intent of the particular
condition being amended.
(4)
Other amendments approved following notice and a public hearing.
B.
The Commission shall not approve any amendments to conditions contained
in permits for work that has been completed in accordance with the
provisions contained in the original permit.
C.
For good cause, the Commission may revoke or modify a permit issued
under this bylaw, after notice to the holder of the permit, notice
to the public, and a public hearing.
Any aggrieved party may appeal the action or inaction of the Commission. Appeals may be taken as provided by MGL c. 249, § 4, as may be amended.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
The notice provisions of this bylaw shall not apply to emergency
projects initiated by the Town of Ipswich or other governmental Boards,
Agencies, or Commissions necessary for the immediate protection of
public health, safety and welfare of the citizens of Ipswich. However,
the Commission shall be notified within 24 hours of the commencement
of such projects. In the absence of members of the Commission, notification
may be made to the Select Board, Town Manager, or Board of Health.
A certificate of emergency condition shall be filed with the Commission
by the Board, Town Manager, Agency, or Commission which authorized
the project, within 14 calendar days after the initiation of work.
Any person who purchases, inherits, or otherwise acquires real
estate upon which work has been done in violation of the provisions
of this bylaw, or in violation of any order issued pursuant to this
bylaw, shall forthwith comply with an order to restore such real estate
to its condition prior to any such violations or to comply with conditions
determined by the Commission if restoration is impractical. No action
by the Town of Ipswich, civil or criminal, shall be brought against
such person unless commenced within three years of the acquisition
of the real estate.
After due notice and public hearing, the Commission may promulgate
regulations and procedures for compliance with this bylaw, a copy
of which shall be filed with the Town Clerk. Failure by the Commission
to promulgate such procedures or a legal declaration of their invalidity
by a court of law shall not act to suspend or invalidate the effects
of this bylaw.
The invalidity of any section or provision of this bylaw shall
not invalidate any other section, nor shall it invalidate any permit
or determination which previously had been issued.
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 hereunder be secured wholly or in part by
one or more of the methods described below and which have been approved
by Town Counsel:
A.
By a proper bond or deposit of money or negotiable securities or
other undertaking of financial responsibility sufficient in the reasonable
judgment of the Commission;
B.
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 or its inhabitants
whereby the permit conditions shall be performed and observed before
any lot may be conveyed other than by mortgage.
A.
The Commission shall have authority to enforce this bylaw, its regulations,
and permits issued thereunder by violation notices, enforcement orders,
and civil or criminal court actions.
(1)
Upon request of the Commission, the Select Board and the Town Counsel
may take legal action for enforcement under civil law. Upon request
of the Commission, the chief of police shall take legal action for
enforcement under criminal law.
(2)
In addition to the duties previously set forth in this bylaw, the
Commission, its agents, officers and employees, and any officer with
police powers may issue enforcement orders directing compliance with
this bylaw and may undertake any other enforcement action authorized
by law. Enforcement orders issued or ratified by a majority of the
Commission may be recorded in the Registry of Deeds if voted by the
Commission. Any person who violates the provisions of this bylaw may
be ordered to restore property to its original condition and take
other actions deemed necessary to remedy such violations.
(3)
No person shall remove, fill, dredge or alter any area subject to
protection under this bylaw without the required authorization, 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 enforcement order issued pursuant
to this bylaw. Each day such violation continues shall constitute
a separate offense except that any person who fails to remove unauthorized
fill or otherwise fails to restore illegally altered land to its original
condition after giving written notification of said violation to the
Conservation Commission and the Department of Environmental Protection
(the "Department") shall not be subject to additional penalties unless
said person thereafter fails to comply with an enforcement order or
order of conditions.
B.
Criminal complaint. Whoever violates any provision of the Ipswich
Wetlands Protection Bylaw, regulations thereunder, or permits issued
thereunder may be subject to indictment or complaint brought in District
Court. Except as may otherwise be provided by law, and as the District
Court may see fit to impose, the maximum penalty for any violation
of these provisions shall be $300 for each offense. Each day on which
any violation exists shall be deemed to be a separate offense.
C.
Non-criminal disposition. In addition to the procedure set forth in Subsection B, the provisions of the Ipswich Wetlands Protection Bylaw may also be enforced by the Conservation Administrator or by a police officer of the Town, by a non-criminal complaint pursuant to the provisions of MGL c. 40, § 21D. Each day on which any violation continues to exist shall be deemed to be a separate offense.
D.
The penalties for violation of any provision of the Ipswich Wetlands
Protection Bylaw shall be as follows:
|
Buffer Zone
|
Wetlands Resource Area
|
Noncompliance With an Order of Conditions or Enforcement
Order
| |
|---|---|---|---|
|
1st offense
|
$25
|
$50
|
$75
|
|
2nd offense
|
$50
|
$150
|
$200
|
|
3rd offense and any subsequent
|
$300
|
$300
|
$300
|
Prior to the commencement of work subject to any permit issued under the provision of § 224-9 and any amendment thereof approved under the provisions of § 224-10, the permits and amendments thereto shall be recorded with the Essex County Registry of Deeds, or in the event that the permit has been issued for work on registered land, with the Land Court of the Commonwealth. A copy of the recorded permit shall be submitted to the Commission within 21 days of such recording.
A.
This bylaw shall not apply to those projects and activities for which
a Notice of Intent has been filed on or before August 15, 1990, and
for which a Final Order of Conditions is ultimately issued by the
Commission or the Department of Environmental Protection and to those
projects for which an Order of Conditions is issued approving the
project on or before September 1, 1990. The bylaw shall apply to all
other projects and activities.
B.
This bylaw shall not apply to those projects or activities which
are exempt from the provisions of the Wetlands Protection Act, MGL
c. 131, § 40, as amended. This bylaw does not exempt those
activities cited in 310 CMR 10.02(2)(b), as may be amended, unless
specifically cited in the Ipswich Wetland Protection Bylaw rules and
regulations.
[Amended 10-27-2015 TM
by Art. 14, approved by Attorney General 2-1-2016]
