[HISTORY: Adopted by the Town Meeting of the Town of Wenham 5-14-1988 (former Ch. XVIII); amended 5-2-1992; 5-6-2006; 5-3-2008; 5-1-2010. Subsequent amendments noted
where applicable.]
A.
The purpose of this bylaw is to maintain the quality of surface water
and groundwater; to maintain the level of the groundwater table and
water recharge areas for existing or potential water supplies; to
protect persons and property against the hazards of floodwater inundation;
to protect and conserve natural features, resources, and amenities
for the benefit and welfare of present and future citizens of the
Town of Wenham.
B.
This bylaw is intended to protect the water resources, wetlands,
and adjoining areas in Wenham by prior review and control of activities
deemed by the Conservation Commission likely to have a significant
or cumulative adverse effect upon the following values: public or
private water supply, groundwater, fisheries, wildlife, wildlife habitat,
rare species habitat, water quality, agriculture, aquaculture, recreation
and the prevention and control of flooding, erosion, sedimentation,
storm damage, or pollution (collectively, the "resource area values
protected by the bylaw"). This bylaw is intended to utilize the Home
Rule Authority of this Town to protect additional resource areas,
for additional values, with additional standards and procedures to
augment those of the Wetlands Protection Act, MGL c. 131, §
40, and regulations thereunder, 310 CMR 10.00.
Except as permitted in writing by the Conservation Commission
or as provided in this bylaw, no person shall remove, fill, dredge,
discharge into, build upon, otherwise alter, pollute, or degrade the
following resource areas: any freshwater wetland as determined by
vegetational community, soils composition or hydrologic regime, including
any marsh, wet meadow, bog, or swamp; any vernal pool; any lake, stream,
reservoir, river, or pond, whether intermittent or continuous, natural
or man-made; land under such waters; bank or beach; land subject to
flooding or inundation by groundwater, surface water or stormwater
(collectively the "wetland resource areas protected by this bylaw");
or lands within 100 feet of any of the aforesaid resource areas (collectively
the "adjacent upland resource areas protected by this bylaw").
A.
The application and permit required by this bylaw shall not be required
for maintaining or repairing, but not substantially changing, relocating
or enlarging, any existing or lawfully located structure or facility
used in the service of the public to provide electricity, gas, water,
telephone, telegraph, or other telecommunication services, provided
that, except in cases of public emergency, written notice and plan
of work has been given to the Commission at least 48 hours prior to
commencement of work, and provided that the work is performed in accordance
with standards adopted in regulations promulgated under this bylaw.
B.
The application and permit required by this bylaw shall not apply
to any emergency project necessary for public health and safety, 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 notice, oral or written, has been given to the Commission
or its agent 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, a permit application shall be filed with the Commission
for review as provided by this bylaw. 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.
C.
The application and permit required by this bylaw shall not be required
for work performed for the normal maintenance or improvement of lands
in lawful, active agricultural use, provided that the work conforms
to performance standards and design specifications in regulations
adopted by the Commission. Other than as stated in this section, the
exceptions provided in the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00, shall not apply under this bylaw.
A.
Written application shall be filed with the Commission to perform
activities affecting wetland and upland resource areas protected by
this bylaw. The permit application shall include such information
and plans as are deemed necessary by the Commission to describe proposed
activities and their potential effects on the resource areas protected
by this bylaw. No activities shall commence without receiving and
complying with a permit issued pursuant to this bylaw.
B.
Any person desiring to know whether or not a proposed activity or
an area is subject to this bylaw shall request, in writing, a determination
from the Commission. Such request for determination shall contain
data and plans as specified by regulations adopted under this bylaw.
C.
The Commission in an appropriate case may accept any request, application
and plans filed under MGL c. 131, § 40, as having also been
filed under this bylaw. An application for a permit or a request for
determination shall be hand-delivered or sent by certified mail to
the Commission. The Commission may reasonably request that a separate
submittal be made under this bylaw if concerns which may arise pursuant
to this bylaw are not addressed as part of the original submittal.
D.
Where a permit is required hereunder in connection with the development of a large-scale ground-mounted solar photovoltaic installation pursuant to § 255-10.2 of Chapter 255, Zoning, an application therefor shall be submitted simultaneously with an application for site plan review under said § 255-10.2. If a determination of applicability is sought, a request therefor shall be submitted and a determination thereon rendered prior to submittal of an application for site plan review.
E.
The applicant shall pay fees as specified in regulations adopted
under this bylaw. The fee is in addition to that required by the Wetlands
Protection Act, MGL c. 131, § 40. The Commission may waive
the fees, costs, and expenses for an application or request filed
by a government agency, or if the project serves a public purpose
as determined by the Commission.
F.
Upon receipt of a permit application or request for determination,
the Commission is authorized to require an applicant to pay a fee
for the reasonable costs and expenses borne by the Commission for
expert engineering and other consultant or legal services ("consultant
services") deemed necessary by the Commission to come to a final decision
on the application. This fee is called the "consultant fee." The 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.
G.
The exercise of discretion by the Commission in making its determination
to require the payment of a consultant fee shall be based upon its
reasonable finding that additional information available through outside
consultants is necessary for the making of an objective decision.
Any applicant aggrieved by the imposition of, or amount of, the consultant
fee, or any act related thereto, may appeal according to the provisions
of the Massachusetts General Laws. The consultant fee charged to reimburse
the Commission for reasonable costs and expenses shall be based on
the overall project costs and shall not exceed $15,000.
A.
Any person filing a permit or other application or request for determination
(RFD) with the Commission shall give written notice, by certified
mail (return receipt requested) or hand-delivered, to all abutters
at their mailing addresses shown on the most recent applicable tax
list of the Assessors, including owners of land directly opposite
on any public or private street or way or across a body of water (within
300 feet of the boundaries of the locus of the proposed project or
within 100 feet of the property line on which the project is to be
carried out, whichever is greater), including any in another municipality.
The Commission may at its own discretion request that additional parties
who may be affected by the proposed project (including but not necessarily
limited to those affected by or through changes in surface water runoff
patterns, impact on the groundwater table, etc.) be notified according
to the procedures established for abutters as described above. The
notice to abutters shall have enclosed a copy of the permit application
or request, with plans, or shall state where copies may be examined
and obtained by abutters. An affidavit of the person providing such
notice, with a copy of the notice mailed or delivered, shall be filed
with the Commission. The Commission shall conduct a public hearing
on any permit application, abbreviated notice of resource area delineation
(ANORAD), or RFD, with written notice given at the expense of the
applicant, five business days prior to the hearing, in a newspaper
of general circulation in Wenham.
B.
The Commission shall commence the public hearing within 21 days from
receipt of a completed permit application, ANORAD, or RFD unless an
extension is authorized, in writing, by the applicant or unless a
hearing is delayed beyond 21 days by conditions beyond the reasonable
control of the Commission, in which case the hearing will be held
as soon as reasonably possible. The Commission shall have the authority
to continue the hearing to a specific date announced at the hearing
for reasons stated at the hearing, which may include the need for
additional information from the applicant or from others as deemed
necessary by the Commission, in its discretion, to solicit or respond
to comments and recommendations of the boards and officials listed
in the following section. In the event the applicant objects to a
continuance or postponement, the hearing shall be closed and the Commission
shall take action on such information as is available.
C.
The Commission shall issue its permit, other order, or determination
in writing within 21 days of the close of the public hearing thereon
unless an extension is authorized, in writing, by the applicant. When
a person requesting a determination is other than the owner, the request,
the notice of the hearing and the determination itself shall be sent
by the Commission to the owner as well as to the person making the
request.
D.
So as to comply with Section 22 of the Green Communities Act, amending MGL c. 25A, § 10(c), the review of a permit application made hereunder in connection with the development of a large-scale ground-mounted solar photovoltaic installation, as aforesaid, shall be expedited and a decision thereon shall be rendered no later than one year from the date of submittal thereof. Determinations of applicability shall be made expeditiously, so as not to delay application for site plan review pursuant to § 255-10.2 of Chapter 255, Zoning, and/or for a permit hereunder.
E.
The Commission shall combine its hearing under this bylaw with the
hearings on combined applications for a 401 Water Quality Certification
and/or Chapter 91 license in accordance with the Wetlands Protection
Act, MGL c. 131, § 40, and the provisions set forth in 310
CMR 10.00 et seq.
A.
The Conservation Commission may choose to solicit the advice and
opinions of other Town boards and officials in the course of its deliberations.
Town boards and officials shall be entitled to file written comments
and recommendations with the Commission at or before the public hearing.
The Commission shall take any such comments and recommendations into
account but shall not be bound by them. The applicant shall have the
right to receive any comments and recommendations, and will be given
the opportunity to respond to them at a hearing of the Commission,
prior to final action.
B.
Any application for a permit or determination shall at the same time
be mailed or delivered to the Board of Selectmen, Planning Board,
Zoning Board of Appeals, Board of Health and Building Inspector.
A.
If the Conservation Commission, after a public hearing, determines
that the activities which are subject to the permit application, or
the land and water uses which will result therefrom, are likely to
have a significant or cumulative adverse effect upon the resource
area values protected by this bylaw, the Commission, within 21 days
of the close of the hearing, shall issue or deny a permit for the
activities requested. If it issues a permit, the Commission shall
impose conditions which the Commission deems necessary or desirable
to protect those values, and all activities shall be done in accordance
with those conditions. The Commission shall take into account the
adverse effects of loss, degradation, isolation, and replication of
protected resource areas throughout the community and the watershed
resulting from past activities, permitted and exempt, and foreseeable
future activities.
B.
Where no conditions are adequate to protect those resource values,
the Commission is empowered to deny a permit for failure to meet the
requirements of this bylaw. It may also deny a permit 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; or for failure
to avoid or prevent unacceptable effects upon the resource area values
protected by this bylaw. Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing.
C.
Lands within 200 feet of rivers, ponds and lakes, and lands within
100 feet of other 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 areas, 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 may therefore establish performance standards
for protection of such lands, including, without limitation, strips
of continuous, undisturbed vegetative cover within the 200-foot or
100-foot area, or other form of work limit or setback to buildings,
roads, landscaping and other features, unless the applicant convinces
the Commission that the area or part of it may be disturbed without
harm to the values protected by the bylaw. The specific size and type
of protected area may be established by regulations of the Commission.
D.
In the review of areas within 200 feet of rivers, ponds and lakes,
no permit issued hereunder shall permit any activities unless the
applicant, in addition to meeting the otherwise applicable requirements
of this bylaw, has proved by a preponderance of the evidence that
there is no practicable alternative to the proposed project with less
adverse effects, and that such activities, including proposed mitigation
measures, will have no significant adverse impact on the areas or
values protected by this bylaw. The Commission shall regard as practicable
an alternative which is reasonably available and capable of being
done after taking into consideration the proposed property use, overall
project purpose (e.g., residential, institutional, commercial, or
industrial purpose), logistics, existing technology, costs of the
alternatives, and overall project costs.
E.
To prevent wetlands loss, the Commission shall require applicants
to avoid wetlands alteration wherever feasible; shall minimize wetlands
alteration; and, where alteration is unavoidable, shall require full
mitigation which shall include, at a minimum, complete replacement
or restoration of the lost wetlands. The Commission may authorize
or require replication of wetlands as a form of mitigation, but only
with adequate security, professional design, and monitoring to assure
success, because of the high likelihood of failure of replication.
F.
The Commission may require a wildlife habitat study of the project
area, to be paid for by the applicant, whenever it deems appropriate,
regardless of the type of resource area or the amount or type of alteration
proposed. The decision shall be based upon the Commission's estimation
of the importance of the habitat area considering (but not limited
to) such factors as proximity to other areas suitable for wildlife,
importance of wildlife corridors in the area, or possible presence
of rare species in the area. The work shall be performed by an individual
who at least meets the qualifications set out in the wildlife habitat
section of the Wetlands Protection Act regulations (310 CMR 10.60).
G.
The Commission shall presume that all areas meeting the definition of "vernal pools" under § 242-9 of this bylaw, including the adjacent area, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence which, in the judgment of the Commission, demonstrates that the basin or depression does not provide essential habitat functions. Any formal evaluation should be performed by an individual meeting the qualifications under 310 CMR 10.60.
H.
A permit shall expire three years from the date of issuance. Notwithstanding
the above, the Commission in its discretion may issue a permit 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. Any permit may be renewed once for an
additional one-year period, provided that a request for a renewal
is received, in writing, by the Commission not less than 30 days prior
to expiration. Notwithstanding the above, a permit may identify requirements
which shall be enforceable for a stated number of years, indefinitely,
or until permanent protection is in place, and shall apply to all
owners of the land.
I.
For good cause the Commission may revoke any permit, other order, determination or other decision issued under this bylaw after notice to the holder of the permit, the public, abutters, and Town boards, pursuant to §§ 242-5 and 242-6, and a public hearing. Amendments to permits or determinations shall be handled in the manner set out in the Wetlands Protection Act regulations and policies thereunder.
J.
The Commission in an appropriate case may combine the decision issued
under this bylaw with the order of conditions, order of resource area
delineation (ORAD), determination of applicability or certificate
of compliance issued under the Wetlands Protection Act and 310 CMR
10.00 et seq.
K.
No work proposed in any application shall be undertaken until an
appeal period of 10 business days from the date of issuance of the
permit, ORAD or determination by the Commission has elapsed and said
permit, ORAD, or determination 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 permit certifies, in writing, to the Commission
that the document has been recorded. If the applicant fails to perform,
the Commission may record the documents itself or issue an enforcement
order.
After public notice and public hearing, the Commission may promulgate
or amend rules and regulations to accomplish the purposes of this
bylaw and may establish a schedule of filing fees and consultant fees
to be paid by persons making requests for determinations or applications
for permits hereunder, effective when approved by majority vote of
the Commission and filed with the Town Clerk. 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.
A.
ADJACENT UPLAND RESOURCE AREA
AGRICULTURE
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
AQUACULTURE
BANK
PERSON
POND
RARE SPECIES
RECREATION
VERNAL POOL
The following definitions shall apply in the interpretation and implementation
of this bylaw:
Includes all lands with 100 feet of wetland resource areas as enumerated in § 242-2, except for perennial streams and rivers for which the adjacent upland resource area extends for 200 feet from the top of bank, and except for vernal pools and ponds under 10,000 square feet in area for which special adjacent upland resource area definitions are described below.
Any work which produces food or other products for commerce
or subsistence which occurs in, on, or within 100 feet of a resource
area or which is directly or indirectly dependent upon wetlands values
for proper agricultural functions, such as prevention of pollution
or maintenance of adequate water flow for irrigation. Agriculture
includes, but is not limited to, the growing of crops, including cranberries,
and the raising of livestock. Nonagricultural activities in or within
100 feet of resource areas shall not have a significant effect on
existing agriculture.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this bylaw:
Removal, excavation, or dredging of soil, sand, gravel, or aggregate
materials of any kind.
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns, or flood-retention
characteristics.
Drainage or other disturbance of water level or water table.
Dumping, discharging, or filling with any material which may
degrade or otherwise impact water quality.
Placing of fill, or removal of material, which would alter elevation.
Driving of piles, erection, expansion or repair of buildings,
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting or trimming of
trees and shrubs.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters.
Any activities, changes, or work which may cause or tend to
contribute to pollution of any body of water or groundwater (including
the application of pesticides and herbicides).
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
Placing of materials which have a reasonable likelihood of contributing
to pollution or of impacting water quality through surface runoff,
groundwater infiltration or airborne transport, including but not
limited to yard and landscaping wastes and debris, slash, soils and
sediments, wood chips, mulch, grit, gravel or other organic and inorganic
materials.
The growing, raising, breeding, storing, or producing of
specified aquatic or marine organisms at specified locations for commercial,
municipal, or scientific purposes as approved by appropriate agencies.
Organisms in aquacultural use include, but are not limited to: shellfish,
such as oysters, quahogs, clams, lobsters, mussels, scallops and crabs;
finfish, such as trout, eel, herring, salmon, smelt and bass; amphibians,
such as frogs; reptiles, such as turtles; seaweeds, such as Irish
moss and dulse; edible freshwater plants, such as watercress; and
plankton grown as a food source for other organisms. Activities in
or within 100 feet of a resource area shall not have a significant
effect on existing permitted aquaculture.
Includes the land area which normally abuts and confines
a water body, the lower boundary being the mean annual low flow level
and the upper boundary being the first observable break in the slope
or the mean annual flood level, whichever is higher.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to Town bylaws, administrative agency, public or quasi-public corporation
or body, this municipality, and any other legal entity, its legal
representatives, agents, or assigns.
Shall follow the definition of 310 CMR 10.04 except that
the size threshold of 10,000 square feet shall not apply.
Includes, without limitation, 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.
Any leisure activity or sport taking place in, on, or within
100 feet of a resource area which is dependent on the resource area
and its values directly or indirectly for its conduct and enjoyment.
Recreational activities include, but are not limited to, the following:
noncommercial fishing and shellfishing, hunting, boating, swimming,
walking, painting, bird-watching and aesthetic enjoyment. Structures
and activities in or within 100 feet of a resource area shall not
have a significant effect on public recreational values.
Includes, in addition to scientific definitions found in
the regulations under the Wetlands Protection Act, any confined basin
or depression not occurring in existing lawns, gardens, landscaped
areas or driveways which, at least in most years, holds water for
a minimum of two continuous months during the spring and/or summer,
contains at least 150 cubic feet of water (approximately 1,000 gallons)
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 Division
of Fisheries and Wildlife. The boundary of the resource area for vernal
pools shall be 100 feet outward from the mean annual high-water line
defining the depression, but shall not include existing lawns, gardens,
or landscaped or developed areas.
B.
Except as otherwise required by this bylaw or regulations promulgated
thereunder, definitions and regulations set forth in MGL c. 131, § 40,
and 310 CMR 10.00 effective November 1987, as amended from time to
time, shall apply.
As part of a permit issued under this bylaw, in addition to
any security required by any other municipal or state board, agency,
or official, the Commission may require that the performance and observance
of the conditions imposed thereunder (including conditions requiring
mitigation work) be secured wholly or in part by one or more of the
methods described below:
A.
By a proper bond or deposit of money or negotiable securities or
other undertaking of financial responsibility sufficient in the opinion
of the Commission and payable to the Town of Wenham, to be released
in whole or in part upon issuance of a certificate of compliance for
work performed pursuant to the permit.
B.
By accepting a conservation restriction, easement, or other covenant
enforceable in a court of law, executed and duly recorded by the owner
of record, running with the land to the benefit of this municipality
whereby the permit conditions shall be performed and observed before
any lot may be conveyed, unless postponement of the execution is due
to circumstances beyond the reasonable control of the applicant and
delays in conveyance would impose an unreasonable burden on the applicant.
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 bylaw, 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 a permit or an enforcement order issued pursuant
to this bylaw.
B.
The Commission and its agents shall have the authority to enter upon
privately owned land for the purpose of performing their duties under
this bylaw 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.
C.
Any person who violates the provisions of this bylaw 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.
The invalidity of any section or provision of this bylaw shall
not invalidate any other section or provision thereof, nor shall it
invalidate any permit or determination which previously has been issued.
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
effect 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.
A decision of the Commission shall be reviewable in the Superior
Court in accordance with MGL c. 249, § 4.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts
Constitution and the Home Rule statutes, independent of the Wetlands
Protection Act, MGL c. 131, § 40, and regulations 310 CMR
10.00 thereunder.
