[HISTORY: Adopted by the Town Meeting of the Town of Wenham 1-9-1978 (former Ch. XII); amended 5-1-2010. Subsequent amendments noted
where applicable.]
The purpose of this bylaw is to promote the health, safety,
welfare and amenities of the community or any neighborhood thereof,
to prevent harmful results from improper excavation and to assure
compliance with the Master Plan of the Town of Wenham.
For the purposes of this bylaw, "earth" shall include soil,
loam, sod, clay, sand and gravel or quarried stone, or any combination
thereof.
A.
Other than as excepted in this bylaw, no earth shall be removed from
any parcel of land not in public use, either above or under water,
in the Town of Wenham unless by and in accordance with a permit issued
under the authority of this bylaw. In order to preserve the natural
resources of the Town of Wenham, the removal from the Town of topsoil
or sod is prohibited; relocation within the Town of topsoil or sod
from one parcel of land to another, within the Town, is permitted
by written permit as hereinafter set forth.
B.
The annual removal of earth other than topsoil or sod in a quantity
less than 100 cubic yards per year or the removal of topsoil or sod
in a quantity of less than 10 cubic yards per year shall be exempt
from the provisions of this bylaw.
C.
The removal of earth in compliance with the requirements of a subdivision
plan approved by the Planning Board is exempt from the provisions
of this bylaw.
Application for a permit hereunder shall be filed with the Board of Selectmen and the Town Clerk in such forms as the Board of Selectmen shall prescribe from time to time. In the event that no rules have been prescribed at the time of the application, within 30 days of filing the application, the Board of Selectmen may require the applicant to furnish such additional specified information as may be reasonably useful and further may also require a refiling within 30 days of date of notice to applicant. The legal date of filing of application for all purposes, including those specified in § 133-5 herein, shall be the date of last filing.
A.
No permit shall be issued without a public hearing held within 65
days of the filing of the application with the Town Clerk in conformity
with provisions for special permits under MGL c. 40A, §§ 9
and 11.
B.
Failure of the Board of Selectmen to take final action within 90
days after the hearing shall be deemed approval of the requested permits,
provided that such permits shall be valid only for six months from
the date of automatic approval, excluding the time required to pursue
or await the determination of appeal, and further provided that all
work shall be done in accordance with the standards for earth removal
in subdivisions as stipulated in the rules and regulations governing
subdivisions of the Planning Board of the Town of Wenham.[1]
C.
Permit issued by vote of the Board shall automatically expire upon
completion of the earth removal project for which it was issued or
at such time as may be specified in said permit, and in any event
within one year from the date of issue thereof.
D.
A permit may be renewed by the Board of Selectmen for a period of
one year without a hearing if it finds that all conditions then applicable
have been complied with and that the work has been carried on continuously
and in good faith. A permit may not be renewed more than once without
a hearing unless, in the opinion of the Board of Selectmen, the area
of the previous permit is being satisfactorily restored for use in
accordance with the reuse plan approved by said Board.
E.
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. So as to comply with Section 22 of the Green Communities Act, amending MGL c. 25A, § 10(c), the review of such application shall be expedited and a decision thereon shall be rendered no later than one year from the date of submittal thereof.
A.
Permits for earth removal may be issued by the Board of Selectmen
subject to the approval where required and the advice where applicable
of the Planning Board, Conservation Commission, Board of Health, Highway
Department, Police Department and other relevant Town departments,
subject to the express limitations provided hereinafter and to such
additional limitations of time and usage as the Board feels are reasonably
required to satisfy the purpose of this bylaw. The Board of Selectmen
shall be guided by the standards for earth removal in subdivisions
as adopted from time to time by the Planning Board in its rules and
regulations for subdivisions.[1]
B.
Permits for earth removal shall be issued only upon condition that
a cover of topsoil of not less than six inches in depth shall be replaced
or allowed to remain, except where, due to construction of roads,
buildings or other permanent physical features, such provision is
impractical. Such topsoil cover shall be seeded with a perennial cover
crop to assure uniform growth and surface soil stabilization.
C.
In exercising its discretion under this bylaw, the Board of Selectmen
shall not issue any permit for earth removal if in its opinion such
removal will:
(1)
Endanger the public health or safety or constitute a nuisance because
of noise, vibration, smoke, gas fumes, odor, erosion, pollution or
other objectionable features, hazard, explosion or fire.
(2)
Produce noise, dust or other effects observable at the lot lines
in amounts seriously objectionable or detrimental to the normal use
of the adjacent property or the economic condition of the district
or Town.
(3)
Result in the transportation over Town ways which will be injured
in any way by loads in excess of the road capability or by means of
handling vehicles used to transport earth or of handling materials
in transport.
The Board of Selectmen shall not issue any earth removal permit
if the work extends within 300 feet of a way open to public use, whether
public or private, or 250 feet of a building or structure, or within
100 feet of a natural stream or body of water unless the Board is
satisfied that the removal will not undermine the way or structure
and will not cause damage to the abutting property, stream or body
of water.
The invalidity of any section, subsection or provision of this
bylaw shall not invalidate any other section or provision thereof.
A.
The Board of Selectmen or duly authorized representative shall review
the progress of the work from time to time to ensure proper conduct.
B.
If the Board of Selectmen concludes that there has been a violation
of this bylaw, a notice of violation shall be sent to the landowner
and, where applicable, the permit holder, by registered or certified
mail to the address of the landowner on the Town records and, when
applicable, to the address of the permit holder on the initial application,
and the Board or its designee may send a notice ordering a cessation
of the improper activities, or take any other action necessary to
prohibit further violation.
C.
Each violation of this bylaw shall be subject to a fine of $50 for
the first offense, $100 for the second offense and $200 for each subsequent
offense, under the terms of MGL c. 40, § 21, Clause 17.
Each truckload, or partial truckload, and each day of noncompliance
shall constitute a separate offense. The landowner, the permit holder
and the driver of the truck shall be jointly and severally liable
for the fines.
D.
Whether or not specified in the permit, the Board of Selectmen shall
have the power to revoke or suspend a permit issued under this bylaw
if any permit provisions are not fully complied with by the permit
holder or any of its employees, agents, or contractors, either directly
or indirectly.
