[HISTORY: Adopted by the Town Meeting of the Town of Avon 5-7-2019 ATM by Art. 8. Amendments noted where applicable.]
The purpose of this bylaw is to protect the wetlands, related
water resources, and adjoining land areas in Avon by controlling activities
deemed by the Conservation Commission likely to have a significant
or cumulative effect upon wetland values, including but not limited
to the following: public or private water supply, groundwater, flood
control, erosion and sedimentation control, storm damage prevention,
drainage, water pollution, wildlife habitat, agriculture, recreation
and aquaculture values (collectively, the "wetland values protected
by this bylaw").
Except as permitted by the Conservation Commission or as provided
in this bylaw, no person shall remove, fill, dredge, build upon, degrade,
or otherwise alter the following resource areas: any freshwater wetland;
marshes; wet meadows; bogs; swamps; vernal pools; banks; reservoirs;
lakes; ponds; streams; creeks; lands under water bodies; lands subject
to flooding or inundation by groundwater or surface water; and lands
within 100 feet of any of the aforesaid resource areas (collectively
the "resource areas protected by the bylaw").
A.
The permit and application required by this bylaw shall not be required
for maintaining, repairing, or replacing, but not substantially changing
or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water,
telephone, telegraph or other telecommunication services, provided
that written notice has been given to the Commission prior to commencement
of work, and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
B.
The permit and application required by this bylaw shall not be required
for work performed for normal maintenance or improvement of land in
agricultural use, provided that written notice has been given to the
Commission prior to commencement of work, and provided that the work
conforms to performance standards and design specifications in regulations
adopted by the Commission.
C.
The permit and application required by this bylaw shall not apply
to emergency projects necessary for the protection of the health and
safety of the public, provided that the work is to be performed by
or has been ordered to be performed by an agency of the commonwealth
or a political subdivision thereof, provided that advance notice,
oral or written, has been given to the Commission prior to commencement
of work or within 24 hours after commencement, provided that the Commission
or its agent certifies the work as an emergency project, provided
that the work is performed only for the time and place certified by
the Commission for the limited purposes necessary to abate the emergency,
and provided that within 21 days of commencement of an emergency project
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.
D.
Other than as stated in this section, the exceptions provided in
the Wetlands Protection Act shall not apply under this bylaw.
A.
Written application shall be filed with the Commission to perform
activities regulated by this bylaw affecting 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 effects on the environment. No activities shall
commence without receiving and complying with a permit issued pursuant
to this bylaw.
B.
The Commission in an appropriate case may accept as the permit application
and plans under this bylaw the notice of intent and plans filed under
the Wetlands Protection Act, MGL c. 131, § 40, and regulations,
310 CMR 10.00.
C.
Any person desiring to know whether or not a proposed activity or
an area is subject to this bylaw may in writing request a determination
from the Commission. Such a request for determination shall include
such information and plans as are deemed necessary by the Commission.
D.
At the time of a permit application or request for determination,
the applicant shall pay a filing fee specified in regulations of the
Commission. The fee is in addition to that required by the Wetlands
Protection Act, MGL c. 131, § 40, and regulations, 310 CMR
10.00.
E.
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
specific expert engineering and other consultant services deemed necessary
by the Commission to come to a final decision on the application.
This fee is called the consultant fee. The specific consultant services
may include but are not limited to wetlands survey and delineation,
analysis of wetland values, hydrogeologic and drainage analysis, wildlife
habitat evaluations, and environmental land use law.
(1)
The Commission may require the payment of the consultant fee at any
point in its deliberations prior to a final decision. The applicant
shall pay the fee to the Town to be put into a consultant services
account of the Commission, which may be drawn upon by the Commission
for specific consultant services approved by the Commission at one
of its public meetings.
(2)
The exercise of discretion by the Commission in making its determination
to require the payment of a fee shall be based upon its reasonable
finding that additional information acquirable only through outside
consultants would be necessary for the making of an objective decision.
(3)
The Commission shall return any unused portion of the consultant
fee to the applicant unless the Commission decides at a public meeting
that other action is necessary. Any applicant aggrieved by the imposition
of, or size of, the consultant fee, or any act related thereto, may
appeal according to the provisions of Massachusetts General Laws.
(4)
The maximum consultant fee charged to reimburse the Commission for
reasonable costs and expenses shall be according to the following
schedule:
|
Project Cost
|
Maximum Fee
|
|---|---|
|
Up to $50,000
|
No fee
|
|
$50,000 to $100,000
|
$1,000
|
|
$100,001 to $500,000
|
$2,500
|
|
$500,001 to $1,000,000
|
$5,000
|
|
$1,000,001 to $1,500,000
|
$7,500
|
|
$1,500,001 to $2,000,000
|
$10,000
|
|
Each additional $500,000 project cost increment (over $2,00,000)
shall be charged at an additional $2,500 maximum fee per increment.
| |
(5)
The project cost means the estimated, entire cost of the project,
including, but not limited to, building construction, site preparation,
landscaping, and all site improvements. The consultant fee shall be
paid pro rata for that portion of the project cost applicable to those
activities within resource areas protected by this bylaw. The project
shall not be segmented to avoid being subject to the consultant fee.
The applicant shall submit estimated project costs at the Commission's
request, but the lack of such estimated project costs shall not allow
the applicant to avoid the payment of the consultant's fee.
F.
The Town hereby accepts MGL c. 44, § 53E for purposes of
administering jointly the filing fee and professional service conservation
account provisions of this bylaw.
A.
Any person filing a permit application or a request for determination
with the Commission at the same time shall give written notice thereof,
by certified mail (return receipt requested) or hand delivered, to
all abutters at their mailing address 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, and abutters to the abutters
within 300 feet of the property line of the applicant, including any
in another municipality or across a body of water.
(1)
The
notice to abutters shall enclose 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. 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 the
person making the request.
(2)
When
a notice of intent proposes activities on land under water bodies
and waterways or on a tract of land greater than 50 acres, written
notification shall be given to all abutters within 100 feet of the
proposed project site. For the purposes of this section, "project
site" shall mean lands where the following activities are proposed
to take place: dredging, excavating, filling, grading, the erection,
reconstruction or expansion of a building or structure, the driving
of pilings, the construction or improvement of roads or other ways
and the installation of drainage, sewerage and water systems, and
"land under water bodies and waterways" shall mean the bottom of,
or land under, the surface of the ocean or an estuary, creek, river,
stream, pond or lake. When a notice of intent proposes activity on
a linear-shaped project site longer than 1,000 feet in length, notification
shall be given to all abutters within 1,000 feet of the proposed project
site. If the linear project site takes place wholly within an easement
through another person's land, notice shall also be given to the landowner.
B.
The Commission shall conduct a public hearing on any permit application
or request for determination, with written notice given at the expense
of the applicant, five business days prior to the hearing, in a newspaper
of general circulation in the municipality.
C.
The Commission shall commence the public hearing within 21 days from
receipt of a completed permit application or request for determination
unless an extension is authorized in writing by the application.
D.
The Commission shall issue its permit 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.
E.
The Commission, in an appropriate case, may combine its hearing under
this bylaw with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
F.
The Commission shall have authority to continue the hearing to a date certain announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information offered by the applicant, deemed necessary by the Commission in its discretion, or comments and recommendations of the boards and officials listed in § 239-6. 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.
A.
Any person filing a permit application or a request for the determination
with the Commission shall provide a copy thereof at the same time,
by certified mail (return receipt requested) or hand delivery, to
the Select Board, Planning Board, Board of Appeals, Board of Health,
Town Engineer and Building Inspector. A copy shall be provided in
the same manner to the Conservation Commission of the adjoining municipality,
if the application or request pertains to property within 300 feet
of that municipality. An affidavit of the person providing notice,
with a copy of the notice mailed or delivered, shall be filed with
the Commission. The Commission shall not take final action until the
boards and officials have had 14 days from receipt of notice to file
written comments and recommendations with the Commission, which the
Commission shall take into account but which shall not be binding
on the Commission.
[Amended 1-28-2023 STM by Art. 9]
B.
The applicant shall have the right to receive any comments and recommendations,
and to respond to them at a hearing of the Commission prior to final
action.
A.
If the Commission, after a public hearing, determines that the activities
which are subject to the application are likely to have a significant
or cumulative effect upon the wetland 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.
B.
The Commission is empowered to deny a permit for failure to meet
the requirements of this bylaw; for failure to submit necessary information
and plans requested by the Commission; for failure to meet the design
specifications, performance standards, and other requirements in regulations
of the Commission; for failure to avoid or prevent unacceptable significant
or cumulative effects upon the wetland values protected by this bylaw;
and where no conditions are adequate to protect those values. Due
consideration shall be given to any demonstrated hardship on the applicant
by reason of denial, as presented at the public hearing.
C.
A permit shall expire two 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 prior to expiration.
D.
For good cause, the Commission may revoke or modify a permit or determination issued under this bylaw after notice to the holder of the permit; then notice to the public, abutters, and Town boards, pursuant to § 239-5, and a public hearing may be held.
E.
The Commission in an appropriate case may combine the permit or determination
issued under this bylaw with the order of conditions and determination
of applicability issued under the Wetlands Protection Act.
F.
No work proposed in any permit application shall be undertaken until
the permit issued by the Commission with respect to such work has
been recorded in the Registry of Deeds or, if the land affected thereby
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 a permit has been so recorded.
A.
After public notice and public hearing, the Commission shall promulgate
rules and regulations to effectuate the purposes of this bylaw. 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.
B.
At a minimum, these regulations shall define key terms in this bylaw
not inconsistent with the bylaw and procedures governing the amount
and filing of fees.
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
PERSON
The following definitions shall apply in the interpretation and implementation
of this bylaw:
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 water quality;
Placing of fill, or removal of material, which would alter elevation;
Driving of piles, erection, or repair of buildings, or structures
of any kind;
Placing of obstructions or objects in water, or in seasonal
waterways;
Destruction of plant life, including cutting of trees;
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; and
Application of pesticides or herbicides.
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.
B.
Except as otherwise provided in regulations of the Commission, the
definitions of terms in this bylaw shall be set forth in the Wetlands
Protection Act, MGL c. 131, § 40, and regulations, 310 CMR
10.00.
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:
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, to be released in whole or in part upon issuance
of a certificate of compliance for work performed pursuant to the
permit;
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 whereby
the permit conditions shall be performed and observed before any lot
may be conveyed other than by mortgage deed.
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 fill to be left in place, without the required
authorization pursuant to this bylaw.
B.
The Commission, its agents, officers, and employees shall have authority,
with or without prior approval from the property owner, 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 samplings as the Commission deems necessary.
C.
The Commission shall have authority to enforce this bylaw, its regulations,
and permits issued thereunder by violation notices, administrative
orders, and civil and criminal court actions. Any person who violates
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.
D.
Upon request of the Commission, the Select Board and the Town Counsel
shall 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.
[Amended 1-28-2023 STM by Art. 9]
E.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
F.
Any person who violates any provision of this bylaw, regulation thereunder,
or permits or administrative orders issued thereunder, shall be punished
by a fine of not more than $300. Each day or portion thereof during
which a violation continues, or unauthorized fill remains in place,
shall constitute a separate offense, and each provision of the bylaw,
regulations, permit, or order violated shall constitute a separate
offense. The provisions of this bylaw may be enforced by the Conservation
Officer or by any police officer of the Town of Avon in the manner
provided by MGL c. 40, § 21D.
The applicant for a permit shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the permit application will not have unacceptable significant or
cumulative effect upon the wetland 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 an action filed within 60 days thereof, 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 thereunder.
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.
