[HISTORY: Adopted by the Special Town Meeting of the Town
of Easton 9-15-1986 by Art. 27
(Art. 29 of the 1922 Bylaws). Amendments noted where applicable.]
GENERAL REFERENCES
Conservation Commission regulations — See Ch. 503.
[Amended 5-11-1998 ATM
by Art. 51; 5-17-2004 ATM, Art.
25]
The purpose of this chapter is to protect the wetlands, water
resources and adjoining land areas in this municipality 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,
water pollution, fisheries, shellfish, wildlife habitat, recreation,
aesthetics, agriculture and agriculture values (collectively the "wetland
values protected by this chapter"). This chapter is intended to utilize
the Home Rule authority of this municipality to protect additional
resource areas, for additional values, with additional standards and
procedures stricter than those of the Wetlands Protection Act, MGL
c. 131, § 40, and regulations, 310 CMR 10.00, subject, however,
to the rights and benefits accorded to agricultural uses and structures
of all kinds under the laws of the Commonwealth.
[Amended 4-29-1991 ATM
by Art. 29; 5-11-1998 ATM by Art.
51; 5-17-2004 ATM by Art. 25; 6-6-2005 ATM by Art. 10]
Except as permitted by the Easton Commission or as provided
in this chapter, no person shall remove, fill, dredge, build upon,
degrade, discharge into or otherwise alter the following resource
areas: any freshwater wetlands; marshes; wet meadows; bogs; swamps;
vernal pools; banks; beaches; reservoirs; lakes; ponds of any size;
rivers; 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; rivers, streams
and creeks whether perennial or intermittent; and lands within 200
feet of any river, stream, or creek (collectively the "resource areas
protection[1] by this chapter"). Said resource areas shall be protected
whether or not they border surface waters.
[1]
Editor's Note: So in original. Apparently should read "protected."
[Amended 5-17-2004 ATM
by Art. 25]
A.
The application and permit required by this chapter shall not be
required for work performed for normal maintenance or improvement
of land in agricultural use as defined by the Wetlands Protection
Act Regulations at 310 CMR 10.04. Provided, however, nothing contained
within this provision shall prohibit the Commission from exercising
its full enforcement powers under this chapter and the Wetlands Protection
Act should it determine the activity is not normal maintenance or
improvement of land in agricultural use.
B.
The permit and application required by this chapter 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 the structure or facility is not substantially changed
or enlarged, 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 chapter shall not apply
to emergency projects necessary for the protection of the health or
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 Conservation
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 Conservation Commission for the limited purposes necessary
to abate the emergency, and provided that within 21 days of commencement
of any emergency project a permit application shall be filed with
the Commission for review as provided in this chapter. 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.
[Amended 4-29-1991 ATM
by Art. 30; 4-29-1991 ATM by Art.
31; 5-18-2009 ATM by Art. 32]
A.
Written application shall be filed with the Commission to perform
activities regulated by this chapter affecting resource areas protected
by this chapter. The application shall include such information and
plans as are deemed necessary by the Commission to describe proposed
activities and their effects on the environment and the resource areas
protected under this chapter. No activities shall commence without
receiving and complying with a permit issued pursuant to this chapter.
[Amended 5-17-2004 ATM
by Art. 25]
B.
The Commission in an appropriate case may accept as the application
and plans under this chapter 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 chapter may in writing request a determination
from the Commission. Such a request for determination shall contain
data and plans specified by the regulations of 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. The Commission may waive the filing fee, consultant fee and
costs and expenses for a permit application or request for determination
filed by a government agency and shall waive them for a request for
determination filed by a person having no financial connection with
the property which is the subject of the request.
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 or land use law.
F.
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.
G.
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.
H.
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 the Massachusetts General Laws.
I.
The consultant fee charged to reimburse the Commission for reasonable
costs and expenses shall be in accordance with the regulations of
the Commission.
[Amended 4-29-1991 ATM
by Art. 33]
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 addresses shown on the most recent applicable
tax list of the assessors, including owners of land directly opposite
on any public or private 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. 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 to the person making the
request.
B.
The Commission shall conduct a public hearing on any 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
the receipt of a completed application or request for determination,
unless an extension is authorized in writing by the applicant.
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 chapter 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 or others, information and plans required of the applicant, deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in § 227-6. In the event that 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.
[Amended 10-2-1989 STM
by Art. 8; 5-17-2004 ATM by Art.
25; 5-20-2019 ATM
by Art. 21]
Any person filing an application for permit (Form 3 or 4) or
a request for determination (Form 1) with the Commission shall inform
each of the following: the Select Board, Planning and Zoning Board,
Board of Appeals, Board of Health, Town Engineering Division and Building
Inspector, by certified mail or hand delivery, that the same is on
file in the Commission office for their immediate review. A copy shall
be provided in the same manner to the Conservation Commission of an
adjoining municipality, if the application for permit or request for
determination 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 action until such 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. The applicant shall
have the right to receive any such comments and recommendations, and
to respond to them at a hearing of the Commission, prior to final
action.
[Amended 4-29-1991 ATM
by Art. 34; 4-10-1995 ATM by Art.
10; 5-11-1998 ATM by Art. 51; 5-17-2004 ATM by Art. 25; 6-6-2005 ATM by Art. 10; 5-16-2011 ATM by Art. 32]
A.
If the Commission after a public hearing determines that the activities
which are the subject of the application are likely to have a significant
or cumulative effect upon the wetland values protected by this chapter,
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. A permit may identify
requirements that 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. The Commission shall take into account
the cumulative adverse effects of loss, degradation, isolation and
replication of protected resource areas throughout the municipality,
resulting from past activities, permitted and exempt, and foreseeable
future activities.
B.
The Commission is empowered to deny a permit for failure to meet
the requirements of this chapter; 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 chapter 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.
(1)
Lands within 100 feet of the specified resource areas, and within
200 feet of rivers, streams, and creeks, are presumed important to
the protection of these resources because activities undertaken in
close proxintity to resource areas have a high likelihood of adverse
effect upon them 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, but not be limited to, erosion, siltation, loss of groundwater
recharge, poor water quality, and loss of wildlife habitat. The Commission
therefore may require that the applicant maintain a strip of continuous,
undisturbed vegetative cover within the aforementioned one-hundred-foot
or two-hundred-foot area, unless the applicant convinces the Commission
that the area or part of it may be disturbed without harm to the values
protected by this chapter. The specific size and type of protected
area may be established by regulations of the Commission.
(2)
In the case of areas within 200 feet of rivers, streams, and creeks,
no permit issued hereunder shall permit any activities unless the
applicant, in addition to meeting the otherwise applicable requirements
of this chapter, has proved by a preponderance of the evidence that
there is no practicable alternative to the proposed project with less
adverse effects, and should there be no practicable alternative, that
such activities, including proposed mitigation measures, will have
no significant adverse impact on the areas or values protected by
this chapter. 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 purposes,
logistics, existing technology, costs of the alternatives and overall
project cost.
(3)
To prevent wetland 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. 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.
(a)
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 at 310 CMR 10.60.
(b)
The Commission shall presume that all areas meeting the definition
of "vernal pool" under this chapter, 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 the
wildlife habitat section of the Wetlands Protection Act Regulations.
C.
For good cause, the Commission may revoke or modify a permit or determination issued under this chapter after notice to the holder of the permit, notice to the public, abutters and town boards, pursuant to § 227-5, 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.
D.
The Commission, in an appropriate case, may combine the permit or
other action on an application issued under this chapter 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 regulations thereunder.
E.
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
be 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.
If the applicant fails to perform, the Commission may record the documents
itself and shall take appropriate enforcement action, including but
not limited to an order to cease and desist work.
A.
After public notice and public hearing the Commission shall promulgate
rules and regulations[1] to effectuate the purposes of this chapter effective when
voted 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 chapter.
[Amended 5-17-2004 ATM
by Art. 25]
B.
At a minimum, these regulations shall define key terms in this chapter
not inconsistent with this chapter and procedures governing the amount
and filing of fees.
[Amended 4-29-1991 ATM
by Art. 35]
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
BANK
COMMISSION
PERSON
POND
RARE SPECIES
VERNAL POOL
The following definitions shall apply in the interpretation and implementation
of this chapter:
Includes, without limitation, the following activities, when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
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 disturbances of water level or water table.
[Amended 4-29-1991 ATM
by Art. 36; 5-16-2011 ATM by Art.
32]
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.
Destruction of plant life including cutting of trees.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any water.
[Amended 5-17-2004 ATM
by Art. 25]
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Application of pesticides or herbicides.
[Added 4-29-1991 ATM
by Art. 36]
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 of the mean
annual flood level, whichever is higher.
[Added 5-17-2004 ATM
by Art. 25]
The Conservation Commission of the Town of Easton.
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.
[Added 5-17-2004 ATM
by Art. 25]
Shall include, 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.
[Added 5-17-2004 ATM
by Art. 25]
Shall include, 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 200 cubic feet of water 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 a Vernal Pool shall be 100 feet
outward from the mean annual high-water line defining the depression,
but shall not include a lawn, garden, landscaped area or developed
area in existence at the time of the effective date of this provision
in this chapter.
[Added 5-17-2004 ATM
by Art. 25]
B.
Except as otherwise provided in this chapter or the regulations of
the Commission, the definitions of terms in this chapter shall be
as set forth in the Wetlands Protection Act, MGL c. 131, § 40,
and regulations, 310 CMR 10.00.
[Added 4-29-1991 ATM
by Art. 36; amended 5-11-1998 ATM
by Art. 51]
As part of a permit issued under this chapter, 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.
[Amended 4-29-1991 ATM
by Art. 37]
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. This method shall be
used only with the consent of the applicant.
[Amended 5-17-2004 ATM
by Art. 25]
[Amended 4-29-1991 ATM
by Art. 38]
A.
No person shall remove, fill, dredge, build upon, degrade or otherwise
alter resource areas protected by this chapter or cause, suffer, or
allow such activity or fill to be left in place 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 chapter without the required authorization pursuant to this chapter.
[Amended 5-17-2004 ATM
by Art. 25]
B.
The Commission, its agents, officers and employees shall have authority,
to the extent provided by the constitutions and laws of the United
States and the Commonwealth or with prior approval from the property
owner, to enter upon privately owned land for the purpose of performing
their duties under this chapter and may make or cause to be made such
examinations, surveys or sampling as the Commission deems necessary.
[Amended 5-17-2004 ATM
by Art. 25]
C.
The Commission shall have authority to enforce this chapter, its
regulations and permits issued thereunder by violation notices, administrative
orders, non-criminal citations under MGL c. 40, § 21D, and
civil and criminal court actions. Any person who violates provisions
of this chapter may be ordered to restore the property to its original
condition and take other action deemed necessary to remedy such violations.
[Amended 5-17-2004 ATM
by Art. 25]
D.
Upon request of the Commission, the Select Board and the Town Council
may take legal action for enforcement under civil law. Upon request
of the Commission, the Chief of Police may take legal action for enforcement
under criminal law.
[Amended 5-20-2019 ATM by Art. 21]
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 chapter, 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 chapter, regulations, permit or order violated shall constitute
a separate offense.
The applicant for a permit shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the application will not have unacceptable significant or cumulative
effect upon the wetland values protected by this chapter. 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.
This chapter 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 chapter shall
not invalidate any other section of provision thereof, nor shall it
invalidate any permit or determination which previously has been issued.
[Added 4-29-1991 ATM
by Art. 39; amended 5-17-2004 ATM
by Art. 25]
A decision of the Conservation Commission shall be reviewable
in the Superior Court in accordance with MGL c. 249, § 4.
