[HISTORY: Adopted by the Town Meeting of the Town of North
Andover. Amendments noted where applicable.]
The purpose of this bylaw is to preserve and protect the wetland resource areas (as specified in § 190-2) of the Town of North Andover by regulation of, and control of, activities (as specified in § 190-2) deemed by the North Andover Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including: public or private water supply; groundwater; the prevention and control of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat and recreation.
A.
Except as permitted in writing by the Commission, or as provided
in this bylaw, no person shall engage in the following activities
("activities"): removal, filling, dredging, discharging into, building
upon, or otherwise altering or degrading the wetland resource areas
described in the following sentence. The Town's wetland resource areas
consist of:
(1)
Any isolated vegetated wetland;
(2)
Any ephemeral pool;
(3)
Any vegetated wetland bordering on any creek, river, stream, pond
or lake;
(4)
Any bank, beach, marsh, wet meadow, bog, or swamp;
(5)
Any land under any creek, river, stream, pond or lake;
(6)
Any one-hundred-foot buffer zone of wetland areas (1) through (5)
listed above;
(7)
Any land subject to storm flowage, or flooding by groundwater or
surface water; and
(8)
The two-hundred-foot riverfront area.
B.
The following water bodies and contiguous two-hundred-foot zones
on either side of the water body in North Andover have been identified
by the Commission as riverfront areas: Mosquito Brook, Rocky Brook,
Boston Brook, Cochichewick Brook, Merrimack River and Shawsheen River.
(See Figure 1-3 — North Andover Riverfront Area Maps.)
D.
The Commission shall not grant such permission without receiving
written notice of the intention to conduct such activity, and without
issuing written permission to do so, all in compliance with the provisions
of this bylaw.
This bylaw shall not apply to the following activities:
A.
Emergency projects as defined in the Commission's regulations (Section
II); or
B.
Maintenance, repair or replacement, without substantial change or
enlargement, of existing and lawfully located structures or facilities
used in the service of the public and used to provide electric, gas,
water, telephone, or other telecommunication services to the public;
or
C.
Normal maintenance of land in agricultural use, as defined in the
Commission's regulations (Section II); or
D.
Maintenance and repair of existing public ways.
A.
All applications to perform activities in the Town's resource areas
shall be either in the form of a request for determination or a notice
of intent, or both. Such applications shall contain data and plans
as specified in the Commission's regulations, and shall be submitted
in complete written form to the Commission as required by this bylaw,
regulations, and application checklist (Appendix A of the regulations).
The date which serves to commence the Commission's deliberation period
is the date of receipt of the application at its offices, during regular
office hours. The Town Conservation Administrator shall be granted
the power to make determinations of completeness for applications
submitted to the Commission and to reject, within two business days,
those applications that do not meet the minimum submittal requirements
of this bylaw, regulations, and application checklist. In order to
provide sufficient review time, the Commission may continue a public
hearing or public meeting if new information is submitted by the applicant,
or applicant's agent, less than seven business days before the scheduled
public hearing or public meeting.
B.
The applicable forms may be obtained from the Commission and must
be signed by the applicant or applicant's agent where required. The
Commission may require further information by regulation, guideline,
or as otherwise deemed necessary by the Commission. In order to comply
with the provisions of this bylaw, each application must be complete
as filed, and must comply with the rules set forth herein and Commission
regulations. No such application shall be accepted as complete before
all permits, variances, and approvals required by the bylaws of the
Town with respect to the proposed activity, at the time of such notice,
have been applied for or obtained. Such application shall also include
any information submitted in connection with such permits, variances,
and approvals that is necessary to describe the effect of the proposed
activity on the resource areas.
A.
Combination with state law hearing. The Commission, in its discretion,
may hear any oral presentation under this bylaw at the same public
hearing required to be held under the provisions of MGL c. 131, § 40.
Notice of the time and place of such hearing(s) shall be given as
required below.
B.
Notice. Notice of the time and place of the hearing shall be given
at the applicant's expense, not less than seven calendar days prior
to the public hearing, by publication in a newspaper of general circulation
in North Andover, and by mailing a copy of such notice to all landowners
within 300 feet of the land on which the work is proposed. All publications
and notices shall contain the name of the applicant, a description
of the area where the activity is proposed by street address, if any,
or other adequate identification of the location of the area or premises
which is the subject of the notice, the date, time and place of the
public hearing, the subject matter of the hearing, and the nature
of the action or relief requested, if any. Public notice requirements
for continued public hearings under this bylaw shall be the same as
the notification requirements set forth in 310 CMR 10.05(5)(b)3.
C.
Proof.
(1)
The applicant shall have the burden of proving by a preponderance
of credible evidence that the activity proposed in the notice of intent
will not cause adverse impacts to any of the interests and values
sought to be protected by this bylaw. Failure to provide to the Commission
adequate evidence for it to determine that the proposed activity does
not cause adverse impacts shall be sufficient cause for the Commission
to deny permission or to grant such permission with such conditions
as it deems reasonable, necessary or desirable to carry out the purposes
of this bylaw; or to postpone or continue the hearing to another date
certain to enable the applicant and others to present additional evidence,
upon such terms and conditions as seem to the Commission to be reasonable.
(2)
Due consideration shall be given to possible effects of the proposal
on all interests and values to be protected under this bylaw and to
any demonstrated hardship on the petitioner by reason of a denial,
as brought forth at the public hearing.
D.
Continuances. The Commission may continue a public hearing or public
meeting in the following situations:
E.
Investigations. The Commission, its agents, officers and employees,
may enter upon privately owned land for the purpose of carrying out
its duties under this bylaw and may make or cause to be made such
examination or survey as deemed necessary.
A.
All orders and decisions.
(1)
If the Commission determines that the proposed activity does not
require the imposition of conditions to preserve and protect the interests
of this bylaw, the applicant shall be so notified in writing.
(2)
If, after the hearing, the Commission determines that the proposed
activity is significant to one or more interests and values of this
bylaw, the Commission may vote to issue written orders of conditions
within 21 days of the close of the public hearing. The Commission
may impose upon such activity such conditions, safeguards and limitations
on time and use as it deems necessary to protect those interests.
(3)
The Commission may prohibit such activity altogether, in the event
that it finds that the interests and values of this bylaw cannot be
preserved and protected by the imposition of such conditions, safeguards
or limitations.
B.
Security to assure performance. The Commission may, as a part of
its order of conditions, require, in addition to any security required
by any other Town or state board, commission, agency or officer, that
the performance and observance of the conditions, safeguards and limitations
imposed under this bylaw on the applicant and owner be secured by
one, or both, of the methods described in the following clauses:
(1)
Deposit: by the deposit of money, sufficient to complete the work
as proposed, to secure performance of the conditions and observance
of the safeguards of such order of conditions. Such security, if filed
or deposited, shall be approved as to form and manner of execution
by Town Counsel or the Town Treasurer.
(2)
Land restriction(s): by a conservation restriction, easement, or
other covenant running with the land, executed and properly recorded
(or registered, in the case of registered land).
C.
Duration of orders.
(1)
All orders of conditions shall expire three years after the date
of issuance. An order of conditions may be extended for one year upon
the request of the applicant. The request for an extension of an order
of conditions shall be made to the Commission at least 30 days prior
to expiration of the order of conditions. The Commission may grant
only two extensions for an individual order of conditions.
(2)
No activity governed by an order of conditions shall be performed
unless and until all permits, approvals and variances required by
the bylaws of the Town shall have been obtained, such order of conditions
or notification shall have been recorded or registered at the Essex
North District Registry of Deeds or in the North Essex District of
the Land Court Department, and all applicable appeal periods have
expired. The Commission shall have the right to record or register
its order of conditions with said Registry or Registry District. In
the event that an order of conditions issued pursuant to this bylaw
is identical to a final order of conditions issued pursuant to the
provisions of MGL c. 131, § 40, only one such order need
be recorded or registered.
D.
Modifications, amendments, revocations. The Commission shall have
the power (on its own motion or upon the petition of the applicant,
or any person interested) to modify, amend, or revoke an order of
conditions. In revoking an order of conditions, the Commission shall
officially notify the interested parties through certified mail and
hold a public hearing within 21 days of the notification date. In
the case of an amendment to an order of conditions, the Commission
shall have the discretion to decide if a public hearing is warranted.
This decision shall be based on the potential impact of proposed work
and its effect on the ability of the identified wetland resource areas
to provide those interests as defined under the Act and bylaw. No
public hearing is required for a modification to an order of conditions.
Written notification to the applicant by certified mail is required
in all cases where the Commission initiates a modification, amendment
or revocation of an order of conditions.
The Commission shall, upon receiving a written request and weather
permitting, inspect the resource areas where the activity governed
by an order of conditions was carried out and issue a certificate
of compliance (or partial certificate of compliance) to the owner
of the property, applicant, or applicant's representative, in a form
suitable for recording or registering, if it shall determine that
all of the activity or activities, or portions thereof, limited thereby
have been completed in accord with said order.
After the recording of a notice of violation or order, 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 under this bylaw shall forthwith
comply with any such order or restore such land to its condition prior
to any such violation; provided, however, that no action, civil or
criminal, shall be brought against such person unless such action
is commenced within three years following the recording of the deed
or the date of the death by which such real estate was acquired by
such person.
A.
The Commission shall be empowered to establish rules and regulations
to govern its affairs, including but not limited to fees, definitions,
use of consultants, security to assure performance, performance standards
for work in wetland resource areas, procedures governing small projects,
and such other information which it deems necessary to discharge its
responsibilities. After due notice and public hearing, the Commission
may promulgate such rules and regulations to effectuate the purposes
of this bylaw, by a majority vote of the duly appointed members.
B.
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.
In accord with the provisions of MGL c. 40, §§ 21D
and 31, as well as every other authority and power that may have been
or may hereafter be conferred upon it, the Town may enforce the provisions
of this bylaw, restrain violations thereof and seek injunctions and
judgments to secure compliance with its orders of conditions. Without
limiting the generality of the foregoing:
A.
Any person who violates any provision of this bylaw or of any condition
or a permit issued pursuant to it may be punished by a fine pursuant
to MGL c. 40, § 21. Each day or portion thereof during which
a violation continues shall constitute a separate offense; if more
than one, each condition violated shall constitute a separate offense.
This bylaw may be enforced pursuant to MGL c. 40, § 21D,
by a Town police officer, other persons having police powers, Conservation
Commissioners or the Conservation Administrator. In accordance with
MGL c. 40, § 21D, violators shall, at the discretion of
the enforcement authorities, be charged a penalty. The penalties for
violations of this bylaw or regulations promulgated hereunder may
be assessed as follows:
|
Violation
|
Penalty/Day
|
|---|---|
|
Alteration of any wetland resource area identified in § 190-2 of this bylaw
|
$100
|
|
Violation of any order of conditions
|
$100
|
|
Depositing any refuse, debris, yard waste or construction material
in a wetland or water body
|
$100
|
|
Alteration of any stream or water body
|
$100
|
|
Any violation of any section of this bylaw that occurs in the
Lake Cochichewick Watershed
|
$100
|
B.
In the event of a violation of this bylaw or of any order issued
thereunder, the Commission or its agents may issue a stop-work order
to the owner, the applicant or applicant's agent by certified mail,
return receipt requested, or by posting the same in a conspicuous
location on said site. Any person who shall violate the provisions
of a stop-work order shall be deemed in violation of the bylaw; but
the failure of the Commission to issue a stop-work order for any reason
shall not prevent the Town from pursuing any other legal remedy at
law or in equity to restrain violations of this bylaw or promulgated
regulations and to secure compliance with its orders.
C.
The Town shall be the beneficiary of all fines imposed on account
of the violation of this bylaw or promulgated regulations in order
to defray the expense of enforcing the same.
D.
Upon request of the Commission, the Board of Selectmen and Town Counsel
shall take such legal action as may be necessary to enforce this bylaw
or promulgated regulations and permits issued pursuant to it.
E.
Upon recommendation of the Commission, the Board of Selectmen may
employ special counsel to assist the Commission in carrying out the
legal aspects, duties and requirements of this bylaw and promulgated
regulations.
The captions used herein are for convenience only and are expressly
intended to have no legal or binding significance. The invalidity
of any section or provision of this bylaw shall not invalidate any
other section or provision thereof, nor shall it invalidate any order
of conditions or decisions which have previously become final.
