[HISTORY: Adopted by the Town of West Stockbridge 6-22-2020
ATM by Art. 13. Amendments noted where applicable.]
A.Â
The purpose of this bylaw is to protect the wetlands, water resources,
flood-prone areas, and adjoining upland areas in the Town of West
Stockbridge by controlling activities deemed by the Conservation Commission
likely to have a significant or cumulative effect on resource area
values, including but not limited to the following: public or private
water supply, groundwater supply, flood control, erosion and sedimentation
control, storm damage prevention, including coastal storm flowage,
water quality, prevention and control of pollution, fisheries, shellfisheries,
wildlife habitat, rare species habitat, including rare plant and animal
species, agriculture, aquaculture, and recreation values, deemed important
to the community (collectively, the "resource area values protected
by this bylaw").
B.Â
This bylaw is intended to utilize the Home Rule authority of this
municipality so as to protect the resource areas under the Wetlands
Protection Act (MGL c. 131, § 40; the "Act") to a greater
degree, to protect additional resource areas beyond the Act recognized
by the Town as significant, to protect all resource areas for their
additional values beyond those recognized in the Act, and to impose
in local regulations and permits additional standards and procedures
stricter than those of the Act and regulations thereunder (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
and other relevant bylaws of the Town of West Stockbridge.
A.Â
Except as permitted by the Conservation Commission, no person shall
commence to 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, springs, banks,
reservoirs, lakes, ponds of any size, beaches, and lands under water
bodies; intermittent streams, brooks and creeks; lands adjoining these
resource areas out to a distance of 100 feet, known as the "buffer
zone"; perennial rivers, streams, brooks and creeks; lands adjoining
these resource areas out to a distance of 200 feet, known as the "riverfront
area"; and lands subject to flooding or inundation by groundwater
or surface water (collectively, the "resource areas protected by this
bylaw"). Said resource areas shall be protected, whether or not they
border surface waters.
B.Â
The jurisdiction of this bylaw shall not extend to uses and structures
of agriculture that enjoy the rights and privileges of laws and regulations
of the commonwealth governing agriculture, including work performed
for normal maintenance or improvement of land in agricultural or aquacultural
uses as defined by the Wetlands Protection Act regulations, found
at 310 CMR 10.04.
A.Â
The applications and permits required by this bylaw shall not be
required for work performed for normal maintenance or improvement
of land in agricultural and aquacultural use as defined by the Wetlands
Protection Act regulations at 310 CMR 10.04.
B.Â
The applications and permits 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 Conservation Commission
prior to commencement of work, and provided that the work conforms
to any performance standards and design specifications in regulations
adopted by the Commission.
C.Â
The applications and permits required by this bylaw shall not be
required for 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.Â
Other than stated in this bylaw, 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.Â
Written application shall be filed with the Conservation Commission
to perform activities 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 resource areas protected by this bylaw. No
activities shall commence without receiving and complying with a permit
issued pursuant to this bylaw.
B.Â
The Commission in an appropriate case may accept as the application
and plans under this bylaw any application and plans filed under the
Wetlands Protection Act (MGL c. 131, § 40) and regulations
(310 CMR 10.00), but the Commission is not obliged to do so.
C.Â
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 of applicability
(RDA) or abbreviated notice of resource area delineation (ANRAD) filed
under the Act shall include information and plans as are deemed necessary
by the Commission.
D.Â
At the time of an application, 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 and regulations.
E.Â
Consultants. Pursuant to MGL c. 44, § 53G and regulations
promulgated by the Commission, the Commission may impose reasonable
fees upon applicants for the purpose of securing outside consultants,
including engineers, wetlands scientists, wildlife biologists or other
experts, in order to aid in the review of proposed projects. Such
funds shall be deposited with the Town Treasurer, who shall create
an account specifically for this purpose. Additional consultant fees
may be requested where the requisite review is more expensive than
originally calculated or where new information requires additional
consultant services.
(1)Â
Only
costs relating to consultant work done in connection with a project
for which a consultant fee has been collected shall be paid from this
account, and expenditures may be made at the sole discretion of the
Commission. Any consultant hired under this provision shall be selected
by, and report exclusively to, the Commission. The Commission shall
provide applicants with written notice of the selection of a consultant,
identifying the consultant, the amount of the fee to be charged to
the applicant, and a request for payment of that fee. Notice shall
be deemed to have been given on the date it is mailed or delivered.
The applicant may withdraw the application or request within five
business days of the date notice is given without incurring any costs
or expenses.
(2)Â
The
entire fee must be received before the initiation of consulting services.
Failure by the applicant to pay the requested consultant fee within
10 business days of the request for payment shall be cause for the
Commission to declare the application administratively incomplete
and deny the permit without prejudice, except in the case of an appeal.
The Commission shall inform the applicant and Department of Environmental
Protection (DEP) of such a decision in writing.
(3)Â
The
applicant may appeal the selection of an outside consultant to the
Select Board, which may disqualify the consultant only on the grounds
that the consultant has a conflict of interest or is not properly
qualified. The minimum qualifications shall consist of either an educational
degree or three or more years of practice in the field at issue or
a related field. The applicant shall make such an appeal in writing,
which must be received within 10 business days of the date that request
for consultant fees was made by the Commission. Such appeal shall
extend the applicable time limits for action upon the application.
A.Â
Any person filing a permit or other application or RDA or ANRAD or
other request with the Conservation 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 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. The notice shall state a brief description of the
project or other proposal and the date of any Commission hearing or
meeting date if known. The notice to abutters also shall include a
copy of the 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.Â
The Commission shall conduct a public hearing on any permit application, RDA, or ANRAD, with written notice given at the expense of the applicant at least five business days prior to the hearing, in a newspaper of general circulation in the municipality. The Commission shall commence the public hearing within 21 days from receipt of a completed permit application, RDA, or ANRAD unless an extension is authorized in writing by the applicant. The Commission shall have 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 others as deemed necessary by the Commission in its discretion, based on comments and recommendations of the boards and officials listed in § 255-6.
C.Â
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. 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).
[Amended 5-9-2022 ATM by Art. 38]
Any person filing a permit application, RDA, or ANRAD with the
Conservation 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,
Agricultural Commission and Building Commissioner. A copy shall be
provided in the same manner to the commission of the adjoining municipality,
if the application or RDA 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 above
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
comments and recommendations, and to respond to them at a hearing
of the Commission, prior to final action.
A.Â
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 individual or cumulative effect on 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. The Commission shall take into account the extent
to which the applicant has avoided, minimized and mitigated any such
effect. The Commission also shall take into account any loss, degradation,
isolation, and replacement or replication of such protected resource
areas elsewhere in the community and the watershed, resulting from
past activities, whether permitted, unpermitted or exempt, and foreseeable
future activities.
B.Â
If it issues a permit, the Commission shall impose conditions which
the Commission deems necessary or desirable to protect said resource
area values, and all activities shall be conducted in accordance with
those conditions. Where no conditions are adequate to protect said
resource area 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 comply with the procedures, design
specifications, performance standards, and other requirements in regulations
of the Commission; or for failure to avoid, minimize or mitigate unacceptable
significant or cumulative 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. The Commission may waive specifically identified and
requested procedures, design specifications, performance standards,
or other requirements set forth in its regulations, provided that:
the Commission finds in writing after said public hearing that there
are no reasonable conditions or alternatives that would allow the
proposed activity to proceed in compliance with said regulations;
that avoidance, minimization and mitigation have been employed to
the maximum extent feasible; and that the waiver is necessary to accommodate
an overriding public interest or to avoid a decision that so restricts
the use of the property as to constitute an unconstitutional taking
without compensation.
C.Â
In reviewing activities within the buffer zone, the Commission shall
presume the buffer zone is important to the protection of other resource
areas because activities undertaken in close proximity have a high
likelihood of adverse impact, 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 establish, in its regulations, design
specifications, performance standards, and other measures and safeguards,
including setbacks, no-disturb areas, no-build areas, and other work
limits for protection of such lands, including without limitation
strips of continuous, undisturbed vegetative cover, 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.
D.Â
In reviewing activities within the riverfront area, the Commission
shall presume the riverfront area is important to all the resource
area values unless demonstrated otherwise, and 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 1) there is no practicable alternative
to the proposed project with less adverse effects, and 2) 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), logistics, existing technology, costs
of the alternatives, and overall project costs.
E.Â
To prevent resource area loss, the Commission shall require applicants
to avoid alteration wherever feasible; to minimize alteration; and,
where alteration is unavoidable and has been minimized, to provide
full mitigation. The Commission may authorize or require replication
of wetlands as a form of mitigation, but only with specific plans,
professional design, proper safeguards, adequate security, and professional
monitoring and reporting to assure success, because of the high likelihood
of failure of replication. 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 actual or possible presence of rare plant or animal
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).
F.Â
The Commission shall presume that all areas meeting the definition of "vernal pools" under § 255-9 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 who at least meets the qualifications under the wildlife habitat section of the Wetlands Protection Act regulations.
G.Â
A permit, determination of applicability (DOA), or order of resource
area delineation (ORAD) 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 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
present and future owners of the land.
I.Â
Amendments to permits, DOAs, or ORADs shall be handled in the manner
set out in the Wetlands Protection Act regulations and policies thereunder.
J.Â
The Commission in an appropriate case may combine the decision issued
under this bylaw with the permit, DOA, ORAD, or certificate of compliance
(COC) issued under the Wetlands Protection Act and regulations.
K.Â
No work proposed in any application shall be undertaken until the
permit, or ORAD issued by the Commission with respect to such work
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 such recording, the Commission
may record the documents itself and require the applicant to furnish
the recording fee therefor, either at the time of recording or as
a condition precedent to the issuance of a COC.
After public notice and public hearing, the Conservation Commission
shall promulgate rules and regulations to effectuate the purposes
of this bylaw, 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 bylaw. At a minimum,
these regulations shall reiterate the terms defined in this bylaw,
define additional terms not inconsistent with the bylaw, and impose
filing and consultant fees.
A.Â
AGRICULTURE
ALTER
(1)Â
(2)Â
(3)Â
(4)Â
(5)Â
(6)Â
(7)Â
(8)Â
(9)Â
(10)Â
(11)Â
BANK
PERSON
POND
RARE SPECIES
VERNAL POOL
The following definitions shall apply in the interpretation and implementation
of this bylaw:
Shall refer to the definition as provided by MGL c. 128,
§ 1A.
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, 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.
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
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
animals 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.
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 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 vernal pools shall be 100 feet
outward from the mean annual high-water line defining the depression.
B.Â
Except as otherwise provided in this bylaw or in associated regulations
of the Conservation Commission, the definitions of terms and the procedures
in this bylaw shall be as 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 Conservation 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
both of the methods described below:
A.Â
By a proper bond, deposit of money or negotiable securities under
a written third-party escrow arrangement, 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 COC for work
performed pursuant to the permit.
B.Â
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 other than by mortgage deed. This method shall
be used only with the consent of the applicant.
A.Â
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.Â
The Conservation Commission, its agents, officers, and employees
shall have 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.Â
The Commission shall have authority to enforce this bylaw, its regulations,
and permits issued thereunder by letters, phone calls, electronic
communication and other informal methods, violation notices, noncriminal
citations under MGL c. 40, § 21D, 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, or may be
fined, or both.
D.Â
Upon request of the Commission, the Select Board and 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.
E.Â
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
F.Â
Any person who violates any provision of this bylaw, or regulations,
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 or other alteration
remains in place, shall constitute a separate offense, and each provision
of the bylaw, regulations, permits, or administrative orders violated
shall constitute a separate offense.
G.Â
As an alternative to criminal prosecution in a specific case, the
Commission may issue citations with specific penalties pursuant to
the noncriminal disposition procedure set forth in 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 resource area values protected by this
bylaw. Failure to provide adequate evidence to the Conservation 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 Conservation 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. It is the intention of this bylaw that the purposes,
jurisdiction, authority, exemptions, regulations, specifications,
standards, and other requirements shall be interpreted and administered
as stricter than those under the Wetlands Protection Act and regulations.
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, approval or determination which previously
has been issued.