[HISTORY: Adopted by the Town of Palmer 9-12-1988 STM by Art. 4; amended in its entirety 8-12-2013 by Ord. No. 2014-01 (Ch. 168 of the 2007 Code). Subsequent amendments noted where applicable.]
A. 
The purpose of this chapter is to protect the wetlands, related water resources, and adjoining land areas in this municipality by controlling activities deemed by the Palmer Conservation Commission (PCC) likely to have a significant or cumulative effect upon resource area values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water quality, fisheries, wildlife habitat, and agriculture values (collectively, "the resource area values protected by this chapter").
B. 
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 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 ordinances of the Town of Palmer.
C. 
Unless otherwise stated in this chapter, the jurisdiction, exceptions, time periods and application procedures, definitions and enforcement standards of the Wetlands Protection Act shall apply.
Except as permitted by the Conservation Commission or as provided in this chapter, no person shall remove, fill, dredge, build upon, or alter the following resource areas: within 100 feet of any freshwater wetland, marsh, wet meadow, bog or swamp, vernal pools; within 100 feet of any bank or beach; any lake, river, pond, brook, creek or stream, intermittent or otherwise; any land under said waters; or within 100 feet of any land subject to flooding or inundation by groundwater or surface water. Said resource areas shall be protected whether or not they border surface waters.
A. 
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 30 days 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 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 an 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.
C. 
The provision of this chapter shall not apply to work performed for maintenance of land in agricultural use.
D. 
Other than stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply.
A. 
Written applications, which may be identical in form to the notice of intent and plans filed under the Wetlands Protection Act, MGL c. 131, § 40, 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. No activities shall commence without receiving and complying with a permit issued to this chapter.
B. 
Any person desiring to know whether or not proposed activity or an area is subject to the wetlands ordinance may submit a written request for 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.
C. 
At the time of an application or request the applicant shall pay a filing fee specified in regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, MGL c. 131, § 40. The fees shall be paid to the Town of Palmer and deposited into a separate account from the account established for filing fees paid under the state Wetlands Protection Act and shall be expended by the Commission for the administration and enforcement of this chapter and the Wetlands Protection Act. In addition, the Commission is authorized to require the applicant to pay the costs and expenses of any expert consultant deemed necessary by the Commission to review the application or request up to a maximum of $2,500. The Commission may waive the filing fee and costs and expenses for an application or request if 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.
D. 
Pursuant to MGL c. 44, § 53G, 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 required where the requisite review is more extensive than originally calculated or where new information requires additional consultant services.
(1) 
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) 
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) 
The applicant may appeal the selection of an outside consultant to the Town Council, 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 the request for consultant fees was made by the Commission. Such appeal shall extend the applicable time limits for action upon the application.
A. 
Any person filing an application or a request for determination with the Commission at the same time shall give written notice thereof, by certified mail or hand delivery, to all abutters within 100 feet of the property line of the applicant according to the most recent records of the Assessors, including those across a traveled way and/or across or downstream of a body of water at a distance to be determined by the Commission. The notice to abutters shall enclose a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters free of charge.
B. 
The Commission shall conduct a public hearing on any application. A notice of the time and place of the hearing shall be given by the Commission at the expense of the applicant not less than five working days prior to the hearing by publication in the Palmer Journal or in a newspaper of general circulation in the municipality.
(1) 
The Commission shall commence the public hearing within 21 days from receipt of a completed application or request for determination.
(2) 
The Commission shall issue its permit or determination in writing within 21 days of the close of the public hearing thereon.
(3) 
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.
(4) 
The Commission shall have authority to continue the hearing, with the consent of the applicant, 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 by the applicant, deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in § 143-6. 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. 
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. 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. 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. The Commission shall have the authority to attach conditions to a negative determination issued under this chapter, specifying how the work will be completed. 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 chapter.
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 regulation 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.
C. 
For good cause, the Commission may revoke or modify a permit issued under this chapter after public notice and public hearing, and notice to the holder of the permit.
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 issued under the Wetlands Protection Act.
E. 
Any person who purchases, inherits or acquires real estate upon which work has been done in violation of the provisions of this chapter shall forthwith comply with any such order or restore such land to its conditions prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such person unless commenced within three years following the date of acquisition of the real estate by such person.
F. 
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 this chapter.
G. 
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 chapter, has proved by a preponderance of the evidence that 1) there is no practicable alternative to the proposed project with fewer adverse effects, and 2) 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 purpose (e.g., residential, institutional, commercial, or industrial), logistics, existing technology, costs of the alternatives, and overall project costs.
H. 
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, proper safeguards, adequate security, monitoring and reporting to assure success, because of the high likelihood of failure of replication.
I. 
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).
J. 
The Commission shall presume that all areas meeting the definition of "vernal pools" under § 143-8 of this chapter, including the adjacent area, perform essential habitat functions.
A. 
After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purposes of this chapter, effective when voted by the Commission 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.
B. 
At a minimum, these regulations shall reiterate the terms defined in this chapter, define additional terms in this chapter not inconsistent with this chapter, and impose filing and consultant fees.
A. 
The following definitions shall apply in the interpretation and implementation of this chapter:
ALTER
Includes, without limitation, the following activities when undertaken to, upon, within, or affecting resource areas protected by this chapter:
(1) 
Removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any kind.
(2) 
Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns or flood retention characteristics.
(3) 
Drainage or other disturbance of water level or water table.
(4) 
Dumping, discharging or filling with any material which may degrade water quality.
(5) 
Placing of fill or removal of material, which would alter elevation.
(6) 
Driving of piles, erection or repair of buildings or structures of any kind.
(7) 
Placing of obstructions or objects in water.
(8) 
Destruction of plant life, including cutting of trees.
(9) 
Changing water temperature, biochemical oxygen demand or other physical or chemical characteristics of water.
(10) 
Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.
(11) 
Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this chapter.
PERSON
Includes any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or a political subdivision thereof to the extent subject to Town ordinances, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.
VERNAL POOL
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, and provides essential breeding and rearing habitat functions for amphibian, reptile or other vernal pool community species. The resource area for vernal pools shall have a buffer zone of 100 feet outward from the top of the bank.
B. 
Except as otherwise provided in this chapter or in associated regulations of the Commission, the definitions of terms and the procedures in this chapter 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 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 thereunder (including conditions requiring mitigation work) 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.
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 property owner.
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 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 chapter.
B. 
The Commission shall have authority to enforce this chapter; 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 chapter 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.
C. 
Upon request of the Commission, the Town Council 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.
D. 
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
E. 
Any person who violates any provision of this chapter, regulations thereunder or permits issued thereunder shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of this chapter, regulations or permit violated shall constitute a separate offense. In the alternative to criminal prosecution, the Commission may elect to utilize the noncriminal disposition procedure set forth in MGL c. 40, § 21D.
The applicant shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application will not harm the interests protected by this chapter. Failure to provide adequate evidence to the Commission supporting a determination that the proposed work will harm the interests protected by this chapter shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions, or in the Commission's discretion to continue the hearing to another date to enable the applicant or others to present additional evidence.
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 a 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.
A decision of the Commission shall be reviewable in a court of competent jurisdiction, in accordance with MGL c. 249, § 4.
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 (310 CMR 10.00) thereunder. It is the intention of this chapter 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 chapter shall not invalidate any other section or provision thereof, nor shall it invalidate any permit, approval or determination which previously has been issued.