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.
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.
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.