[HISTORY: Adopted by the Town Meeting of the Town of Sharon 5-7-2018 ATM by Art. 18.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Earth removal — See Ch. 141.
Groundwater protection — See Ch. 160.
Zoning — See Ch. 275.
Subdivision regulations — See Ch. 340.
[1]
Editor's Note: This article also repealed former Ch. 262,
Wetlands Protection, adopted as Art. 23 of the Town Bylaws.
The purpose of this bylaw is to preserve and protect the wetlands,
rivers, streams, ponds, lakes, vernal pools, water resources, flood-prone
areas, and adjoining upland areas of the Town of Sharon by regulating
and controlling activities deemed to have significant or cumulative
effect upon the functions and characteristics of such wetlands, rivers,
streams, ponds, lakes, vernal pools, water resources, flood-prone
areas, and adjoining upland areas. Such functions and characteristics
shall include, but are not limited to, the following: public or private
water supply, groundwater, flood control, erosion and sedimentation
control, storm damage prevention, water quality, protection of wetlands,
rivers, streams, ponds, lakes, vernal pools, water resources, and
other bodies of water, prevention and control of pollution, water
quality, and protection of fisheries, shellfish, wildlife habitat,
rare species habitat, including rare plant and animal species, agriculture,
scenic vistas, recreation and aesthetics (collectively, the "resource
area values protected by the bylaw"). This bylaw is intended to utilize
the Home Rule authority of the Town of Sharon to protect the resource
areas under the Wetland Protection Act (WPA), MGL c. 131, § 40,
to protect additional resource areas beyond the WPA recognized by
the Town as significant, and to impose in local regulations and permits
additional standards and procedures stricter than those of the WPA
and regulations thereunder, 310 CMR 10.00.
Includes, without limitation, the following actions when
undertaken to, upon, within or affecting resource areas protected
by the bylaw:
Removal, excavation or dredging of soil, mulch, humus, sand,
gravel, or aggregate materials of any kind;
Changing of preexisting drainage characteristics, flushing characteristics,
sedimentation patterns, flow patterns and 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, alter elevation or interfere with the functioning
of wetland, floodplains, bank or bodies of water;
Driving of piles or erection, expansion or repair of buildings
or structures of any kind;
Placing of obstructions or objects in a body of water, whether
or not they interfere with the flow of water;
Destruction of plant life, including cutting or trimming of
trees and shrubs. Plant life shall include those species specified
in the Wetlands Protection Act, MGL c. 131, § 40, and the
plant life that is significant to physical stability of the bank,
flood control, storm damage prevention, prevention of pollution and/or
protection of fisheries and wildlife habitat;
Changing of water temperature, biochemical oxygen demand (BOD),
or other physical, biological or chemical characteristics of any ground-
or surface 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 the bylaw.
Any person making a filing, or on whose behalf a filing is
submitted.
Those areas composed of permeable stratified sand and gravel
and certain wetlands that collect precipitation or surface water and
then carry it to aquifers.
Those areas defined in the Massachusetts Wetlands Protection Act or § 262-3 of the bylaw. It is used synonymously with "resource area."
Those critical areas and resources designated by the Commonwealth
of Massachusetts for the purpose of long-term preservation, management
and use or stewardship under authority granted by MGL c. 21A, § 2(7),
and the regulations promulgated thereunder (codified at 301 CMR 12.00).
An 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.
A naturally occurring shoreline with an unvegetated bank.
The most up-to-date technology or the best designs, measures
or engineering practices that have been developed and that are commercially
available. "Best available" shall not be defined by economics.
State-of-the-art technologies, designs, measures or engineering
practices that are in general use to protect similar interests.
Bordering vegetated wetlands are freshwater wetlands. These
are resource areas where groundwater discharges to the surface and
where, under some circumstances, surface water discharges to the groundwater.
Vegetated/freshwater wetlands are likely to be significant to public
or private water supply, to groundwater supply, to flood control,
to storm damage prevention, to prevention of pollution, to the protection
of fisheries, to the protection of shellfish, and wildlife. The physical
characteristics of vegetated wetlands are critical to the protection
of interests specified in MGL c. 131, § 40. Types of freshwater
wetlands are wet meadows, marshes, swamps, and bogs. They are areas
where the topography is low and flat, and where the soils are annually
saturated. Said resource area shall be protected, whether or not they
border surface waters.
The limits of an area subject to protection under the bylaw.
Considered the same as "stream."
The land within 100 feet horizontally landward from the perimeter
or outer border of any resource area, as defined in this bylaw and
the Commission's rules and regulations.
A written determination in recordable form by the Commission
that work, or a portion thereof, has been completed in accordance
with the issued order of conditions.
The Conservation Commission of the Town of Sharon, a lawfully
constituted agency established pursuant to MGL c. 40, § 8C,
to regulate and control activities governed by this bylaw.
Those requirements set forth in an order of conditions issued
by the Commission for the purpose of permitting, regulating or prohibiting
any activity that removes, fills, dredges or alters and has an impact
or cumulative effect upon a resource area.
The same as "stream."
The date any document issued by the Commission (including,
but not limited to, an order of conditions, a determination of applicability,
or an enforcement order) is mailed, as evidenced by a postmark, or
the date it is hand delivered and receipted to an applicant, or the
applicant's agent.
The date of actual delivery to an office, home address or
usual place of business by mail or hand delivery.
A written finding, following a public hearing by the Commission,
as to whether a site or the work proposed thereon is subject to the
jurisdiction of the bylaw. A finding will be one of the following:
Positive determination: a written finding that an area on which
the proposed work is to be done, or the activity thereon, will cause
a significant impact to one or more of the interests protected by
the bylaw.
Negative determination: a written finding that an area on which
proposed work is to be done, or the activity thereon, will not cause
a significant impact to any of the interests protected under the bylaw.
Negative determination with conditions: a written finding that
the work proposed on the area allowed under the conditions prescribed
by the Commission will not cause a significant impact to any of the
interests protected by the bylaw.
Issued to any owner, applicant or agent in the event of a
violation of this bylaw, the Massachusetts Wetlands Protection Act
or any order issued thereunder.
Any period of four or more months during which the average
rainfall for each month is 50% or less of the ten-year average for
that same month.
Any filing made under the Massachusetts Wetlands Protection
Act or the bylaw to the Commission, including, but not limited to,
a request for determination of applicability, notice of intent, abbreviated
notice of intent or abbreviated notice of resource area delineation.
Preventing or reducing flooding and flood damage.
Vegetated wetlands, and consist of any area of at least 2,000
square feet where surface water and/or groundwater, or ice at or near
the surface of the ground, supports a plant community dominated (at
least 50%) by wetland species and/or exhibits other evidence of hydrology.
They are otherwise defined in MGL c. 131, § 40.
Area designated to protect, preserve, and maintain the existing
and potential groundwater supply and groundwater recharge areas; to
preserve and protect current and potential sources of water supply
for public health and safety; and to conserve the natural resources
of the Town and to prevent environmental pollution.
Water below the earth's surface in the zone of saturation.
Those interests specified in § 262-1 of the bylaw.
Species not native to the resource area whose presence threatens
the integrity of natural communities and the survival of indigenous
plant and animal species.
An isolated depression or closed basin without an inlet or
an outlet. It is an area which at least once a year confines standing
water to a volume of 1/4 acre-feet and to an average depth of at least
six inches. The area may be underlain by pervious material which in
turn may be covered by a mat of organic peat or muck.
An area of at least 2,000 square feet, where surface and/or
groundwater, or ice at or near the surface of the ground, supports
a plant community dominated (at least 50%) by wetland species and/or
exhibits other evidence of hydrology though the area does not border
surface waters.
Any open body of fresh water with a surface area of 10 acres
or more, including, but not limited to, great ponds.
An area with low, flat topography adjacent to and inundated
by floodwaters rising from creeks, rivers, streams, ponds or lakes.
It extends from the banks of these waterways and water bodies; where
bordering vegetated wetlands occur, it extends from such wetland.
The bottom of, or land under the surface of, any creek, river,
stream, pond or lake.
Area where a vegetational community exists in standing water
or running water during the growing season and where a significant
part of the vegetational community is composed of, but not limited
to nor necessarily including all of, the following plants or groups
of plants: arums (Aracaea), bladder worts (Ultricularia), bur reeds
(Sparganiaceae), button bush (Cephalanthus occidentalis), cattails
(Typha), duck weeds (Lemnaceae), eelgrass (Vallisneria), frog bits
(Hydrocharitaceae), horsetails (Equisetaceae), hydrophylic grasses
(Poaceae), leatherleaf (Charmaedaphne calyculata), pickerel weeds
(Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Potamogeton),
rushes (Juncaeae), smartweeds (Polygonum), sweet gale (Myrica gale),
water milfoil (Haloragaceae), water lilies (Nymphaeaceae), water starworts
(Callitrichaceae), water willow (Decodon verticillatus).
MGL c. 131, § 40, and the regulations promulgated
thereunder (codified at 310 CMR 10.00).
The Massachusetts Department of Environmental Protection.
With respect to vernal pools, the highest observed water
surface elevation.
Massachusetts Environmental Policy Act, MGL c. 30, §§ 61
to 62, and the regulations promulgated thereunder as codified at 310
CMR 11.00.
The written notice filed under the Massachusetts Wetlands
Protection Act and/or the bylaw by any applicant intending to remove,
fill, dredge, or otherwise alter a resource area.
An order of conditions and/or order of resource area delineation,
superseding order or final order, issued pursuant to the Massachusetts
Wetlands Protection Act and/or the bylaw.
The document issued in recordable form by the Commission
containing conditions which regulate or prohibit an activity under
the Massachusetts Wetlands Protection Act and/or the bylaw.
The document issued in recordable form by the Commission
indicating acceptance of the marked boundaries designating areas subject
to protection under the bylaw, as defined herein.
The owner of land sharing a common boundary or corner with
the site of the proposed activity in any direction, including land
located directly across a street, way, creek, river, stream, brook
or canal.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the federal government or agencies thereunder to the extent subject
to Town bylaws, the commonwealth or political subdivisions thereof
to the extent subject to Town bylaws, administrative agencies, public
or quasi-public corporations or bodies, the Town of Sharon, and any
other legal entity, its legal representatives, agents or assigns.
Such data, maps, engineering drawings, calculations, specifications,
schedules and other materials, if any, deemed necessary by the Commission
to describe the site, all areas subject to jurisdiction under the
Massachusetts Wetlands Protection Act or the bylaw and/or to determine
the impact of the proposed work upon the interests identified in the
Massachusetts Wetlands Protection Act or the interests protected by
the bylaw.
Any open body of fresh water with a surface area observed
or recorded within the last 10 years of at least 5,000 square feet.
Ponds may be either naturally occurring or man-made by impoundment,
excavation or otherwise. Ponds shall contain standing water except
for periods of extended drought, as defined herein. The following
man-made bodies of open water shall not be considered ponds:
The prevention or reduction of contamination of soils and/or
surface water or groundwater.
Any source or volume of surface or groundwater demonstrated
to be in any private use or shown to have potential for private use.
To prevent or reduce contamination or damage to fish and
to protect their habitat and nutrient sources.
The protection of any plant or animal species listed as endangered,
threatened or of special concern, or on the Watch List by Mass Wildlife's
Natural Heritage and Endangered Species Program; listed as federally
endangered or federally threatened by the U.S. Fish and Wildlife Service;
deemed locally threatened, in writing, by the Commission; and the
protection of the ability of any resource area to provide food, breeding
habitat, or escape cover for species falling within the definition
of "wildlife."
Any source or volume of surface or groundwater demonstrated
to be in public use, or approved for water supply pursuant to MGL
c. 111, § 160, by MassDEP, or shown to have a potential
for public use.
More than half of the filled seats on the Commission.
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 whether the site in which they occur has been
previously identified by the Division.
A written request on the proper form made by any person,
to the Commission, for a determination as to whether a site or work
thereon is subject to the bylaw.
Those areas defined in the Massachusetts Wetlands Protection Act or § 262-3 of the bylaw. "Resource area" is used synonymously with "area subject to protection under the bylaw."
A natural flowing body of water that empties into any lake,
pond, ocean or other river and which flows throughout the year, including
but not limited to the following: Beaver Brook, Billings Brook, Canoe
River, Little Canoe River, Devil's Brook, Massapoag Brook, Puffer
Brook, School Meadow Brook, Spring Meadow Brook, Sucker Brook, Traphole
Brook, in their entirety throughout the Town of Sharon.
As defined in the MGL c. 131, § 40.
The prevention of damage caused by water from storms, including,
but not limited to, erosion and sedimentation, damage to vegetation,
property, or buildings, or damage caused by flooding, waterborne debris
or waterborne ice.
A body of running water, including brooks and creeks, which
move in a definite channel in the ground due to hydraulic gradient.
A stream may flow through a culvert or beneath a bridge. A body of
running water which does not flow throughout the year is termed an
"intermittent stream."
See "freshwater wetlands."
Includes, in addition to scientific definitions found in
the regulations under the Massachusetts Wetlands Protection Act, any
confined basin or depression not occurring in existing lawns, gardens,
landscaped areas or driveways which at last 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 and other important wildlife habitat functions
for amphibian, reptile or other vernal pool community species, regardless
of whether the site has been mapped and/or certified by the 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.
Area where groundwater is at the surface for a significant
part of the growing season and near the surface throughout the year
and where a significant part of the vegetational community is composed
of various grasses, sedges, and rushes; made up of, but not limited
to nor necessarily including all of the following plants or groups
of plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium),
dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Poaceae),
loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes
(Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis),
smartweed (Polygonum).
Living things and especially mammals, birds, reptiles, amphibians
and fish, as well as invertebrates, which are neither human nor domesticated,
and living in their natural environment.
A.
No person shall remove, fill, dredge, build upon, or alter any bank,
freshwater wetland, vernal pool, beach, flat, marsh, wet meadow, bog,
swamp, or lands bordering on any creek, river, stream, lands adjoining
these resource areas out to a distance of 200 feet, known as the "riverfront
area," or any pond, lake, or any land under said waters, or any land
subject to storm flowage, or flooding, or inundation by groundwater
or surface water, or lands adjoining these resource areas out to a
distance of 100 feet, known as the "buffer zone," without filing written
notice of the intention to do so with the Commission in accordance
with the provisions set forth in this bylaw and without receiving
and complying with the order of conditions issued by the Commission
and provided all appeal periods have elapsed, unless the Commission
shall have determined that this bylaw does not apply to the activity
proposed.
B.
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
use as defined by the Massachusetts Wetland Protection Act Regulations
at 310 CMR 10.04.
A.
This bylaw shall accommodate emergency projects in the following
manner:
(1)
Emergency projects necessary for the protection of the health or
safety of the residents of Sharon which are to be performed, 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.
B.
The following activities are exempt under this bylaw:
(1)
Maintenance, repair, replacement, without substantial change or enlargement,
or existing and lawfully located structures or facilities used in
the service of the public and used to provide electric, gas, water,
sewerage, drainage, railroad transportation, telephone, telegraph
and other telecommunication services to the public, provided that
written notice has been given to the 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.
(2)
Normal maintenance or improvement of land in agricultural use. The
Commission shall determine whether the requirements of the bylaw apply
to activities proposed that may change land in agricultural use and
affect the interests protected by this bylaw.
(3)
Routine maintenance and repair of existing public ways.
(4)
Normal maintenance, repair, replacement of any existing betterment
to private, owner-occupied property, including, but not limited to,
existing fences, decks, patios, hedges, docks, boat moorings, trees,
shrubs, lawns, gardens, mailboxes, retaining walls or lampposts, as
long as the resource areas protected by this bylaw are unaffected.
A.
Any person who desires a determination as to whether this bylaw applies
to an area, or to any activity proposed thereon, shall submit a written
request for determination of applicability to the Commission, signed
by the owner of the area, or the applicants, if such applicant believes
an owner to be acting improperly on an area, on a form obtainable
from the Commission, together with plans showing the existing characteristics
of the area and the nature and extent of the activities to be performed
thereon. The information submitted shall also include lot lines, Town
ways, the location of all wetlands, vernal pools, floodplains, watercourses,
and buffer zones, existing buildings, and all changes proposed, and
such other information as the Commission may require by regulation.
B.
Any person requesting a hearing before the Commission shall be required
to make a minimum payment of $50 per hearing, said amount payable
to the Town of Sharon which in turn will be placed in the advertising
fund for the purpose of payment of the advertisement of the hearing
notice and any other associated costs. The Commission shall hold a
public hearing on the activity within 21 days of receiving such completed
notice of intent. Notice of the time and place of such hearing shall
be given by the Commission, at the expense of the applicant, not less
than five days prior to the public hearing, by publication in a newspaper
of general circulation in Sharon, and by mailing a notice by certified
mail to the applicant, and the owner, if a person other than the applicant,
and to the Sharon Board of health and the Sharon Planning Board. 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, 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. Such hearing
may be held at the same time and place as any public hearing required
to be held under MGL c. 131, § 40, or otherwise. If the
Commission determines that additional information is necessary, the
hearing may be continued to a future date for as many hearings as
may be deemed necessary by the Commission.
C.
Any person filing a permit or other application or other request
with the Commission shall give written notice thereof, by certified
mail (return receipt requested) 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 any 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.
(1)
The request for determination of applicability shall be delivered
to the Commission by certified mail (return receipt requested), together
with a certification that all abutters to the area subject to determination,
and the owner, if not the person making the request, have been sent
notice that a determination is being requested hereunder, and to such
other persons as the Commission may require by regulation. 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.
The commission, in its discretion, may hear any oral presentation
under this bylaw at the same public hearing to be held under the provisions
of MGL c. 131, § 40.
(2)
Notice of the time and place of such hearing shall be given by the
Commission, at the expense of the applicant, not less than five days
prior to the public hearing, by publication in a newspaper of general
circulation in Sharon and by mailing a notice by certified mail (return
receipt requested), to the applicant, or owner, if a person other
than the applicant. 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 any 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.
D.
The Commission in an appropriate case may accept as the application
and plans under this bylaw any application and plan filed under the
Massachusetts Wetlands Protection Act (MGL c. 131, § 40)
and regulations (310 CMR 10.00), but the Commission is not obliged
to do so.
E.
At the time of an application, the applicant shall pay the filing
fees as specified in the Commission's rules and regulations.
The fee is in addition to that required by the Massachusetts Wetlands
Protection Act and regulations.
F.
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, wetland scientists, wildlife biologists, or other experts
in order to aid in review of proposed projects. This fee is called
the "consultant fee." The specified consultant services may include,
but are not limited to, performing or verifying the accuracy or resource
area survey and delineation; analyzing resource area functions and
values, including wildlife habitat evaluations, hydrogeological and
drainage analysis; and researching environmental or land use law.
The exercise of discretion by the Commission in making its determination
to require payment of a consultant 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.
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. 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)
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 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 MassDEP of such a decision
in writing.
G.
Fees are payable by cash or check to the Town of Sharon at the time
of request or filing, and are not refundable. Town, county, state
or federal projects are exempt from fees. The Commission, upon a majority
vote, may waive fees in the event of hardship or other cause.
Unless the Commission determined that this bylaw does not apply
to such activity pursuant to the provisions of this bylaw, every person
who wishes to remove, fill, dredge, or alter any wetland, vernal pool,
floodplain, or buffer zone shall first file a written notice of intent
(NOI) with the Commission, signed by the owner of the area, or his/her
legally authorized representative, on a form available from the Commission,
together with a list of the names and addresses of all abutters to
the area subject to such notice, and with such notice, such plans
and additional information as the Commission may deem necessary, by
regulation, or otherwise, to describe the nature of the activity proposed
and its effect on the wetlands, floodplains and buffer zones. The
NOI shall be delivered to the Commission by hand, or by certified
mail (return receipt requested) together with a certification that
all abutters to the area subject to the NOI, and the owner, if the
person making the application is other than the owner, have been sent
notice that a NOI has been filed hereunder, and to such other persons
as the Commission may, by regulation, determine. The plans shall show
the location of the wetland boundaries and shall be at such scale
as the Commission may deem necessary, by regulation, or otherwise.
All drawings and plans should be stamped, signed and dated by such
registered professional as the Commission may require, by regulation,
or otherwise. In addition, the NOI, with its plans, will show lot
lines, Town ways, the names of all abutters, the location of all the
wetland areas, vernal pools, floodplains, watercourses, and buffer
zones, pertinent physical features of the land, existing buildings,
and all changes proposed to be made. In order to comply with the provisions
of this bylaw, each notice must be complete, as filed and comply with
the rules set forth herein. No such notice shall be accepted as complete
before all permits, variances, and approvals required by the bylaw
of the Town of Sharon with respect to the proposed activity, which
are obtainable at the time of such notice, have been obtained, or
if not obtainable at that time, have been applied for, as provided
in MGL c. 131, § 40.
A.
Burden of proof. The applicant shall have the burden of proving,
by a preponderance of the credible evidence, that the activity proposed
in the NOI will not negatively impact the resource area values protected
by this bylaw. Failure to provide adequate evidence to the Commission
supporting this burden shall be significant cause for the Commission
to deny a permit or grant a permit with conditions as the Commission
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 seems to the Commission to be just.
B.
The Commission, in its sole discretion, may hear any oral presentation
under this bylaw by any interested or aggrieved party, at the same
public hearing required for any permit application under the Massachusetts
Wetlands Protection Act. Notice of the time and place of such hearing
shall be given by the Commission, at the expense of the applicant,
not less than five days prior to the public hearing, by publication
in a newspaper of general circulation in Sharon and by mailing a notice
by certified mail (return receipt requested) to the applicant, or
owner, if a person other than the applicant. 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 any other adequate identification of the location of the area or
premises which is the subject of the notice, the date, the time, and
place of the public hearing, the subject matter of the hearing, and
the nature of the action, or relief requested, if any.
C.
If, after the hearing, the Commission determines that the proposed
activity impacts the resource areas protected by this bylaw, the Commission
may, by written order issued within 21 days after the close of such
hearing, impose such conditions, safeguards, and limitations on time
and use upon such activity as it deems necessary to protect those
interests; but the Commission may prohibit such activity altogether,
in the event that it finds that the interests of this bylaw cannot
be preserved and protected by the imposition of such conditions, safeguards,
or limitations. Due consideration shall be given to possible effects
of the proposal on all resource area values to be protected under
this bylaw and to any demonstrated hardship on the applicant by reason
of a denial, as brought forth at the public hearing. If the Commission
shall determine that the activity proposed does not require the imposition
of conditions to preserve and protect the interests of this bylaw,
the applicant shall be notified in writing. No condition shall be
imposed, nor any determination rendered, by the Commission, unless
the Commission meets with a quorum present.
D.
The Commission may, as part of its order of conditions, require,
in addition to any security required by any other Town or state board,
committee, commission, agency or officer, that the performance and
observation of the conditions, safeguards and limitations imposed
under this bylaw by the applicant and owner be secured by one, or
both, of the methods described in the following clauses:
(1)
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 certificate of
compliance for work performed pursuant to the permit. Such bond or
security, if filed or deposited, shall be approved as to form and
manner of execution by Town Counsel or the town Treasurer; and/or
(2)
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.
E.
In the event all activity authorized by the order of conditions is
not completed within three years after the date of issuance, the authorization
contained therein shall expire, unless the order has been renewed
prior to expiration, such renewal being subject to all of the conditions
of this bylaw. An order of conditions may be renewed, upon written
request of the applicant, for a period of up to three years.
(1)
No activity governed by an order of conditions shall be carried on
unless, and until, all permits, approvals and variances required by
the bylaws of the Town of Sharon shall have been obtained, and unless
such order of conditions shall have been recorded or registered at
the Norfolk Count Registry of Deeds or in the Norfolk District Land
Court Department and until all applicable appeal periods have expired.
(2)
The Commission shall have the right to record or register its order
of conditions with said registry. 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.
The Commission shall, upon receiving a written request therefor,
inspect the resource areas where the activity governed by an order
of conditions was carried out, and issue a certificate of compliance
to the owner of the property in a form suitable for recording, or
registering, if the Commission shall determine that all of the activity,
or activities, or portions thereof, limited thereby, have been completed
in accord with said order. The written request for a certificate of
compliance shall be accompanied by evidence of the prior recording,
or registering, of the governing order of conditions.
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 of conditions issued under
this bylaw, shall forthwith comply with any such order, or restore
the land to its condition prior to any such violation; provided, however,
that no action, civil or criminal, shall be brought against such a
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.
Any applicant who is an owner, or any applicant legally authorized
to represent the owner, who requests the Commission to evaluate a
written notice of intent, request for determination, or abbreviated
notice of resource area delineation gives the Commission, and its
agents, the right of entry to the owner's property for the purpose
of evaluating the information provided in the filing.
In accordance with the provisions of MGL c. 40, § 21D,
as well as every other authority and power that may have been, or
may hereafter be conferred upon it, the Town of Sharon may enforce
the provisions of this bylaw, restrain violations thereof, and seek
injunctions and judgments to secure compliance with its order of conditions.
Without limiting the generality of the foregoing:
A.
No person shall remove, fill, dredge, build upon, degrade or otherwise
alter a resource area 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.
Any person who violates any provision of this bylaw, or any condition or permit issued pursuant it, shall be punished by a fine pursuant to MGL c. 40, § 21, and pursuant to the Town of Sharon bylaws, Chapter 1, Article I. Each day, or portion thereof, during which a violation continues shall constitute a separate offense. This bylaw may be enforced pursuant to MGL c. 40, § 21D, by a Town of Sharon police officer, or other officer having police powers.
C.
In the event of a violation of this bylaw, or of any order issued
thereunder, the Commission or its agents may issue a stop order to
the owner, the applicant, or their agent, by certified mail (return
receipt requested) or by posting the same in a conspicuous location
on the site affected. Any person who shall violate the provisions
of a stop order shall be deemed in violation of the bylaw; but the
failure of the Commission to issue a stop order, for any reason, shall
not prevent the Town of Sharon from pursuing any other legal remedy
at law, or in equity, to restrain violations of this bylaw and to
secure compliance with its orders.
D.
The Town of Sharon shall be the beneficiary of all fines imposed
on account of the violation of this bylaw in order to defray the expense
of enforcing the same.
E.
Upon the request of the Commission, the Select Board and Town Counsel
shall take such legal action as may be necessary to enforce this bylaw
and permits issued pursuant to it.
F.
Upon the recommendation of the Commission, the Select Board may employ
special counsel to assist the Commission in carrying out the legal
aspects, duties, and requirements of this bylaw.
After notice and public hearing the Commission may promulgate
rules and regulations to affect the purpose 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.
Any person filing a permit application, request for determination
of applicability, or abbreviated notice of resource area delineation
with the 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,
Town Engineer, and Building Inspector. A copy shall be provided in
the same manner to the Commission of the adjoining municipality, if
the application or request for determination of applicability 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 the receipt of the 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 respond
to them at a hearing of the Commission, prior to final action.
This bylaw is intended to utilize the Home Rule authority of
this municipality to protect additional resource areas and interests
with standards and procedures stricter than those pursuant to the
Wetlands Protection Act, MGL c. 131, § 40, and the regulations
thereunder, 310 CMR 10.00.
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 which previously have become final.
