The purpose of this bylaw is to protect the wetlands, related water resources and adjoining land areas of the Town of East Longmeadow by controlling activities found by the Conservation Commission (hereinafter "Commission") likely to have a significant or cumulative effect upon the following wetland values: Protection of public or private water supply and groundwater, protection of fisheries, flood control, sedimentation and erosion control, serving as a drainage area for stormwater runoff, prevention of water pollution, protection of water quality and the provision for and protection of wildlife habitat (collectively "the interests protected by this bylaw").
[HISTORY: Adopted by the Town Council of the Town of East Longmeadow as Ch. 10, § 10.012, of the 1982 General Bylaws. Amendments noted where applicable.]
Except as permitted by the Commission or as provided in this bylaw, no person shall remove, fill, dredge, build upon or alter the following resource areas: upon or within 100 feet of any bank, bordering freshwater wetland, flat, marsh, wet meadow, bog swamp, isolated wetland or temporary wetland, or upon or within 100 feet of any estuary, creek, river, stream, pond or lake, or upon or within 100 feet of any land under said waters or upon or within 100 feet of any bordering or isolated land subject to flooding, or within 100 feet of the 100-year flood line. The jurisdiction of the Commission over any temporary wetland and the 100-foot buffer around such wetland shall exist only if any such temporary wetland is found by a qualified wildlife expert to be vital to the survival of any animal species that uses such wetland exclusively for its reproductive cycle.
A.
The permit and application 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 and used to provide electric, gas, water, sanitary sewer and storm sewer, telephone, telegraph and other telecommunication services, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.
B.
This bylaw shall not apply to any emergency project as defined in the Wetlands Protection Act, MGL c. 131, § 40 (hereinafter "the Wetlands Protection Act") and the regulations pursuant thereto or to any mosquito control project authorized by any laws of the commonwealth.
C.
The Commission may exempt by regulation the application of this bylaw to work performed for normal maintenance or improvement of land actively devoted to agricultural use at the time of the application, provided that such regulations are consistent with the provision applying to agricultural exemptions in the regulations promulgated under the Wetlands Protection Act.
A.
Written applications shall be filed with the Commission to perform activities regulated by this bylaw affecting resource areas protected by this bylaw. The application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects upon the environment. No activities shall commence without receiving and complying with a permit issued pursuant to this bylaw.
B.
The Commission may accept as the application and plans under this bylaw the notice of intent and plans filed under the Wetlands Protection Act.
C.
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 shall contain data and plans specified by the regulations of the Commission. The Commission may in an appropriate case accept such data and plans as are submitted in compliance with the Wetlands Protection Act. Any resource area found by the Commission to meet the definitions contained in this bylaw shall be subject to the protection of this bylaw.
A.
Any person filing a notice of intent with the Commission shall complete the filing in accordance with 310 CMR 10.00. The Commission reserves the right to ask for any additional information it deems necessary to evaluate a project.
B.
The Commission shall hold a public hearing on a notice of intent within 21 days of its receipt. The East Longmeadow Conservation Commission may request an extension of 21 days; such extension must be agreed upon by the applicant in writing. If the Commission deems necessary, copies of the application shall be sent by hand delivery to the Town Manager, the Planning Board, Department of Public Works Superintendent, the Building Commissioner and the Board of Health. The Commission shall provide written notice of the hearing, at the expense of the applicant, five working days prior to the hearing in a newspaper of general circulation in the community.
C.
Any person filing a notice of intent with the Commission shall give written notice thereof, by certified mail (return receipt requested) or hand delivery, to abutters of the land to 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, including any in another municipality or across a body of water. The notice to abutters shall enclose a copy of the notice of intent with the plans, or shall state where copies may be examined and obtained by abutters free of charge. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission.
D.
The Commission shall issue its decision in writing within 21 days of the close of the public hearing thereon unless an extension is authorized in writing by the applicant.
E.
The Commission may combine its hearing under this bylaw with a hearing conducted under the Wetlands Protection Act.
F.
The Commission shall have the authority to continue the hearing to a date and time 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 Subsection B.
G.
The Commission shall adopt by regulation a procedure providing for the coordination of its activities with those of other Town departments which also assert or may thereafter assert jurisdiction over the same parcel of land.
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 interests protected by this bylaw and are within the jurisdiction established by this bylaw, the Commission, within 21 days after the close of the hearing, shall issue or deny a permit for the activities requested. If the Commission issues a permit it shall impose conditions which the Commission deems necessary or desirable to protect these interests, and all activities shall be performed in accordance with those conditions.
B.
If the Commission determines that the activities, which are subject to the application, are not likely to have a significant or cumulative effect upon the interests protected by this bylaw, the Commission shall issue a permit without conditions within 21 days after the public hearing.
C.
Failure by the Commission to take any action within 45 days after the close of a hearing at which the applicant has produced all the required information shall be deemed to be finding by the Commission that, in the case of a request for determination, the area is not subject to this bylaw or, in the case of an application, the activities which are the subject of the application will not have a significant or cumulative impact upon the interests protected by this bylaw. Such procedure shall apply only to areas of Commission jurisdiction that exceed that established under the Wetlands Protection Act.
D.
The Commission is empowered to deny a permit for failure to meet the requirements of this bylaw; 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 regulations of the Commission; for failure to avoid or prevent unacceptable significant or cumulative effects upon the interests protected by this bylaw; and where no conditions are adequate to protect those values. Due consideration shall be given by the Commission to any demonstrated hardship on the applicant by reason of denial, as presented at public hearing.
E.
A permit shall expire three years from the date of issuance, and all work shall be completed prior to expiration. The Commission may extend a permit for an additional one-year period.
F.
The Commission may revoke or modify a permit issued under this bylaw after notice to the holder of the permit, notice to the public, abutters, and Town boards pursuant to § 424-5, and public hearing, for two or more violations of a notice of intent and order of conditions.
G.
The Commission may combine the permit or other action on an application issued under the bylaw with the order of conditions issued under the Wetlands Protection Act.
H.
No work proposed in any application shall be undertaken until the permit issued by the Commission with respect to such work has been recorded in the Registry of Deeds, or, if the land affected thereby is registered land, in the Registry Section of the Land Court for the district wherein the land lies, by the holder of the permit or, if provided in regulations of the Commission, by the Town of East Longmeadow and until the holder of the permit certifies in writing to the Commission that the permit has been so recorded or that the Town of East Longmeadow has recorded said permit.
Any person who purchases, inherits or otherwise acquires real estate upon which work has been performed in violation of the provisions of this bylaw or in violation of any order issued pursuant to this bylaw shall forthwith comply with any such order or restore such land to its conditions prior to any such violation; provided, however, that unless the violation is found by the Commission, after notice and hearing, to pose a substantial and material threat to the interests protected by this bylaw, no action, civil or criminal, shall be brought against such person unless such action is commenced within three years of following the recording of the deed or the date of the death by which such real estate was acquired by such person and the order of conditions which is being violated or any enforcement order relating to the violation was appropriately recorded.
[Amended 4-12-2022]
In general, the applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not harm the interests protected by this bylaw. As to activities which may impact isolated wetlands and temporary wetlands which are not also subject to the Commission's jurisdiction under the Wetlands Protection Act, the Commission shall not require that the applicant prove that the proposed alteration will not have cumulative effect on the interests protected by this bylaw, but shall require only that the applicant demonstrate that the proposed activity will not have a significant effect on the interests protected by this bylaw.
A. ALTER(1) (2) (3) (4) (5) (6) (7) (8) APPLICANT BANKS; BORDERING FRESHWATER WETLAND; FLAT; MARSH; WET MEADOW; BOG; SWAMP; ESTUARY; CREEK; RIVER; POND; LAKE; AND BORDERING AND ISOLATED LAND SUBJECT TO FLOODING CUMULATIVE EFFECT ISOLATED WETLANDS PERSON SIGNIFICANT EFFECT TEMPORARY WETLANDS
The following definitions shall apply in the interpretation and implementation of this bylaw:
Includes, without limitation, the following actions when undertaken to, upon, within or affecting resource areas protected by this bylaw:
Removal, excavation or dredging of soil, sand, gravel or aggregate material of any kind;
Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns of surface and subsurface water or flood retention characteristics;
Drainage or other disturbance of water level of water table;
Dumping, discharging or filling with any material or in any manner which may degrade water quality or interfere with any of the interests protected by this bylaw;
Driving of piles, erection of buildings or structures of any kind;
Placing of obstructions, whether or not they interfere with the flow of water;
Destruction of plant life, including cutting of trees;
Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of the water.
Person giving notice of intention to build, remove, fill, dredge or alter or making a request for determination.
Unless otherwise defined in this bylaw, shall have the same meaning as in the Wetlands Protection Act and the regulations thereunder.
An activity has a cumulative effect on the interests protected by this bylaw if such activity, added to or in conjunction with similar activity which has occurred or has been proposed and which affects the same resource area, has a measurable impact on a resource area covered by this bylaw and tends to reduce the capacity of that resource area to support or sustain the interests protected by this bylaw. The applicant shall have the burden of proving by a preponderance of credible evidence that the activity has no cumulative effect on the values protected by this bylaw.
Areas of wetland vegetation (as defined in the definition of "banks, bordering freshwater wetland, flat, marsh, wet meadow, bog, swamp, estuary, creek, river, pond, lake and bordering and isolated land subject to flooding") which are subject to flooding and consist of isolated depressions or closed basins which serve as a ponding area for run off or high groundwater and which remain wet on a year-round basis except for extended dry periods. Such areas must be at least 400 square feet in area and may include kettle holes and bogs.
Shall include any individual, group of individuals, associations, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof to the extent subject to Town bylaws, administrative agencies, public or quasi-public corporations or bodies, the Town of East Longmeadow, and any other legal entity, its legal representatives, agents or assigns.
An activity has a significant effect on the interests protected by this bylaw if such activity has a measurable impact on a resource covered by this bylaw and tends to reduce the capacity of that resource area to support or sustain the interests protected by this bylaw.
Those areas of at least 400 square feet in areas which are periodically flooded on a purely seasonal basis by high groundwater or runoff and include vernal and autumnal ponds. Prior to exercising jurisdiction over any temporary wetlands which is not also subject to the Commission's jurisdiction under the Wetlands Protection Act, the Commission shall publish the location of such areas on a map, after notice and hearing. No such areas not already under the Commission's jurisdiction under the Wetlands Protection Act shall be subject to the Commission's jurisdiction unless a qualified wildlife professional has determined that the area is vital to the survival of a species of animal which uses that area exclusively in its reproductive process.
A.
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 Commission may require that the performance and observance of the conditions imposed hereunder be secured wholly or in part by a proper bond or a deposit of money or negotiable securities in an amount determined by the Commission to be sufficient and payable to the Town of East Longmeadow.
B.
In addition or in the alternative, the Commission may accept as security a conservation restriction, easement or other covenant running with the land, executed and properly recorded (or registered, in case of registered land) by the owner of record to the benefit of the Town of East Longmeadow.
A.
After notice to the landowner, the Commission, its agents, officers and employees shall have the 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 examination, surveys or sampling as the Commission deems necessary.
B.
Any person who violates any provision of this bylaw or any conditions of a permit issued pursuant to it shall be punished by a fine of $300. Each day or portion thereof during which a violation continues shall constitute a separate offense.
[Amended 4-12-2022]
C.
If the Town of East Longmeadow has adopted a comprehensive "ticketing" program based on MGL c. 40, § 21D, the Commission shall adopt such program through its regulations. If such a program has not been adopted, the Commission may thereafter elect to enforce this bylaw pursuant to MGL c. 40, § 21D, and the Chair of the Commission or the Town Conservation Enforcement Officer, if one has been appointed, may enforce this bylaw under the provision of that section.
[Amended 4-12-2022]
D.
Upon petition of the Commission, the Town Manager and Town Attorney may take such legal action as may be necessary to enforce this bylaw and permits issued pursuant to it.
A decision of the Commission may be appealed by any person aggrieved thereby in the following manner:
A.
Such person may, within 10 days of the decision, request that the matter be settled through a mediation process conducted by a disinterested environmental professional who is mutually agreed upon by the Commission and the aggrieved party. If no such professional can be agreed upon, then one shall be appointed by the Chair of the Conservation Law Foundation. Once the aggrieved party and the Commission agree to such procedure, the results thereof shall be binding on both parties. An applicant whose application involves a total parcel size of less than two acres (including all upland areas not under the jurisdiction of the Commission) and an abutter to the property which is the subject of the application may require that the Commission agree to such procedure. Such professional shall render a decision within 30 days of the commencement of the mediation proceedings unless the professional requests additional information not in the control of either party. The mediator shall determine how the costs of the proceeding will be allocated between the parties. The decision of the mediator shall constitute a final decision which may be enforced in any court of competent jurisdiction, with the costs of such enforcement procedures to be borne by the party who has refused to comply with such order. Such procedures shall comply with the rules of the American Arbitration Association to the extent not otherwise agreed upon; or
B.
The decision shall be reviewable in the Superior Court in an action filed within 60 days thereof in accordance with MGL c. 249, § 4, provided that no such appeal may commence prior to a final decision by the Department of Environmental Protection on any matter which is subject both to this bylaw and the Wetlands Protection Act and which has been appealed to that Department.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act and regulations thereunder.
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 has previously become final.