[HISTORY: Adopted by the Annual Town Meeting
of the Town of Belchertown 6-27-2020 by Art. 22.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 145.
Subdivision of land — See Ch. 270.
Wetlands (Conservation Commission regulations) — See Ch. 290.
[1]
Editor's Note: This article also repealed former Ch. 139,
Wetlands Protection, adopted 5-13-1989 by ATM by Art. 17.
A.
The purpose of this chapter is to protect the wetland resource areas,
related water resources and adjoining land areas in the Town of Belchertown
by controlling activities deemed by the Conservation Commission likely
to have a significant or cumulative effect upon wetland values, including
but not limited to the following:
(1)
Public or private water supply.
(2)
Groundwater and groundwater quality.
(3)
Surface water and surface water quality.
(4)
Flood control.
(5)
Erosion and sedimentation control.
(6)
Storm damage prevention.
(7)
Prevention of water pollution.
(8)
Storm drainage.
(9)
Fisheries.
(10)
Wildlife habitat.
(11)
Agriculture.
(12)
Aquaculture.
(13)
Recreation.
B.
These values are to be known collectively as the "wetland values
protected by this chapter."
A.
Except as permitted by the Conservation Commission or as provided
for in this chapter, no person shall remove, fill, dredge, build upon
or alter the following resource areas or within 100 feet of these
resource areas, an area known as the "buffer zone to the resource
areas":
(1)
Any freshwater wetland as determined by vegetational community, soil
composition and/or hydrologic regime, including isolated wetlands,
any marsh, wet meadow, bog or swamp.
(2)
Any pond, lake, river and any perennial or intermittent stream.
(3)
Any land under such waters.
(4)
Any bank or beach.
(5)
Any land subject to flooding or inundation by groundwater, water
or storm flowage, including ephemeral ponds, vernal pools and kettle
holes.
B.
Where natural vegetation is absent as a result of mowing, grazing
or disturbance, the hydric soil type indicated on United States Natural
Resource Conservation Service maps, combined with field investigation
of hydric soil profiles and application of the Natural Resource Conservation
Service's definitions and criteria for hydric soils, shall provide
positive determination of jurisdiction.
A.
Existing public service structures or facilities.
(1)
The application and permit required by this chapter shall not be
required for maintaining, repairing or replacing, but not substantially
changing or enlarging, an existing or lawfully located structure or
facility used in the service of the public to provide electric, gas,
water, telephone, telegraph or other telecommunication services, sanitary
sewers and storm sewers, provided that:
(2)
This exemption does not apply to septic systems, new or otherwise.
B.
Emergency projects for protection of the public.
(1)
The application and permit required by this chapter shall not apply
to emergency projects necessary for the protection of the health or
safety of the public, provided that:
(a)
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;
(b)
Advance written notice, or oral followed by written, has been
given to the Commission prior to commencement of work or within 24
hours after commencement;
(c)
The Conservation Commission or its agent certifies the work
as an emergency project;
(d)
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
(e)
Within 21 days of commencement of an emergency project, at the
direction of the Commission and/or staff, either a permit application
shall be filed with the Commission for review as provided in this
chapter or an as-built plan shall be filed with the Commission, whereupon
the Commission may, after notice and public hearing, require restoration,
project modification and mitigation measures to protect the values
stated in this chapter.
(2)
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.
Normal maintenance and/or improvement of land in agricultural use.
The application and permit required by this chapter shall not be required
for work performed for the normal maintenance or improvement of lands
in lawful, active agricultural use as defined in 310 CMR 10.04, provided
that no further encroachment into areas subject to this chapter occurs
without prior review and permission by the Commission.
A.
Requests. Any person desiring to know whether or not a proposed activity
or an area is subject to this chapter may request, in writing, a determination
from the Commission. Such a request for determination shall contain
data and plans specified by the regulations of the Commission, containing
sufficient information to make a determination, as the Commission
determines necessary. Failure to provide any of the information required
herein, including but not limited to seasonal field data, is sufficient
cause for the Commission to issue a positive determination. The Commission,
in an appropriate case, may accept as the request under this chapter
the request for determination of applicability filed under the Wetlands
Protection Act, MGL c. 131, § 40.
(1)
Failure to pay the filing fee shall be sufficient grounds to reject
the application or request.
(2)
The Commission may waive the filing fee and costs and expenses for
an application or request filed by the Town of Belchertown or by a
government agency and may waive the filing fee for a request for determination
filed by a person having no financial connection with the property
which is the subject of the request.
B.
Applications. Written application shall be filed with the Commission
to perform activities regulated by this chapter and which affect 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 areas subject
to protection under this chapter. The application shall include a
complete and accurate description of the site, including the type
and boundaries of resource areas, the proposed work and the potential
for cumulative effects on any areas subject to protection hereunder.
No activities within any jurisdictional areas shall commence without
receiving and complying with a permit issued pursuant to this chapter.
The Commission, in an appropriate case, may accept as the application
and plans required under this chapter the notice of intent or abbreviated
notice of resource area delineation, and plans filed under the Wetlands
Protection Act, MGL c. 131, § 40.
C.
Fees and costs. At the time of a request or application, 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.
(1)
Failure to pay the filing fee shall be sufficient grounds to deny
the application or request.
(2)
The Commission may waive the filing fee and costs and expenses for
an application or request filed by the Town of Belchertown or by a
government agency and may waive the filing fee for a request for determination
filed by a person having no financial connection with the property
which is the subject of the request.
A.
A request or an application with the required filing fee shall be
hand delivered or sent by certified mail to the Commission. When a
person requesting a determination, the request shall also be sent
certified mail to the owner by the applicant.
B.
The Commission shall conduct a public hearing on any request for
determination or application for a permit, with written legal notice
given at the expense of the applicant five days prior to the hearing
in a newspaper of general circulation in the Town of Belchertown.
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.
C.
The Commission shall commence the public hearing within 21 days from
receipt of a completed application or request for determination, unless
the applicant extends the twenty-one-day period by a signed written
waiver.
D.
The Commission shall have authority to continue the hearing to a
date certain announced at the hearing for reasons stated at the hearing,
which may include the receipt of additional information offered by
the applicant or others, information and plans required of the applicant,
or comments and recommendations of local boards and officials, deemed
necessary by the Commission in its discretion.
E.
The Commission, its agent, officers and employees, may enter upon
the land for which a request or application has been made, upon which
the proposed work is to be done, for the purpose of carrying out its
duties under this chapter and may make or cause to be made such examination,
sampling or survey as is deemed necessary. Refusal of the property
owner to grant access requested by the Commission shall be grounds
for denial of the application.
F.
The Commission shall issue its determination in writing within 21
days of the submission of a complete filing; and issue a permit in
writing within 21 days of the close of the public hearing thereon.
A.
The Commission shall have the authority, after a public hearing,
to determine whether a specific parcel of land contains or does not
contain resource areas protected under this chapter and shall have
the authority to determine whether proposed activities will adversely
affect those resource areas or the buffer zone. If the Commission
finds that no such resource areas are present, it shall issue a negative
determination. If the Commission finds that the proposed activities
will not adversely affect any area under jurisdiction, the Commission
may issue a negative determination.
B.
If the Commission, after a public hearing on the permit application,
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 a permit or denial for the activities
requested. If it issues a permit, the Commission shall impose conditions
which the Commission deems necessary or desirable to protect those
values, and all activities thus permitted shall be done in accordance
with those conditions.
C.
The Commission is empowered to deny a permit for the following reasons:
(1)
Failure to meet the requirements of this chapter;
(2)
Failure to avoid or prevent unacceptable significant or cumulative
effects upon the wetland values protected by this chapter;
(3)
Failure to submit necessary information and plans requested by the
Commission;
(4)
Failure to meet the design specifications, performance standards
and other requirements in regulations of the Commission; and
(5)
Where no conditions are adequate to protect the wetland values protected
hereunder.
D.
A permit 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. A permit may be renewed for up to an additional
three-year period, provided that a request for a renewal is received,
in writing, by the Commission prior to expiration, and the Commission
votes to approve the extension at a public meeting.
E.
For good cause, the Commission may revoke or amend a permit issued
under this chapter after public notice and public hearing and notice
to the holder of the permit.
F.
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.
A.
After public notice and public hearing the Commission may, from time
to time, promulgate performance standards, design specifications,
policy guidelines and other rules and regulations to accomplish the
purposes of this chapter.
B.
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.
C.
Unless otherwise stated in this chapter, or in the rules and regulations
promulgated under this chapter, the definitions, procedures and performance
standards of the Wetlands Protection Act, MGL c. 131, § 40
and associated regulations, 310 CMR 10.00, shall apply.
The following definitions shall apply in the interpretation
and implementation of this chapter:
Any work which produces food or other products for commerce
or subsistence. Agriculture includes, but is not limited to, the growing
of crops, the raising of livestock, and the production of forest products.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
Removal, excavation or dredging of soil, sand, gravel, clay,
minerals 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 or repair of buildings or structures
of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting of trees.
Changing water temperature, biochemical oxygen demand or other
physical, chemical or biological characteristics of surface and ground
water.
Excavation for the purpose of percolation or deep hole testing
or the crossing of a resource area with heavy equipment for this purpose.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Activities regulated under this chapter, which may be individually
minor, but when considered in relation to other past, present or future
activities in a given area may be significant in the aggregate.
EROSION CONTROLThe ability of the wetland to buffer forces or processes which would threaten or cause to be threatened the stability of landforms and the soil and/or vegetation associated with wetlands and adjoining land areas, in particular, coastal and inland banks. Erosion can be caused by a wearing away of the surface soil or by undermining the interior portion of the landform. Activities in or within 100 feet of resource areas shall not have a significant effect on natural erosion processes.
SEDIMENTATION CONTROLThe ability of wetlands to settle out sediments and other waterborne material by reducing water flow by passing it through vegetation or by diffusing flow and reducing velocity. Activities in or within 100 feet of resource areas shall not accelerate or impede the rate of natural sedimentation significantly.
The ability of wetlands to absorb, store and slowly release
floodwaters to minimize peak flood levels. Flooding can be caused
by precipitation or a rising water table. Activities within 100 feet
of resource areas shall not alter the flood control value of wetlands
significantly.
All subsurface water contained in natural geologic formations
or artificial fill, including soil water in the zone of aeration.
Activities in or within 100 feet of resource areas shall not significantly
alter the existing quality or elevation of naturally occurring groundwater.
Any source or volume of surface or ground water demonstrated
to be in private use or shown to have potential for private use, including
ground or surface water in the zone of contribution around a private
well. Activities in or within 100 feet of a resource area shall not
have a significant effect on the quality of a private water supply.
Any source or volume of surface or ground water demonstrated
to be in public use or approved for water supply pursuant to MGL c.
111, § 160 by the Department of Environmental Quality Engineering
Division of Water Supply, or demonstrated to have a potential for
public use, in addition to all surface and ground water in zones of
contribution. Activities within 100 feet of resource areas shall not
have a significant effect on the quality of a public water supply.
Any leisure activity or sport taking place in, on, or within 100 feet of a resource area which is dependent on the resource area and its values directly or indirectly for its conduct and enjoyment. Recreational activities include, but are not limited to, the following: noncommercial fishing and shellfishing, hunting, boating, swimming, walking, painting, birdwatching and aesthetic enjoyment. Structures and activities in or within 100 feet of a resource area shall not have a significant effect on public recreational values. Notwithstanding this definition, new or expanded recreational activities shall not have a significant effect on other wetlands values identified in § 139-1 of this chapter.
The ability of wetland soils, vegetation and physiography
to prevent 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.
Activities in or within 100 feet of a resource area shall not have
a significant effect on storm damage protection.
Resource areas that provide breeding and nesting habitats,
shelter, food and water to all plant and animal species dependent
on wetlands for any portion of their life cycles. Includes resource
areas identified as containing rare, threatened or endangered species
as listed by the Massachusetts Natural Heritage Program. Structures
and activities in or within 100 feet of any resource area shall not
have a significant effect on wildlife habitat.
A.
The Conservation Commission, acting in its discretion, may waive
strict compliance with this bylaw if such action is allowed by federal,
state and local statutes, bylaws, and/or regulations; is in the public
interest; and is consistent with the purposes of this bylaw.
A.
The Commission may require the establishment of an escrow account
or other security running to the municipality, and sufficient as to
form and surety in the opinion of the Commission's counsel, to
secure faithful and satisfactory performance of work required by any
permit, in such sum and upon such conditions as the Commission may
require.
B.
Notwithstanding the above, the amount of such escrow account of security
shall not exceed the estimated cost of the work required or the restoration
of affected lands and properties if the work is not performed as required,
whichever is greater. Forfeiture of any such escrow account or security
shall be recoverable at the suit of the municipality in Superior Court.
The Commission may, at its discretion, accept as security 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 the Town of Belchertown whereby the permit
conditions shall be performed and observed before any lot may be conveyed
other than by mortgage deed.
A.
The Commission shall have authority to enforce this chapter, its
regulations and permits issued thereunder by violation notices, administrative
orders and civil and criminal court actions. Upon request of the Commission,
the Select Board may authorize Town Counsel to take legal action for
enforcement of this chapter under civil law. The Conservation Commission
may also take legal action for enforcement under criminal law. Duly
authorized Town officials, including but not limited to the Conservation
Administrator and any police officer or other officer having police
powers, shall have authority to assist with the Commission's
enforcement.
B.
Any person who violates any provision of this chapter, including
any causing, suffering or allowing of illegal work, any failure or
refusal to comply with an enforcement order, violation notice or administrative
order and any failure or refusal to remove illegal fill, restore property
or obtain necessary Commission approval, or any person who violates
the permits issued by the Commission, 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 the chapter, regulations or permit violated shall constitute
a separate offense. This fine may be in addition to any levied under
the Wetlands Protection Act, MGL c. 131, § 40.
The applicant for a permit shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the application will not have unacceptable significant or cumulative
effect upon the wetland values protected by this chapter. Failure
to provide adequate evidence to the Commission supporting this burden
shall be sufficient cause for the Commission to deny a permit or grant
a permit with conditions.
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 the
regulations thereunder.
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 or determination which previously has been issued.