[HISTORY: Adopted by the Town of Kingston as Ch. 13 of the General Bylaws; amended 1991 ATM by Arts. 50 and 51; 1993 ATM by Art. 20; 2004 ATM by Arts. 22, 23 and 24; 4-29-2023 ATM by Art. 37. Subsequent amendments noted where applicable.]
A. 
The purpose of this bylaw is to protect the wetlands, water resources, flood-prone areas, and adjoining upland areas in the Town of Kingston by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect on resource area values, including but not limited to the following: public or private water supply; groundwater supply; flood control; erosion and sedimentation control; storm damage prevention, including coastal storm flowage; water quality; prevention and control of pollution; fisheries; shellfisheries; wildlife habitat; rare species habitat, including rare plan and animal species; agriculture; aquaculture; and recreation values, deemed important to the community (collectively, the "interests protected by this bylaw").
B. 
This bylaw is intended to utilize the Home Rule authority of this municipality so as to protect the resource areas under the Wetlands Protection Act (MGL c. 131, § 40; the "Act") to a greater degree, to protect additional resource areas beyond the Act recognized by the Town as significant, to protect all resource ares for their additional values beyond those recognized in the Act, and to impose in local regulations and permits additional standards and procedures stricter than those of the Act and regulations thereunder (310 CMR 10.00); subject, however, to any rights and benefits accorded to agricultural uses and structures of all kinds under the laws of the commonwealth and other relevant bylaws of the Town of Kingston.
A. 
The following definitions shall apply in the interpretation and implementation of this bylaw:
AGRICULTURE
Refers to the definition as provided by MGL c. 128, § 1A.
ALTER
Includes, without limitation, the following actions when undertaken in areas subject to this bylaw:
(1) 
Removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any kind;
(2) 
Changing drainage characteristics, flushing characteristics, salinity distributions, sedimentation patterns, flow patterns and flood-retention characteristics;
(3) 
Drainage or other disturbances of water level or water table;
(4) 
Dumping, discharging, applying, or filling with any material or substance which may degrade water quality;
(5) 
Driving of piles, erection of buildings or structures of any kind;
(6) 
Placing of obstructions whether or not they interfere with the flow of water;
(7) 
Destruction of plant life, including cutting of trees;
(8) 
Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of the water;
(9) 
Placement of a Title V[1] subsurface disposal system for new construction within 100 feet of and including any area subject to protection under the bylaw.
(10) 
Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.
BANKS
That part of land adjoining any body of water which confines the water.
PERSON
Includes any individual, group of individuals, association, partnership, corporation, company, business organizations, trust, estate, the commonwealth or political subdivision thereof to the extent subject to Town bylaws, administrative agencies, public or quasi-public corporations of bodies, the Town of Kingston, 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,[2] 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, is free of adult predatory fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts 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, but shall not include existing lawns, gardens, landscaped or developed areas.
[1]
Editor's Note: 310 CMR 15.00.
[2]
Editor's Note: See MGL c. 131, § 40.
B. 
Except as otherwise provided in this bylaw or in associated regulations of the Conservation Commission, the definitions of terms and the procedures in this bylaw shall be as set forth in the Wetlands Protection Act (MGL c. 131, § 40) and regulations (310 CMR 10.00).
C. 
The Commission may adopt additional definitions not inconsistent with this § 299-2 in its regulations promulgated pursuant to § 299-12 of this bylaw.
A. 
Except as permitted by the Conservation Commission, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas: any freshwater or coastal wetlands, marshes, wet meadows, bogs, swamps, vernal pools, springs, banks, reservoirs, lakes, ponds of any size, beaches, dunes, estuaries, the ocean, and lands under water bodies; lands subject to tidal action, coastal storm flowage, or flooding; lands subject to flooding or inundation by groundwater or surface water; lands adjoining these resource areas out to a distance of 100 feet, known as the "buffer zone"; rivers, streams, brooks and creeks, whether perennial or intermittent; lands adjoining these riverine resource areas out to a distance of 200 feet, known as the "riverfront area" (collectively, the "resource areas protected by this bylaw"). Said resource areas shall be protected whether or not they border surface waters. Jurisdiction will extend an additional 100 feet in cases where more than 10 feet of excavation or fill is proposed.
B. 
The jurisdiction of this bylaw shall not extend to uses and structures of agriculture that enjoy any applicable 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 uses as defined by the Wetlands Protection Act Regulations found at 310 CMR 10.04.
A. 
The applications and permits required by this bylaw shall not be required for work performed for normal maintenance or improvement of land in agricultural and aquacultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.
B. 
The applications and permits 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 to provide electric, gas, water, telephone, telegraph, or other telecommunication services, provided that written notice has been given to the Conservation 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.
C. 
The applications and permits required by this bylaw shall not be required for emergency projects necessary for the protection of the health and 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 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 or request for a determination of applicability 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 as may be necessary to protect the interests under this bylaw.
D. 
Other than as stated in this bylaw, the exceptions provided in the Wetlands Protection Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00) shall not apply under this bylaw.
A. 
Any person filing a permit request or other application with the Conservation Commission shall, at the same time, give written notice thereof, by certified mail (return receipt requested) or hand delivered, 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 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.
B. 
The Commission shall conduct a public hearing on any permit application with written additional notice given at the expense of the applicant, at least five business days prior to the hearing, in a newspaper of general circulation in Kingston. The Commission shall commence the public hearing within 21 days of receipt of a completed permit application unless an extension is authorized, in writing, by the applicant. The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or others as deemed necessary by the Commission in its discretion, based on comments and recommendations of Town boards and officials. The Commission shall review RDA filings through the public meeting process rather than hold a public hearing.
C. 
The Commission shall issue its permit, order or determination, in writing, within 21 days of the close of the public hearing thereon unless an extension is authorized, in writing, by the applicant. The Commission in an appropriate case may combine its hearing and decision under this bylaw conducted under the Wetlands Protection Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00).
D. 
The Commission, its agents, officers, and employees may enter upon privately owned land for the purpose of performing their duties under this bylaw.
A. 
No proposal which has been unfavorably acted upon by the Commission shall be considered within two years after the date of such unfavorable action unless by a four-fifths vote of the Commission.
B. 
Amendments to permits, DOAs, or ORADs shall be handled in the manner set out in the Wetlands Protection Act Regulations and policies thereunder, except where no state jurisdictional resource areas occur, in which case minor changes with less impact to resource areas may be approved administratively or through the public meeting process.
C. 
The Commission in appropriate cases may combine the decision issued under this bylaw with the permit, DOA, ORAD, or certificate of compliance (COC) issued under the Wetlands Protection Act and Regulations.
D. 
No work proposed in any application shall be undertaken until the permit, or ORAD issued by the Commission with respect to such work, has been recorded in the Registry of Deeds or, if the land affected is registered land, in the registry section of the land court for the district wherein the land lies, and until the holder of the permit certifies, in writing, to the Commission that the document has been recorded. If the applicant fails to perform such recording, the Commission may take enforcement action or record the documents itself and require the applicant to furnish the recording fee therefor, either at the time of recording or as a condition precedent to the issuance of a COC.
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 permit issued pursuant to this bylaw shall forthwith comply with any such order or restore such land to its condition 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 date of acquisition of the real estate by such person.
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 Conservation 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 both of the methods described below, at the applicant's option:
A. 
By a proper bond, deposit of money or negotiable securities, payable to the Town of Kingston, or other undertaking of financial responsibility sufficient, in the opinion of the Commission, to be released in whole or in part upon issuance of a COC for work performed pursuant to the permit.
B. 
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 occupied or conveyed other than by mortgage deed.
The applicant for a permit shall have the sole burden of proving by a preponderance of the credible evidence that any proposed work or its natural and consequential cumulative impacts shall have no adverse effects upon any of the interests protected by this bylaw and its regulations. Failure to provide adequate evidence supporting this burden shall be sufficient cause for the Commission to deny a permit, grant a permit with restrictive conditions, or continue a hearing or meeting to another date to enable presentation of additional evidence.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Act and Regulations (310 CMR 10.00) thereunder. It is the intention of this bylaw 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.
A. 
No person shall remove, fill, dredge, build upon, degrade, or otherwise alter resource areas 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 without an approval under this bylaw; or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
B. 
The Conservation Commission, its agents, officers, and employees shall have 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 examinations, surveys, or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the commonwealth.
C. 
The Commission shall have the authority to enforce this bylaw, its regulations, permits issued thereunder, or any conditions of said permits 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 bylaw may be ordered to restore the property to its original condition and take any other action deemed necessary to remedy such violations, or may be fined, or both.
D. 
Any person who violates any provision of this bylaw, regulations, permits, or administrative orders issued thereunder shall be punished by a fine of $300 for any offense. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense; and each provision of the bylaw, its regulations, permits, permit conditions, or administrative orders violated shall constitute a separate offense. Ignorance of the bylaw or its regulations shall not be cause for avoidance of fines.
After public notice and public hearing, the Conservation Commission may promulgate rules and regulations of effectuate the purposes 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. At a minimum, these regulations shall reiterate the terms defined in this bylaw, define additional terms not inconsistent with the bylaw, and impose filing and consultant fees.
[1]
Editor's Note: See Ch. 495, Wetlands Protection Regulations.
A decision of the Conservation Commission under this bylaw shall be reviewable in the Superior Court in accordance with MGL c. 249, § 4.
The invalidity of any section or provision of this bylaw shall not invalidate any other section or provision thereof.