[HISTORY: Adopted by the Town Meeting of the Town of Sudbury
as Art. XXII of the General Bylaws. Amendments noted where applicable.]
A.
The purpose of this bylaw is to maintain the quality of surface water,
the quality and level of the groundwater table and water recharge
areas for existing or potential water supplies; to protect the public
health and safety; to protect persons and property against the hazards
of floodwater inundation; to protect the community against the costs
which may be incurred when unsuitable development occurs in wetland
resource areas; and to provide for the reasonable protection and conservation
of certain irreplaceable natural features, resources and amenities
for the benefit and welfare of the present and future inhabitants
of the Town of Sudbury.
B.
Accordingly, this bylaw protects the wetlands, related water resources,
and certain adjoining land areas in the Town by providing for prior
review and control of activities deemed to have a significant or cumulative
adverse effect upon wetlands values, including but not limited to
the following: protection of public and private water supply; protection
of groundwater; flood control; erosion and sedimentation control;
storm damage prevention; avoidance of water and soil pollution; protection
of fisheries, wildlife habitat, rare species habitat, including rare
plant species; agriculture; aquaculture; and recreation values, deemed
important to the community (collectively, the "wetlands values protected
by this bylaw"). This bylaw is intended to utilize the Home Rule authority
of this municipality to protect additional resource areas, for additional
values, with additional standards and procedures to augment those
of the Wetlands Protection Act, MGL c. 131, § 40, and Regulations
thereunder, 310 CMR 10.00.
In accordance with this purpose, no person shall remove, fill, dredge, build upon, degrade, pollute, discharge into, or otherwise alter the following resource areas: any freshwater wetland; marshes; wet meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds; rivers; streams; creeks; lands under water bodies; lands subject to flooding by groundwater, surface water, or storm flow (collectively the "wetland resource areas protected by this bylaw"); and certain adjacent upland areas (collectively "the adjacent upland resource areas protected by this bylaw") as described in § 283-9, Definitions, without a permit from the Conservation Commission, or as provided by this bylaw.
A.
The application and permit required by this bylaw shall not be required
for maintaining, repairing, replacing or enlarging an existing and
lawfully located single-family residential structure or appurtenance
thereto unless such filing is otherwise required by state or federal
law.
B.
The application and permit 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 Commission prior to commencement
of work and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
C.
The application and permit required by this bylaw shall not be required
for work performed for normal maintenance or improvement of land which
is lawfully in agricultural use at the time the work takes place,
provided that written notice has been given to the Commission prior
to the commencement of work and provided that the work conforms to
performance standards and design specifications in regulations adopted
by the Commission.
D.
The application and permit 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 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 public hearing,
revoke or modify an emergency project approval and order restoration
and mitigation measures.
E.
Other than stated in this section, the exceptions provided in the
Wetlands Protection Act, MGL c. 131, § 40, and Regulations,
310 CMR 10.00, shall not apply under this bylaw.
[Amended 4-7-1999 ATM
by Art. 49]
A.
Written application shall be filed with the Commission to perform
activities affecting all wetland and adjacent upland resource areas
protected by this bylaw. The permit application shall include such
information and plans as are deemed necessary by the Commission as
specified in the bylaw regulations to describe proposed activities
and their effects on the resource areas protected by this bylaw. No
activities shall commence without receiving and complying with a permit
issued pursuant to this bylaw.
B.
Where this bylaw and the Wetlands Protection Act, MGL c. 131, § 40,
and Regulations, 310 CMR 10.00, have concurrent jurisdiction, the
Commission shall accept the notice of intent and plans filed under
the Wetlands Protection Act as the permit application and plans under
this bylaw for those parts of the project where precise overlap exists,
provided all pertinent areas and activities subject to the jurisdiction
of this bylaw and all information required by bylaw regulations are
addressed.
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 (RFD) shall
include information and plans as are deemed necessary by the Commission.
D.
Fees.
(1)
At the time of the permit application, the applicant shall pay a
filing fee according to the following schedule:
[Amended 5-6-2024 ATM
by Art. 30]
|
Category
|
Fee
|
|---|---|
|
Category A: single minor project (i.e., house addition, tennis
court, swimming pool, or other accessory residential activity)
|
$100, plus $0.50 per square foot impact to unaltered adjacent
upland resource area
|
|
Category B: new single-family dwelling
|
$300, plus $0.75 per square foot impact to unaltered adjacent
upland resource area
|
|
Category C: subdivision, road and utilities only
|
$500, plus $2 per foot of road sideline within a resource area
|
|
Category D: drainage, detention/retention basins
|
$500, plus $2 per 100 cubic feet of basin within a resource
area
|
|
Category E: multiple-dwelling structures
|
$500, plus $100 per unit, all or part of which is within a resource
area
|
|
Category F: commercial and industrial projects
|
$1,000, plus $0.75 per square foot of disturbance in an undeveloped
resource area
|
|
Category G: application filed after enforcement order
|
Double the above fee
|
|
Category H: determination of applicability
|
$75
|
|
Category I: remediation of a contaminated site or enhancement
of a degraded resource
|
$500 per project
|
(2)
This fee is not refundable. The fee is in addition to that required
by the Wetlands Protection Act, MGL c. 131, § 40, and Regulations,
310 CMR 10.00. Town, county, state, and federal projects are exempt
from the filing fee. The fee for an application for a modification
of a permit will be the excess of the fee for the modified project
as calculated above over the fee paid for the original permit, but
in no instance will it be less than $25.
E.
Upon receipt of a permit application or RFD, or at any point in its
deliberations, the Commission may deem it necessary to obtain expert
engineering or other outside consultant services in order to reach
a final decision on the application. The specific consultant services
may include but are not limited to resource area survey and delineation,
analysis of resource area values, including wildlife habitat evaluations,
hydrogeologic and drainage analysis, and environmental or land use
law.
F.
In such instances, the Commission shall notify the applicant of this
need and the estimated costs and provide the opportunity for the application
to be amended or withdrawn. Should an applicant choose to proceed,
the Commission shall require the applicant to pay the reasonable costs
and expenses borne by the Commission for these consulting services.
This fee is called the "consultant fee." The exercise of discretion
by the Commission in making its determination to require the 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.
[Amended 10-23-2023 STM
by Art. 2]
G.
The Commission may require the payment of the consultant fee at any
point in its deliberations prior to a final decision. The applicant
shall pay the fee to be put into a consultant services account of
the Commission, which may be drawn upon by the Commission for specific
consultant services approved by the Commission at one of its public
meetings.[1]
[1]
Editor's Note: Original Art. XXII, Sec. 4, 10th, 11th, and
12th paragraphs, regarding consultant fees and project costs, which
immediately followed this subsection, were repealed 10-23-2023 STM
by Art. 2.
H.
The Commission shall return any unused portion of the consultant
fee to the applicant.
I.
All fees collected pursuant to this bylaw shall be deposited in the
Conservation Commission Revolving Fund, established pursuant to MGL
c. 44, § 53E 1/2.
A.
Any person filing a permit application or an RFD with the Commission
shall within seven days prior to the scheduled hearing give written
notice, by certified mail (return receipt requested) or hand delivered,
to all abutters at their mailing addresses shown on the certified
abutters' list obtained from the Assessor's office, including owners
of land directly opposite on any public or private street or way,
including any in another municipality or across a body of water. The
notice to abutters shall have enclosed a copy of the permit 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, along with
proof of mailing, shall be filed with the Commission. When a person
requesting a determination is other than the owner, 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.
[Amended 10-23-2023 STM
by Art. 2]
B.
The Commission shall conduct a public hearing on any permit application
or RFD, with written notice given at the expense of the applicant,
five business days prior to the hearing, in a newspaper of general
circulation in the municipality.
C.
The Commission shall commence the public hearing within 21 days of
receipt of a completed permit application or RFD unless an extension
is authorized, in writing, by the applicant.
D.
The Commission shall issue its determination, in writing, within
seven days of the close of the public hearing thereon unless an extension
is authorized, in writing, by the applicant.
E.
The Commission shall issue its permit, in writing, within 21 days
of the close of the public hearing thereon unless an extension is
authorized, in writing, by the applicant.
F.
The Commission shall combine its hearing under this bylaw with the
hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40,
and Regulations, 310 CMR 10.00, in instances of concurrent jurisdiction.
G.
With the consent of the applicant, the Commission shall have authority to continue the hearing to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information from the applicant or others deemed necessary by the Commission in its discretion, or comments and recommendations of the Boards and officials listed in § 283-6. In the event the applicant objects to a continuance or postponement, the hearing shall be closed and the Commission shall take action on such information as is available.
As appropriate, the Conservation Commission may choose to solicit
the advice and opinions of other Town boards and officials in the
course of its deliberations. Town boards and officials shall be entitled
to file written comments and recommendations with the Commission at
or before the public hearing. The Commission shall take any such comments
and recommendations into account but shall not be bound by them. The
applicant shall have the right to receive any comments and recommendations,
and to respond to them at a hearing of the Commission, prior to final
action.
A.
The Commission, after a public hearing, shall issue or deny a permit
for the activities requested within 21 days of the close of the hearing.
If it issues a permit, the Commission shall impose such conditions
as it deems necessary or desirable to protect the wetlands values
protected by this bylaw, and all activities shall be done in accordance
with those conditions. The Commission shall take into account the
cumulative adverse effects of loss, degradation, isolation, and replication
of protected resource areas throughout the community and the watershed,
resulting from past activities, permitted and exempt, and foreseeable
future activities.
[Amended 10-23-2023 STM
by Art. 2]
B.
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 resource area values protected by this
bylaw; and where no conditions are adequate to protect those values.
C.
Lands within 100 feet of wetlands resource areas and within 200 feet
of perennial streams and rivers are presumed important to the protection
of these resources because activities undertaken in close proximity
to wetlands and other resources have a high likelihood of adverse
impact upon the wetland or other resource, either immediately, as
a consequence of construction, or over time, as a consequence of daily
operation or existence of the activities. These adverse impacts from
construction and use can include, without limitation, erosion, siltation,
loss of groundwater recharge, poor water quality, and harm to wildlife
habitat. For this reason, these adjacent upland areas are a valuable
resource under this bylaw. The Commission, therefore, may require
that the applicant maintain a strip of continuous, undisturbed vegetative
cover in part or all of the adjacent upland resource area and set
other conditions on this area, unless the applicant provides evidence
deemed sufficient by the Commission that the area or part of it may
be disturbed without harm to the values protected by the law.
D.
A permit shall expire three years from the date of issuance. Any
permit shall be renewed for additional one-year periods if a request
for renewal is received, in writing, by the Commission at least 30
days prior to expiration of the permit, and providing the Commission
finds that (1) good cause has been shown for such extension and (2)
such extension will not have significant adverse effects, immediate
or cumulative, upon any of the wetland values protected by this bylaw.
Notwithstanding the above, a permit may contain requirements which
shall be enforceable for a stated number of years, indefinitely, or
until permanent protection is in place and shall apply to all owners
of the land.
E.
The Commission shall, after receiving a written request for a certificate
of compliance, inspect the resource area where any activity governed
by a permit issued under this bylaw was carried out. If such activity
has been completed in accordance with said permit, the Commission
shall within 21 days after such a request issue a certificate of compliance
evidencing such determination, which may in an appropriate case be
combined with a certificate of compliance issued under the Wetlands
Protection Act. A certificate of compliance may specify conditions
in the permit which will continue to apply for a fixed number of years
or permanently and shall apply to all owners of the land.
F.
Violations of this bylaw, submission of false or erroneous information, or new information that substantially alters the likely impact of the project on wetlands resources or values may cause the Commission to revoke or modify a permit or determination issued under this bylaw after notice to the holder of the permit or determination, notice to the public, abutters, and Town boards, pursuant to §§ 283-5 and 283-6, and a public hearing.
G.
The Commission in an appropriate case may combine the permit or determination
issued under this bylaw with the order of conditions or determination
of applicability issued under the Wetlands Protection Act, MGL c.
131, § 40, and Regulations, 310 CMR 10.00.
H.
No work proposed in any permit 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 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 permit has been
recorded. Such certification shall include the book and page or instrument
number and date.
A.
After the public notice and public hearing, the Commission shall
promulgate reasonable rules and regulations to effectuate the purposes
of this bylaw. 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.
B.
At a minimum, these regulations shall define key terms in this bylaw
not inconsistent with the bylaw and procedures governing the amount
and filing of fees.
A.
ADJACENT UPLAND RESOURCE AREA
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
BANK
EXISTING
ISOLATED LAND SUBJECT TO FLOODING
PERSON
POND
RARE SPECIES
VERNAL POOL
The following definitions shall apply in the interpretation and implementation
of this bylaw.
Includes all lands within 100 feet of wetland resource areas as enumerated in § 283-2, except for perennial streams and rivers for which the adjacent upland resource area extends for 200 feet from the top of bank, and except for vernal pools, ponds under 10,000 square feet in area, and isolated land subject to flooding for which special adjacent upland resource area definitions are described below.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this bylaw:
Removal, excavation, or dredging of soil, sand, gravel, or aggregate
materials of any kind;
Changing of preexisting drainage characteristics, flushing characteristics,
sedimentation patterns, flow patterns, or flood retention characteristics;
Drainage, or lowering 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 temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters;
Any activities, changes, or work which may cause or tend to
contribute to pollution of any body of water or groundwater.
Application of pesticides or herbicides;
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
Includes the land 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.
In the determination of adjacent upland resource area, shall
mean existing as of the date this bylaw becomes effective.
Includes an area, depression, or basin that holds at minimum
one-eighth acre-foot of water and at least six inches of standing
water once a year. Not included are swimming pools, artificially lined
ponds or pools, or constructed wastewater lagoons. The adjacent upland
resource area for isolated land subject to flooding shall be 25 feet.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to Town bylaws, administrative agency, public or quasi-public corporation
or body, this municipality, and any other legal entity, its legal
representatives, agents, or assigns.
Includes 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 shall contain standing water except for periods of extended
drought. Not included are swimming pools, artificially lined ponds
or pools, or constructed wastewater lagoons. The adjacent upland resource
area for ponds under 10,000 square feet shall extend 100 feet from
mean annual high water or one-half the distance from existing house
foundation, whichever is smaller, but in no case shall the adjacent
upland resource area include existing lawns, gardens, landscaped or
developed areas.
Includes, without limitation, all vertebrate and invertebrate
animal and plant species listed as endangered, threatened, or of special
concern by the Massachusetts Division of Fisheries and Wildlife, regardless
of whether the site in which they occur has been previously identified
by the Division.
Includes, in addition to that already defined under the Wetlands
Protection Act, MGL c. 131, § 40, and Regulations thereunder,
310 CMR 10.00, 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 presumption of essential habitat value
may be overcome by the presentation of credible evidence which in
the judgment of the Commission demonstrates that the basin or depression
does not provide the habitat functions as specified in the bylaw regulations.
The adjacent upland resource area for vernal pools shall extend 100
feet from the mean annual high-water line defining the depression,
or one-half of the distance between the vernal pool and any existing
house foundation, whichever is smaller. In either case, the adjacent
upland resource area for vernal pools shall not extend over existing
lawns, gardens, landscaped or developed areas.
[Amended 10-23-2023 STM
by Art. 2]
B.
Except as otherwise provided in this bylaw or in regulations of the
Commission, the definitions of terms in this bylaw shall be as set
forth in the Wetlands Protection Act, MGL c. 131, § 40,
and Regulations, 310 CMR 10.00.
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 thereunder (including conditions requiring
mitigation work) be secured wholly or in part by a proper bond or
deposit of money or negotiable securities 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 certificate
of compliance for work performed pursuant to the permit.
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,
or fail to comply with a permit or an enforcement order issued pursuant
to this bylaw.
B.
Where the Commission deems it necessary to carry out its duties under
this bylaw by entering privately owned land, it shall do so with the
authority of the property owner and shall be subject to the limitations
imposed by the applicable federal and state laws. With the authority
of the property owner or their designee, the Commission may make or
cause to be made such examinations, surveys, or sampling as the Commission
deems necessary.
C.
The Commission shall have authority to enforce this bylaw, its regulations,
and permits issued thereunder by violation notices, administrative
orders, 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 other action deemed necessary to remedy
such violations, or may be fined, or both.
D.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
E.
Any person who violates any provision of this bylaw, or regulations,
permits, or administrative orders issued thereunder shall be served
with a notice of violation enumerating the alleged violations. If
after 10 business days the Commission has not received what it deems
to be either (a) sufficient evidence demonstrating that no violations
have occurred, or (b) a filing that will remove the violations along
with evidence that sufficient progress is being made to correct the
violations then the violator shall be punished by a fine of $100 per
offense. Beginning 10 business days after the date of the notice of
violation, 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, regulations,
permits, or administrative orders violated shall constitute a separate
offense.
F.
As an alternative to criminal prosecution in a specific case, the
Commission may issue citations under the noncriminal disposition procedure
set forth in MGL c. 40, § 21D.
The applicant for a permit shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the permit application will not have significant or cumulative
negative effect upon the resource area values protected by this bylaw.
Failure to provide evidence that in the judgment of the Commission
is adequate to support this burden shall be sufficient cause for the
Commission to deny a permit or grant a permit with conditions.
A decision of the Commission shall be reviewable in the Superior
Court in accordance with MGL c. 249, § 4.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts
Constitution and the Home Rule statutes, independent of the Wetlands
Protection Act, MGL c. 131, § 40, and Regulations, 310 CMR
10.00, thereunder.
The invalidity of any section or provision or phrase of this
bylaw shall not invalidate any other section or provision or phrase
thereof, nor shall it invalidate any permit or determination which
previously has been issued.
