[HISTORY: Adopted 5-21-1990 Annual
Town Meeting, Art. 29. Amendments noted where applicable.]
The purpose of this chapter is to protect the wetlands, related
water resources and adjoining land areas in the Town of Northborough
by prior review and control of activities deemed by the Conservation
Commission likely to have a significant or cumulative effect upon
wetland values, including but not limited to the following: public
or private water supply, groundwater, flood control, erosion and sedimentation
control, storm damage prevention, water pollution prevention, fisheries,
fresh-water shellfish, wildlife habitat, recreation, aesthetics, agriculture
and aquaculture values (collectively, the "wetland values protected
by this chapter").
[Amended 4-29-1998 ATM, Art 45; 4-22-2019 ATM, Art. 27]
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall remove, fill, dredge, build upon
or alter the following resource areas: any freshwater wetland, bordering
vegetated wetland, isolated vegetated wetland, marsh, wet meadow,
bog or swamp; any bank, beach, lake, river, pond, stream or any land
under said waters; any land subject to flooding or inundation by groundwater,
surface water or storm flowage; any riverfront area. Any proposed
work which falls within 100 feet of the previously mentioned resource
areas or the riverfront area must be approved by the Conservation
Commission. Plans of the same are required to be filed by the applicant
under M.G.L.A. C. 131, § 40, said plan scale to be no greater
than one inch equals 40 feet.
[Amended 4-28-1998 ATM, Art. 46]
The boundary for all vegetatively defined wetlands shall be
determined in the field on the basis of standard botanical transect
or plot analysis. A "vegetative wetland" is defined as any area where
50% or more of the vegetative community consists of wetland plant
species and saturated or inundated conditions exist (as defined in
M.G.L.A. C. 131, § 40). The boundary, so marked in the field,
shall be surveyed in and upon the required plan at a scale no greater
than one inch equals 40 feet.
A. The
permit and application required by this chapter 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 the work, and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
B. The
permit and application required by this chapter shall not be required
for work performed for normal maintenance or improvement of land in
agricultural use or in aquacultural use, provided that written notice
has been given to the Commission prior to commencement of the work,
and provided that the work conforms to performance standards and design
specifications in regulations adopted by the Commission.
C. The
permit and application required by this chapter shall not apply to
emergency projects necessary for the protection of the health or 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 Conservation
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 Conservation 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 in this chapter. 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.
D. The
permit and application required by this chapter shall be required
for all other projects not specifically exempted above.
[Amended 5-17-1993 ATM, Art. 26]
A. Written
application shall be filed with the Commission to perform activities
regulated by this chapter affecting 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 environment. No activities shall commence
without receiving and complying with a permit issued pursuant to this
chapter.
B. The
Commission in an appropriate case may accept as the application and
plans under this chapter the notice of intent and plans filed under
the Wetlands Protection Act, M.G.L.A. C. 131, § 40.
C. Any
person desiring to know whether or not a proposed activity or an area
is subject to this chapter 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.
D. At the
time of an application or request for a certificate of compliance
(the fees be charged only after the first inspection fails compliance),
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, M.G.L.A. C. 131, § 40. In addition, the Commission
is authorized to require the applicant to pay reasonable costs and
expenses of any expert consultant if deemed necessary by the Commission
to review the application. The Commission shall waive the filing fee
and costs and expenses for an application or request filed by a government
agency.
A. Any
person filing a notice of intention with the Commission at the same
time shall give written notice thereof, by certified mail (return
receipt requested) or hand delivery, to all direct abutters at their
mailing addresses shown on the most recent applicable tax list of
the assessors. The notice to abutters shall enclose a copy of the
application or request, with plans, or shall state where copies may
be examined and obtained by abutters free of charge. An affidavit
of the person providing such notice, a copy of the notice mailed or
delivered and return receipts shall be filed with the Commission.
When a person requesting a determination is other than the owner,
the request, the plans, the notice of the hearing and the determination
itself shall be sent by the applicant to the owner.
B. Hearings.
(1) The Commission shall schedule a public hearing on any application
or request for determination, with written notice given at the expense
of the applicant five working days prior to the hearing in a newspaper
of general circulation in the municipality.
(2) The Commission shall commence the public hearing within 21 days from
receipt of a completed application or request for determination unless
an extension is authorized, in writing, by the applicant.
(3) The Commission shall issue its permit 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.
(4) The Commission may combine its hearing under this chapter with the
hearing conducted under the Wetlands Protection Act, MGL C. 131, §
40.
(5) 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 receipt of additional information offered by the
applicant or others, information and plans required of the applicant,
deemed necessary by the Commission in its discretion, or comments
and recommendations of boards and officials listed in § 6-04-070.
In the event that 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.
Any person filing a permit application or a request for determination
with the Commission shall provide a copy thereof at the same time,
together with a date and time of a scheduled hearing to the Board
of Selectmen, Planning Board, Board of Health, Town Engineer, Inspector
of Buildings, Board of Water Commissioners, Earth Removal Board and
two copies to the State Department of Environmental Protection. The
Commission shall seek written comments from appropriate Boards as
necessary. The applicant shall have the right to receive any such
comments and recommendations and to respond to them at a hearing of
the Commission prior to final action.
A. If the
Commission, after a public hearing, determines that the activities
which are the subject of the application are likely to have 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 or deny a permit 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
shall be done in accordance with those conditions.
B. The
Commission is empowered to deny a permit for failure to meet the requirements
of this chapter; 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 wetland values protected by this chapter;
and where no conditions are adequate to protect those values.
C. 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. Any permit may be renewed once for an
additional one-year period, provided that a request for a renewal
is received, in writing, by the Commission prior to expiration.
D. For
good cause the Commission may revoke or modify a permit issued under
this chapter after notice to the holder of the permit and notice to
the public, abutters and town boards pursuant to § 6-04-060 and
a public hearing.
E. The
Commission 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.
F. 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 be 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 so recorded.
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
chapter. 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.
A. The
following definitions shall apply in the interpretation and implementation
of this chapter:
ALTER
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
(1)
Removal, excavation or dredging of soil, sand, gravel or aggregate
materials of any kind.
(2)
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns or flood
retention characteristics.
(3)
Drainage or other disturbance of water level or water table.
(4)
Dumping, discharging or filling with any material which may
degrade water quality.
(5)
Placing of fill or removal of material which would alter elevation.
(6)
Driving of piles, erection or repair of buildings or structures
of any kind.
(7)
Placing of obstructions or objects in water.
(8)
Destruction of plant life, including cutting of trees.
(9)
Changing water temperature, biochemical oxygen demand or other
physical or chemical characteristics of water.
(10)
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
PERSON
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.
B. Except
as otherwise provided in regulations of the Commission, the definitions
of terms in this chapter shall be as set forth in the Wetlands Protection
Act, MGL C. 131, § 40.
As part of a permit issued under this chapter, 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
one or more of the methods described below:
A. Security:
by a proper bond or deposit prior to commencement of work. The amount
is to be determined by the Conservation Commission or its agent, to
be released in whole or in part upon issuance of a certificate of
compliance for work performed pursuant to the permit.
B. Conservation
restrictions: by 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.
C. Deed
references. There shall be a deed reference to the fact that there
are wetlands resources on the property and that no activity (dredging,
altering or filling) shall take place without first contacting the
Northborough Conservation Commission. A copy of the deed reference
shall accompany the written request for a certificate of compliance.
A. The
Commission, its agents, officers and employees shall have authority
to enter upon privately owned land for the purpose of performing their
duties under this chapter and may make or cause to be made such examinations,
surveys or sampling as the Commission deems necessary.
B. 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.
C. Upon
request of the Commission, the Board of Selectmen and the Town Counsel
shall take legal action for enforcement under civil law. Upon request
of the Commission, the Chief of Police shall take legal action for
enforcement under criminal law.
D. The
Board of Selectmen, after consultation with the Conservation Commission,
shall appoint a compliance officer who shall have the authority to
assist the Commission with enforcement.
Any person who violates any provision of this chapter, regulations
thereunder or permits issued thereunder shall be punished by a fine
of not more than $100 for the first violation, $200 for the second
violation and $300 for subsequent violations as allowed under MGL
C. 40, § 21 D. Each day or portion thereof during which a violation
continues shall constitute a separate offense, and each provision
of the chapter, regulation or permit violated shall constitute a separate
offense.
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.
A decision of the Commission shall be reviewable in the Superior
Court in an action filed within 60 days thereof, in accordance with
MGL C. 249, § 4.
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 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.