SECTION 9-200 OTHER RESTRICTIONS ON USE OF PROPERTY

Authority. This By-law is adopted under authority of MGL Chapter 40A, Section 9 and Chapter 40, Section 21(17).

Applicability. The special permit granting authority under this By-law shall be the planning board. A permit shall be granted only by an affirmative vote of two-thirds of the members of the SPGA. Permits shall only be granted in accordance with the procedures for notice, hearings, decisions and appeals set forth in MGL Chapter 40A, Sections 9 and 11. Any permit granted hereunder shall lapse within one year if substantial use has not sooner commenced.

9-201.3.

Administration.

Enforcement. This By-law shall be administered by the planning board and enforced by the building inspector. Written notice of any violation shall be provided to the owner of the premises, specifying a time for compliance, which shall not be less than one day or more than two weeks, depending upon the feasibility of quick compliance and the hazard or damage risk involved. Violation shall be subject to the maximum penalty allowed under MGL Chapter 40, Section 21(17), with each day that the violation continues beyond the specified time for compliance considered a separate offense. Violations of this by-law shall be enforceable through non-criminal disposition pursuant to G.L. c.40, §21D and Section 1-111 of the By-laws, and for such purposes, refer to Fee Schedule:

9-201.4.

Exceptions to the By-law.

A special permit shall not be required under this By-law for the following types of excavation:

Excavation for new structures, for which a valid building permit is in force.

The construction or reconstruction of any driveway if otherwise permitted.

Excavation in the course of normal and customary agricultural use of land.

Excavation in the normal use of a cemetery.

Excavation in the normal and customary maintenance of utilities.

Subdivisions shall not be exempted from the operation of this By-law. However, they may apply for an earth removal permit at the time of application for definitive subdivision approval, and a public hearing may be held jointly for the purpose of obtaining an earth removal permit and subdivision approval. Security for site restoration purposes shall be provided per the requirements of this By-law, which shall be in addition to that required for the completion of public improvements as required in the Southbridge Subdivision Rules and Regulations.

9-201.5.

Limited Operations Permit.

Permitted Activities. The following activities may be authorized by a limited operations permit issued by the enforcement agent, which shall be the building inspector unless otherwise provided for, without a public hearing unless such hearing is requested by the applicant. The building inspector may determine at any time that a public hearing by the planning board is required, and may require that any applicant for a limited operation permit shall first present his application to the planning board.

Removal of less than 200 cubic yards of material from any one or more sites on a one time basis by any one applicant within any twelve month period.

Removal necessarily incidental to construction on the premises under a currently valid building permit.

Application. Application for a limited operations permit shall identify the location, the owner, the volume of material to be removed, and the period during which removal will take place. The application fee shall be $20.00. The SPGA shall act on such application within thirty days of application.

The application shall be accompanied by a plan showing –

The property lines.

The area to be excavated.

The distance from the property lines to the area to be excavated.

The approximate contours before and after excavating.

Requirements. All requirements of Sections 9-201.6(g)(1), removal operations, and 9-201.6(h), restoration operations, may be complied with by limited operations.

Permit. A limited operations permit may set conditions regarding such things as time of completion, transport routes, and hours of operation, and if the operation entails having topsoil displaced from more than two acres simultaneously, security may be required assuring restoration within six months of expiration of the permit.

9-201.6.

Standard Operations.

Permits Required. All earth removal, process, or treating operations, except those qualifying under Section 9-201.5, limited operations, require a special permit (removal permit) to be acted on by the SPGA following a public hearing with published notice in a newspaper of general circulation in the town at least 14 and 7 days prior to the hearing and with written notice by certified return receipt mail, sent to all abutters and to all owners of property on both sides of a servicing street if having frontage within three hundred feet of the centerline of any proposed egress.

Removal permits shall expire one year from the date of issue, except that such permits may be granted for three years for operations which are located in an industrial district. Removal permits may be renewed upon application without hearing for the same length of time as originally issued following notice that renewal is contemplated published in a newspaper of general circulation in the town.

Application. The application for an original or renewal removal permit shall be in writing and shall contain an accurate description of the portion of land in which the excavation will take place, shall state fully the purpose of the excavation, shall include the required fee, shall include an assessor’s certified list of abutters in cases where a hearing is required, and shall include site plans drawn by a registered surveyor or engineer containing the following information:

Property lines and names of all abutters including those across any way.

Existing contours at two-foot intervals in the area from which materials are to be excavated and in surrounding areas at least 100 feet from any point in the area of excavation.

Natural features such as wetlands, the 100-year floodplain, ground cover and groundwater. Water table elevation shall be determined by test pits and soil borings. A log of soil borings shall be included taken to the depth of the proposed excavation, congruent with the size and geological make-up of the site.

A topographical map showing drainage facilities, final grades, and proposed vegetation and trees.

Erosion and sediment-control plan.

The amount and cost of proposed restoration materials, and where the applicant intends to get them.

The application shall authorize the SPGA or building inspector access to the premises at any time in administration of this By-law.

Fees. The application or renewal fee shall be $300 per year of permit validity, plus any costs of advertising and notice.

Authorization. A removal permit may authorize having topsoil removed from (and not yet restored to) a total of no more than five acres at any one time and at no more than five separate locations simultaneously. Additional acres may be authorized for operations which are located in an industrial district and which involve substantial on-site investment in fixed processing equipment.

Security. The applicant shall provide security which will be forfeited to the town in the event of failure to comply with the requirements of this By-law or the removal permit issued.

Such security shall equal $5000 per acre authorized for removal at any one time or such larger amount determined by the SPGA to be necessary in view of site conditions and proposals. Irrevocable security shall be provided in the form of a certified check or other form satisfactory to the town counsel and town treasurer. The security shall not be released until the surveyor or engineer has filed with the SPGA an "as-built" plan and has also certified that the restoration has been completed in compliance with the permit and the plans.

(f)

Approval. The SPGA shall exercise its powers with due regard to:

The health, safety and general welfare of the inhabitants of the town.

Detriment to the neighborhood.

Effect on natural resources including, but not limited to, the recharge of the water table or condition of the surface water.

Permits shall be granted only upon determination that the proposed operation will create no substantial hazard, will not cause environmental degradation outside the premises, and will not permanently impair the utility of abutting properties for uses allowed under the zoning By-law. The SPGA may impose on any permit conditions including, but not limited to, conditions upon methods of removal, type and location of structures, fencing, hours of operation, area, location and depth of excavation, steepness of slopes, drainage, disposition of boulders and stumps, restoration and planting.

Every permit shall contain the condition that inspection of the operation may be made at any reasonable hours by an agent of the SPGA to determine if conditions of the permit are being enforced.

(g)

Standards of Operation. The following standards of operation shall apply to every permitted operation in addition to conditions imposed under Section 9-201.6(f) (approval) -

Removal Operations.

No removal, processing, or treating shall take place for mining operations within:

100 feet of an existing public way.

300 feet of a residential property line unless specifically authorized in the permit.

100 feet of stream or pond.

5 feet of the annual high water table, as established by test pits and soil borings.

Observation wells shall be monitored for one year to establish this elevation. The information shall show the topographic plan and on a permanent monument erected upon the property.

All topsoil displaced shall be stockpiled on the site until termination of the operation or restoration, subject to condition of the SPGA.

The active excavation operation area shall not exceed a total of five acres in more than five separate sites at any one time. Natural vegetation shall be left and maintained on undisturbed land for screening and noise reduction purposes.

Any work or bank that slopes more than thirty degrees downward adjacent to a public street shall be adequately fenced at the top.

A substantial fence shall be provided enclosing the excavation or quarry where any excavation or quarry will extend under original round level or will have a depth of ten feet or more and create a slope of more than one foot vertical to two feet horizontal. Such fence shall be located ten feet or more from the edge of theexcavation or quarry and shall be at least six feet in height or subject to condition of the SPGA.

Adequate provision is to be made for drainage during and after the completion of operations.

Adequate lateral support shall be maintained for all adjacent properties.

The use of explosives shall be done in accordance with the regulations for storage and handling of explosive as published by the Massachusetts Department of Public Safety, the Southbridge Fire Department, and the SPGA

Any access to excavated area or areas in the process of excavation shall be adequately posted with KEEP OUT – DANGER signs.

Operation hours shall be only between 7 A.M. and 5 P.M. on weekdays excluding holidays, and trucks may enter and leave the premises only within such hours. All loaded vehicles shall be suitably covered to prevent dust and contents from spilling and blowing from the load.

Trucking routes and methods shall be subject to approval of the SPGA.

All access roads leading to public ways shall be treated with calcium chloride, stone or other suitable non-polluting material to reduce dust and mud for a distance of 200 feet back from the way. The operator shall clean up any spillage on public ways.

Access roads shall be constructed at an angle to the public way or with a curve so as to help screen the operation from public view.

(h)

Restoration Operations. Immediately following the expiration or withdrawal of a limited operation or removal permit, upon voluntary cessation of operations, or upon completion of removal in a substantial area as in one (1) following, all land not built upon shall be restored as follows:

Restoration shall be carried on simultaneously with excavation, so that when any five acre operation area has been excavated, at least three acres shall be restored before work commences (including building haul roads) on the next contiguous five acres. Final restoration work shall be complete within 60 days after expiration or withdrawal of a permit or upon cessation of operations.

No finished grade shall be steeper than 3:1 (33%); 4:1 is preferred for erosion control and shall be required in sensitive areas.

Retained topsoil shall be spread over the disturbed area to minimum depth of four inches and treated with one and one-half tons of lime per acre and 300 pounds of 10-10-10 fertilizer per acre (unless otherwise determined by the permit conditions) and seeded with a grass or legume mixture prescribed by the Conservation District or Massachusetts Department of Public Works for slope erosion control. Trees or shrubs of prescribed species will be planted to provide screening and reduce erosion during the establishment period.

All debris, stumps, boulders, etc. shall be removed from the site and disposed of in an approved location or, in the case of inorganic material, buried and covered with at least two feet of soil.

Unless the permit conditions expressly require alteration of drainage patterns, the land shall be left so that natural storm drainage shall leave the property at the original natural drainage points; and so that the hydrograph of any post-development stream is the same as that of the pre-development stream.

All equipment, buildings and structures shall be removed from the area.

Section 9-203 WETLAND PROTECTION AND CONSERVATION

Security Release. Security shall not be released until sufficient time has lapsed to ascertain that the vegetation planted has successfully been established and that drainage is satisfactory.

(i)

Revocation of Permits. The SPGA may revoke any permit which it has issued for good cause, and may take other action as shall be necessary either against the permittee or surety in the bond, to cause completion of the work forthwith in accordance with the terms of the application and permit, provided that it shall offer to the operator an opportunity for a hearing within 14 days after the revocation.

(Article VIII, § 38)

Section 9-202 (RESERVED)

[Added 10-17-2022]

Section 9-203.1 Purpose.

The purpose of this By-law is to protect the floodplains, wetlands and related water resources, riverfront areas and adjoining upland areas in the Town of Southbridge by prior review and controlling activities deemed by the Southbridge Conservation Commission (hereinafter, "the Commission") likely to have a significant or cumulative effect upon wetland or resource area values, including, but not limited to, the following: public or private water supply, groundwater, water quality, flood control, sedimentation and erosion control, storm damage prevention and flowage, water pollution control, wildlife and wildlife habitats, fisheries, shellfisheries, rare plant and animal species, agriculture, aquaculture and recreation values deemed important to the community (collectively, the "resource area values protected by this By-law").

This By-law is intended to utilize the Home Rule authority of the Town of Southbridge so as to protect the resource areas under the Wetlands Protection Act (MGL c.131, § 40; hereinafter, "the Act"), as amended from time to time, to a greater degree, to protect additional resource areas beyond the Act recognized by the Town as significant, to protect all resource areas for their additional values beyond those recognized in the Act, and to impose in local regulations and permit additional standards and procedures stricter than those of the Act and regulations thereunder (310 CMR 10.00, as amended from time to time); subject, however, to the rights and benefits accorded to agricultural uses and structures of all kinds under the laws of the commonwealth and other relevant By-laws of the Town of Southbridge.

Unless otherwise indicated in this By-law and these regulations, definitions, time frames, forms and procedures shall be the same as stated in the Act.

With required local commission identification, notification and documentation the Commission, its agents, officers and employees shall, with 24 hours' notice to the property owner, except in the event of an emergency, have authority to enter upon privately owned land for the purpose of performing their duties under this By-law 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 cmmonwealth so long as the property owner consents to the entry or an administrative search warrant is issued by a court. See MGL c.131, § 40 (as amended).

Section 9-203.2 Jurisdiction.

Except as permitted by the Commission or as otherwise provided in this By-law, no person shall commence to remove, fill, dredge, degrade, discharge into, alter or build upon the following resource areas: freshwater wetlands, marshes, wet meadows, bogs, swamps, vernal pools, banks, reservoirs, lakes, ponds of any size, lands under water bodies, lands subject to flooding or inundation by groundwater or surface water, any land bordering thereon. Bordering in this context shall mean either the greater of the following: a) 100 feet horizontally perpendicular to the bank of any freshwater wetland, marsh, wet meadow, bog, swamp, vernal pool (inclusive of uncertified vernal pool), bank, reservoir, lake, and pond; b) 100 feet horizontally perpendicular to the water elevation of the 100-year storm; c) 200 feet horizontally perpendicular to the mean annual high-water elevation of any stream, perennial or intermittent, or river.

In addition, it is the policy of the Commission to advise applicants on these nonregulated wetland resource areas: a) intermittent streams upgradient of wetland resource areas; b) isolated land subject to flooding below 310 CMR 10.57 size thresholds; c) isolated wetlands less than 5,000 square feet.

The Commission will make every effort to identify these areas at the site, will recommend locating them on the plans, will encourage applicants to avoid impacts to these areas, and will suggest possible measures to mitigate unavoidable impacts with respect to drainage and flood control.

The jurisdiction of this By-law shall not extend to uses and structures of agriculture that enjoy the 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 310 CMR 10.04.

Vernal pools. Vernal pools certified by the state shall be considered a resource area. It is the policy of the Commission to protect vernal pools because they provide valuable and increasingly rare wildlife habitat. Because they do not contain water all seasons of the year, a vernal pool must be identified in order to be protected. This can be done at the responsibility of the property owner/developer as part of the determination of applicability or part of the notice of intent review, or prior to these processes by a qualified person. The Commission must be satisfied that the person identifying a vernal pool is qualified to do so.

Rare species. Where the project site warrants, the applicant may be required to submit quantitative habitat analysis. In areas under the jurisdiction of the Natural Heritage and Endangered Species Program, the applicant must obtain a written decision from the Natural Heritage and Endangered Species Program indicating the presence or absence of protected or endangered species.

Section 9-203.3 Conditional Exceptions.

The order of conditions and application required by this By-law 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, sewer, telephone, and other telecommunication services, provided that written notice has been given to the Commission prior to the commencement of any work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.

Agricultural work.

Any agricultural activity as defined by the Farm Assessment Act, MGL c. 61A, to be normal maintenance or improvement of land in agricultural use and therefore exempt from the provisions of the Act, MGL c. 128, § 1A, and from the Wetlands Protection Regulations, 310 CMR 10.00, will also be exempt under this By-law.

Additionally, any agricultural activity as defined by MGL c. 61A and on land not under the jurisdiction of the Act and 310 CMR 10.00 will be exempt from all local jurisdiction. However, no animals shall be given free access to any wetland, vernal pool (certified or not), isolated land subject to flooding, marsh, swamp, bog, etc., intermittent or perennial stream and they must be kept far enough from or below the level of aforementioned wetlands so as their waste does not impact said wetlands. The application and order of conditions required by this By-law shall not be required for work performed for normal maintenance or improvement of land.

Emergency work. The application and permit required by this By-law 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 written advanced notice 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. 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.

Section 9-203.4 Filing Requirements and Procedures.

Waivers. Strict compliance with this By-law may be waived when, in the judgment of the Commission, such action is in the public interest, and is consistent with the intent and purpose of the By-law. Any request for a waiver must be submitted to the Commission in writing stating why a waiver is desired or needed, is in the public benefit, and is consistent with the intent and purpose of the Wetlands Protection Act and this By-law. All waiver requests shall be presented at the time of filing.

Permits. Written applications shall be filed with the Conservation Commission to perform activities affecting resource areas protected by this By-law. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by this By-law. No activities shall commence without receiving and complying with a permit issued pursuant to this By-law except as certified to be an emergency under Section 9-203.3(b) above.

Determinations.

Any person desiring to know whether or not a proposed activity or an area is subject to this By-law may, in writing, request a determination from the Commission on the appropriate form. The request shall contain all necessary information, plans, data calculations, etc., as specified by the regulations.

The Commission in an appropriate case may accept as the application and plans under this By-law any application and plans filed under the Act and 310 CMR 10.00, but the Commission is not obliged to do so.

At the time of the permit application, the applicant shall pay a filing fee according to the schedule in the associated Southbridge Wetland Protection and Conservation By-law Rules and Regulations. The fee is not refundable. The fee is in addition to the fee that is required by the Act and 310 CMR 10.00.

Section 9-203.5 Notice of Hearings.

The applicant filing a request for determination or application for a permit under the provisions of this By-law shall give written notice with proof of mailing or by hand-delivery to all abutters within one 100 feet from the property lines of the property in which the project is to occur according to the current Assessor's records five days in advance of the scheduled hearing in accordance with provisions of this By-law and its regulations. The Commission may also require notice to nearby property owners beyond 100 feet on a reasonable, case-by-case basis (determined by the project scope, not the nearby owner).

The Commission is responsible for notifying the applicant and owner, if not the same, of the time and place of the scheduled hearing. Also, the Commission is responsible for placing a notification of the subject hearing in a local newspaper at least five days prior to the hearing. The Commission shall conduct a public hearing within 21 days of the receipt of a completed application for permit or request for determination unless unusual circumstances prevent this scheduling. Under such circumstances, the hearing shall be scheduled at the next regularly scheduled Commission meeting having time available.

The Commission may, at its option, combine the hearing under this By-law and the hearing conducted under the Act.

Section 9-203.6 Notification to Other Town Officials, Boards and Commissions.

The Commission shall have the authority to continue the hearing to a specific date, agreeable to the applicant, announced at the hearing without further notification, for reasons stated at the hearing. Those reasons may include, but are not limited to, requests from other boards, officials, or attendees. In the event that the applicant objects to a continuance, the hearing shall be closed and the Commission will take action on available information.

At the same time it advertises the public hearing, the Commission shall notify the Department of Public Works, Planning Board, Zoning Board of Appeals, Board of Health, Building Inspector and any other relevant municipal body regarding the application before the Commission. The Commission shall not take final action until such boards and officials have had seven days from receipt of notice to file written comments and recommendations with the Commission. The Commission shall take into account any comments or recommendation, but they shall not be binding on the Commission. The applicant shall have the right to receive any such comments and recommendations, and to respond to them at the public hearing, prior to final action.

Section 9-203.7 Public Hearings, Permits and Conditions.

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 wetland values protected by this By-law, the Commission, within 21 days of the close of the hearing, unless unusual circumstances prevent it, shall issue or deny a permit for the activities requested. Determinations of applicability will be issued within 21 days of receipt of the request. If the Commission issues a permit, conditions shall be imposed which are deemed necessary to protect the "interests and values," and all activities shall be performed in accordance with those conditions. The Commission is empowered to deny a permit for failure to meet the requirements of this By-law; for failure to submit necessary information and plans requested by the Commission; for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetland values protected by this By-law; and where no conditions are adequate to protect those values.

A permit shall expire three years from the date of issuance. The Commission 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 renewal is received in writing by the Commission 30 days prior to expiration. The Commission, for good cause, may revoke or modify a permit issued under this By-law after notice to the holder of the permit, notice to the public, abutters, and Town boards pursuant to the preceding Section 9-203.5, and a public hearing.

The Conservation Commission in an appropriate case may combine the permit or other action on an application issued under this By-law with the order of conditions issued under the Act.

The Commission may deny the request for an extension and require the filing of a new permit request under the following circumstances:

No work has begun on the project, except where such failure is due to delays caused by events or processes outside the applicant's control that are clearly identified in the extension request.

New information has become available indicating that the order is not adequate to protect the interests covered by this By-law.

Section 9-203.8 Violations and Enforcement.

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 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 recorded.

No person shall remove, fill, dredge, build upon, degrade, or otherwise alter protected resource areas, 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.

Identification of violations.

Violations can be identified by observations of the Conservation Commissioners and/or its agent, wetland consultant, and citizens. Reports of violations are always confidential; Commissioners and staff may not reveal the source of any report of possible violations.

When potential violations are reported, a Commissioner, the Commission's agent, or a wetland consultant will determine whether a violation exists and if an enforcement order is necessary. The wetland consultant may consult with the Commission's agent and Commissioners as necessary, but if time or other constraints exist, may proceed employing best judgment. A temporary enforcement order or temporary cease-and-desist order may be imposed by an individual Commission member, wetland consultant or the Commission's agent, but all such temporary orders must be ratified by majority vote of the Commission at a public meeting within 21 days, and may be extended at such time for any period the Commission deems necessary.

Violations.

If a Commissioner, the Commission's agent, or wetland consultant confirms or strongly suspects a violation, an enforcement order will be issued. Enforcement orders will direct the property owners and contractors to (1) stop work, (2) identify resource areas on the site, (3) install erosion and/or sedimentation controls, and (4) meet with the Commission to discuss the violation.

If a wetland line has been previously approved by the Commission, its location will be the basis for evaluation of the violation. If a wetland line has not been established or approved by the Commission, then the Commission or enforcement order may require the owner, developer, and contractor to employ a wetland scientist, at the applicant's expense, to identify wetland resource areas with flagging within a time frame not longer than two weeks from the date of the enforcement order. All enforcement orders will be maintained in the Conservation database and placed on file. At the subsequent meeting, the Commission will consider the following aspects of the violation:

Value of the area to the statutory interests.

Harm of the damage.

Immediacy of the harm.

Value of restoration.

Feasibility of restoration.

Potential legal outcomes.

Potential financial burden to the Town of Southbridge.

The Commission shall have authority to enforce its regulations and permits by the issuance of enforcement orders, administrative orders and the initiation of civil and criminal court actions. Any person who violates the provisions may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations, fined, or both. The enforcing officers in the noncriminal disposition procedure shall be members of the Conservation Commission or its agents.

Upon request of the Commission, the Town Manager and the Town Attorney 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.

Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement. As an alternative to criminal prosecution in a specific case, the Commission may issue citations under the noncriminal disposition procedures set forth in MGL c.40, § 21D.

In addition to any other remedies available under any law or this By-law, any person who violates any provision of this By-law, regulation, permit or administrative order issued may be fined according to the fine schedule below:

The fine for filling in a wetland or resource area is $5 per square foot of filled-in resource area per day. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense. Also, each provision of the By-law, regulations, permits or administrative order(s) violated shall constitute a separate offense. For example, if unauthorized fill of a wetland amounts to 100 square feet, the Commission or its agent has the right to issue a penalty of $500 for each day unauthorized fill remains in the wetland or resource area.

For all other violations, each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the By-law, regulations, permits or administrative order(s) violated shall constitute a separate offense.

Section 9-203.9 Construction Standards and Restrictions.

Pursuant to MGL c. 40, § 21D, and the Town of Southbridge General By-laws Section 1-111, the Commission or its agent may issue the following penalties for wetland violations (in addition to the fine for filling of wetlands) after initial notification by the Southbridge Conservation Commission or its agents:

First offense: $100 for each day the violation exists.

Second offense: $150 for each day the violation exists.

Third offense and all subsequent offenses: $200 for each day the violation exists.

Fines assessed under this By-law shall be separate from and in addition to any applicable under the Act.

Sequence of construction. The applicant shall provide a detailed sequence of construction to the Commission as part of the standard filing requirements, detailing in what order the project's construction will follow. Said sequence shall be followed by the applicant, unless amended and approved by the Commission.

Wetland setbacks for new activities.

In order to protect and preserve the public interests and values of the wetlands and waterways of the Town of Southbridge, activities in Wetland and Buffer Zone Resource Areas should be avoided to the full extent practicable. The following are the minimum distances (setbacks) of activity from the edge of wetlands or vernal pools, as per Section 9-203.2(a). These setbacks are the minimum and may be extended further if deemed necessary for the protection of the interests of the By-law by the Commission. These setbacks may be reduced if the applicant successfully demonstrates to the Commission that there are no adverse impacts, along with a site inspection by the Commission.

The setbacks shall be as follows:

Zero-foot setback for wetland-dependent structures (drain outfalls, weirs, etc.), fences, and culverts or bridges necessary for upland access where reasonable alternative access is unavailable.

Twenty-five-foot setback of undisturbed natural vegetation.

Fifty-foot no-build setback to the edge of driveways, roadways, and structures.

Twenty-five-foot chemical-free area, within which no fertilizers, herbicides, pesticides or other chemical maintenance substances shall be used.

One-hundred-foot setback for underground or aboveground storage of gasoline, oil, or other fuels and hazardous materials.

One-hundred-foot setback of undisturbed natural vegetation to the mean high-water line for vernal pools, certified or not, where practicable.

Erosion prevention. Proposed location of all silt and erosion prevention devices (such as silt fence, coir logs and hay bales) shall be shown on the plan submitted in the wetland filing furnished by the applicant for Commission review and approval. These devices shall be installed prior to the commencement of activities on the site and maintained until landscaping is established and inspected by the Commission or its agent.

Storage of fill. If any fill is to be stored on-site, it shall be stored outside of the buffer zone and covered by an impenetrable barrier (tarpaulin). The location of said fill shall appear on any plans submitted to the Commission with the notice of intent. If the Commission determines that the proposed location of fill threatens the areas subject to protection, it may require the applicant to store said fill in a different location or to remove it completely from the site.

Construction debris or spoils area. There shall be no disposal or burial of construction debris (i.e., scrap lumber, metals, concrete, asphalt, piping, logs, stumps, etc.) within 100 feet of a wetland. Illegal disposal of said debris shall result in a stop-work order, fine, required removal of said debris, or all of the above. The Commission may allow the creation of a spoils area, which would be required to be designated on the project plan, if it is proven that it will not harm areas subject to protection. This spoils area must be protected from the elements as if it were fill, as above.

(f)

Wetlands replication and requirements.

It is the policy of the Commission to follow the "No Net Loss" guidelines set forth by the Massachusetts Department of Environmental Protection. Therefore, applicants who propose to alter resource areas under the Commission's jurisdiction must demonstrate that there is no practicable alternative, minimize impacts where they are unavoidable, and mitigate losses of wetland resource area, where applicable or appropriate, on a 1:1.5 basis. "Limited projects" are included in this requirement. The 1:1.5 ratio may be reduced to 1:1 if the applicant successfully demonstrates to the Commission that the site will not support a 1:1.5 ratio due to the area of the site, slope, soil type, or other natural feature which would adversely affect the created wetland resource area.

Projects involving wetlands filling and/or permanent alterations shall meet the requirements of 310 CMR 10.60(3) and 10.55(4) and the following requirements of the Commission:

The proposed replication area design must be submitted to the Commission for approval as part of the submittal of the project notice of intent. Applicants are advised to appear before the Commission for preliminary discussion, comments and review prior to submittal of the replication plan with the notice of intent.

The replication area must be shown to sufficiently duplicate the functions of the wetland proposed to be altered.

The replication area shall be constructed, to the extent possible, immediately after alteration of the existing wetland and during the same growing season.

The proposed replication area must be clearly flagged for Commission site inspection before the notice of intent filing shall be considered complete, and said flagging shall correspond to flagging shown on the plans.

The notice of intent submittal for a replication area shall include a detail of replication showing:

Cross-section with indication of groundwater level, soil profile and thickness of organic soil in the existing and proposed wetlands;

Plant species detail, including species found in the area to be altered, and number, types and locations of species to be introduced into the replication area (which shall be native wetland species);

Detail of stabilization plans for replication area banks;

Wildlife habitat diversity plan.

Construction of the replication area shall follow all requirements as set forth by the Commission.

If, after three growing seasons, the Commission determines that the replication area has not satisfactorily developed into a wetland, the applicant or owner may be required to submit new plans to successfully replace the wetland. No certificate of compliance shall be issued until the Commission has determined that a satisfactory replication area has been completed at the end of the three-year period.

Section 9-203.10 Surety.

As part of a permit issued under this By-law, in addition to any surety 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 the method described below:

By a proper bond, deposit of money or negotiable securities under a written third-party escrow arrangement, 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.

Section 9-203.12 Relation to Wetlands Protection Act.

Said bond or other surety shall be payable to the Town of Southbridge, sufficient as to secure the faithful and satisfactory performance of work required by any final order of conditions, in such sum and upon such conditions as the Commission may require. Notwithstanding the above, the amount of such bond shall not exceed either the estimated cost of the work required by the final order of conditions, or the estimated cost of the work required for the restoration of affected lands and properties if the work is not performed as required, whichever is greater, but may include a sum to account for reasonably projected inflation if the project will last more than one year (including replication time).

Section 9-203.11 Appeals.

A decision of the Commission shall be reviewable in the Superior Court in accordance with MGL c. 249, § 4.

This By-law 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, as amended) and regulations (310 CMR 10.00, as amended) thereunder. It is the intention of this By-law 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.

Section 9-203.13 Severability.

If any provision of this By-law is held invalid by a court of competent jurisdiction, such holding shall not affect the validity of the remainder of this By-law, nor shall it invalidate any order of conditions or determination which previously has been issued.

Section 9-203.14 Regulations.

After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purposes of this By-law. Failure by the Commission to promulgate such rules and regulations or a legal declaration of the invalidity of such regulations by a court of law shall not act to suspend or invalidate the effect of this By-law.

The Southbridge Conservation Commission may, from time to time, adopt such other and further definitions, regulations, fees and performance standards as it may deem necessary to protect the interest and/or intent of this By-law. Said definitions, regulations, fees and performance standards shall become effective upon publication following a public hearing advertised as per state law.

At a minimum these regulations shall define key terms in this By-law and establish basic performance standards not inconsistent with the By-law and procedures governing the amount and filing of fees.

Section 9-203.15 Definitions.

The following definitions shall apply in the interpretation and implementation of this By-law:

ALTER — Shall include, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this By-law:

Removal, excavation, or dredging of soil, sand, gravel, or aggregate materials of any kind.

Change of pre-existing 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 elevations.

Driving of piles, erection or repair of buildings, or structures of any kind.

Placing of obstructions or objects in water.

(8)

Destruction of plant life, including cutting of trees.

(9)

Changing temperature, biochemical oxygen demand or other physical, biological, or chemical characteristics of any waters.

(10)

Any activities, changes, or work which may cause or tend to contribute to pollution of any body of water or groundwater.

(11)

Incremental activities, which have, or may have, a cumulative adverse impact on the resource areas protected by this By-law.

ABUTTER — Is any landowner, as determined by the most recent Assessor's records, whose land immediately abuts the property which is the subject of notification, or whose land lies across a public or private traveled way or across any river, stream, pond or lake or downstream to a distance of 100 feet. In particular cases, the Southbridge Conservation Commission can add persons to the list of abutters to be notified.

INTERMITTENT STREAM — Is a body of running water that does not flow year-round. It may flow in all seasons except during the driest summer months, or only after precipitation, or when groundwater levels or water from snowmelt are high. There may be little or no vegetation on the rocks and the only invertebrates may be species that can tolerate periods of drought. An intermittent stream shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) evidence of scour or deposits of recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, (C) the presence of hydrophytic vegetation, and/or (D) the presence of hydric soil(s).

PERSON — Shall include 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 By-laws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents or assigns.