[Ord. No. 1275, § I, 5-14-2024]
A.
The purpose of this chapter is to protect the wetland resource areas,
related water resources and adjoining land areas in the City of Pittsfield
by controlling activities deemed by the Conservation Commission likely
to have a significant or cumulative effect upon wetland values, including
but not limited to the following:
(1)
Public or private water supply.
(2)
Groundwater and groundwater quality.
(3)
Surface water and surface water quality.
(4)
Flood control.
(5)
Erosion and sedimentation control.
(6)
Storm damage prevention.
(7)
Prevention of water pollution.
(8)
Storm drainage.
(9)
Fisheries.
(10)
Wildlife habitat.
(11)
Agriculture.
(12)
Aquaculture.
(13)
Passive recreation.
B.
These values are to be known collectively as the "wetland values
protected by this chapter."
C.
This chapter is intended to utilize the Home Rule authority of the
City of Pittsfield so as to impose in local regulations and permits
additional standards and procedures stricter than those of the Massachusetts
Wetlands Protection Act (MGL c. 131, § 40) to a greater
degree, and to impose in local regulations procedures stricter than
those of the Wetlands Protection Act and regulations thereunder (310
CMR 10.00).
[Ord. No. 1275, § I, 5-14-2024]
A.
This chapter incorporates by reference the provisions of the of the
Massachusetts Wetlands Protection Act (MGL c. 131, § 40)
and regulations thereunder (310 CMR 10.00), as if fully set forth
herein, 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 ordinances of the City of Pittsfield. Any violation
of the Massachusetts Wetlands Protection Act (MGL c. 131, § 40)
and regulations thereunder (310 CMR 10.00) shall be a violation of
this chapter.
B.
Except as permitted by the Conservation Commission or as provided for in this chapter, no person shall remove, fill, dredge, build upon or alter the following resource areas or within 100 feet of ponds, banks, vernal pools and wetlands, an area known as the "buffer zone" to the resource areas, as defined in Section 27-3:
(1)
Any freshwater wetland as determined by vegetational community, soil
composition and/or hydrologic regime, including isolated wetlands,
any marsh, wet meadow, bog, or swamp.
(2)
Any pond, lake, river and any perennial or intermittent stream.
(3)
Any land under such waters.
(4)
Any bank or beach.
(5)
Any vernal pool.
(6)
Any floodplain.
C.
Where natural vegetation is absent as a result of mowing, grazing
or disturbance, the hydric soil type indicated on United States Natural
Resource Conservation Service maps, combined with field investigation
of hydric soil profiles and application of the Natural Resource Conservation
Service's definitions and criteria for hydric soils, shall provide
positive determination of jurisdiction.
[Ord. No. 1275, § I, 5-14-2024]
The following definitions shall apply in the interpretation
and implementation of this chapter.
Except as otherwise provided in this chapter, the definitions
of terms and the procedures in this chapter shall be as set forth
in the Massachusetts Wetlands Protection Act (MGL c. 131, § 40)
and its accompanying regulations (310 CMR 10.00).
Shall refer to the definition as provided by MGL c. 128,
§ 1A.
Shall include, without limitation, the following activities
when undertaken to, upon, within or affecting resource areas protected
by this chapter:
Removal, excavation, or dredging of soil, sand, gravel, or aggregate
materials of any kind.
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns, or flood
retention characteristics.
Drainage, or other disturbance of water level or water table.
Dumping, discharging, or filling with any material which may
degrade water quality.
Placing of fill, or removal of material, which would alter elevation.
Driving of piles, erection, expansion or repair of buildings,
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting or trimming of
trees and shrubs.
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.
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this chapter.
Shall include 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.
Activities regulated under this chapter, which may be individually
minor, but when considered in relation to other past, present or future
activities in a given area may be significant in the aggregate.
A ticket issued in response to a violation of this chapter
by the Conservation Commission (or the agent or an officer of the
Pittsfield Conservation Commission) with a prescribed dollar amount,
as set out in Chapter 4-1/2, "Fee Schedule" of this City Code.[1]
The ability of wetlands to absorb, store and slowly release
floodwaters to minimize peak flood levels. Flooding can be caused
by precipitation or a rising water table. Activities within 100 feet
of resource areas shall not alter the flood control value of wetlands
significantly.
The elevation established from the statistical 100-year frequency
storm that has been determined by most recently available flood profile
data prepared for the community within which the work is proposed
under the National Flood Insurance Program (NFIP, currently administered
by the Federal Emergency Management Agency, successor to the U.S.
Department of Housing and Urban Development).
All subsurface water contained in natural geologic formations
or artificial fill, including soil water in the zone of aeration.
Activities in or within 100 feet of resource areas shall not significantly
alter the existing quality or elevation of naturally occurring groundwater.
Any leisure activity or sport taking place in, on, or within 100 feet of a resource area which is dependent on the resource area and its values directly or indirectly for its conduct and enjoyment. Recreational activities include, but are not limited to, the following: noncommercial fishing and shell fishing, hunting, boating, swimming, walking, small artistic painting, birdwatching and aesthetic enjoyment. Structures and activities in or within 100 feet of a resource area shall not have a significant effect on public recreational values. Notwithstanding this definition, new or expanded recreational activities shall not have a significant effect on other wetlands values identified in § 27-1 of this chapter.
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 City ordinances, administrative agency, public or quasi-public
corporation or body, this municipality, and any other legal entity,
its legal representatives, agents, or assigns.
A naturally occurring or human-made freshwater impoundment
with a surface area observed or recorded within the last 10 years
of at least 7,500 square feet. Ponds do not include wastewater treatment
surface waters, swimming pools, gravel pits and quarries that have
been inactive for five or more years.
Any source or volume of surface water or groundwater demonstrated
to be in private use or shown to have potential for private use, including
groundwater or surface water in the zone of contribution around a
private well. Activities in or within 100 feet of a resource area
shall not have a significant effect on the quality of a private water
supply.
Any source or volume of surface water or groundwater demonstrated
to be in public use or approved for water supply pursuant to MGL c.
111, § 160, by the Department of Environmental Quality Engineering
Division of Water Supply, or demonstrated to have a potential for
public use, in addition to all surface water and groundwater in zones
of contribution. Activities within 100 feet of resource areas shall
not have a significant effect on the quality of a public water supply.
The ability of wetland soils, vegetation and physiography
to prevent damage caused by water from storms, including but not limited
to: erosion and sedimentation; damage to vegetation, property or buildings;
or damage caused by flooding, waterborne debris or waterborne ice.
Activities in or within 100 feet of a resource area shall not have
a significant effect on storm damage protection.
Shall include any confined basin or depression not occurring
in existing lawns, gardens, landscaped areas, parking areas, and driveways
which, at least in most years, holds an average depth of at least
six inches for a minimum of two continuous months during the spring
and/or summer, during most years, is free of adult predatory fish
populations, and provides essential breeding and rearing habitat functions
for amphibian, reptile or other vernal pool community species, regardless
of whether the site has been certified by the Massachusetts Division
of Fisheries and Wildlife. The boundary of the resource area for vernal
pools shall be the mean annual high-water line defining the depression.
Is used to describe any unlawful activity of this chapter
as determined by the Pittsfield Conservation Commission (or the agent
or an officer of the Pittsfield Conservation Commission). Violations
include, but are not limited to:
Failure to comply with this Chapter 27;
Failure to obtain an order of conditions or determination prior
to conducting an activity subject to regulation under MGL c. 131,
§ 40, as defined in 310 CMR 10.02(2);
Failure to comply with an order of conditions or determination,
such as failure to observe a particular condition or time period specified
in the order of conditions;
Failure to complete work described in an order of conditions
or determination when such failure causes damage to the interests
identified in MGL c. 131, § 40;
Failure to obtain a valid order of conditions or extension permit
prior to conducting an activity subject to regulation under MGL c.
131, § 40, as defined in 310 CMR 10.02(2);
Making any false, inaccurate, or misleading statements in any
certification filed under 310 CMR 10.00, including any certification
that the requirements of 310 CMR 10.02(2)(b)2 will be met;
Failure to comply with any certification on project plans or
eligibility under 310 CMR 10.02(2)(b)2;
Leaving in place unauthorized fill or otherwise failing to restore
illegally altered land to its original condition, or the continuation
of any other activity in violation of MGL c. 131, § 40.
Areas that are inundated or saturated by surface water or
groundwater at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas. Wetlands
are areas that in an unaltered condition have a dominance of hydrophytic
plant materials, hydric soils, and indicators of wetland hydrology.
Wetlands shall be delineated using the most current U.S. Army Corps
of Engineers wetland delineation methodology for Region 1.
Areas that provide breeding and nesting habitats, shelter,
food and water to all plant and animal species dependent on wetlands
for any portion of their life cycles. Includes resource areas identified
as containing rare, threatened, or endangered species as listed by
the Massachusetts Natural Heritage Program. Structures and activities
in or within 100 feet of any resource area shall not have a significant
effect on wildlife habitat.
[Ord. No. 1275, § I, 5-14-2024]
A.
Existing public service structures or facilities.
(1)
The application and permit required by this chapter shall not be
required for maintaining, repairing or replacing, but not substantially
changing or enlarging, an existing or lawfully located structure or
facility used in the service of the public to provide electric, gas,
water, telephone, telegraph or other telecommunication services, sanitary
sewers and storm sewers, provided that:
(a)
The structure or facility is not substantially changed or enlarged;
(b)
Written notice has been given to the Conservation Commission
at least two working days' prior to commencement of work; and
(c)
The work conforms to performance standards and design specifications
in regulations adopted by the Conservation Commission.
(2)
This exemption does not apply to private utilities, existing, new,
or otherwise.
B.
Emergency projects for the protection of the public.
(1)
The application and permit required by this chapter shall not apply
to emergency projects necessary for the protection of the health or
safety of the public, provided that:
(a)
The work is to be performed by or has been ordered to be performed
by an agency of the commonwealth or a political subdivision thereof;
(b)
Advance written notice, or oral followed by written, has been
given to the Conservation Commission prior to commencement of work
or within 24 hours after commencement;
(c)
The Conservation Commission or its agent certifies the work
as an emergency project;
(d)
The work is performed only for the time and place certified
by the Conservation Commission for the limited purposes necessary
to abate the emergency; and
(e)
Within 21 days of commencement of an emergency project, at the
direction of the Conservation Commission and/or staff, either a permit
application shall be filed with the Conservation Commission for review
as provided in this chapter or an as-built plan shall be filed with
the Conservation Commission, whereupon the Conservation Commission
may, after notice and public hearing, require restoration, project
modification and mitigation measures to protect the values stated
in this chapter.
(2)
Upon failure to meet these and other requirements of the Conservation
Commission, the Conservation Commission may, after notice and a public
hearing, revoke or modify an emergency project approval and order
restoration and mitigation measures.
C.
Other than stated in this chapter, the exceptions provided in the
Wetlands Protection Act (MGL c. 131, § 40) and regulations
(310 CMR 10.00) also apply to this chapter, particularly those with
regards to mosquito control work performed under the provisions of
clause (36) of section five of chapter forty,[1] and those lists of exceptions and exemptions seen at 310
CMR 10.02(2) and 10.58(6).
[1]
Editor's Note: So in original.
D.
Normal maintenance and/or improvement of land in agricultural use.
The application and permit required by this chapter shall not be required
for work performed for the normal maintenance or improvement of lands
in lawful, active agricultural use as defined in 310 CMR 10.04, provided
that no further encroachment into areas subject to this chapter occurs
without prior review and permission by the Conservation Commission.
[Ord. No. 1275, § I, 5-14-2024]
A.
Requests. Any person desiring to know whether or not a proposed activity
or an area is subject to this chapter may request, in writing, a determination
from the Conservation Commission. Such a request for determination
shall contain data and plans specified by the regulations of the Conservation
Commission, containing sufficient information to make a determination,
as the Conservation Commission determines necessary. Failure to provide
any of the information required herein, including but not limited
to seasonal field data, is sufficient cause for the Conservation Commission
to issue a positive determination. The Conservation Commission, in
an appropriate case, may accept as the request under this chapter
the request for determination of applicability filed under the Wetlands
Protection Act, MGL c. 131, § 40.
(1)
Failure to pay the filing fee shall be sufficient grounds to reject
the application or request the Conservation Commission may waive the
filing fee and costs and expenses for an application or request filed
by the City of Pittsfield or by a government agency and may waive
the filing fee for a request for determination filed by a person having
no financial connection with the property which is the subject of
the request.
B.
Applications. A written application shall be filed with the Conservation
Commission to perform activities regulated by this chapter and which
affect resource areas protected by this chapter. The application shall
include such information and plans as are deemed necessary by the
Conservation Commission to describe proposed activities and their
effects on the areas subject to protection under this chapter. The
application shall include a complete and accurate description of the
site, including the type and boundaries of resource areas, the proposed
work and the potential for cumulative effects on any areas subject
to protection hereunder. No activities within any jurisdictional areas
shall commence without receiving and complying with a permit issued
pursuant to this chapter. The Conservation Commission, in an appropriate
case, may accept as the application and plans required under this
chapter the request for determination of applicability, notice of
intent or abbreviated notice of resource area delineation, and plans
filed under the Wetlands Protection Act, MGL c. 131, § 40.
C.
Fees and costs. At the time of a request or application, the applicant
shall pay a filing fee specified in regulations of the Conservation
Commission. This fee is in addition to that required by the Wetlands
Protection Act, MGL c. 131, § 40.
(1)
Failure to pay the filing fee shall be sufficient grounds to deny
the application or request.
(2)
The Conservation Commission may waive the filing fee and costs and
expenses for an application or request filed by the City of Pittsfield
or by a government agency and may waive the filing fee for a request
for determination filed by a person having no financial connection
with the property which is the subject of the request.
[Ord. No. 1275, § I, 5-14-2024]
A.
A request or an application with the required filing fee shall be
hand delivered or sent by certified mail to the Conservation Commission.
When a person is requesting a determination, the request shall also
be sent by certified mail to the owner by the applicant.
B.
The Conservation Commission shall conduct a public hearing on any
request for determination or application for a permit, with written
legal notice given at the expense of the applicant five days'
prior to the hearing in a newspaper of general circulation in the
City of Pittsfield. The Conservation Commission, in an appropriate
case, may combine its hearing under this chapter with the hearing
conducted under the Wetlands Protection Act, MGL c. 131, § 40.
C.
The Conservation Commission shall commence the public hearing within
21 days from receipt of a completed application or request for determination
unless the applicant extends the twenty-one-day period by a signed
written waiver.
D.
The Conservation Commission shall have authority to continue the
hearing to a date certain announced at the hearing for reasons stated
at the hearing, which may include the receipt of additional information
offered by the applicant or others, information and plans required
of the applicant, or comments and recommendations of local boards
and officials, deemed necessary by the Conservation Commission in
its discretion.
E.
The Conservation Commission, its agent, officers and employees, may
enter upon the land for which a request or application has been made,
upon which the proposed work is to be done, for the purpose of carrying
out its duties under this chapter and may make or cause to be made
such examination, sampling or survey as is deemed necessary. Refusal
of the property owner to grant access requested by the Commission
shall be grounds for denial of the application.
F.
The Conservation Commission shall issue its determination in writing
within 21 days of the submission of a complete filing; and issue a
permit in writing within 21 days of the close of the public hearing
thereon.
[Ord. No. 1275, § I, 5-14-2024]
A.
The Conservation Commission shall have the authority, after a public
hearing, to determine whether a specific parcel of land contains or
does not contain resource areas protected under this chapter and shall
have the authority to determine whether proposed activities will adversely
affect those resource areas or the buffer zone. If the Conservation
Commission finds that no such resource areas are present, it shall
issue a negative determination. If the Conservation Commission finds
that the proposed activities will not adversely affect any area under
jurisdiction, the Conservation Commission may issue a negative determination.
B.
If the Conservation Commission, after a public hearing on the permit
application, determines that the activities which are the subject
of the application are likely to have a significant or cumulative
effect upon the wetland values protected by this chapter, the Conservation
Commission, within 21 days of the close of the hearing, shall issue
a permit or denial for the activities requested. If it issues a permit,
the Conservation Commission may impose conditions which the Conservation
Commission deems necessary or desirable to protect those values, and
all activities thus permitted shall be done in accordance with those
conditions.
C.
The Conservation Commission is empowered to deny a permit for the
following reasons:
(1)
Failure to meet the requirements of this chapter;
(2)
Failure to avoid or prevent unacceptable significant or cumulative
effects upon the wetland values protected by this chapter;
(3)
Failure to submit necessary information and plans requested by the
Conservation Commission;
(4)
Failure to meet the design specifications, performance standards
and other requirements in regulations of the Conservation Commission;
and
(5)
Where no conditions are adequate to protect the wetland values protected
hereunder.
D.
A permit shall expire three years from the date of issuance. Notwithstanding
the above, the Conservation 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 Conservation Commission.
A permit may be renewed for up to an additional three-year period,
provided that a request for a renewal is received, in writing, by
the Conservation Commission prior to expiration, and the Conservation
Commission votes to approve the extension at a public meeting.
E.
For good cause, the Conservation Commission may revoke or amend a
permit issued under this chapter after public notice and public hearing
and notice to the holder of the permit.
F.
The Conservation Commission, in an appropriate case, may combine
the permit or other action on an application issued under this chapter
with the order of conditions issued under the Wetlands Protection
Act.
[Ord. No. 1275, § I, 5-14-2024]
A.
No person shall remove, fill, dredge, build upon, degrade, or otherwise
alter resource areas protected by this chapter, 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 chapter.
B.
The Conservation Commission, its agents, officers, and employees
shall have authority to enter upon privately owned land for the purpose
of performing their duties under this chapter and may make or cause
to be made such examinations, surveys, or sampling as the Conservation
Commission deems necessary, subject to the constitutions and laws
of the United States and the commonwealth.
C.
The Conservation Commission shall have authority to enforce this
chapter, its regulations, and permits issued thereunder by letters,
phone calls, electronic communication and other informal methods,
violation notices, noncriminal citations under MGL c. 40, § 21D,
and civil and criminal court actions. Any person who violates the
provisions of this chapter 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.
Following all appeal periods regarding the enforcement order, any
person(s) who receives an enforcement order from the Pittsfield Conservation
Commission for a violation of this chapter shall file said order at
the Middle Berkshire Registry of Deeds or, if registered land, in
the Registry Section of the Land Court part of the chain of title
of the property on which said violation occurred.
E.
The Conservation Commission shall have the responsibility, duty,
and authority to enforce this chapter, its regulations, and permits
issued thereunder by violation notices, administrative orders, and
civil and criminal court actions.
F.
Upon request of the Pittsfield Conservation Commission, the City
Solicitor shall take legal action for enforcement under civil law.
Upon request of the Pittsfield Conservation Commission, the Chief
of Police or other appropriate official 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 Conservation Commission in enforcement.
G.
In the alternative to criminal prosecution for any violation of this chapter, or regulations, permits, or administrative orders issued thereunder, the Pittsfield Conservation Commission may utilize the noncriminal disposition procedure set forth in MGL c. 40, § 21D, in accordance with the City ordinance set forth in Chapter 4 1/2, § 4 1/2-2. Each day or portion thereof during which a violation continues shall constitute a separate offense and each provision of the ordinance or permit violated shall constitute a separate offense. This fine may be in addition to any levied under the Wetlands Protection Act, MGL c. 131, § 40, and/or by the Massachusetts Department of Environmental Protection.
[Ord. No. 1275, § I, 5-14-2024]
If any provision, paragraph, sentence, or clause of this chapter
shall be held invalid for any reason, all other provisions shall continue
in full force and effect.
[Ord. No. 1275, § I, 5-14-2024]
The Conservation Commission, acting in its discretion, may waive
strict compliance with this chapter if such action is allowed by federal,
state and local statutes, ordinances, and/or regulations; is in the
public interest; and is consistent with the purposes of this chapter.
[Ord. No. 1275, § I, 5-14-2024]
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 unacceptable significant or
cumulative effect upon the resource area values protected by this
chapter. Failure to provide adequate evidence to the Conservation
Commission supporting this burden shall be sufficient cause for the
Conservation Commission to deny a permit or grant a permit with conditions.
[Ord. No. 1275, § I, 5-14-2024]
A decision of the Conservation Commission shall be reviewable
in the superior court in accordance with MGL c. 249, § 4.
