All time periods of 10 days or less specified in the bylaw and in these regulations shall be computed upon business days only. In the case of a determination or permit, such period shall commence on the first day after the date of issuance and shall end at the close of business on the 10th business day thereafter. All other time periods specified in the bylaw and these regulations shall be computed on the basis of calendar days, unless the last day falls on a Saturday, Sunday, or legal holiday, in which case the last day shall be the next business day following.
Where the bylaw states that a particular action (except receipt of a request for determination, abbreviated notice of resource area delineation, or application for permit) is to be taken by the Commission, that action is to be taken by more than half the members present at a meeting of at least a quorum. Where the bylaw states that a permit or notification shall be issued by the Commission, that action is to be taken by a majority of the members then in office, who need not convene as a body in order to sign said permit or notification, provided they met pursuant to the Open Meeting Law (MGL c. 39, §§ 23A through 23C) when voting on the matter.
A.
General. Any person who desires a determination as to whether the bylaw applies to an area or activity, or who desires to confirm the delineation of wetland resource area boundaries on a parcel of land comprised of three acres or less may submit to the Commission by certified mail or hand delivery two copies of a request for determination of applicability (RDA). The RDA shall include such data and plans as are required by the Commission. Any person who desires to confirm the delineation of wetland resource area boundaries on a parcel of land greater than three acres in size shall submit a written request to the Commission and shall, in addition, file with the Commission an abbreviated notice of resource area delineation (ANRAD) as specified under MGL c. 131, § 40.
B.
Filing procedure. Two copies of the request or ANRAD shall be submitted to the Commission. A digital copy (pdf format) of the request or ANRAD shall be made available to the Commission at the time of filing. Any person filing an ANRAD with the Commission shall at the same time give written notice thereof, by certified mail or hand delivery, to all abutters at their mailing addresses shown on the most recent applicable tax list of the assessors, including owners of land directly opposite any public or private street or way, and abutters to the abutters within 300 feet of the property line of the applicant (including any in another municipality or across a body of water). The notice shall enclose a copy of the ANRAD with plans, or shall state where copies of plans may be examined and obtained. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. When a person requesting a determination is other than the owner, the request, and the notice of the hearing shall be sent by the Commission to the owner as well as the person making the request. The Commission does not currently require abutter notification for the filing of a RDA since it is the opinion of the Commission that the types of projects filed under a RDA are typically minor or, conversely, will require the filing of an application of permit which requires abutter notification (see § 330-10).
C.
Public hearing. Within 21 days after the date of receipt of a completed RDA or ANRAD, the Commission shall hold a public hearing on the request. Notice of the time and place of the public hearing at which the determination or order will be made shall be given by the Commission at the expense of the person submitting the RDA or ANRAD not less than five business days prior to such hearing, by publication in a newspaper of general circulation in the Town. The Commission may combine its hearing under the bylaw with the hearing conducted under the Wetlands Protection Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00) in appropriate cases.
D.
Determination or order. Prior to making a determination or order, the Commission may require the submission of additional data deemed pertinent to the determination. The Commission shall issue its determination or order in writing within 21 days of the close of the public hearing. The determination shall be signed by a majority of the Commission and shall be sent by the Commission to the person making the request. A determination or order shall be valid for three years from the date of issuance.
A.
General. Any person who proposes work that will remove, fill, dredge, build upon, or alter any resource area shall submit an application for permit and other application materials as further defined below. In appropriate cases, the Commission may accept as the application for permit and supporting application materials under the bylaw the notice of intent and plans filed under MGL c. 131, § 40.
B.
Filing procedure. Two copies of the application for permit shall be submitted to the Commission. A digital copy (pdf format) of the application shall be made available to the Commission at the time of filing. Any person filing an application for permit with the Commission shall at the same time give written notice thereof, by certified mail or hand delivery, to all abutters at their mailing addresses shown on the most recent applicable tax list of the assessors, including owners of land directly opposite any public or private street or way, and abutters to the abutters within 300 feet of the property line of the applicant (including any in another municipality or across a body of water). The notice shall enclose a copy of the application for permit with plans, or shall state where copies of plans may be examined and obtained. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. If the applicant is not the owner of property, Notice and a copy of the application for permit shall also be provided to the owner. If work is proposed within 300 feet of an abutting municipality, notice and a copy of the applicant for permit shall be provided to the Conservation Commission of the adjacent town.
C.
Notices to other departments. Upon receipt of an application for permit the Commission shall provide notification (a digital copy) to the Planning Board, Board of Health, and Building Inspector. The Commission shall not take final action until the boards and officials have had 14 days from receipt of the notice of file written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission. The applicant shall have the right to respond to such written comments and recommendations at a hearing of the Commission prior to final action.
D.
Public hearing. Within 21 days after the date of receipt of a completed application for permit, the Commission shall hold a public hearing. Notice of the time and place of the public hearing at which the permit decision will be made shall be given by the Commission at the expense of the person submitting the application for permit not less than five business days prior to such hearing, by publication in a newspaper of general circulation in the Town. The Commission may combine its hearing under the bylaw with the hearing conducted under the Wetlands Protection Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00) in appropriate cases.
E.
Permits and decisions. The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need of additional information from the applicant or other reasons deemed necessary by the Commission in its discretion, based on comments and recommendations of the boards and officials listed in § 330-10C above. If an applicant or his/her representative is unable to provide the additional information or attend the continued public hearing, the Commission shall be notified at least two business days beforehand. Repeated failure to provide this information or abide by this requirement may result in the Commission issuing a denial of the application for permit. The Commission shall issue its permit decision in writing within 21 days of the close of the public hearing. The permit approval shall be signed by a majority of the Commission and shall be sent by the Commission to the applicant. A permit approval shall be valid for three years from the date of issuance. In the event of a decision that is unfavorable to the applicant, the Commission will consider revised plans without prejudice and without collection of additional filing fees under the bylaw.
A.
Within 21 days of the close of the public hearing the Commission shall issue or deny the permit. If the permit is issued, it shall impose such conditions as are deemed necessary for the protection of one or more of the interests identified in the bylaw and these regulations (§ 330-2A) and all activities shall be done in accordance with these conditions. The Commission shall take into account the cumulative adverse effects of loss, degradation, isolation, and replication of protected resource areas throughout the community and the watershed, resulting from past activities, permitted and exempt, and foreseeable future activities.
B.
If the permit is denied, it shall be for one or more of the following reasons:
(1)
For failure to meet the requirements of the bylaw;
(2)
For failure to submit necessary information or plans requested by the Commission;
(3)
For failure to meet design specifications, performance standards, or other requirements in these regulations;
(4)
For failure to avoid or prevent unacceptable significant or cumulative effects upon the resource area values protected by the bylaw;
(5)
For repeated failure to attend continued public hearings; or
(6)
Where no conditions are adequate to protect the resource values protected by the bylaw.
C.
The permit shall be signed by a majority of the Commission and shall be mailed or hand delivered to the applicant, his agent, or the owner of record.
D.
A permit shall expire three years from the date of issuance. 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. Notwithstanding the above, a permit may identify requirements which shall be enforceable for a stated number of years, indefinitely, or until permanent protection is in place, and shall apply to all owners of the land.
F.
Amendments to permits or determinations shall be handled in the manner set out in the Wetlands Protection Act Regulations (310 CMR 10.00) and policies thereunder.
G.
The Commission in an appropriate case may combine the decision issued under the bylaw with the order of conditions, order of resource area delineation, determination of applicability, or certificate of compliance issued under the Wetlands Protection Act and Regulations (310 CMR 10.00).
H.
Prior to the commencement of any work permitted or required by the permit, the permit shall be recorded in the Registry of Deeds or the land court for the district in which the land is located within the chain of title of the affected property. In the case of recorded land, the permit shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the permit shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. Certification of recording shall be sent to the Commission. If work is undertaken without the applicant first recording the permit, the Commission may record the documents itself or issue an enforcement order.
A.
The Commission may extend a permit once for an additional three-year period. Requests for extension shall be made to the Commission in writing at least 30 days' prior to the expiration of the permit. Additional extensions beyond the initial extension will not be granted unless the applicant can demonstrate substantial progress towards project completion.
B.
The issuing authority may deny the request for an extension and require the filing of a new application for permit for the remaining work in the following circumstances:
(1)
Where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits;
(2)
Where new information, not available at the time the permit was issued, has become available and indicates the permit is not adequate to protect the interests identified in the bylaw;
(3)
Where incomplete work is causing damage to the interests identified in the bylaw;
(4)
Where work has been done in violation of the permit or these regulations.
C.
If issued by the Commission, the extension permit shall be signed by a majority of the Commission.
D.
The extension permit shall be recorded in the Registry of Deeds or Land Court, whichever is appropriate. Certification of recording shall be sent to the issuing authority. If work is undertaken without the applicant so recording the extension permit, the Commission may issue an enforcement order.
As part of a permit or variance issued under the bylaw, in addition to any security required by any other municipal or state board, agency, or official, the Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or both of the methods described below:
A.
By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission to be released in whole or in part upon issuance of a certificate of compliance for work performed pursuant to the permit.
B.
By acceptance of 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 the Town, whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed (such method to be used only with the consent of the applicant).
A.
Upon completion of the work for which a permit was issued, the applicant may request in writing a certificate of compliance, certifying that the activity or portions thereof described in the application and plans has been completed in compliance with the permit. If issued by the Commission, the certificate of compliance shall be signed by a majority of the Commission.
B.
Prior to the issuance of a certificate of compliance, a site inspection shall be made by members or agents of the Commission in the presence of the applicant or the applicant's agent.
C.
If the Commission determines, after review and inspection, that the work has not been done in compliance with the permit, it may refuse to issue a certificate of compliance. Such refusal shall be issued in writing within 21 days of receipt of a request for a certificate of compliance, specifying the reasons for denial.
D.
If a project has been completed in accordance with plans stamped by a registered professional engineer, architect, landscape architect, or land surveyor, a written statement by such a professional person certifying compliance with the plans and setting forth what deviation, if any, exists from the plans approved in the permit shall accompany the request for a certificate of compliance.
E.
If the activity or portions thereof described in the application for permit and plans has been completed in compliance with the permit, a certificate of compliance shall be issued by the Commission within 21 days of receipt thereof.
F.
If the permit contains conditions which continue past the completion of work, such as maintenance or monitoring, the certificate of compliance shall specify which, if any, of such conditions shall continue. The certificate shall also specify to what portions of the work it applies, if it does not apply to all work regulated by the permit.
G.
The applicant shall submit the certificate of compliance to the Registry of Deeds or Land Court, whichever is appropriate, to be recorded, and shall send proof of the recording to the Commission.
A.
Whenever an application is made to the Commission, the Commission, its agents, officers, and employees shall have authority to enter upon privately owned land at reasonable times for the purpose of performing their duties under the bylaw and may make or cause to be made such examinations, surveys, or sampling as the Commission deems necessary, subject to the constitution and laws of the United States and the commonwealth.
B.
The Commission shall have authority to enforce the bylaw, its regulations, and permits and variances issued thereunder by violation notices, enforcement orders, noncriminal citations under MGL c. 40, § 21D, and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations, or may be fined, or both.
C.
Upon request of the Commission, the Board of Selectmen and Town Counsel may take legal action for the enforcement under the civil law. Upon request of the Commission, the Chief of Police may take legal action for enforcement under criminal law.
D.
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
E.
Any person who violates any provision of the bylaw, these regulations, permits or enforcement orders issued thereunder shall be fined not more than $300, commencing the day on which the violation has been confirmed by the Commission or its agents. Each day or portion thereof during which the violation continues shall constitute a separate offense, and each provision of the bylaw, regulations, permit, or enforcement order violated shall constitute a separate offense. Fines levied under this bylaw shall be paid to Town of Upton.
Any person may appeal the decision of the Commission to Superior Court under provisions of MGL c. 249, § 4. Such appeal shall be made within 21 days of the date of issuance of the Commission's decision. Notice of said appeal and a copy of the complaint shall be sent, by certified mail return receipt requested or hand delivery, to the Commission and the Town Counsel so as to be received within said 21 days.
The invalidity of any section or provision of these regulations shall not invalidate any other section or provision thereof, nor shall it invalidate any permit or determination previously issued.
These regulations shall become effective upon passage by a majority of the Commission and 10 days after filing with the Town Clerk (or until voted at Town Meeting if challenged by petition of 25 or more voters of the Town). The provisions of these regulations shall apply to all work performed after that date.