The purpose of this Chapter 360 is to protect the Wetlands Values of Resource Areas, and of associated Buffer Zones, within the Town of Dartmouth from the effects of various Activities.
[HISTORY: Adopted by the Town Meeting of the Town of Dartmouth 6-4-2024 ATM by Art. 24, approved 11-4-2024.[1] Amendments noted where applicable.]
[1]
Edior's Note: This article also deleted former Ch. 360, Wetlands, adopted 11-18-1986, approved 1-6-1987; last amended 10-18-2022 FATM by Art. 12, approved 3-20-2023.
A.
Independence from the WPA. This Chapter 360 is promulgated pursuant to the Home Rule Amendment and is independent of the WPA and the MassDEP Regulations. At times, in order to avoid excessive duplication and for ease of use, this Chapter 360 shall reference and integrate certain provisions of the MassDEP Regulations. Such reference and integration should not be construed as a waiver of the independence of this Chapter 360; nor should it be construed as this Chapter 360 being superseded by the WPA or the MassDEP Regulations.
B.
Jurisdiction.
(1)
Geographic Scope of Bylaw. This Chapter 360 applies to all Resource Areas within the Town of Dartmouth, and also separately protects all Buffer Zones to those Resource Areas. It is the intent of this Chapter 360 that the jurisdiction of the Commission over these Buffer Zones is more expansive than is found under the WPA, and that said Buffer Zones are separately protected and subject to the jurisdiction of the Commission irrespective of whether any Activity taking place within said Buffer Zones has any impact, whether direct or indirect, upon any Resource Area.
(2)
Role of the Commission. No Activity may be undertaken within a Resource Area or Buffer Zone until and unless the Commission issues a Negative Determination or a Permit authorizing the same.
A. ABUTTER ACTIVITY BUFFER ZONE COASTAL WETLAND COMMISSION DETERMINATION FRESHWATER WETLAND GEOGRAPHIC SCOPE LAND SUBJECT TO FLOODING MASSDEP MASSDEP REGULATIONS MINOR PROJECT NEGATIVE DETERMINATION PERSON POSITIVE DETERMINATION RESOURCE AREA WETLANDS VALUE WPA
As used in this Chapter 360, the terms below shall have the following definitions:
Means each owner of any property that is within a 100-foot perimeter of the property line of any parcel that is the subject of the application.
Means any of the following: 1) any form of draining, dumping, dredging, damming, discharging, excavating, filling or grading; 2) the erection, reconstruction, repair or expansion of any buildings or structures; 3) the driving of pilings or the placement of any other objects or obstructions in water; 4) the construction or improvement of roads or other ways; 5) any activity that changes or alters preexisting runoff characteristics, drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns or flood retentions characteristics; 6) the intercepting or diverting of ground or surface water; 7) the installation of drainage, sewage or water systems; 8) the discharging of pollutants, or any activity that may cause or tend to contribute to the pollution of any stormwater runoff, surface water or groundwater; 9) the alteration, clearing or destruction of plant life; 10) the use of pesticides or herbicides; 11) any other activity that changes the physical, biological or chemical characteristics of land; and 12) any other activity that changes water temperature, biochemical oxygen demand, water quality or any other physical, biological, or chemical characteristics of water.
Means that area of land extending one hundred (100) feet horizontally outward from the boundary of any Resource Area.
Means any bank, beach, dune, estuary, marsh, swamp, meadow, flat, or other lowland that is subject to tidal action.
Means either a Negative Determination or a Positive Determination that is issued by the Commission.
Means any land that has any marsh, wet meadow, bog, swamp, vernal pond, bank, beach, dune, flat, lake, river, pond, creak, stream or estuary, but only where such land is not subject to tidal action. Without limitation, this definition is intended to include any land where the soils are hydric - that is, saturated and/or inundated such that they support a predominance of wetland indicator species. The intent of this definition is to be broader than the definition of "bordering vegetated wetlands" as found in the MassDEP Regulations, and the existence of Freshwater Wetlands under this Chapter 360 is not dependent upon the existence of any abutting creek, river, stream, pond, lake or other body of water.
Means all Resource Areas within the Town of Dartmouth, and all Buffer Zones to those Resource Areas.
Means any land subject to flooding or inundation by overflow of surface water, tidal action, or coastal storm flowage in the 100-year storm event (as determined by the National Flood Insurance Program under the Federal Emergency Management Agency), and regardless of whether said land is a Freshwater Wetland or Coastal Wetland.
Means the Massachusetts Department of Environmental Protection.
Means the regulations promulgated by MassDEP pursuant to the WPA, being 310 C.M.R. 10.00 et seq.
Means any project that meets the requirements and criteria, as established by the Commission per its Regulations, for that project to occur within the Geographic Scope without a Permit.
Means the conclusion of the Commission that a proposed project does not require a Permit.
Shall include any individual, group of individuals, association, partnership, corporation, company, business organization, and trust estate, the Commonwealth or political subdivision thereof to the extent subject to the jurisdiction of the Town, any administrative agency, public or Quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.
Means the conclusion of the Commission that a proposed project requires a Permit.
Means all Freshwater Wetlands, all Coastal Wetlands, and all Land Subject to Flooding, except to the extent that the Commission excludes any of the same by regulation based upon their size.
Means public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water pollution prevention, fisheries, shellfish, wildlife habitat, recreation, and aesthetics, as well as any other public benefits of wetlands that are designated by the Commission by regulation.
Means the Massachusetts Wetlands Protection Act, Massachusetts General Laws Chapter 131, Section 40.
B.
Any terms that have not been defined specifically herein or in the Regulations of the Commission shall have the definitions as provided in the MassDEP Regulations, or if there is no such definition for a particular term, then the commonly accepted definition of the scientific community, as demonstrated by the scientific literature, shall apply. Any terms that are not otherwise thus defined shall have their normal English meanings.
A.
Any regulations that have been promulgated by the Commission under any prior wetlands bylaw, including without limitation any prior iteration of Chapter 360, and were in effect at the time of the adoption by Town Meeting of this present iteration of Chapter 360, shall remain in full force and effect until and unless revoked or revised by the Commission.
B.
The Commission shall have the authority after public notice and public hearing to promulgate regulations to effectuate the purpose of, interpret, and enforce this Chapter 360. Such public notice shall be effectuated pursuant to § 360-6B(1), except that it shall be at the Commission's expense. Without limitation, the Commission may promulgate regulations:
(2)
To establish application procedures, submission requirements and filing fees for Permits and Determinations, and to establish different categories of Activities - whether based on size, nature, or other criteria - each with different application procedures, submission requirements and filing fees for Permits;
(3)
To determine the process for imposing reasonable fees for the employment of outside consultants in accordance with Massachusetts General Laws, Chapter 44, Section 53G;
(4)
To establish performance standards and design specifications for Activities and Minor Projects, and to establish procedures for the waiver of the same;
(5)
To establish minimum sizes - whether by square footage, volume or otherwise — for various Freshwater Wetlands, Coastal Wetlands and Lands Subject to Flooding to constitute Resource Areas and therefore be subject to the jurisdiction of this Chapter 360;
(6)
To determine additional Wetlands Values;
(7)
To establish standards and requirements for undertaking maintenance subsequent to the expiration of a Permit;
(8)
To establish public hearing procedures, including in relation to site visits;
(9)
To establish additional requirements for obtaining permit extensions;
(10)
To calculate the appropriate surety for a Permit; and
(11)
To provide additional rights to abutters and impose additional duties upon applicants and permit holders with respect to abutters.
(12)
To establish standard conditions relating to the control of erosion and sediment for Negative Determinations issued pursuant to § 360-7C(1)(b)(i).
(13)
To establish and define categories of Minor Projects, to establish criteria for qualifying for any of those categories of Minor Projects, and to establish standard conditions for such categories of Minor Projects.
C.
The failure by the Commission to promulgate any regulations shall not invalidate or render unenforceable this Chapter 360.
D.
To the extent that the Commission has not promulgated design specifications or performance standards for a particular Activity, or for a particular Activity within a particular Resource Area or Buffer Zone, then the design specifications and performance standards of the MassDEP Regulations shall apply.
A.
Any person may submit an application for a Determination of whether a proposed project falls within the Geographic Scope or constitutes an Activity.
B.
Except as provided in § 360-8, no Activity may be commenced in any Resource Area or Buffer Zone without first applying for and obtaining a Permit or Negative Determination from the Commission. Applicants are encouraged to confer with the Commission's staff in determining whether to apply for a Permit or a Determination, but it is ultimately the applicant's obligation to decide which application to submit.
D.
Filing fees for any application under this Chapter 360 are in addition to any fee(s) required for obtaining approval for the same Activities under the WPA, and regardless of whether the same application and filing is utilized under both this Chapter 360 and the WPA. The Commission may waive the filing fee for an application filed by any local, state or federal governmental entity.
E.
Incomplete or improperly executed applications, as well as applications that otherwise fail to comply with the procedural requirements of this Chapter 360 or the Commission's Regulations, shall be rejected by staff for the Commission without prejudice. Such rejection shall not be considered a decision by the Commission.
A.
The Commission shall open a public hearing on any application for a Permit or Determination within 21 days from receipt of a fully complete and properly executed application that is in full compliance with the procedural requirements of this Chapter 360 and the Commission's Regulations; provided, that this deadline may be extended in writing to a date requested by the applicant; or if the Commission is incapable of seating a quorum within said 21 days, then the public hearing shall be opened at the next regularly scheduled meeting of the Commission at which a quorum is present, but in no event later than 60 days after the initially scheduled hearing date; further provided, that any rescheduling of the opening of the public hearing due to a lack of a quorum must be announced during the meeting of the Commission at the previously scheduled time and location of the public hearing; further provided, that the opening of the public hearing may be delayed by the Commission in accordance with § 360-6B(2).
B.
Written notice of the public hearing shall be circulated as follows:
(1)
It shall be advertised by the Commission, at the applicant's sole expense, in a newspaper having a general circulation in Dartmouth, with the publication date being at least seven calendar days, but not more than 14 calendar days, prior to the public hearing; and
(2)
It shall be served upon each abutter by the applicant, at the applicant's own expense, either by certified mail or constable hand delivery, at least 7 days prior to the public hearing. It shall be the responsibility of the applicant to obtain a certified abutter's list from the Assessor's Office. Prior to the start of the public hearing, the applicant must provide the Commission with a copy of this certified abutter's list, along with proof of service upon each listed abutter, and the failure to do so shall constitute the automatic agreement by the applicant to delay the opening of the public hearing until the next regularly scheduled meeting of the Commission, subject to the quorum provisions of § 360-6A.
C.
The Commission shall have the authority to continue an opened public hearing to the next regularly scheduled meeting of the Commission; provided, that such continued date must be announced during the public hearing or during the meeting of the Commission at the previously scheduled time and location of the public hearing if the Commission lacks a quorum for the public hearing; further provided, that such continued date shall be in compliance with § 360-6D.
D.
Any public hearing that is continued by the Commission beyond the date at which the public hearing was actually opened shall be closed by the Commission at the next regularly scheduled meeting of the Commission at which a quorum is present, but in no event later than 60 days after the public hearing is opened; provided, that this deadline may be extended by the Commission, in its sole discretion, upon the written assent of the applicant.
A.
Decision Procedures. Every decision of the Commission in response to an application shall be subject to the following procedures:
(1)
The Commission shall issue its written decision within 21 days of the close of the public hearing; provided, that this deadline may be extended in writing by the applicant, if the Commission so requests;
(2)
Except as provided in § 360-7D, all decisions shall expire three years from the date of issuance. Any project that is undertaken pursuant to an issued Permit or Negative Determination must be completed within that timeframe; provided, that the Permit may specify particular maintenance, including, without limitation, landscaping and stormwater systems maintenance, that may continue after the expiration of the Permit, subject to any requirements that the Commission may establish through its Regulations for such maintenance.
(3)
The Commission, in its discretion, may combine a decision issued under this Chapter 360 with a decision issued under the WPA.
(4)
There shall be no constructive approvals of any applications.
B.
Permit Decisions.
(1)
The Commission shall deny a Permit application under any of the following circumstances:
(a)
The applicant fails to submit all information, plans and other documentation that the Commission reasonably concludes are necessary for making a finding under § 360-7B(2);
(b)
The proposed project fails to meet the applicable design specifications and performance standards; and
(c)
The application was incomplete, improperly executed or otherwise not in compliance with the procedural requirements of this Chapter 360 and the Commission's regulations, a public hearing was scheduled in error notwithstanding the provisions of §§ 360-5E and 360-6A, and the applicant failed to correct these application deficiencies by 3:00 pm 5 days prior to the opening of the public hearing.
(2)
All other Permit application decisions shall include the Commission's finding of whether the applicant's proposal is likely to have a significant effect upon any Wetland Values.
(a)
There shall be a rebuttable presumption that any Activities that are proposed to occur within any Resource Areas or Buffer Zones will have a significant effect upon Wetlands Values. It shall be the burden of the applicant to demonstrate by a preponderance of the submitted credible evidence that such significant effects upon any Wetland Value will not occur.
(b)
A finding that there is a significant effect upon any Wetlands Values may be based upon either the initial impact or long-term cumulative or repetitive impact of the applicant's proposal upon one or more Wetlands Values, and may be based upon either the substantial impact of the applicant's proposal upon a particular Wetlands Value or the cumulative impact of the proposed project upon multiple Wetlands Values.
(c)
If the Commission finds that the applicant's proposal is likely to have a significant effect upon any Wetland Values, then the Commission shall deny the requested Permit unless the Commission concludes, in its sole discretion, that it can issue a Permit with sufficiently stringent conditions in order to prevent significant effects upon any Wetland Values.
(3)
Economic hardship, topography, site conditions or shape of the parcel in question, shall not be a consideration in a Permit application decision.
(4)
For any approved Permit, all Activities shall be undertaken and completed in accordance with the terms, conditions and plans that are referenced, listed or otherwise incorporated therein. No Activity may be commenced in any Resource Area or Buffer Zone without first recording the Permit at the Bristol County (S.D.) Registry of Deeds, and providing written proof of such recordation to the Commission.
C.
Determinations. In response to an application for a Determination, the Commission shall issue either a Positive Determination or a Negative Determination.
(1)
A Positive Determination shall be issued whenever a proposed project constitutes an Activity within the Geographic Scope, and said project does not qualify for a Negative Determination. In issuing a Positive Determination, the Commission may rely upon either the evidence before it, or the failure of the applicant to provide sufficient evidence to enable it to evaluate whether a Negative Determination should issue.
(2)
A Negative Determination may be based upon lack of jurisdiction or lack of impact. If it is based upon lack of jurisdiction, then no conditions shall be imposed upon the Negative Determination. If it is based upon lack of impact, then the Negative Determination shall be subject to conditions.
(b)
Lack of impact exists under either of the following circumstances:
[1]
If the proposed project constitutes at least one Activity within the Geographic Scope, but the adverse impacts of the proposed Activit(ies) on Wetlands Values can be sufficiently mitigated solely through the imposition of standard conditions relative to the control of sedimentation and erosion, as established by the Commission in its Regulations, and those standard conditions are imposed on any issued Negative Determination.
[2]
If the proposed project constitutes a Minor Project within the Geographic Scope, provided that the Commission has also established in its Regulations standard conditions for sufficiently mitigating any adverse impacts of said Minor Project on the Wetlands Values, and those standard conditions are imposed on any issued Negative Determination; provided, that the Commission nonetheless may conclude in its discretion that those standard conditions are insufficient for a particular proposed project, due to unique circumstances as established in the findings of the Commission, in which case it shall issue a Positive Determination.
(3)
A Determination shall be valid only in relation to the specific proposal submitted to the Commission by the applicant as specifically described in the application. For any Negative Determination, all Activities shall be undertaken and completed in accordance the terms, conditions and plans that are referenced, listed or otherwise incorporated therein.
(4)
Nothing shall require a Positive Determination to be obtained before applying for a Permit. Nothing shall require a Negative Determination to be obtained before commencing, without a Permit, a project that does not involve any Activity within the Geographic Scope.
(5)
Economic hardship, topography, site conditions or shape of the parcel in question, shall not be a consideration in a Determination application decision.
D.
Extensions.
(1)
The Commission may not extend the timeframe for the completion of a project pursuant to a Negative Determination.
(2)
The Commission, in its sole discretion, may extend the timeframe for the completion of a project pursuant to a Permit for up to three years, subject to the following limitations and requirements:
(a)
The request to extend the timeframe must be submitted by the permit holder prior to the expiration date of the Permit;
(b)
The nature and dimensional scope of the permitted project may not be altered or expanded through the extension of the timeframe; and
(c)
Extending the timeframe would not require the imposition of additional conditions, or the alteration of previously imposed conditions, in order to protect the Wetlands Values against the impacts of that extension.
(3)
Any denial of such an extension request shall not constitute the denial of a Permit, and any approval of such an extension request shall not constitute the issuance of a new Permit. Rather such denial or approval shall solely constitute the refusal or agreement by the Commission to delay any potential enforcement that would result from the failure by the permit holder to complete the permitted project within the original timeframe.
(4)
The permit holder is required to provide written updates to the Commission every three months during the approved extension period, explaining the portion of the project to be completed during the next three months and the portion of the project completed in the prior three months. Failure to provide any such written update shall cause the extension period to end automatically and immediately.
E.
Corrections. At any time, whether upon request or of its own accord, the Commission may issue a corrected version of a Permit or Determination in order to eliminate scrivener's errors. Any corrected Permit shall not be effective until it has been recorded at the Bristol County (S.D.) Registry of Deeds, and written proof of such recordation has been provided to the Commission.
F.
Reconsiderations. An applicant, and any successor-in-interest to the same, who was denied a Permit for a project other than pursuant to § 360-7B(1)(a) or (c), may not submit a new application for substantially the same project within 3 years of said denial, without demonstrating to the satisfaction of the Commission that a substantial change in circumstances warrant a reconsideration of that denial. Positive Determinations shall not be reconsidered by the Commission.
Whenever necessitated by emergency conditions or circumstances that threaten the health and safety of the public, Activities within Resource Areas or Buffer Zones may be undertaken without first obtaining a Permit or Negative Determination, provided that the Commission or its designated agent is notified of the nature of the emergency and the intended or completed work within 48 hours of that emergency occurring. Within 45 days of so notifying the Commission or its designated agent, an application for a Permit or Negative Determination shall be submitted for the emergency work undertaken.
A.
As part of the issuance of any Permit, and in addition to any security required by any other municipal, state or federal board, agency, official or other governmental entity for the project authorized by the Permit, the Commission may require that the performance and observance of the terms, conditions and plans that are referenced, listed or otherwise incorporated into the Permit be secured wholly or in part by a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission, to be released, or partially released, by the Commission only upon issuance of a Certificate of Complete Compliance, or Certificate of Partial Compliance, respectively, for said project pursuant to § 360-10.
B.
In the event that any permitted coastal structure, including without limitation any dock, pier or launch, suffers a catastrophic failure due to inclement weather, and such failure results in costs to the Town through cleanup or damage to the Town's public infrastructure, roadways, buildings or other structures, then any such coastal structure shall be ineligible to be rebuilt or reconstructed in substantially the same location, or in substantially the same form, or in substantially the same or greater size, or to receive any Permit for the same under this Chapter 360, until and unless the applicant or owner of said coastal structure reimburses the Town for the entirety of said costs.
Any project that has been authorized by the issuance of a Permit shall not, for the purposes of §§ 360-7A(2) and 360-7D(2), be considered completed overall until the permit holder has obtained a Certificate of Complete Compliance from the Commission. A Certificate of Complete Compliance shall be issued by the Commission only if it concludes that each aspect of the project, other than recurring or continuous maintenance, has been completed in accordance with the terms, conditions and plans that are referenced, listed or otherwise incorporated into the Permit. It shall be the permit holder's obligation to request the issuance of a Certificate of Complete Compliance and to provide with said request sufficient documentation and other evidence of such satisfactory completion of each aspect of the project to the Commission. A permit holder may also request that the Commission issue a Certificate of Partial Compliance for the completion of a distinct portion of the project based upon a delineated geographic area. Within 21 days of any request for a Certificate, the Commission shall either issue a Certificate or provide to the permit holder a list of deficiencies with the project that preclude such issuance. Nothing shall preclude the Commission from issuing a Certificate of Partial Compliance in response to a request for the issuance of a Certificate of Complete Compliance. The permit holder shall record the Certificate in the Bristol County (S.D.) Registry of Deeds.
A.
To the maximum extent allowed by law, the Commission, its agents, officers, and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this Chapter 360 and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary. Acceptance of a Permit shall concurrently constitute acceptance of any inspection, whether undertaken with or without advance notice, for the purposes of ensuring compliance with said Permit.
B.
The Commission shall have authority to enforce this Chapter 360, its regulations, and any decisions (including conditions of the same) issued thereunder by violation notices, enforcement and administrative orders (including requiring after-the fact filings to bring the site back into compliance), criminal complaints, and civil actions in the Superior Court, including for injunctive and other equitable relief. Any agent of the Commission may issue violation notices on behalf of the Commission. Any agent of the Commission may issue enforcement and administrative orders on behalf of the Commission, provided that the Commission ratifies said issuance at its next regularly scheduled meeting.
C.
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
D.
Any person who violates any provision of this Chapter 360 or the Commission's regulations, or who violates any decision (including any condition of the same) issued thereunder, shall be punished by the noncriminal disposition method as provided in Massachusetts General Laws, Chapter 40, Section 21D. Each violation shall result in a fine of $300 or the maximum amount that is allowed by statute from time to time for noncriminal bylaw fines, whichever is greater, with each day of a continuing violation constituting a separate fineable offense. Nothing shall prevent a single action or inaction from constituting multiple separate and distinct violations for which fines shall be issued, and nothing shall prevent multiple persons from being responsible for, and concurrently separately and individually fined for, a particular violation.
This Chapter 360 is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the WPA or MassDEP Regulations.
The invalidity of any section or provision of any iteration of this Chapter 360, or of any other prior wetlands bylaw, shall not invalidate any other section or provision thereof, and shall not invalidate any Permit or Determination which was issued pursuant to the same. The invalidity of any section or provision of any Regulation that was promulgated pursuant to any iteration of Chapter 360, or pursuant to any other prior wetlands bylaw, shall not invalidate any other section or provision thereof, and shall not invalidate any Permit or Determination which was issued pursuant to the same.