Town of Brewster, MA Establishment of Districts

Wetlands Conservancy Districts shall include all bordering vegetated wetlands, freshwater banks, land subject to flooding, land under a freshwater body, land under the ocean, coastal beaches, barrier beaches, rocky intertidal shores, land under salt ponds, fish runs, coastal dunes, coastal banks, salt marshes and land containing shellfish which are subject to the jurisdiction of the Wetlands Protection Act, MGL c. 131, § 40, as amended.

Wetlands Conservancy Districts shall also include the following soil types and soil associations, the location and boundaries of which are shown by Overlay Map Sheets 11, 16, 17, 18 and 22 encompassing the Town of Brewster and found in the “Soil Survey of Barnstable County, Massachusetts” issued March 1993 by the United States Department of Agriculture, Soil Conservation Service, which survey is hereby made part of this chapter: Amostown (AmA); Beaches (Bh); Belgrade Silt Loam (BlB); Berryland (BmA); Boxford (BoA) (BoB); Deerfield (DeA); Dune Land (Dn); Freetown (Fm, Ft); Freetown and Swansea (Fs); Hooksan (HoC, HoD, HxC); Ipswich, Pawcatuck and Matunuck (ImA); Maybid (MaA, MbA); Pipestone (PeA); Scitico (ScA); Sudbury (SdA); and Walpole (WvA). Soil descriptions as well as their land uses and limitations are found in this survey. Any parcels of land under this section too small to show on the aforementioned map sheets but containing soil types and associations described in the above survey shall be subject to this chapter. Disturbed areas may be accorded Wetlands Conservancy District status if an on-site investigation determines that the filled area covers a Conservancy District soil or soil association.

[Amended 5-9-1988 ATM, Art. 95; 5-8-1989 ATM, Art 46; 10-15-1990 STM, Art. 4; 11-19-2001 FYTM, Art. 17]

Prohibited uses. The following uses are prohibited within the Wetlands Conservancy Districts as defined in this chapter:

Residential or commercial structures.

Dumping of filling with refuse, trash, rubbish or debris.

Any sewage disposal systems, storage areas, tanks for chemicals or petroleum products, or other potential sources of substantial pollution.

Permitted uses. Except as provided in Subsection E below, buildings, structures and premises in Wetlands Conservancy Districts may be used only for the following purposes, so long as no dredging or filling is involved.

Fishing and shellfishing, including the raising and cultivation of fish and shellfish.

Forestry, grazing and farming, nurseries, truck gardening and harvesting of crops, including but not limited to such crops as cranberries, marsh hay, seaweed, berries and shrub fruits and trees, and work incidental thereto.

Conservation of soil, water, plants and wildlife.

Outdoor activities, including hiking, swimming, boating, nature study, fishing, trapping and hunting.

Drainage works which are part of the local flood and mosquito control conducted by an authorized public agent.

Such other agricultural, horticultural, floricultural, religious and educational uses as are exempted from prohibition by MGL c. 40A, § 3.

(7)

Uses accessory to residential or other primary uses, such as flower or vegetable gardens, lawns, pastures or forestry areas.

(8)

The building and use of footbridges, constructed or fabricated trails and walks, stairways, docks and landings.

[Added 11-18-2002 FYTM, Art. 20]

(9)

Notwithstanding the prohibition against any land filling or dumping of any soil, peat, sod, gravel, rocks or other mineral substances in Subsection E(4) below, land filling or dumping of any gravel, rocks, sand or other mineral substance is permitted for property owners for the sole purpose of repairing or re-nourishing of bay front beaches after storm damages.

[Added 11-13-2006 FYTM, Art. 23]

Uses permitted by a special permit. The Board of Appeals may issue a special permit for the following uses and structures in accordance with the provisions of § 179-51 of this chapter. Before issuing a special permit under this section, the Board of Appeals shall consider whether or not the proposed use will be detrimental to the environmental quality of both the subject and contiguous lands. The Board of Appeals may, as an alternative to a denial of a special permit under this section, impose such conditions as it deems necessary to contribute to the protection and preservation of subject land in accordance with the purposes of this chapter. Before issuing a special permit under this section, the Board of Appeals shall forward a copy of the application for the special permit to the Conservation Commission, and the Conservation Commission shall, within 35 days of receipt of a copy of such application, make recommendations to the Board of Appeals concerning the application for a special permit. The Board of Appeals shall not grant any special permit under this section until the report of the Conservation Commission has been received and considered, or until 35 days from delivery of the application copy for the special permit to the Conservation Commission has elapsed without the receipt or the report from the Conservation Commission. Any report of the Conservation Commission to the Board of Appeals under this section shall be an advisory report only. The following uses shall be permitted by a special permit only:

Nonresidential buildings or structures to be used only in conjunction with fishing, shellfishing, the growing and harvesting and storage of crops raised on the premises and boathouses.

Dams, changes in watercourses or other drainage works, only as part of an overall drainage plan constructed or authorized by a public agency as stated in Subsection D above.

[1]Appropriate municipal uses, such as waterworks, pumping stations and parks.

[1]

Editor's Note: Former Subsection E(3), amended 5-3-1999 ATM by Art. 31, which permitted footbridges, constructed or fabricated trails and walks, docks and landings, was repealed 5-6-2002 ATM by Art. 20. Said Art. 20 also renumbered former Subsection E(4) through (7) as Subsection E(3) through (6).

Any landfilling or dumping of any soil, loam, peat, sand, gravel, rocks or other mineral substances.

Any draining, damming, dredging, altering or relocating any watercourse or the removal from Wetlands Conservancy Districts of loam, peat, sod, gravel, rocks or other mineral substances.

Certain accessory uses related to scientific research or development, as and to the extent mandated in MGL c. 40A, § 9.

Emergency action. Any special permit required by § 179-6 of this chapter shall not apply to emergency projects necessary for the protection of health and safety of the citizens of Brewster. "Emergency projects" shall mean any project certified to be an emergency by the Commissioner of the Department of Natural Resources (Department of Environmental Protection) and the Conservation Commission, if this chapter and MGL c. 131, § 40, are both applicable, or by the Conservation Commission alone, if only this chapter is applicable. In no case shall any filling, dredging or altering commence prior to any emergency certification, or extend beyond the time necessary to abate the emergency. Emergency action may be performed by:

[Amended 5-11-1992 ATM, Art. 39]

An administrative agency of the commonwealth or Town.

A property owner, if emergency approval has or will be granted under the provisions of this Subsection F above and the Building Commissioner deems the action necessary to protect or prevent further damage to an approved and permitted building or structure. Corrective action is to be limited to protection only, and not to complete replacement.

§ 179-7 Floodplain District.

[Added 5-13-1985 ATM, Art. 65; amended 5-11-1992 ATM, Art. 37; 11-17-2003 FYTM, Art. 22; 5-5-2014, ATM, Art. 24; 11-15-2021 FYTM by Art. 11]

The Floodplain District is established as an overlay district. All uses otherwise permitted in the underlying district are allowed, provided that they meet the following additional requirements, as well as those of the Massachusetts State Building Code dealing with construction in floodplains and coastal high hazard areas.

Statement of purpose. The purposes of the Floodplain District are to:

Regulate development in areas subject to coastal storm flowage, particularly high hazard velocity zones, in order to minimize threats to public safety, potential loss of life, personal injury, destruction of property, and environmental damage inevitably resulting from storms, flooding, erosion and relative sea level rise.

Enable safe access to and from coastal homes and buildings for homeowners and emergency response personnel, such as police, fire and rescue departments or other emergency response officials.

Reduce or prevent public health emergencies resulting from surface and ground water contamination from inundation of or damage to sewage disposal systems and storage areas for typical household hazardous substances.

Minimize monetary loss and public health threats resulting from storm damage to public facilities (water and gas mains, electric, telephone lines, streets, bridges, etc.). Avoid the loss of utility services which, if damaged by flooding, would disrupt or shut down the utility network and impact regions of the community beyond the site of flooding.

Eliminate costs associated with the response to and cleanup of flooding conditions.

AREA OF SPECIAL FLOOD HAZARD

Reduce damage to public and private property resulting from flooding waters.

Definitions. As used in this section, the following words shall have the meanings specified herein:

The land area subject to flood hazards and shown on a Flood Insurance Rate Map or other flood hazard map as Zone A, AE, X, and VE. [Base Code, Chapter 2, Section 202]

BASE FLOOD

The flood having a 1% chance of being equaled or exceeded in any given year.

COASTAL HIGH HAZARD AREA

The area subject to high-velocity waters, including but not limited to hurricane wave wash or tsunamis. The area is designated on a FIRM as Zone VE.

DEVELOPMENT

Any man-made change to improved or unimproved real estate, including but not limited to building or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. [44 CFR Part 59]

DISTRICT

Floodplain District.

EXISTING MANUFACTURED HOME PARK OR SUBDIVISION

A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be fixed (including, at minimum, the installation of utilities, the construction of streets, and either final site grading or pouring of concrete pads) is completed before the effective date of this section.

EXPANSION TO AN EXISTING MANUFACTURED HOMEPARK OR SUBDIVISION

The preparation of additional sites by the construction of facilities for servicing lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction or streets, and either final site grading or pouring of concrete pads).

FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

Administers the National Flood Insurance Program (NFIP). FEMA provides a nationwide flood hazard mapping study program for communities as well as regulatory standards for development in the flood hazard areas.

FLOOD INSURANCE RATE MAP (FIRM)

An official map of a community on which FEMA has delineated both areas of special flood hazard and risk premium zones applicable to the community.

FLOOD INSURANCE STUDY (FIS)

An examination, evaluation, and determination of flood hazards, and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of flood-related erosion hazards.

FUNCTIONALLY DEPENDENT USE

A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities. [44 CFR Part 59; also, Referenced Standard ASCE 24-14]

HIGHEST ADJACENT GRADE

The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. [44 CFR Part 59]

HISTORIC STRUCTURE

Any structure that is:

Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

By an approved state program as determined by the Secretary of the Interior; or

LAND SUBJECT TO COASTAL STORM FLOWAGE

Directly by the Secretary of the Interior in states without approved programs. [44 CFR Part 59]

Land subject to inundation caused by coastal storms up to and including the 100-year flood, surge of record, or flood of record, whichever is greater. The 100-year flood (or base flood as it is also referred to) means the flood having a 1% chance of being equaled or exceeded in any given year. The seaward limit is mean low water.

LOWEST FLOOR

The lowest floor of the lowest enclosed areas (including basement or cellar). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of NFIP Regulations 60.3.

MANUFACTURED HOME

A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For purposes of the application of this Floodplain District Bylaw, the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes, the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles.

MANUFACTURED HOME PARK OR SUBDIVISION

A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

NATIONAL FLOOD INSURANCE PROGRAM (NFIP)

Is administered by the Federal Emergency Management Agency (FEMA).

NEW CONSTRUCTION

Structures for which the start of construction commenced on or after June 6, 1985 (the effective date of the first Flood Insurance Rate Map and accompanying regulations). New construction includes work determined to be substantial improvement.

NEW MANUFACTURED HOME PARK OR SUBDIVISION

A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of this Floodplain District Bylaw.

ONE HUNDRED YEAR FLOOD

See "base flood."

RECREATIONAL VEHICLE

A vehicle which is:

Built on a single chassis;

400 square feet or less when measured at the largest horizontal projection;

Designed to be self-propelled or permanently towable by a light duty truck; and

SEA-LEVEL RISE BASE FLOOD ELEVATION (SLR-BFE)

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

(Note: Recreational vehicles are only allowed in Brewster in licensed camping facilities.)

The elevation of surface water resulting from any inundation caused by coastal storms up to and including that predicted to be caused by the 1% annual storm for the Target Year, as defined by the best available coastal flooding model.

SPECIAL FLOOD HAZARD AREA

An area having special flood and/or flood-related erosion hazards, and shown on a FIRM as Zone A, AE, VE.

START OF CONSTRUCTION

The date of issuance for new construction and substantial improvements to existing structures, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement is within 180 days after the date of issuance. The actual start of construction means the first placement of permanent construction of a building (including a manufactured home) on a site, such as the pouring of a slab or footings, installation of pilings or construction of columns.

Permanent construction does not include land preparation (such as clearing, excavation, grading or filling), the installation of streets or walkways, excavation for a basement, footings, piers or foundations, the erection of temporary forms or the installation of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main building. For a substantial improvement, the actual "start of construction" means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building. [Base Code, Chapter 2, Section 202]

STRUCTURE

For floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home.

SUBSTANTIAL DAMAGE

Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred.

SUBSTANTIAL IMPROVEMENT

Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. This term includes structures which have incurred substantial damage, regardless of the actual repair work performed.

SUBSTANTIAL REPAIR OF A FOUNDATION

When work to repair or replace a foundation results in the repair or replacement of a portion of the foundation with a perimeter along the base of the foundation that equals or exceeds 50% of the perimeter of the base of the foundation measured in linear feet, or repair or replacement of 50% of the piles, columns or piers of a pile, column or pier supported foundation, the building official shall determine it to be substantial repair of a foundation. Applications determined by the building official to constitute substantial repair of a foundation shall require all existing portions of the entire building or structure to meet the requirements of 780 CMR. [As amended by MA in 9th Edition BC]

VARIANCE

A grant of relief by a community from the terms of a flood plain management regulation. [44 CFR Part 59]

VIOLATION

The failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in § 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided. [44 CFR Part 59]

ZONES

ZONE A — The 100-year floodplain area where the base flood elevation (BFE) has not been determined. To determine the BFE, use the best available federal, state, local or other data.

ZONE AE — The 100-year floodplain where the base flood elevation has been determined.

ZONE X — Areas identified in the community Flood Insurance Study as areas of moderate or minimal flood hazard.

ZONE VE — Special flood hazard areas along a coast subject to inundation by the 100-year flood with additional hazards due to velocity (wave action). Base flood elevations have been determined.

Floodplain District boundaries and base flood elevation data.

The Floodplain District includes all special flood hazard areas within the Town of Brewster designated as Zone A, AE, AH, AO, A99, V or VE on the Barnstable County Flood Insurance Rate Map (FIRM) issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program dated July 14, 2016. The exact boundaries of the District may be defined by the 1% chance base flood elevations shown on the FIRM and further defined by the Barnstable County Flood Insurance Study (FIS) report. The FIRM and FIS report are incorporated herein by reference and are on file with the Town Clerk, Planning Board, Building Commissioner and Conservation Commission.

Base flood elevation data. Base flood elevation data is required for subdivision proposals or other developments greater than 50 lots or five acres; whichever is the lesser, within unnumbered A zones.

Within Zone A, where the base flood elevation is not provided on the FIRM, the applicant shall cause a qualified professional to provide any existing base flood elevation data, which data shall be reviewed by the Building Commissioner/Zoning Agent for its reasonable utilization toward meeting the elevation or floodproofing requirements as appropriate, of the State Building Code.

Pursuant to the Wetlands Protection Act (MGL c. 131, § 40 and 310 CMR 10.00 et seq.), the Brewster Conservation Commission may require any building or other structure, in the event of any substantial repair of the foundation, any substantial improvement, or any restoration of substantial damage, the entire building or structure shall be elevated at least two feet above the SLR-BFE.

Use regulations.

All provisions of the Code of the Town of Brewster, Chapter 179, shall remain applicable within the Floodplain District; provided, however, where the Floodplain District Bylaw imposes additional or conflicting requirements, the more stringent local requirements shall prevail. All development in the Floodplain District, including structural and nonstructural activities, whether permitted by right or by special permit, must be in compliance with Chapter 131, Section 40, of the Massachusetts General Laws and with the following:

Section of the Massachusetts State Building Code which addresses floodplain and coastal high hazard areas (currently 780 CMR).

Wetlands Protection Regulations, Department of Environmental Protection (DEP) (currently 310 CMR 10.00).

(c)

Inland Wetlands Restriction, IMP (currently 310 CMR 13.00).

(d)

Coastal Wetlands Restriction, DEP (currently 310 CMR 12.00).

(e)

Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, DEP (currently 310 CMR 15.500).

(f)

Brewster Wetlands Protection Bylaw (currently Chapter 172, Brewster Town Code).

(g)

Brewster Wetlands Conservancy District (currently Chapter 179, Article II, § 179-6, Brewster Town Code).

Any departure from the provisions and requirements of the above-referenced state or local regulations may only be granted in accordance with the required variance procedures of these state or local regulations. A variance from this Floodplain Bylaw must meet the requirements set out by state law, and may only be granted if: 1) good and sufficient cause and exceptional non-financial hardship exist; 2) the variance will not result in additional threats to public safety, extraordinary public expense, or fraud or victimization of the public; and 3) the variance is the minimum action necessary to afford relief.

If the state issues a variance to the flood-resistant standards as found in the Massachusetts State Building Code, the Town will request from the State Building Code Appeals Board a written and/or audible copy of the portion of the hearing related to the variance and will maintain this record in the community's files.

The Town shall also issue a letter to the property owner regarding potential impacts to the annual premiums for the flood insurance policy covering that property, in writing over the signature of a community official that i) the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and ii) such construction below the base flood level increases risks to life and property.

Such notification shall be maintained with the record of all variance actions for the referenced development in the floodplain overlay district.

Recommended uses. The following uses, which present low flood damage potential and are unlikely to cause obstructions to flood flows, are encouraged, provided they are permitted in the underlying district and do not require structures, fill, or the storage of either materials or equipment.

Agricultural uses such as farming, grazing, truck farming, horticulture, etc.

Forestry and nursery uses.

Outdoor recreational uses, including play areas, nature study, boating, fishing and hunting where otherwise legally permitted.

Conservation of water, plants and wildlife.

Wildlife management areas, foot, bicycle, and/or horse paths and bridges provided such uses do not affect the natural flow pattern of floodwaters or of any watercourse.

Temporary nonresidential structures used in connection with fishing, hunting, bird watching, growing, harvesting, storage, or sale of crops raised on the premises.

(7)

Buildings and uses lawfully existing prior to the adoption of these provisions.

Use limitations.

Man-made alteration of sand dunes within Zone VE that increase potential flood damage is prohibited.

All new construction within Zone VE is required to be located landward of the reach of mean high tide.

All subdivision proposals shall be reviewed to assure that:

Such proposals minimize flood damage;

All public utilities and facilities are located and constructed to minimize or eliminate flood damage; and

(c)

Adequate drainage is provided to reduce exposure to flood hazards.

Existing contour intervals of site and elevations of existing structures must be included on plan proposals.

Within Zones AO and AH on the FIRM, adequate drainage paths must be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

All recreational vehicles to be placed on a site must be:

Elevated and anchored in accordance with the zone's regulations for foundation and elevation requirements; or

Be on the site for less than 180 consecutive days; or

(c)

Be fully licensed and highway ready.

Administration.

The Town of Brewster requires a permit for all proposed construction or other development in the Floodplain Overlay District, including new construction or changes to existing buildings, placement of manufactured homes, placement of agricultural facilities, fences, sheds, storage facilities or drilling, mining, paving and any other development that might increase flooding or adversely impact flood risks to other properties. The floodplain permit required hereunder shall be issued by the Conservation Commission in connection with any other permit applications falling under the Conservation Commission's jurisdiction. The Conservation Commission may enact regulations hereunder including the procedures relative to an application for a floodplain permit.

There shall be established a routing procedure which will circulate or transmit one copy of the development plan to the Conservation Commission, Planning Board, Board of Health, Town Engineer and Building Commissioner for comments which will be considered by the appropriate permitting board prior to issuing applicable permits. The proponent must obtain all local, state, and federal permits necessary to carry out the proposed development in the floodplain overlay district and must verify that all necessary permits have been acquired.