[HISTORY: Adopted by the City Council of
the City of Lowell 12-16-2003 (Ch. 5, Art. VI of the 1988 Code). Amendments noted where
applicable.]
The purpose of this chapter is to protect the
wetlands, related water resources, and adjoining land areas in the
City by controlling activities deemed to have significant effect upon
wetland values, including but not limited to the following: public
or private water supply, groundwater, flood control, erosion and sedimentation
control, storm damage prevention, water pollution prevention, fisheries,
recreation, agriculture, aquaculture, and historic values (collectively,
the "interests protected by this chapter").
[Amended 10-16-2012; 2-23-2021]
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall remove, fill, dredge, alter, or build
upon or within 100 feet of any bank to a perennial or intermittent
stream; upon or within 100 feet of any lake, river, pond, stream;
upon or within any land under said waters; upon or within any canal,
canalway or raceway, or within any land under a canal, canalway or
raceway, upon a canal wall; or upon any bordering land subject to
flooding.
[Amended 10-16-2012]
The permit and application required by this
chapter shall not be required for maintaining, repairing, or replacing
an existing and lawfully located structure or facility used in the
service of the public to provide electric, gas, water, sanitary sewer,
storm drainage, public roadway, telephone, telegraph, or other telecommunication
services, provided that the structure or facility is not substantially
changed or enlarged, provided that written notice has been given to
the Commission prior to commencement of work, and provided that the
work conforms to performance standards and design specifications in
regulations adopted by the Commission. The permit and application
required by this chapter shall not apply to emergency projects necessary
for the protection of the health or safety of the public, provided
that the work is to be performed by or has been ordered to be performed
by an agency of the commonwealth or a political subdivision thereof,
provided that advance notice, oral or written, has been given to the
Commission prior to commencement of work or within 24 hours after
commencement, provided that the Conservation Commission certifies
the work as an emergency project, and provided that the work is performed
only for the time and certified by the Conservation Commission for
the limited purposes necessary to abate the emergency. Within 21 days
of commencement of an emergency project a project review shall take
place with the Commission or its authorized staff to determine if
a "notice of intent" filing shall be required. Exceptions provided
in Wetlands Protection Act Regulations 310 CMR 10.02(2)(b), as amended,
shall apply for minor work in the buffer zone, although exceptions
in the Wetlands Protection Act Regulations [310 CMR 10.02(2)(a)(1)]
for activities in the Riverfront Area shall not apply.
A.
Written application shall be filed with the Commission
to perform work regulated by this chapter on resource areas protected
by this chapter. The application shall include such plans as are deemed
necessary by the Commission to describe proposed activities and their
effects on the environment. At the same time the applicant shall distribute
one complete copy, including appropriate plans, by certified mail
or hand delivery to the City Clerk. No work shall commence without
receiving and complying with a permit issued pursuant to this chapter.
[Amended 10-16-2012]
B.
The application and plans shall contain data as required
by this chapter and regulations by the Commission.
C.
The Commission in an appropriate case may accept as
the application and plans under this chapter the notice of intent
and plans filed under the Wetlands Protection Act (MGL c. 131, § 40).
D.
At the time of application, the applicant shall pay a filing fee
specified in the City of Lowell Code of Ordinances.[1] In addition, the applicant shall agree in writing to pay
the costs and expenses of any expert consultant deemed necessary by
the Commission to review the applications.
[Amended 10-16-2012]
E.
Any person desiring to know whether or not proposed
work on an area is subject to this chapter may in writing request
a determination from the Commission. Such a request for determination
shall contain data and plans specified by the regulations of the Commission.
A.
Any person filing an application with the Commission shall give written
notice thereof, by certified mail or hand delivery, to all abutters
according to the most recent records of the Assessors, including those
across a traveled way or railroad bed at a maximum distance of 300
feet from the property boundaries. The notice shall enclose a copy
of the application or request, with plans, or shall state where copies
may be examined by abutters.
[Amended 10-16-2012]
B.
The Commission shall give written notice in a newspaper of general
circulation in the City, at the expense of the applicant, five working
days prior to the public hearing on any application or public discussion
of any request for determination.
[Amended 10-16-2012]
C.
The Commission shall commence the public hearing on any application
or public discussion for any request for determination within 21 days
from receipt.
[Amended 10-16-2012]
D.
The Commission shall issue its permit for determination or other
action in writing within 21 days of the close of the public hearing
or meeting thereon.
[Amended 10-16-2012]
E.
The 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.
F.
For reasons announced by the Commission at the hearing,
the Commission shall have authority to continue or postpone the hearing
to a date certain announced at the hearing, either for receipt of
additional information offered by the applicant or others or for information
required of the applicant deemed necessary by the Commission in its
discretion. In the event that the applicant objects to a continuance
or postponement, the hearing shall be closed and the Commission shall
take action on such information as is available.
[Amended 10-16-2012]
Electronic copies of all submission materials shall be presented
as part of a complete submission package, which City staff shall circulate
to the Planning Board, Zoning Board of Appeals, Board of Health, and
Building Inspector within seven days of receipt. Specific plan requirements
are located in, and updated periodically by, the Commission's rules
and regulations. The application and plans shall contain data as required
by this chapter and regulations by the Commission. The Commission
may not close any public hearing or take final action on any request
for determination until such boards and officials have had 14 days
from receipt of the notice to file written comments and recommendations
with the Commission, which the Commission may take into account but
which shall not be binding on the Commission.
A.
If the Commission after a public hearing determines
that the area which is the subject of the application is likely to
be significant to the interests protected by this chapter, the Commission,
within 21 days of the close of the hearing, shall issue or deny a
permit for the work requested. If it issues a permit, the Commission
shall impose conditions which the Commission deems necessary or desirable
to protect those interests, and all work shall be done in accordance
with those conditions.
B.
If the area is deemed not likely to be significant
to the interests protected by this chapter, the Commission shall so
inform the applicant that the work does not require a permit.
C.
Permits shall expire three years from the date of
issuance. Any permit may be renewed once for an additional one-year
period, provided that a request for extension is received in writing
by the Commission prior to expiration.
D.
For good cause the Commission may revoke or modify
a permit issued under this chapter; provided, however, that no such
revocation or modification shall occur until the Commission has conducted
a public hearing on the matter.
E.
The 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.
F.
An applicant who has received a valid permit, or a
determination that the work is subject to this chapter, from the Conservation
Commission may proceed at risk with the work upon issuance of a building
permit, notwithstanding the pendency of any appeal.
A.
After public notice and public hearing the Commission
shall promulgate rules and regulations, including a filing fee schedule,
subject to approval of Lowell City Council, to effectuate the purpose
of this chapter. Failure by the Commission to promulgate such rules
and regulations or a legal declaration of their invalidity by a court
of law shall not act to suspend or invalidate the effect of this chapter.
B.
At a minimum these regulations shall define key terms
in this chapter not inconsistent with this chapter.
The following definitions shall apply in the
interpretation and implementation of this chapter.
Includes, without limitation, the following actions when
undertaken in resource areas subject to 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 of buildings, or
structures of any kind.
Placing of obstructions or objects in water.
Destruction or dislocation of plant life, including
cutting and moving of trees.
Changing water temperature, biochemical oxygen
demand, or other physical or chemical characteristics of water.
Any activities, changes or work which pollutes
or causes displacement of any body of water or groundwater.
Any activities, changes or work which would result in the reduction
of flow rates through a canal, canalway or raceway, or which would
result in the dewatering of any portion of a canal, canalway or raceway.
[Added 2-23-2021]
Includes 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 agencies, public or quasi-public
corporations or bodies, the City of Lowell and/or assigns.
As part of a permit issued under this chapter,
in addition to any security required by any other City or state board,
agency or official, the Commission may require that the performance
and observance of the conditions imposed hereunder be secured wholly
or in part by one or more of the methods described below:
A.
By a proper bond or deposit of money or negotiable
securities sufficient in the opinion of the Commission.
B.
By 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 City and members
of the public, whereby the permit conditions shall be performed and
observed before any lot may be conveyed other than by mortgage deed.
A.
The Commission, its agents, officers, and employees
shall have the 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
Commission deems necessary.
B.
The Commission shall have authority to enforce this
chapter, its regulations, and permits issued thereunder by violation
notices, administrative orders, and civil and criminal court actions.
C.
Upon request of the Commission, the City Solicitor
shall take legal action for enforcement under civil law. Upon request
of the Commission, the Superintendent of Police shall take legal action
for enforcement under criminal law.
D.
In the alternative to criminal prosecution the Commission
may elect to utilize the noncriminal disposition procedure set forth
in MGL c. 40, § 21D.
E.
City boards and officers, including any City police
officer or other officer having police powers, shall have authority
to assist the Commission in enforcement.
F.
Any person who violates any provision of this chapter,
regulations thereunder, or permits issued thereunder shall be punished
by fine of not more than $300. Each calendar day or portion thereof
during which a violation continues shall constitute a separate offense,
and each provision of this chapter, regulations, or permits violated
shall constitute a separate offense.
The applicant for a permit shall have the burden
of proving by a preponderance of the credible evidence that the work
proposed in the application will not harm the interests protected
by this chapter. Failure to provide evidence to the Commission supporting
a determination that the proposed work will not harm the interests
protected by this chapter shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
This chapter is adopted under the home rule
amendment of the Massachusetts Constitution and the home rule statutes,
independent of the Wetlands Protection Act, MGL c. 131, § 40,
and regulations thereunder.
[Added 10-16-2012]
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision thereof, nor shall it
invalidate any order of conditions which previously has been issued.
