[HISTORY: Adopted by the Town of Abington 4-3-2006 ATM by Art. 8.[1] Amendments noted where applicable.]
[1]
Editor's Note: This Article also superseded
former Ch. 171, Wetlands Protection, adopted 4-9-2003 by Art. 27.
The purpose of this Bylaw is to protect the
wetlands, water resources, and adjoining land areas in Abington by
controlling activities deemed by the Conservation Commission likely
to have a significant or cumulative effect upon resource area values,
including but not limited to the following public or private water
supply, groundwater, flood control, erosion and sedimentation control,
storm damage prevention including water quality, water pollution controls,
fisheries, wildlife habitat, rare species habitat including rare plant
species, agriculture, aquaculture, and recreation values, deemed important
to the community (collectively, the "resource area values protected
by this Bylaw"). This Bylaw is intended to utilize the Home Rule authority
of this municipality to protect additional resource areas, for additional
values, with additional standards and procedures stricter than those
of the Wetland Protection Act (M.G.L. c. 131 § 40) and Regulations
thereunder (310 CMR 10.00).
Except as permitted by the Conservation Commission or as provided in this Bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas: any freshwater wetlands, marshes, wet meadows, bogs, swamps, vernal pools, banks, reservoirs, lakes, ponds of any size, rivers, streams, creeks, beaches, dunes, estuaries, lands under water bodies, lands subject to flooding or inundation by groundwater or surface water, or flooding, and lands abutting any of the aforesaid resource areas as set out in § 171-7 (collectively the "resource area protected by this Bylaw"). Said resource areas shall be protected whether or not they border surface waters.
A.
Written application shall be filed with the Commission
to perform activities affecting resource areas protected by this Bylaw.
The notice of intent permit application shall include such information
and plans as are deemed necessary by the Commission to describe proposed
activities and their effects on the resource areas protected by this
Bylaw. No activity shall commence without receiving and complying
with a permit issued pursuant to this Bylaw.
B.
The Commission will accept as the permit application
and plans under this Bylaw the notice of intent and plans filed under
the Wetlands Protection Act (M.G.L. c. 131 § 40) and Regulations
(310 CMR 10.00).
C.
Any person desiring to know whether or not a proposed
activity or an area is subject to this Bylaw may in writing request
a determination from the Commission. Such a request for determination
(RFD) shall include information and plans as are deemed necessary
by the Commission.
D.
At the time of the permit application or RFD, or application
for certificate of compliance, the applicant shall pay a filing fee
specified in Regulations of the Commission. The fee is in addition
to that required by the Wetlands Protection Act (M.G.L. c. 131 § 40)
and Regulations (310 CMR 10.00).
E.
Upon receipt of a permit application or RFD, or at
any point during the hearing process, the Commission is authorized
to require an applicant to pay a fee for the reasonable costs and
expenses borne by the Commission to come to a final decision on the
application. This fee is called the "consultant fee." The specific
consultant services may include, but are not limited to, performing
or verifying the accuracy of resource area survey and delineation;
analyzing resource area functions and values, including wildlife habitat
evaluations, hydro geologic and drainage analysis; and researching
environmental or land use law.
F.
The Commission may require the payment of the consultant
fee at any point in its deliberations prior to a final decision. If
a revolving fund for consultant expenses and fees is authorized by
the Town Meeting, or by the general or special law, the applicant's
fee shall be put into such revolving fund, and the Commission may
draw upon that fund for specific consultant services approved by the
Commission at one of its public meetings. Any unused portion of the
consultant fee shall be returned to the applicant unless the Commission
decides at a public meeting that additional services will be required.
G.
The exercise of discretion by the Commission in making
its determination to require the payment of a consultant fee shall
be based upon its reasonable finding that additional information acquirable
only through outside consultants would be necessary for the making
of an objective decision. Any applicant aggrieved by the imposition
of, or size of, the consultant fee, or any act related thereto, may
appeal according to the provisions of the Massachusetts General Laws.
H.
The Commission may waive the filing fee, consultant
fee, and costs and expenses for a permit application or RFD filed
by a government agency.
I.
The maximum consultant fee charged to reimburse the
Commission for reasonable costs and expenses shall be according to
industry standard fees.
J.
The project cost means the estimated, entire cost
of the project including, but not limited to, building construction,
site preparation, landscaping, and all site improvements. The consultant
fee shall be paid pro rata for that portion of the project cost applicable
to those activities within resource areas protected by this Bylaw.
The project shall not be segmented to avoid being subject to the consultant
fee. The applicant shall submit estimated project costs at the Commission's
request, but the lack of such estimated project costs shall not avoid
the payment of the consultant fee.
A.
Any person filing a notice of intent ("permit application")
with the Commission shall give written notification thereof, by delivery
in hand or certified mail, return receipt requested, to all abutters
within 100 feet of the property line of the land where the activity
is proposed, at the mailing addresses shown on the most recent applicable
tax list of the assessors, including, but not limited to, owners of
land directly opposite said proposed activity on any public or private
street or way, and in another municipality or across a body of water.
Said notification shall be at the applicant's expense, and shall state
where copies of the notice of intent may be examined and obtained
and the date, time and place of the public hearing. Notices to abutters
shall be postmarked or hand delivered no less then 10 days prior to
the public hearing. Proof of such notification, with a copy of the
notice mailed or delivered, shall be filed with the Conservation Commission.
B.
The Commission shall conduct a public hearing on any
permit application or RFD, with written notice given at the expense
of the applicant, five business days prior to the hearing, in a newspaper
of general circulation in the municipality.
C.
The Commission shall commence the public hearing within
21 days from receipt of a completed permit application or RFD unless
an extension is authorized in writing by the applicant.
D.
The Commission shall issue its permit or determination
in writing within 21 days of the close of the public hearing thereon
unless an extension is authorized by the applicant.
E.
The Commission in an appropriate case may combine
its hearing under this Bylaw with the hearing conducted under the
Wetlands Protection Act (M.G.L. c. 131 § 40) and Regulations
(310 CMR 10.00).
F.
The Commission shall have the authority to continue
the hearing to a certain date announced at the hearing, for reasons
stated at the hearing, which may include receipt of additional information
from the applicant or others deemed necessary by the Commission in
its discretion.
A.
If the Commission, after a public hearing, determines
that the activities which are subject to the permit application or
the land and water uses which will result therefrom are likely to
have a significant individual or cumulative effect upon the resource
area values protected by this Bylaw, the Commission, within 21 days
of the close of the hearing shall issue or deny a permit for the activities
requested. If it issues a permit, the Commission shall impose conditions
which the Commission deems necessary or desirable to protect those
values, and all activities shall be done in accordance with those
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 unforeseeable
future activities.
B.
The Commission is empowered to deny a permit for failure
to meet the requirements of this Bylaw; for failure to submit necessary
information and plans requested by the Commission; for failure to
meet the design specifications, performance standards, and other requirements
in regulations of the Commission; for failure to avoid or prevent
unacceptable significant or cumulative effects upon the resource area
values protected by this Bylaw; and where no conditions are adequate
to protect those values. Due consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at the
public hearing.
C.
Land within 200 feet of rivers, ponds, and lakes and
lands within 100 feet of other resource areas are presumed important
to the protection of these resources because activities undertaken
in close proximity to resource areas have a high likelihood of adverse
impact upon wetland or other resource, either immediately, as a consequence
of construction, or over time, as a consequence of daily operation
or existence of the activities. These adverse impacts from construction
and use can include, without limitations, erosion, siltation, loss
of groundwater recharge, poor water quality, and loss of wildlife
habitat. The Commission therefore may require that the applicant maintain
a strip of continuous, undisturbed vegetative cover within two-hundred-foot
or one-hundred-foot area, unless the applicant convinces the Commission
that the area or part of it may be disturbed without harm to the values
protected by the Bylaw.
D.
To prevent the wetlands loss, the Commission shall
require applicants to avoid wetlands alteration wherever feasible;
shall minimize wetland alteration; and, where alteration is unavoidable,
shall require full mitigation. The Commission may authorize or require
replication of wetlands, but only with adequate security, professional
design, and monitoring to assure success.
E.
A permit shall expire three years from the date of
issuance. Notwithstanding the above, 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. Any permit
may be renewed for an additional period of up to three years, provided
that a request for a renewal is received in writing by the Commission
at least 30 days prior to expiration. Notwithstanding the above, a
permit may contain 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.
For good cause the Commission may revoke or modify
a permit or determination issued under this Bylaw after notice to
the holder of the permit or determination.
G.
No work proposed in any permit application shall be
undertaken until the permit issued by the Commission with respect
to such work has been recorded in the Registry of Deeds or, if the
land affected is registered land, in the registry section of the Land
Court for the district wherein the land lies, and until the holder
of the permit certifies in writing to the Commission that the permit
has been recorded.
A.
After public notice and public hearing, the Commission
shall promulgate rules and regulations relative to effectuate the
purposes of this Bylaw effective when voted and filed with the Town
Clerk. Failure by the Commission to promulgate such rules and regulations
or legal declaration of their invalidity by a court of law shall not
act to suspend or invalidate the effect of this Bylaw.
B.
At a minimum these regulations shall define key terms
in this Bylaw not inconsistent with the Bylaw and procedures governing
the amount and filing of fees.
The following definitions shall apply in the
interpretation and implementation of this Bylaw.
A.
The term "bank" 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.
B.
The term "vernal pool" shall include a confined basin
depression which, at least in most years, holds water for a minimum
of two continuous months during the spring and/or summer, and which
is free of adult fish populations, as well as the area within 100
feet of the mean annual boundary of such depression, regardless of
whether the site has been certified by the Massachusetts Division
of Fisheries and Wildlife.
C.
The term "rare species" shall include, without limitation,
all vertebrate and invertebrate animal and plant species listed as
endangered, threatened, or of special concern by the Massachusetts
Division of Fisheries and Wildlife, regardless of whether the site
in which they occur has been previously identified by the Division.
D.
The term "person" 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 Town Bylaws, administrative agency,
public or quasi-public corporation or body, this municipality, and
any other legal entity, its legal representative, agents, or assigns.
E.
The term "alter" shall include, without limitation,
the following activities when undertaken to, upon, within or affecting
resource areas protected by this Bylaw:
(1)
Removal, excavation, or dredging of soil, sand, gravel
or aggregate materials of any kind.
(2)
Changing of preexisting drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns, or flood retention characteristics.
(3)
Drainage, or other disturbance of water level or water
table.
(4)
Dumping, discharging, or filling with any material
which may degrade water quality.
(5)
Placing of fill, or removal of materials, which would
alter elevation.
(6)
Driving of piles, erection, or repair of building,
or structures of any kind.
(7)
Placing of obstructions or objects in water.
(8)
Destruction of plant life including cutting trees.
(9)
Changing temperature, biochemical oxygen demand, or
other physical, biological, or chemical characteristics of any water.
(10)
Any activities, changes, or work which may cause or
tend to contribute to pollution of any body of water or groundwater.
(11)
Incremental activities which have, or may have, a
cumulative adverse impact on the resource areas protected by this
Bylaw.
F.
Except as otherwise provided in this Bylaw or in regulations
of the Commission, the definitions of terms in this Bylaw shall be
set forth in the Wetlands Protection Act (M.G.L. c. 131 § 40)
and Regulations (310 CMR 10.00).
As part of a permit issued under this 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 observation of the conditions imposed there under (including conditions
required mitigation work) be secured wholly or in part by one or more
of the methods described below:
A.
By 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 accepting 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 this municipality whereby the permit conditions shall be performed
and observed before any lot may be conveyed other than by mortgage
deed. This method shall be used only with the consent of the applicant.
A.
No person shall remove, fill, dredge, build upon,
degrade, or otherwise alter resource areas protected by this Bylaw,
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 Bylaw.
B.
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 Bylaw and may make or cause
to make such examinations, surveys, or sampling as the Commission
deems necessary, subject to the Constitution and laws of the United
States and the Commonwealth.
C.
Upon request of the Commission, the Selectmen and
the Town Counsel shall take legal action for enforcement under civil
law. Upon request of the Commission, the Chief of Police shall 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 this Bylaw,
or regulations, permits, or administrative orders issued thereunder,
shall be punished by a fine if not more that $300 each day or portion
thereof during which a violation continues, or unauthorized fill or
other alteration remains in place, shall constitute a separate offense,
and each provision of the Bylaw, regulations, permits, or administrative
orders violated shall constitute a separate offense.
The applicant for a permit shall have the burden
of providing 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 Bylaw. Failure to provide adequate evidence to the Commission
supporting this burden shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
A decision of the Commission shall be reviewable
by the Superior Court in accordance with M.G.L. c. 249 § 4.
This Bylaw is adopted under the Home Rule Amendment
of the Massachusetts Constitution and the Home Rule statues, independent
of the Wetlands Protection Act (M.G.L. c. 131 § 49) and
Regulations (310 CMR 10.0) thereunder.
The invalidity of any section or provision of
this Bylaw shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit or determination which previously
has been issued.