Town of Abington, MA Wetlands Protection

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).

§ 171-2 Jurisdiction.

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.

§ 171-3 Applications for permits and requests for determination.

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.

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).

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.

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).

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.

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.

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.

The Commission may waive the filing fee, consultant fee, and costs and expenses for a permit application or RFD filed by a government agency.

The maximum consultant fee charged to reimburse the Commission for reasonable costs and expenses shall be according to industry standard fees.

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.

§ 171-4 Notice and hearings.

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.

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.

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.

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.

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).

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.

§ 171-5 Permits and conditions.

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.

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.

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.

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.

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.

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.

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.

§ 171-6 Regulations.

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.

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.

§ 171-7 Definitions.

The following definitions shall apply in the interpretation and implementation of this Bylaw.

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.

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.

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.

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.

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.

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).

§ 171-8 Security.

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:

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.

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.

§ 171-9 Enforcement.

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.

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.

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.

Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.

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.

§ 171-10 Burden of proof.

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.

§ 171-11 Appeals.

A decision of the Commission shall be reviewable by the Superior Court in accordance with M.G.L. c. 249 § 4.

§ 171-12 Relation to Wetlands Protection Act.

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.

§ 171-13 Severability.

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.