[HISTORY: Adopted by the Town of Falmouth Annual Town Meeting 4-2-1979,
Art. 32; amended in its entirety by Annual Town Meeting 4-5-1993,
Art. 41, approved 7-16-1993. Subsequent amendments noted
where applicable.]
[Amended AFTM 11-18-1996, Art. 61, approved 4-30-1997]
A.
The purpose of this bylaw is to protect the wetlands,
related water resources and adjoining land areas in Falmouth by controlling
activities deemed by the Conservation Commission as 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, water pollution
control, fisheries, shellfish, wildlife and plant species and habitats, agriculture,
aesthetics, recreation and aquaculture values. These values, collectively,
are the resource area values protected by this bylaw.
B.
In the Black Beach/Great Sippewissett Marsh District
of Critical Planning Concern, the following resource area values are expressly
protected: prevention of flood damage by limiting of development in flood
hazard zones, prevention of damage to structures and natural resources as
a result of erosion, improvement of water quality, protection and enhancement
of existing vegetative cover in order to maintain water quality and wildlife
habitat, protection of wildlife, waterfowl and plant habitat and the maintenance
of existing populations and species diversity, prevention of loss or degradation
of critical wildlife and plant habitat, prevention of new stormwater runoff
discharges and the improvement of existing stormwater runoff discharges, protection
of coastal ecosystems which support the continued viability of harvestable
shellfish and finfish habitat, public access to water and land, improvement
of groundwater recharge, and the minimization of the impact of new development,
reconstruction and/or expansion on the resource area values protected by this
bylaw.
[Amended AFTM 11-18-1996, Art. 61, approved 4-30-1997]
Except as permitted by the Conservation Commission or as provided in
this bylaw, no person shall remove, fill, dredge, build upon, degrade or otherwise
alter the following resource areas: any freshwater or coastal wetland; marshes;
wet meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds;
streams; creeks; beaches; dunes; estuaries; oceans; lands under water bodies;
lands subject to flooding or inundation by groundwater or surface water; lands
subject to tidal action, coastal storm flowage or flooding; lands within one
hundred (100) feet of any of the aforesaid resource areas; the lands and waters
within the entire Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern; and the lands and waters within the entire Massachusetts
Executive Office of Environmental Affairs-designated Waquoit Bay Area of Critical
Environmental Concern (ACEC). These resource areas are, collectively, the
resource areas protected by this bylaw.
A.
The application and permit required by this chapter shall
not be required for maintaining, repairing or replacing, but not substantially
changing or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water, telephone,
telegraph or other telecommunication services, provided that written notice
has been given to the Commission ten (10) days prior to commencement of work,
and provided that the work conforms to performance standards and design specifications
in regulations adopted by the Commission.
B.
The application and permit required by this chapter shall
not be required for work performed for normal maintenance of land actively
in agricultural use, provided that written notice has been given to the Commission
ten (10) days prior to commencement of work, and provided that the work conforms
to performance standards and design specifications in regulations adopted
by the Commission.
C.
The application and permit required by this chapter shall
not apply to emergency projects necessary for the protection of the health
and 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 the commencement of work; provided that the
Commission or its agent certifies the work as an emergency project; provided
that the work is performed only for the time and place certified by the Commission
for the limited purposes necessary to abate the emergency; and provided that
within twenty-one (21) days of commencement of an emergency project a permit
application shall be filed with the Commission for review as provided by this
chapter. Upon failure to meet these and other requirements of the Commission,
the Commission may, after notice and a public hearing, revoke or modify an
emergency project approval and order restoration and mitigation measures.
D.
Other than stated in this section, the exceptions provided
in the Wetlands Protection Act, MGL C. 131, § 40, and Regulations,
310 CMR 10.00, shall not apply under this chapter.
A.
Written application shall be filed with the Commission
to perform activities affecting resource areas protected by this chapter.
The 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 chapter. No activities shall commence
without receiving and complying with a permit issued pursuant to this chapter.
B.
The Commission, in an appropriate case, may accept as
the permit application and plans under this chapter the Notice of Intent and
plans filed under the Wetlands Protection Act, MGL 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, including expansion exemptions
requested in accordance with Section 22(c) of the Cape Cod Commission Act,
may in writing request a determination from the Conservation Commission. Such
a request for determination shall include information and plans as are deemed
necessary by the Commission.
[Amended AFTM 11-18-1996, Art. 61, approved 4-30-1997]
D.
At the time of a permit application or request for determination,
the applicant shall pay a filing fee specified in the regulations of the Commission.
The fee is in addition to that required by the Wetlands Protection Act, MGL
C. 131, § 40, and Regulations, 310 CMR 10.00. The Commission may
waive the filing fee, consultant fee and costs and expenses for a permit application
or request for determination filed by a government agency and shall waive
them for a request for determination filed by a person having no financial
connection with the property or project which is the subject of the request.
The required advertising fees for public notification of the project cannot
be waived.
E.
Upon receipt of a permit application or request for determination,
the Commission is authorized to require an applicant to pay a fee for the
reasonable costs and expenses borne by the Commission for specific expert
engineering and other consultant services deemed necessary 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 the
resource area survey and delineation, analysis of resource area values, including
wildlife habitat evaluations, hydrogeologic and drainage analysis and 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. The applicant
shall pay the fee to the Town to be put into a consultant services account
of the Commission which may be drawn upon by the Commission for specific consultant
services approved by the Commission at one of its public meetings.
G.
The exercise of discretion by the Commission in making
its determination to require the payment of a 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.
H.
The Commission shall return any unused portion of the
consultant fee to the applicant unless the Commission decides at a public
meeting that other action is necessary. 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.
I.
The maximum consultant fee charged to reimburse the Commission
for reasonable costs and expenses shall be according to the schedule established
by local regulation.
J.
The Town hereby accepts MGL C. 131, §§ 40
and 53E, for purposes of administering jointly the filing fee and professional
service conservation account provisions of this chapter.
A.
Any person filing a permit application with the Commission
at the same time shall give written notice thereof, by certified mail (return
receipt requested) or hand delivered, to all abutters at their mailing addresses
shown on the most recent applicable tax list of the assessors, including owners
of land directly opposite on any public or private street or way, and abutters
to the abutters within one hundred (100) feet of the property line of the
applicant, including any in another municipality. The notice to abutters shall
enclose a copy of the permit application or request, with plans, or shall
state where copies may be examined and obtained by abutters. An affidavit
of the person providing such notice, with a copy of the notice mailed or delivered,
shall be filed with the Commission. When a person requesting a determination
is other than the owner, the request, the notice of the hearing and the determination
itself shall be sent by the Commission to the owner as well as to the person
making the request.
B.
The Commission shall conduct a public hearing on any
permit application or request for determination, with written notice given
at the expense of the applicant, five (5) business days prior to the hearing,
in a newspaper of general circulation in the municipality.
C.
The Commission shall commence the public hearing within
twenty-one (21) days from receipt of a completed permit application or request
for determination unless an extension is authorized in writing by the applicant.
D.
The Commission shall issue its permit or determination
in writing within twenty-one (21) days of the close of the public hearing
thereon unless an extension is authorized in writing by the applicant.
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, and Regulations 310 CMR 10.00.
F.
The Commission shall have the authority to continue the
hearing to a date certain announced at the hearing, for reasons stated at
the hearing, which may include receipt of additional information offered by
the applicant deemed necessary by the Commission in its discretion, or comments
and recommendations of other Town boards and officials, as appropriate. In
the event 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.
A copy of the public hearing notices shall be circulated to other Town
boards and departments, as appropriate.
A.
If the Commission, after a public hearing, determines
that the activities which are subject to the permit application are likely
to have a significant or cumulative effect upon the resource area values protected
by this chapter, the Commission, within twenty-one (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.
B.
The Commission is empowered to deny a permit for failure
to meet the requirements of this chapter; for failure to submit the 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 chapter;
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.
A permit shall expire three (3) years from the date of
issuance. Notwithstanding the above, the Commission, in its discretion, may
issue a permit expiring five (5) 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 one-year period, provided that a request for renewal is
received in writing by the Commission thirty (30) days prior to expiration.
E.
The Commission, in an appropriate case, may combine the
permit or determination issued under this chapter with the Order of Conditions
or Determination of Applicability issued under the Wetlands Protection Act,
MGL C. 131, § 40, and Regulations, 310 CMR 10.00.
F.
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 effected 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 to effectuate the purposes of this
chapter. Notice shall be given at least one (1) week prior to the public hearing
by publication in a newspaper of general circulation in the Town and by posting
with the Town Clerk. 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 the bylaw and procedures governing the
amount and filing of fees.
C.
After due notice and public hearing, the Conservation
Commission may promulgate policy guidelines in the form of additional rules,
regulations and definitions consistent with the provisions and objectives
of this chapter and designed to clarify and implement its purpose. Notice
shall be given at least two (2) weeks prior to such hearing by publication
in a newspaper of general circulation in the Town and by posting with the
Town Clerk. The Conservation Commission, by regulation duly advertised and
heard, may set fees for services performed, subject to written approval of
the Board of Selectmen. No fees shall be in excess of demonstrated true costs
to the Town of the services performed by the Commission.
D.
Pursuant to the requirements of this section, the Conservation
Commission shall adopt Implementing Regulations for the Black Beach/Great
Sippewissett Marsh District of Critical Planning Concern (DCPC) which, with
regard to this resource area, shall contain performance standards to protect
the interests of the district.
[Added AFTM 11-18-1996, Art. 61, approved 4-30-1997]
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
PERSON
The following definitions shall apply in the interpretation
and implementation of this chapter:
Includes, without limitation, the following activities when undertaken
to, upon, within or affecting resource areas protected under 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 or repair of buildings or structures of any
kind.
Placing of obstructions or objects in the water.
Destruction of plant life, including cutting of trees.
Changing temperature, biochemical oxygen demand or other physical, biological
or chemical characteristics of any waters.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Application of pesticides or herbicides.
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 Town bylaws, administrative
agency, public or quasi-public corporation or body, this municipality and
any other legal entity, its legal representatives, agents or assigns.
B.
Except as otherwise provided in this chapter or in regulations
of the Commission, the definitions of terms in this chapter shall be as set
forth in the Wetlands Protection Act, MGL C. 131, § 40, and Regulations,
310 CMR 10.00.
As part of a permit issued under this chapter, in addition to any security
required by any other municipal 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
or other undertaking of financial responsibility sufficient in the opinion
of the Commission, to be released in whole or in part upon the issuance of
a certificate of compliance for work performed pursuant to the permit.
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 this municipality whereby
the permit conditions shall be performed and observed before any lot may be
conveyed other than by mortgage deed.
A.
No person shall remove, fill, dredge, build upon, degrade
or otherwise alter resource areas protected by this chapter, or cause, suffer
or allow such activity to continue or allow such fill or other alteration
to be left in place, without the required authorization pursuant to this chapter.
B.
The Commission, its agents, officers and employees shall
have authority, with prior approval from the property owner, 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.
C.
The Commission shall have the authority to enforce this
chapter, its regulations and permits issued thereunder by violation notices,
administrative orders and civil and criminal court actions. Any person who
violates provisions of this chapter may be ordered to restore the property
to its original condition and take any other action deemed necessary to remedy
such violations.
D.
Upon request of the Commission, the Board of Selectmen
and 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.
E.
Municipal boards and officers, including any 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,
or regulations, permits or administrative orders issued thereunder, shall
be punished by a fine of not more than three hundred dollars ($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.
G.
As an alternative to criminal prosecution in a specific
case, the Commission may issue citations under the noncriminal disposition
procedure set forth in MGL C. 40, § 21D, and adopted by the Town
as a general bylaw.
The applicant for a permit shall have the burden of proving 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 chapter. 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.
A decision of the Commission shall be reviewable in the
Superior Court in an action filed within sixty (60) days thereof, in accordance
with MGL C. 249, § 4.
B.
Any applicant, owner, abutter or other party in interest
aggrieved by an order of the Conservation Commission may, within ten (10)
days of the issuance of said order, request that the matter be settled through
a mediation process conducted by a professional environmental service. Any
party may refuse to participate in or may withdraw from the mediation proceeding
at any time, and no settlement agreement shall be effective unless signed
by all parties whose cooperation is necessary to its implementation. If no
agreement to mediate is recorded within the said ten (10) days, or for any
reason mediation is abandoned before consummation, then the applicant, owner,
abutter or party in interest may appeal to the Superior Court in the usual
course as defined below.[1]
[1]
Editor's Note: Former Subsection C, dealing with appeals, which
immediately followed this subsection, was repealed AFTM 11-15-1994, Art. 34.
[Amended AFTM 11-18-1996, Art. 61, approved 4-30-1997]
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, 310 CMR 10.00. With respect
to the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern, this bylaw is adopted under the Home Rule Amendment to the Massachusetts
Constitution and the Home Rule statutes, as well as c. 716 of the Acts and
Resolves of 1989, as amended, and Barnstable County Ordinance 96-1.
