[HISTORY: Adopted by the Town Meeting of
the Town of Southborough 4-10-1995 ATM by Art. 48. Amendments noted where applicable.]
The purpose of this chapter is to protect the
wetland-related water resources and the adjoining land areas in the
Town of Southborough by controlling activities deemed by the Southborough
Conservation Commission to have a significant or cumulative effect
upon wetland values: public or private water supply, flood control,
groundwater supply, storm damage prevention, erosion and sedimentation
control, wildlife habitat, water pollution control, fisheries and
freshwater shellfish, and recreation (collectively "the wetland values
protected by this chapter").
Except as permitted by the Conservation Commission
or as provided in this chapter, no person shall remove, fill, dredge,
build upon, degrade, discharge into or otherwise alter the following
resource areas or within 20 feet of their borders: any freshwater
wetland, bordering vegetated wetland, marsh, wet meadow, bog or swamp,
any bank, beach, lake, river, pond, stream or any land under said
waters, any vernal pool, any land subject to flooding or inundation
by groundwater, surface water or storm flowage (collectively, "the
resource areas"). Any proposed work which falls within 100 feet (the
"buffer zone") of the previously mentioned resource areas must be
approved by the Conservation Commission.
A.
ABUTTER
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
PERSON
The following definitions shall apply in the interpretation
and implementation of this chapter:
The same as owner of land abutting the activity.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by 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, alteration, replacement
or repair of buildings or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting
of trees.
Changing water temperature, biochemical oxygen
demand or other physical or chemical characteristics of water.
Any activities, changes or other work which
pollute any body of water or groundwater.
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 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.
A.
The application and permit required by this chapter
shall not be required for maintaining, repairing, replacing, but not
enlarging, a lawfully located single-family residential structure
or appurtenance thereto, unless said filing is otherwise required
by state or federal law.
B.
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, municipal sewage, telephone, telegraph
or other telecommunication services, provided that written notice
had been given to the Conservation Commission prior to commencement
of the 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 be required for work performed for normal maintenance or
improvement of land in agricultural use, provided that written notice
has been given to the Conservation Commission prior to commencement
of the work, and provided that the work conforms to performance standards
and design specifications in regulations adopted by the Commission.
D.
The application and permit required by this chapter
shall not apply to emergency projects necessary for the protection
of the health or safety of the public, provided that:
(1)
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.
(2)
Advance notice, oral or written, has been given to
the Commission prior to commencement of work or within 24 hours after
commencement.
(3)
The Conservation Commission or its agent certifies
the work as an emergency project.
(4)
The work is performed only for the time and place
certified by the Conservation Commission for the limited purposes
necessary to abate the emergency.
(5)
Within 21 days of commencement of an emergency project
a permit application shall be filed with the Commission for review
as provided in this chapter. Upon failure to meet these 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.
E.
The requirements of this chapter shall not apply to
any orders of conditions, determinations of applicability or notice
of intent filed or issued prior to the adoption of this chapter.
F.
Other than stated in this chapter, the exceptions
provided in the Wetlands Protection Act (MGL c. 131, § 40,
as amended) shall not apply.
A.
Any person desiring to know whether or not a proposed
activity or an area is subject to this chapter may request, in writing,
a determination from the Commission. Such a request for determination
shall contain data and plans specified by the regulations adopted
by the Commission.
B.
Written application shall be filed with the Commission
to perform activities regulated by this chapter affecting buffer zones
and resource areas protected by this chapter. The application shall
include eight copies of such information and plans as are deemed necessary
by the Commission to describe proposed activities and their effects
on the environment. No activities shall commence without receiving
and complying with a permit issued pursuant to this chapter.
C.
The Commission, in an appropriate case, shall 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,
as amended).
D.
At the time of an application or request for determination,
the applicant shall pay a filing fee specified in regulations adopted
by the Commission. This fee is in addition to that required by the
Wetlands Protection Act (MGL c. 131, § 40, as amended.)
In addition, the Commission is authorized to require the applicant
to pay reasonable costs and expenses of any expert consultant if deemed
necessary by the Commission to review the application or request for
determination. 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. The Commission may waive the filing fee
and costs and expenses for an application or request for determination
filed by a government agency.
A.
Notice. 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 delivery, to
all direct abutters at their mailing addresses shown on the most recent
applicable Tax Map of the Assessors. The notice to abutters shall
state where copies of the request or application with plans may be
examined or obtained. A copy of the notice mailed or delivered and
return receipts shall be filed with the Commission. When a person
requesting a determination is other than the owner, the request, the
plans, 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. A person complying with the notice provisions of this
chapter shall be deemed to have complied with the notice requirements
of the Wetlands Protection Act (MGL c. 131, § 40 as amended).
B.
Hearings.
(1)
The Commission shall commence the public hearing on
any application or request for determination, with written notice
given at the expense of the applicant five working days prior to the
hearing in a newspaper of general circulation in the Town of Southborough.
(2)
The Commission shall commence the public hearing within
21 days from receipt of a completed application or completed request
for determination unless an extension is authorized, in writing, by
the applicant.
(3)
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, in writing, by the applicant.
(4)
The Commission shall 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.
(5)
The Commission shall have authority to continue the
hearing to a certain date announced at the hearing or to an unspecified
date, for reasons stated at the hearing. The reasons may include:
(a)
Receipt of additional information offered by
the applicant or others.
(b)
An opportunity for the Commission to conduct
an on-site inspection, with or without the applicant of the property.
(c)
Information and plans required of the applicant,
deemed necessary by the Commission in its discretion.
(d)
Snow cover preventing the ground from being
seen and wetland flagging from being verified by the Commission.
A.
Any person filing a permit application with the Commission
shall provide a copy thereof at the same time, together with the date
and time of a scheduled hearing, to the Select Board, Planning Board,
Zoning Board of Appeals, Board of Health, Town Planner and Building
Inspector. A copy shall be provided to the Conservation Commission
of the adjoining municipality if the permit application pertains to
property within 300 feet of that municipality. The applicant shall
have the right to receive comments and recommendations from such boards
and officials and to respond to them at a hearing of the Commission
prior to final action.
[Amended 11-1-2021 STM
by Art. 2]
B.
Any comments which other boards and officials wish
to have brought to the attention of the Commission shall be submitted
in writing to the Commission prior to the hearing at which the permit
application is to be heard.
A.
If the Commission, after a public hearing, determines
that the activities which are the subject of the application are likely
to have a significant or cumulative effect upon the wetland values
protected by this chapter, 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 these 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 foreseeable future activities.
B.
The Commission is empowered to deny a permit for failure
to meet the requirements of this chapter; for failure to submit necessary
information and plans requested by the Commission; for failure to
meet the design specifications, performances and other requirements
in regulations of the Commission; for failure to avoid or prevent
unacceptable significant or cumulative impacts upon the wetland 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 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 additional one-year periods, provided that a request
for renewal 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 after notice to the holder of the permit and notice to the public, abutters and Town boards pursuant to § 170-7 and a public hearing.
E.
The Commission in an appropriate case shall 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.
No work proposed in any 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
thereby be 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 so recorded.
A.
After public notice and public hearing, the Commission
shall adopt rules and regulations to effectuate the purposes of this
chapter. The rules and regulations adopted under this chapter shall
not expand the powers of the Commission beyond the authority granted
by this chapter. Failure by the Commission to adopt 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.
Public notice shall be given at least three weeks
prior to such hearing by publication in a newspaper of general circulation
in the Town and by posting with the Town Clerk.
C.
At a minimum these regulations shall define key terms
in this chapter not inconsistent with this chapter.
D.
Unless otherwise stated in this chapter or in the
rules and regulations promulgated under this chapter, the definitions,
procedures and performance standards of the Wetlands Protection Act,
MGL c. 131, § 40, and associated Wetlands Regulations, 310
CMR 10.00, shall apply.
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 other undertaking
of financial responsibility sufficient in the opinion of the Commission.
This security shall be received by the Commission prior to the commencement
of the work and will be released in whole or in part upon 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. This method shall
be used only with the consent of the applicant.
A.
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 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.
Any person who violates provisions of this chapter may be required
to restore the property to its original condition and take other action
deemed necessary to remedy such violations or may be fined, or both.
C.
Town boards and officers, including any police officer
or other officer having police powers, shall have authority to assist
the Commission in enforcement.
D.
Any person who violates any provision of this chapter,
regulations thereunder or permits issued thereunder shall be punished
by a fine of not more than $500 as allowed under MGL c. 40, § 21D.
Each day or portion thereof during which a violation continues shall
constitute a separate offense, and each provision of the chapter,
regulation or permit violated shall constitute a separate offense.
E.
Upon request of the Commission, the Select Board 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.
[Amended 11-1-2021 STM
by Art. 2]
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 have unacceptable significant
or cumulative effect upon the wetland 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 decision of the Commission shall be reviewable
in the Superior Court in an action filed within 60 days thereof in
accordance with MGL c. 249, § 4.
This chapter is adopted under the Home Rule
Amendment of the Massachusetts Constitution and the Home Rule statutes,
independent of the Wetland Protection Act (MGL c. 131, § 40)
and regulations thereunder.
The invalidity of any section or provision of
this chapter shall not invalidate any other section or provision thereof
nor shall it invalidate any permit or determination which previously
has been issued.
