[HISTORY: Adopted by the Annual Town Meeting
of the Town of Townsend 4-27-1983 by Art. 28; amended in its entirety
5-4-1987 ATM by Art. 34. Subsequent amendments noted where applicable.]
[Amended 4-29-1997 ATM by Arts. 41 and 44]
A.
The purpose of this by-law is to protect the wetlands
of the Town of Townsend by controlling activities deemed to have a
probably significant effect upon wetland values, including but not
limited to the following: public or private water supply, groundwater,
flood control, erosion control, sedimentation control, storm damage
prevention, water pollution, fisheries, wildlife, recreation and aesthetics,
other water damage prevention, protection of surrounding land, homes
or buildings, and protection of streams, ponds, or other bodies of
water (collectively, the "interests protected by this by-law").
B.
In accordance with this purpose no person shall remove, fill, dredge, build upon, degrade, pollute, discharge into, or otherwise alter the following resource areas: banks, freshwater wetlands, marshes, bogs, wet meadows, swamps, creeks, rivers, streams, ponds, lakes, lands under water bodies, lands subject to flooding or inundation, vernal pools, isolated wetlands (collectively, resource areas) and lands within a buffer zone (as defined in § 138-7) of any such resourced areas without a permit from the Conservation Commission, or as provided by this by-law. Any person wishing to engage in such activities must file a written notice of his intention to do so, including such plans as may be necessary to fully describe such proposed activity and its effect of the environment, and receive and comply with a permit issued by the Conservation Commission. Each notice shall be accompanied by a filing fee as shown on the graduated schedule of fees contained in the Townsend Wetland Regulations.[1] A copy of such notice shall be sent at the same time,
by certified mail, to the Department of Environmental Protection.
Such notice must be filed concurrently with or after applications
for all other permits, variance and approvals required by any zoning
or non-zoning by-law or by the Subdivision Control Law[2] and the regulations of the Planning Board thereunder have
been obtained. Upon written request of any person, the Conservation
Commission shall within 21 days make a written determination as to
whether this by-law is applicable to any land or work thereon. Where
such person is other than the owner, notice or any such determination
shall be sent to the owner and to the person making such request.
[Amended 11-14-2012 STM by Art. 18]
C.
Activities in the course of 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 are allowable without a permit.
The Conservation Commission shall hold a public
hearing on the proposed activity within 21 days of the receipt of
said notice. Notice of the time and place of said hearing shall be
given by the Conservation Commission at the expense of the applicant,
not less then five days prior to such hearing by publication in a
newspaper of general circulation in Townsend, and by delivery or mailing
of notice thereof to the applicant, to the Board of Health, Board
of Selectmen and the Planning Board, to abutters of the land (as determined
by the most recent Assessor's records) on which the proposed activity
is to take place and to such other persons as the Conservation Commission
may determine. The Conservation Commission, the Board of Health, the
Planning Board, their agents, officers and employees may enter upon
privately owned land without liability of any kind for the purpose
of performing their duties under this section.
A.
Permits and conditions. If after said hearing a majority
of the Conservation Commission determines that the land on which the
proposed work is to be done is probably significant to public or private
water supply, groundwater, flood control, erosion control, sedimentation
control, storm damage prevention, water pollution, fisheries, wildlife,
recreation and aesthetics, protection of surrounding land, homes or
buildings, or to the protection of streams, ponds, or other bodies
of water, the Conservation Commission shall, by written order, within
21 days after the close of the public hearing or such further time
as the Commission and the applicant shall agree on, impose such conditions
as are reasonably necessary for the protection of the interests protected
by this by-law, and all work shall be done in accordance therewith.
The conditions may include a condition that certain land or portions
thereof not be built upon or altered, filled or dredged, that streams
not be diverted, dammed or otherwise disturbed.
[Amended 4-29-1997 ATM by Art. 40]
B.
Notice of permit. If the Conservation Commission makes
a determination that the proposed activity does not require the imposition
of such conditions, the Conservation Commission shall notify the applicant
and all others who have received notice of such hearing by mail of
such determination within 21 days after said hearing, and shall issue
a permit without conditions within 21 days of the public hearing.
Permits shall expire three years from the date of issuance, unless
renewed prior to expiration, and all work shall be completed prior
to expiration.
C.
Relationship to Chapter 131, Section 40. This by-law
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 the regulations thereunder.
This by-law shall not apply to any emergency
project as defined in MGL c. 131, § 40 or to any work performed
for normal maintenance or improvement of land actively devoted to
agricultural use at the time of application.
Any person who purchases, inherits or otherwise
acquires real estate upon which work has been done in violation of
the provisions of this by-law or in violation of any order issued
under this by-law shall forthwith comply with any such order to restore
such land to its condition prior to any such violation; provided,
however, that no action, civil or criminal, shall be brought against
such person unless such action is commenced within three years following
the recording of the deed or the date of the death by which such real
estate was acquired by such person. The Board of Selectmen may, upon
request of the Conservation Commission, request that Town Counsel
take such legal action as may be necessary.
The Conservation Commission may issue, after
due notice and public hearing, rules and regulations to effectuate
the purposes of this by-law.[1] However, failure by the Commission to issue 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 by-law.
The applicant shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
by him or her in the notice of intention will not cause significant
harm to the interests sought to be protected by this by-law. Failure
to provide the Conservation Commission with adequate evidence for
it to determine that the proposed work does not probably cause significant
harm to the interests sought to be protected by this by-law shall
be sufficient cause for the Conservation Commission to deny such permit
or to grant such permit with such conditions as it deems reasonably
necessary or desirable to carry out the purposes of this by-law, or
to postpone the hearing to another date certain to enable the applicant
and others to present additional evidence, upon such terms and conditions
as seem to the Commission to be just.
A.
The following definitions shall apply in the interpretation
and implementation of this by-law:
(1)
The term "applicant" as used in this by-law shall
mean a person giving notice of intention to build, remove, fill, dredge,
or alter.
(2)
The term "person" as used in this by-law shall include
any individual, group of individuals, association, partnership, corporation,
business organization, trust, estate, Commonwealth of Massachusetts
when subject to Town by-laws, any public or quasi-public corporation
or body when subject to Town by-laws or any other legal entity, including
the Town of Townsend or its legal representatives, agents or assigns.
(3)
The terms "marsh," "freshwater wetland,"swamp," "wet
meadow," and "bog," as used in this by-law shall be defined as defined
in MGL c. 131, § 40.
(4)
The word "alter" shall be defined as including but
not limited to one or more of the following actions upon areas subject
to this by-law:
(a)
The removal, excavation or dredging of soil,
sand, gravel or aggregate material of any kind;
(b)
The changing of pre-existing drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns and flood retention areas;
(c)
The drainage or disturbance of the water level
or water table; the dumping, discharging or filling with any material
which could degrade the water quality;
(d)
The driving of piling, erection of buildings
or structures of any kind;
(e)
The placing of obstructions whether or not they
interfere with the flow of water;
(f)
The significant destruction of plant life, including
the clear cutting of trees (but not including selective cutting),
which might result in environmental damage to the land or any part
thereof subject to this by-law;
(g)
The changing of water temperature, biochemical
oxygen demand and other natural characteristics of the receiving water;
and
(h)
Any activities, changes or work which pollutes
any stream or body of water, whether located in or out of the Town
of Townsend.
(5)
"Banks" shall be defined as land adjoining any body
of water which serves to confine said water.
(6)
"Buffer zone" shall be defined as:
[Amended 4-29-1997 ATM by Art. 42; 5-1-2001
ATM by Art. 49]
(a)
An area extending 100 feet horizontally outward
from banks, freshwater wetlands, marshes, bogs, wet meadows, swamps,
intermittent creeks, intermittent streams, lands under water bodies,
lands subject to flooding or inundation, vernal pools, isolated wetlands
and ponds not granted a two-hundred-foot buffer and an area extending
200 feet horizontally from a river or perennial stream (riverfront
area) as defined in the Massachusetts Wetlands Protection Act (MGL
c. 131, § 40).
(b)
An area extending 200 feet horizontally from
any pond or lake which is 5,000 square feet or larger in area and
has either an inlet or an outlet which is a perennial stream and a
pond or lake of any size which has both an inlet and an outlet which
are perennial streams. Such area shall be consistent with riverfront
area, as defined in the Massachusetts Wetlands Protection Act (MGL
c. 131, § 40).
(7)
The term "floodplain" shall be defined as those areas
so described on the maps entitled "Flood Boundary and Floodway Map,"
dated August 2, 1982, for the Town of Townsend, Massachusetts, Middlesex
County, Panels printed 1, 2, 4, 5, 6, 7, 8, 9, Community Panel Numbers
25019 0001-0011, as prepared by the Federal Emergency Management Agency.
The location of the floodplain on any plans submitted to the Conservation
Commission must be determined mapped by a registered surveyor. The
most recent Flood Boundary and Floodway Maps shall be used in the
event current maps are updated.
B.
The Conservation Commission may in its rules and regulations
provide such other definitions, or terms used in this by-law, as it
deems useful in order to carry out its obligations under this by-law.
The Conservation Commission may, as part of
its order of conditions, require, in addition to any security required
by any other Town or state board, commission, agency or officer, that
the performance and observance of the conditions imposed hereunder
be secured by one, or in part by one and in part by the other of the
methods described in the following clauses:
A.
By a proper bond or deposit of money or negotiable
securities, sufficient in the opinion of the Conservation Commission
to secure performance of the conditions and observance of the safeguards
of such order of conditions; or
B.
By a covenant, executed and duly recorded by the owner
of record, running with the land, whereby the conditions and safeguards
included in such order of conditions shall be performed before any
lot may be conveyed other than by mortgage deed.
[Amended 4-29-1997 ATM by Art. 43; 11-14-2012 STM by Art.
17]
Any person who violates any provision of this
by-law shall be punished by a fine of not more than $300. Each day
or portion thereof of continuing violation shall constitute a separate
offense; and each provision of the by-law, regulations, or permit
violated shall constitute a separate offense. This by-law may be enforced
by the Conservation Agent, any Town police officer, the Town Building
Inspector or other officer having police powers. The Conservation
Commission, as an alternative to initiating criminal proceedings against
a violator of this by-law or any rules and regulations promulgated
hereunder, may give the offender a written notice to appear before
the Clerk of Ayer District Court pursuant to the provisions of MGL
c. 40, § 21D. Any person notified to appear before the Clerk
of the Ayer District Court as hereinbefore provided may so appear
and confess the offense charged, either personally or through a duly
authorized agent or by mailing to such Clerk with the notice such
specific sum of money as is stated in the notice. Such payment shall
operate as a final disposition of the case. If an offender desires
to contest the violation alleged in the notice to appear, he may,
within 21 days after the date of the notice, request in writing a
hearing to be held before a district court judge, clerk, or assistant
clerk. Proceedings held pursuant to this provision shall not be deemed
to be criminal proceedings.
The invalidity of any section or provision of
this by-law shall not invalidate any other section or provision thereof,
nor shall it invalidate any order of conditions which has previously
become final.
