[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.]
GENERAL REFERENCES
Zoning — See Ch. 145.
Wetlands regulations — See Ch. 150, Art. I.
[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]
[1]
Editor's Note: See Ch. 150, Conservation Commission, Art. I, Wetlands Regulations.
[2]
Editor’s Note: See MGL c. 41, § 81K et seq.
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.
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.
[1]
Editor's Note: See Ch. 150, Conservation Commission, Art. I, Wetlands Regulations.
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.