TOWN OF BELCHERTOWN
WETLANDS PROTECTION BY-LAW
SECTION
1: Purpose
The purpose of this by-law is to protect the
wetlands, related water resources, and adjoining land areas in the Town of
Belchertown by controlling activities deemed by the Conservation Commission
likely to have a significant or cumulative effect upon wetland values,
including but not limited to the following:
a.
public
or private water supply
b.
groundwater
and groundwater quality
c.
surface
water and surface water quality
d.
flood
control
e.
erosion
and sedimentation control
f.
storm
damage prevention
g.
prevention
of water pollution
h.
storm
drainage
i.
fisheries
j.
wildlife
habitat
k.
agriculture
l.
aquaculture,
and
m.
recreation;
these
values are to be known collectively as the “wetland values protected by this
by-law”.
Section
2: Jurisdiction
Except as permitted by the Conservation Commission
or as provide for in this by-law, no person shall remove, fill, dredge, build
upon, or alter the following resource areas:
a.
any
freshwater wetland as determined by a vegetational community, soil composition
and/or hydrologic regime, including isolated wetlands, and marsh, wet meadow,
bog or swamp;
b.
any
pond, lake, river, any surface or intermittent stream, or headwaters to a
stream;
c.
any
land under such waters;
d.
any
bank or beach;
e.
any
land subject to flooding or inundation by groundwater, surface water, storm
flowage, including ephemeral ponds, vernal pools and kettle holes;
or within one hundred (100)
feet of these resource areas, an area known as the buffer zone to the resource
areas.
Where natural vegetation is absent as a result of
mowing, grazing, or other disturbance, hydric soil type indicated on United
States Soil Conservation Service maps implemented by field investigation of
hydric soil profiles and application of Soil Conservation Service’s definitions
and criteria for hydric soils shall provide positive determination of
jurisdiction.
Section
3: Exceptions
The application and permit required by this by-law shall not be required for maintaining, repairing, or replacing, but not substantially changing or enlarging, an existing or lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, sanitary sewers and storm sewers, provided that:
This does not apply to septic systems,
new or otherwise.
The application and permit required by this by-law 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 written notice, or oral followed by written, has been given to the
Commission
prior to the commencement of work or within twenty-four (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,
and;
5.
within twenty-one (21) days of commencement of an emergency project, either a
permit application shall be filed with the Commission for review as
provided in
this
by-law or an as-built plan shall be filed with the Commission whereupon the
Commission may, after notice and public hearing, require restoration,
project
modification, and mitigation measures to protect the values stated in
this by-law.
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.
The application and permit required by this by-law shall not be required for work performed for the normal maintenance or improvement of lands in lawful, active agricultural use provided that no further encroachment into areas subject to this by-law occurs without prior review and permission by the Commission.
Section
4: Requests for Determinations and Applications for Permits
Any person desiring to know whether or not a proposed activity or an area is subject to this by-law may request in writing a determination from the Commission. Such request for determination shall contain data and plans specified by the regulations of the Commission. The rendering of determinations may be deferred at the discretion of the Commission during periods of snow cover.
The Commission in an
appropriate case may accept as the request under this by-law the Request for
Determination of Applicability filed under the Wetlands Protection Act, G.L.c.
131, Sec. 40.
Written application shall be filed with the Commission to perform activities regulation by this by-law and which affect resource areas protected by this by-law. The application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the environment. The application shall include a complete and accurate description of the site, including the type and boundaries of resource areas, the proposed work and the potential for cumulative effects. No activities shall commence without receiving and complying with a permit issued pursuant to this by-law.
For any proposed construction, including but not
limited to subdivisions, that will require the regarding or excavation of land,
other than that required for the construction of one singly family residence or
an accessory structure thereto, the applicant shall submit a mapped and written
description of measures to be taken to manage Stormwater and control erosion
and sedimentation both during and after construction.
The Commission in an appropriate case may accept as
the application and plans required under this by-law the Notice of Intent and
plans filed under the Wetlands Protection Act, G.L.c. 131, Sec. 40.
At the time of request or application, the applicant shall pay a filing fee specified in regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, G.L.c. 131, Sec. 40.
If, in the judgment of a
majority of the members of the Commission, consulting services are necessary or
appropriate for the Commission to to understand the project completely, the
applicant shall reimburse the Town of Belchertown prior to a decision on the
request or application for the full cost of such services contracted by the
Commission in order to review the project.
Failure to pay the filing
fee or failure to provide full reimbursement for consulting services shall be
sufficient grounds to deny the application or request.
The Commission may waive the
filing fee and costs and expenses for an application or request by the Town of
Belchertown or by a government agency, and may waive the filing fee for a request
for determination filed by a person having no financial connection with the
property which is the subject of the request.
Section 5: Public Notice and Hearings
a.
A
request or an application with the required filing fee shall be hand delivered
or sent by certified mail to the Commission. When a person requesting a
determination is other than the owner, the request shall also be sent to the
owner by the applicant; 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. The notice shall state where the request or application, including
any accompanying documents, may be examined.
b.
The
Commission shall conduct a public hearing on any request for determination or application
for a permit, with written legal notice given at the expense of the applicant,
five (5) days prior to the hearing, in a newspaper of general circulation in
the Town of Belchertown. The Commission in an appropriate case may combine its
hearing under this by-law with the hearing conducted under the Wetlands
Protection Act, G.L.c. 131, Sec. 40.
c.
The
Commission shall commence the public hearing within twenty-one (21) days from
receipt of a completed application or request for determination, unless the
applicant extends the twenty-one (21) day period by a signed written waiver.
d.
The
Commission shall have authority to continue the hearing to a date certain
announced at the hearing or to an unspecified date, for reasons stated at the
hearing, which may include the receipt of additional information offered by the
applicant or others, information and plans required of the applicant, deemed
necessary by the Commission in its discretion, or comments and recommendations
of boards and officials listed in Section 6. If a date for continuation is not
specified the hearing shall reconvene within twenty-one (21) days after the
submission of a specified piece of information or the occurrence of a specified
action. The date, time and place of said continued hearing shall be published
in a newspaper of general circulation on the Town of Belchertown, and written
notice shall be sent to any person at the hearing who so requests in writing.
e.
The
Commission, its agent, officers and employees, may enter upon the land for which,
a request or application has been made, upon which the proposed work is to be
done, or for the purpose of carrying out its duties, under this by-law and may
make or cause to be made such examination, sampling, or survey as is deemed
necessary.
f.
The
Commission shall issue its determination or permit in writing within
twenty-one (21) days of the close of
the public hearing thereon.
Section
6: Coordination with Other Boards
Any person filing a request for determination or an
application for a permit with the Commission shall provide a copy thereof at
the same time to the Planning Board, Board of health, and Building Inspector.
The Commission shall not take final action until such boards and officials have
had fourteen (14) days from receipt of notice of the filing to submit written
comments and recommendations to the Commission, which the Commission shall take
into account but which shall not be binding on the Commission. Any notice,
which has not been responded to within fourteen (14) days of prior filing,
shall be deemed to have been satisfactory with respect to the concerns of that
Board. The applicant shall have the right to receive any such comments and
recommendations, and to respond to them at a hearing of the Commission, prior
to final action.
Section
7: Determination, Permits and Conditions
a.
The
Commission shall have the authority, after a public hearing; to determine
whether a specific parcel of land contains or does not contain resource areas
protected under this by-law and shall have the authority to determine whether
proposed activities will adversely affect those resource areas or the buffer
zone. If the Commission finds that no such resource areas are present, it shall
issue a negative determination. If the Commission finds that the proposed
activities will not adversely affect any area under jurisdiction, the
Commission may issue a negative determination.
b.
If
the Commission, after a public hearing on the permit application, determined
that the activities which are the subject of the application are likely to have
a significant or cumulative effect upon the the wetland values protected by
this by-law, the Commission, within twenty-one (21) days of the close of the
hearing, shall issue a permit or denial 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 this
permitted shall be done in accordance with those conditions.
c.
The
Commission is empowered to deny a permit for the following reasons:
1.
failure
to meet the requirements of this by-law;
2.
failure
to avoid or prevent unacceptable significant or cumulative effects upon the
wetland values protected by this by-law;
3.
failure
to submit necessary information and plans requested by the Commission;
4.
failure
to meet the design specifications, performance standards, and other
requirements in regulations of the Commission; and
5.
where
no conditions are adequate to protect those values.
d.
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 once for an additional one (1) year
period, provided that a request for a renewal is received in writing by the
Commission prior to expiration.
e. For good cause the Commission may revoke or
amend a permit issued under this by-law
after public notice and public hearing, and
notice to the holder of the permit.
f. The Commission in an appropriate case may
combine the permit or other action on an
application issued under this by-law with the
Order of Conditions issued under the
Wetlands Protection Act.
Section
8: Regulations
a.
After
public notice and public hearing, the Commission shall promulgate rules and regulations
to effectuate the purposed of this by-law. Where these regulations define key
terms in this by-law, such definitions must not be inconsistent with this
by-law. The Commission may amend the rules and regulations after public notice
and public hearing about eh intention to alter said rules and regulations.
b.
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 by-law.
c.
Unless
otherwise stated in this by-law or in the rules and regulations promulgated
under this by-law, the definitions, procedures, and performance standards of
the Wetlands Protection Act, G.L.c. 131, Sec. 40 and associated Regulations,
310 CMR 10.00, shall apply.
Section
9: Definitions
The following definitions shall apply in
the interpretation and implementation of this by-law.
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 by-laws, administrative agency, public or
quasi-public corporation or body, this
municipality, and any other legal entity, its legal
representatives, 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 by-law.
a.
removal,
excavation or dredging of soil, sand, gravel, clay, minerals, or aggregate
materials of any kind;
b.
changing
of preexisting drainage characteristics, flushing characteristics, salinity
distribution, sedimentation patterns, flow patterns, or flood retention
characteristics.
c.
Drainage
or other disturbance of water level or water table;
d.
Dumping,
discharging or filling with any material which may degrade water quality;
e.
Placing
of fill, or removal of material, which would alter elevation;
f.
Driving
of piles, erection or repair of buildings, or structures of any kind;
g.
Placing
of obstructions or objects in water;
h.
destruction
of plant life including cutting in water;
i.
changing
water temperature, biochemical oxygen demand, or other physical, chemical or
biological characteristics of surface and ground water;
j.
any
activities changes or work which may case or tend to contribute to pollution of
any body of water or groundwater.
Section
10: Security
a.
As
part of a permit issued under this by-law, 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 a proper bond or deposit of money or negotiable
securities or other undertaking of financial responsibility sufficient in the
opinion of the Commission;
b. In
addition or in the alternative, the Commission may accept as security 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
and
observed before any lot may be conveyed other than by mortgage deed.
Section 11: Enforcement
a.
The
Commission, its agents, officers, and employees shall have the authority to
enter
upon
privately owned land for the purpose of performing their duties under this
by-law
and
may take or cause to be made such examinations, surveys or sampling as the
Commission deems necessary.
b.
The
Commission shall have authority to enforce this by-law, its regulations, and
permits issued there under by violation notices, administrative orders, and
civil and criminal court actions. Upon request of the Commission, the Board of
Selectmen and the Town Counsel shall take legal action for enforcement of this
by-law under civil law. The conservation Commission 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.
c. Any
person who violated any provision of this by-law, including any causing
suffering,
or
allowing of illegal work, any failure or refusal to comply with an enforcement
order,
violation notice or administrative order, and any failure or refusal to
remove illegal fill,
restore property, or obtain necessary commission approval, or any person
who violates
the
permits issued there under, shall be punished by a fine of not more than three
hundred
dollars ($300.00). Each day or portion thereof during which a violation
continues shall
constitute, a separate offense and each
provision of the by-law regulations, or permit
violated shall constituted a separate offense. This fine may be in
addition, to any levied
under
the Wetlands Protection Act, G.L.c 131, Sec. 40.
d.
In
the alternative to criminal prosecution, the Commission may elect to utilize
the non-
criminal disposition procedure set forth in G.L.c. 40, Sec. 21D. The
fine for any violation
disposed of through this procedure shall be up to two hundred dollars
($200.00) for each
offense. Each day or portion thereof during which a violation continues
shall constitute a
separate offense. This fine may be in addition to any levied under the
Wetlands
Protection Act, G.L.c. 131, Sec. 40. For purposes of non-criminal
disposition, the
Conservation Commissioners or staff shall be the enforcing persons.
Section
12: Burden of Proof
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 by-law. 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.
Section
13: Relation to the Wetlands Protection Act
This
by-law is adopted under the Home Rule Amendment of the Massachusetts
Constitution and the Home Rule statues, independent of the Wetlands Protection
Act, G.L.c.131, Sec. 40, and the regulations there under.
Section
14: Severability
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 permit or
determination, which previously has been issued.