TOWN OF BELCHERTOWN WETLAND BY-LAW

 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 

  1. Existing Public-Service Structures or Facilities

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:

    1. the structure or facility is not substantially changed or enlarged
    2. written notice has been given to the Commission at least two (2) working days prior to the commencement of work, and
    3. the work conforms to performance standards and design specifications in regulations adopted by the Commission.

            This does not apply to septic systems, new or otherwise. 

  1. Emergency Projects for Protection of the Public

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.  

  1. Normal and Continuing Agricultural Projects

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 

  1. Requests

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. 

  1. Applications

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. 

  1. Fees and Costs

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.

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