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Belmont Wetlands Protection Bylaw - Draft as of December 19, 2005 Wetlands ByLaw Working DRAFT as of 12/19/2005
Town of Belmont Wetlands Protection Bylaw/Ordinance
I. Purpose
The purpose of this bylaw is to maintain the quality of surface water, the quality and level of the ground water table and water recharge areas for existing or potential water supplies; to protect the public health and safety; to protect persons and property against the hazards of flood water inundation; and to provide for the reasonable protection and conservation of certain irreplaceable natural features, resources, and amenities for the benefit and welfare of the present and future inhabitants of the Town of Belmont, hereinafter referred to as “the Town.”
This bylaw is intended to utilize the Home Rule authority of this municipality to protect additional resource areas, for additional values, with additional standards and procedures to augment those of the Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations thereunder (310 CMR 10.00).
Therefore this bylaw protects the wetlands, water resources, and adjoining land areas in the Town by controlling activities deemed by the Conservation Commission (hereinafter referred to as “the Commission”) likely to have a significant effect, immediate or cumulative, upon resource area values including, but not limited to, the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water quality, pollution prevention, fisheries, wildlife habitat, rare species habitat including rare plant and animal species, agriculture, recreation values, or the historic, natural or scenic character of wetland resource areas deemed important to the community (collectively, the "resource area values protected by this bylaw").
II. Jurisdiction
Except as permitted by the Commission or as provided in this bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, pollute, discharge into, or otherwise alter the following resource areas: any freshwater wetlands, marshes, wet meadows, bogs, swamps, certified or uncertified vernal pools, springs, banks, lakes, ponds of any size, and lands under water bodies: lands adjoining these resources out to a distance of 100 feet, known as buffer zone; rivers, streams, brooks and creeks whether perennial or intermittent: lands adjoining these resource areas out to a distance of 200 feet, known as the riverfront area; lands subject to flooding or inundation by groundwater or surface water (collectively the "resource areas protected by this bylaw"). Said resource areas shall be protected whether or not they border surface waters.
III. Exemptions and Exceptions
Agriculture: The application and permit required by this bylaw shall not be required for work performed for normal maintenance or improvement of land which is lawfully in agricultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.
Utilities: The application and permit required by this bylaw 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, sanitary sewer system, storm water drains, telephone, telegraph, or other telecommunication services, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to any performance standards and design specifications in regulations adopted by the Commission.
Emergency Project: The application and permit required by this bylaw shall not be required for emergency projects necessary for the protection of the health and safety of the public, provided that: the work is to be performed by or has been ordered to be performed by an agency of the Commonwealth of Massachusetts, hereinafter referred to as “the Commonwealth” or a political subdivision thereof; advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement; the Commission or its agent certifies the work as an emergency project; the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency; and within 21 days of commencement of an emergency project a permit application is filed with the Commission for review as provided by this bylaw. 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.
Other than stated in this section, the exceptions provided in the Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations (310 CMR 10.00) shall not apply under this bylaw.
IV. Applications and Fees
Application: Written application shall be filed with the Commission to perform activities affecting resource areas protected by this bylaw. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by this bylaw. No activities shall commence without receiving and complying with a permit issued pursuant to this bylaw.
The Commission in an appropriate case may accept as the application and plans under this bylaw any application and plans filed under the Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations (310 CMR 10.00).
Request for Determination: Any person desiring to know whether or not a proposed activity or an area is subject to this bylaw may in writing request a determination from the Commission. Such a Request for Determination (RFD) shall include information and plans as are deemed necessary by the Commission.
Filing Fee: At the time of an application, the applicant shall pay a filing fee specified in Regulations of the Commission. The fee is in addition to that required by the Wetlands Protection Act and Regulations and is nonrefundable. The fee shall be deposited in a dedicated account, for use only for wetland protection activities, from which the Commission may withdraw funds without further appropriation.
Consultant Fee: Upon receipt of an application, RFD, or at any point during the hearing process, the Commission is authorized to require an applicant to pay a fee for the reasonable costs and expenses borne by the Commission for specific expert engineering, scientific, legal, and other consultant services deemed necessary by the Commission to come to a final decision on the application.
This fee is called the "consultant fee." The specific consultant services may include, but are not limited to, performing or verifying the accuracy of resource area survey and delineation; analyzing resource area functions and values, including wildlife habitat evaluations, wildlife surveys, hydro-geologic and drainage analysis; and researching environmental or land use law.
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 available only through outside consultants is necessary for the making of an objective decision.
Method of Payment: The Commission may require the payment of the consultant fee at any point in its deliberations prior to a final decision. The applicant's fee shall be put into an account that the Commission may draw upon for specific consultant services approved by the Commission at one of its public meetings. Any unused portion of the consultant fee shall be returned to the applicant unless the Commission decides at a public meeting that additional services will be required.
Waiver of Fee: The Commission may waive the filing fee, consultant fee, and costs and expenses for a permit or other application or RFD filed by a government agency.
Fee Schedule: The maximum consultant fee charged to reimburse the Commission for reasonable costs and expenses shall be according to the following schedule:
Project Cost ($) - Maximum Fee ($) Up to 100,000 500 100,001 - 500,000 2,500 500,001 - 1,000,000 5,000 1,000,001 - 1,500,000 7,500 1,500,001 - 2,000,000 10,000
Each additional $500,000 project cost increment (over $2,000,000) may be charged not more than an additional $2,500 maximum fee per increment.
The project cost means the estimated, entire cost of the project, including but not limited to resource area delineation, building design and construction, site preparation, landscaping, and all site improvements. The consultant fee shall be paid pro rata for that portion of the project cost applicable to those activities within resource areas protected by this bylaw. The project shall not be segmented to avoid the consultant fee. The applicant shall submit estimated project costs at the Commission's request, but the lack of such estimated project costs shall not impact payment of the consultant fee.
V. Notice and Hearings
Notice: Any person filing a permit or other application or RFD with the Commission at the same time shall give written notice thereof, by certified mail (return receipt requested) or hand delivered, to all abutters at their mailing addresses shown on the most recent applicable tax list of the assessors, including owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of the applicant, including any in another municipality or across a body of water. The notice to abutters shall have enclosed a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters.
An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. Failure to provide such evidence shall be grounds for rescheduling of the hearing, or, if intentional or repeated, denial of the requested permit. When a person requesting a determination is other than the owner, the request, 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.
Public Hearing: The Commission shall conduct a public hearing on any permit application, Abbreviated Notice of Resource Area Delineation (ANORAD), or RFD, with written notice given at the expense of the applicant, at least five business days prior to the hearing in a newspaper of general circulation in the municipality. The Commission shall commence the public hearing within 21 days from receipt of a completed permit application.
Abbreviated Notice of Resource Area Delineation: ANORAD or RFD The Commission shall issue its permit, other order, 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.
The Commission in an appropriate case may combine its hearing under this bylaw with the hearing conducted under the Wetlands Protection Act (G.L. Ch.131 §40) and Regulations (310 CMR 10.00).
Continuation of Hearing: The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or others deemed necessary by the Commission at its discretion, based on comments and recommendations of the boards and officials listed in §VI.
VI. Coordination with Other Boards
At the
request of the Commission, any person filing a permit application: Notice
of Intent (NOI), ANORAD, or RFD with the Commission, or any amendment thereof,
shall provide a copy thereof, together with any accompanying plans, within
seven (7) days after filing with the Commission, by certified mail (return
receipt
VII. Permits and Conditions
Issuance of Permit: If the Commission, after a public hearing, determines that the activities which are subject to the permit application, or the land and water uses which will result therefrom, are likely to have a significant individual or cumulative effect upon the resource area values protected by this bylaw, 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 those 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.
Denial of Permit: The Commission is empowered to deny a permit for failure to meet the requirements of this bylaw. It may also deny a permit for failure to: submit necessary information and plans requested by the Commission; meet the design specifications, performance standards, and other requirements in regulations of the Commission; or avoid or prevent unacceptable significant or cumulative effects upon the resource area values protected by this bylaw, and where no conditions are adequate to protect those values.
The Commission may deny a permit if the applicant has not submitted all components related to the proposed project, including but not limited to utilities, roadways, and sewers. The project shall not be segmented to avoid review of its total impact.
The Commission shall in no event be required to accept an application until all permits required by Town boards have been applied for.
Presumptions: In reviewing activities within the buffer zone the Commission shall presume the buffer zone is important to the protection of other resource areas because activities undertaken in close proximity have a high likelihood of adverse impact, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include, without limitation, erosion, siltation, loss of groundwater recharge, poor water quality, and loss of wildlife habitat.
In reviewing activities within the riverfront area, the Commission shall presume the riverfront area is important to all the resource area values unless demonstrated otherwise, and no permit issued hereunder shall permit any activities unless the applicant, in addition to meeting the otherwise applicable requirements of this bylaw, has proved by a preponderance of the evidence that (1) there is no practicable alternative to the proposed project with less adverse effects, and that (2) such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or values protected by this bylaw. The Commission shall regard as practicable an alternative which is reasonably available and capable of being done after taking into consideration the proposed property use, overall project purpose (e.g. residential, institutional, commercial, or industrial,) logistics, existing technology, costs of the alternatives and overall project costs.
The Commission establishes a no-alteration zone of 25' abutting the resource areas where no alteration is allowed during or after the work and landscaping limits are clearly identified. The Commission also establishes a no-permanent structure requirement within the first 50’ of the buffer zone. The Commission may require strips of continuous, undisturbed vegetative cover within the 100-foot area, or other form of work limit or setback to buildings, roads, landscaping, and other features, unless the applicant convinces the Commission that the area or part of it may be disturbed without harm to the values protected by the bylaw.
Avoidance of Resource Area Loss or Alteration: To prevent resource area loss, the Commission shall require applicants to avoid alteration wherever feasible, minimize alteration, and, where alteration is unavoidable, require full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with specific plans, proper safeguards, adequate security, professional design, and professional monitoring and reporting to assure success, because of the high likelihood of failure of replication.
Wildlife Habitat: The Commission may require a wildlife survey and habitat study of the project area, to be paid for by the applicant, whenever it deems appropriate, regardless of the type of resource area or the amount or type of alteration proposed. The decision shall be based upon the Commission’s estimation of the importance of the habitat area considering, but not limited to such factors as proximity to other areas suitable for wildlife, importance of wildlife corridors in the area, or possible presence of rare species in the area. The work shall be performed by an individual who meets the qualifications set out in the wildlife habitat section of the Wetlands Protection Act Regulations (310 CMR 10.60).
Vernal Pools: The Commission shall presume that all areas meeting the definition of "vernal pools" under §IX of this bylaw, including the adjacent area, perform essential habitat functions. Any formal evaluation should be performed by an individual who meets the qualifications set out in the wildlife habitat section of the Wetlands Protection Act Regulations.
Expiration of Permit: 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. A permit may be renewed once for an additional one year period, provided that a request for a renewal is received in writing by the Commission at least 30 days prior to expiration of the permit, provided that the Commission finds that: 1. good cause has been shown for each extension, and 2: such extension will not have significant adverse effects, immediate or cumulative, upon any of the wetland values protected by this bylaw. Notwithstanding the above, a permit may identify requirements which shall be enforceable for a stated number of years, indefinitely, or until permanent protection is in place, and shall apply to all owners of the land.
Revocation of Permit: The Commission may revoke any permit, other order, determination, or other decision issued under this bylaw for good cause, such as, but not limited to: the violations of this bylaw, submission of false or erroneous information, or new information that substantially alters the likely impact on wetlands resources or values. The Commission shall give notice to the holder of the permit, the public, abutters, and Town boards, pursuant to §V and §VI, and hold a public hearing. Amendments to Permits or Determinations shall be handled in the manner set out in the Wetlands Protection Act Regulations and policies thereunder.
Coordination of Permit with Order of Conditions: The Commission in an appropriate case may combine the decision issued under this bylaw with the Order of Conditions, Order of Resource Area Delineation (ORAD), Determination of Applicability, or Certificate of Compliance issued under the Wetlands Protection Act and Regulations.
Recording of Permit: No work proposed in any application shall be undertaken until the Permit, ORAD, or Determination issued by the Commission with respect to such work has been recorded in the Registry of Deeds or, if the land affected is 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 document has been recorded or provides the Commission with a copy of the recording information or other evidence of recordation with the appropriate Registry.
VIII. Regulations
After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw, effective when voted and filed with the Town or Town Clerk. 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 bylaw.
At a minimum these regulations shall define key terms in this bylaw not inconsistent with the bylaw, and procedures governing the amount and filing of fees.
IX. Definitions
The following definitions shall apply in the interpretation and implementation of this bylaw.
Alter: The term "alter" shall include, without limitation, the following activities when undertaken to, upon, within, or affecting resource areas protected by this bylaw:
A. Removal, excavation, or dredging of soil, sand, gravel, 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, or erection, expansion, or repair of buildings or structures of any kind;
G. Placing of obstructions or objects in water;
H. Destruction of plant life including cutting or trimming of trees or shrubs;
I. Changing temperature, biochemical oxygen demand, or other physical, biological, or chemical characteristics of any waters;
J. Any activities, changes, or work which may cause or tend to contribute to pollution of any body of water or groundwater including without limitation any activities which may cause surface water runoff contaminated with sediment, chemicals, or animal waste;
K. Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.
Bank: The term "bank" shall include the land area which normally abuts and confines a water body; the lower boundary being the mean annual low flow level, and the upper boundary being the first observable break in the slope or the mean annual flood level, whichever is higher.
Land subject to flooding or inundation: shall mean land within the estimated maximum lateral extent of flood water which will theoretically result from the statistical 100-year frequency storm, said boundary shall be that determined by reference to the most recently available flood profile data prepared for the geographical area including Belmont within which the work is proposed under the National Flood Insurance Program (“NFIP”). Where NFIP data are unavailable or outdated, the boundary of said land shall be based on the maximum lateral extent of floodwater which has been observed or recorded, or other evidence presented and considered by the Commission. Said land shall also include isolated areas which frequently or seasonably hold standing water; such areas may or may not be characterized by wetland vegetation or soil characteristics.
Person: 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 bylaws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.
Pond: The term "pond" shall follow the definition of 310 CMR 10.04 except that the size threshold of 10,000 square feet shall not apply.
Rare Species: The term "rare species" shall include, without limitation, all vertebrate and invertebrate animal and all plant species listed as endangered, threatened, or of special concern by the Massachusetts Division of Fisheries and Wildlife, regardless of whether the site in which they occur has been previously identified by the Division.
Vernal Pool: The term "vernal pool" shall include, in addition to scientific definitions found in the regulations under the Wetlands Protection Act, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas, or driveways which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, is free of adult (predatory) fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile, or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts Division of Fisheries and Wildlife. The boundary of the resource area for vernal pools shall be 100 feet outward from the mean annual high-water line defining the depression, but shall not include existing lawns, gardens, landscaped, or developed areas.
Consistency with Wetlands Protection Act: Except as otherwise provided in this bylaw or in regulations of the Commission, the definitions of terms and procedures in this bylaw shall be as set forth in the Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations (310 CMR 10.00).
X. Security
As part of the permit issued under this bylaw, the Commission may request 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 Town 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.
XI. Enforcement
Prohibition: No person shall remove, fill, dredge, build upon, degrade, or otherwise alter resource areas protected by this bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
Entry on Property: 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 bylaw and may make or cause to be made such examinations, surveys, or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the Commonwealth.
Enforcement: The Commission shall have authority to enforce this bylaw, its regulations, and permits issued thereunder by violation notices, enforcement orders under the Town’s non-criminal disposition section of its general bylaws (Section 20.12), pursuant to citations under G.L. Ch. 40 §21D, and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations, or may be fined, or both.
Upon request of the Commission, the Board of Selectmen and 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.
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
Fine: Any person who violates any provision of this bylaw, or regulations, permits, or administrative orders issued thereunder, shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the bylaw, regulations, permits, or administrative orders violated shall constitute a separate offense.
XII. Burden of Proof
Preponderance of Evidence: The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw. 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.
XIII. Appeals
Certiorari Appeal: A decision of the Commission shall be reviewable in the superior court in accordance with G.L. Ch. 249 §4.
XIV. Relation to the Wetlands Protection Act
Home Rule Authority: This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations (310 CMR 10.00) thereunder.
XV. Severability
Invalidity: The invalidity of any section or provision or phrase of this bylaw shall not invalidate any other section or provision or phrase thereof, nor shall it invalidate any permit, approval, or determination which previously has been issued.
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