|
|
 |
Wetlands Protection Bylaw
1. Purpose
The purpose of this bylaw is to protect the wetlands, water resources, and adjoining land areas in the Town of Brookline by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect 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, water pollution control, wildlife habitat, rare species habitat including rare plant species, and recreation values. 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 stricter than those of the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations thereunder (310 CMR 10.00), subject, however, to the rights and benefits accorded to agricultural uses and structures of all kinds under the laws of the Commonwealth.
2. Definitions
Except as otherwise provided in this bylaw or in regulations of the Commission, the definitions of terms in this bylaw shall be as set forth in the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations (310 CMR 10.00).
a. ALTER To change the condition of any resource area subject to protection under this bylaw. Examples of alteration include but are not limited to, the following:
- the changing of pre-existing drainage characteristics, flushing characteristics, sedimentation patterns, flow patterns and flood retention areas;
- the raising or lowering of the water level or water table;
- the destruction of vegetation;
- the changing of water temperature, salinity, biochemical oxygen demand (BOD), and other physical, biological or chemical characteristics of the receiving water.
b. BANK 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.
c. BUFFER ZONE That area of land extending 150 feet horizontally outward from the boundary of a resource area, except that riverfront areas and vernal pools shall have no buffer zones.
d. ISOLATED VEGETATED WETLAND An isolated wetland that is not hydraulically connected to another resource area and is at least 2,500 square feet in size.
e. ISOLATED LAND SUBJECT TO FLOODING Land as so defined in the Wetlands Protection Act and 310 CMR 10.57(2)(b), as they may be amended.
f. PERSON 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.
g. POND A water body as so defined in the Wetlands Protection Act and 310 CMR 10.04, except that a size threshold of 5,000 square feet shall apply.
h. RARE SPECIES Without limitation, all vertebrate and invertebrate animal and 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.
i. RESOURCE AREAS - Land under lakes, ponds, rivers or streams; any bank, marsh, wet meadow, bog or swamp bordering on any lake, pond, river or stream; land subject to flooding bordering on any lake, pond, river or stream; isolated vegetated wetlands; riverfront areas; and vernal pools.
j. RESOURCE AREA VALUES Without limitation, public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water quality, water pollution control, wildlife habitat, rare species habitat including rare plant species, and recreation values.
k. RIVERFRONT AREA Land as so defined in the Wetlands Protection Act and 310 CMR 10.58(2), as they may be amended.
l. STREAM An open body of running water, including brooks and creeks, which moves in a definite channel, in the ground, due to a hydraulic gradient and flows within, into, or out of an Area Subject to Protection under this bylaw. Such bodies of running water that are intermittent are streams, except for those that serve only to carry the immediate surface runoff from stormwater or snowmelt. A portion of a stream may flow through a culvert or beneath a bridge. Where a stream or river runs thorough a culvert more than 200 feet in length, the buffer zone or riverfront area stops at a perpendicular line at the upstream end of the culvert and resumes at the downstream end.
m. VERNAL POOL A confined basin depression that, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, and that is free of adult fish populations, as well as the area within 100 feet of the mean annual boundary of such a depression, and that is breeding habitat for amphibian species such as wood frog, spotted salamander, and fairy shrimp, regardless of whether the site has been certified by the Massachusetts Division of Fisheries and Wildlife. A vernal pool does not have a buffer zone.
3. Jurisdiction
Except as permitted by the Conservation Commission or as provided in this bylaw, no person shall alter a resource area or a buffer zone. Resource areas shall be protected whether or not they border surface waters. Facilities constructed for the purpose of and designated as reservoirs shall be exempt from the jurisdiction of this bylaw.
4. Exemptions and Exceptions
The application and permit required by this bylaw shall not be required for the following activities:
a. 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, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission;
b. work performed for normal maintenance or improvement of land which is lawfully in agricultural use at the time the work takes place., * provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission. Deleted by AG's office
c. 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 or a political subdivision thereof; provided that advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement; provided that the Commission or its agent certifies the work as an emergency project; provided that the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency; and provided that within 21 days of commencement of an emergency project a permit application shall be 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.
d. the application of herbicides as specifically set forth in 310 CMR 10.03(6) as may be amended.
e. 5. facilities constructed for the purpose of and designated as reservoirs shall be exempt from the jurisdiction of this bylaw.
f. any bordering vegetated wetland, bank, land under water, land subject to flooding, or riverfront area created for the purpose of stormwater management shall not require the filing of a Notice of Intent or a Request for Determination of Applicability to maintain the stormwater management system, provided that the work is limited to the maintenance of the stormwater management system and that the area is not altered for other purposes.
Other than as stated in this section, the exceptions provided in the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations (310 CMR 10.00) shall not apply under this bylaw.
5. Applications for Permits, Requests for Determination and Consultant Fee
a. 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. Projects shall not be segmented
b. The Commission in an appropriate case may accept as the permit application and plans under this bylaw the Notice of Intent or the Request for Determination of Applicability filed under the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations (310 CMR 10.00).
c. 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. Such requirements shall be consistent with those required under the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations (310 CMR 10.00).
d. The Commission may request an Applicant, submitting an application for a permit, the project cost of which is estimated at $2,000,000 or more to retain and pay the fees for a Consultant to prepare a report for the Commission's review. The project cost means the estimated, entire cost of the project including but not limited to design, building construction, site preparation, landscaping, and all site improvements
6. Notice and Hearings
a. Any person filing a permit application or a RFD with the Commission shall at the same time give written notice thereof, by certified mail with return receipt requested, or hand delivered with signatures, 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 100 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 permit 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.
b. 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.
c. The Commission shall conduct a public hearing on any permit application or RFD, with written notice given at the expense of the applicant, five business days prior to the hearing, in a newspaper of general circulation in the municipality.
d. The Commission shall commence the public hearing within 21 days from receipt of a completed permit application or RFD unless an extension is authorized in writing by the applicant.
e. The Commission shall issue its permit 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.
f. The Commission in an appropriate case may combine its hearing under this bylaw with the hearing conducted under the Wetlands Protection Act (G.L. c.131, § 40) and Regulations (310 CMR 10.00).
g. The Commission shall have authority to continue the hearing to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information from the applicant or others deemed necessary by the Commission in its discretion, or comments and recommendations of the boards and officials listed in §VII.
7. Coordination with Other Boards and Commissions
Any person filing a permit application or RFD with the Commission shall provide written notification thereof at the same time to the town engineer, and building commissioner. An affidavit of the person providing notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. The Commission shall not take final action until the Town Engineer, Zoning Administrator and Building Commissioner have had 14 days from receipt of notice to file written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission. The applicant shall have the right to receive any comments and recommendations, and to respond to them at a hearing of the Commission, prior to final action.
8. Permits and Conditions
a. 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 that 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.
b. The Commission is empowered to deny a permit for failure to meet the requirements of this bylaw; for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications, performance standards, and other requirements in regulations of the Commission; for failure to 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. Due consideration shall be given to any demonstrated hardship, financial or otherwise, on the applicant by reason of denial, as presented at the public hearing.
c. Riverfront areas and buffer zones are presumed important to the protection of resource area values because activities undertaken in them have a high likelihood of adverse impact upon the wetlands or other resources, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. Such adverse impact from construction and use can include, without limitation, flooding, erosion, siltation, loss of groundwater recharge, poor water quality, and loss of wildlife habitat. The Commission therefore may require that the applicant maintain a strip up to 50 feet wide of continuous, undisturbed vegetative cover within a riverfront area or buffer zone.
d. In the review of riverfront areas and buffer zones of streams, 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 purpose), logistics, existing technology, costs of the alternatives, and overall project costs.
e. To prevent wetlands loss, the Commission shall require applicants to avoid wetlands alteration wherever feasible; shall minimize wetlands alteration; and, where alteration is unavoidable, shall require full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with adequate security, professional design, and monitoring to assure success, because of the high likelihood of failure of replication.
f. 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. Any 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 prior to expiration. Notwithstanding the above, a permit may contain 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.
g. For good cause the Commission may revoke or modify a permit or determination issued under this bylaw after notice to the holder of the permit or determination, notice to the public, abutters, and town boards, pursuant to §VI and §VII, and a public hearing.
h. The Commission in an appropriate case may combine the permit or determination issued under this bylaw with the Order of Conditions or Determination of Applicability issued under the Wetlands Protection Act (G.L. c. 131, § 40) and Regulations (310 CMR 10.00).
i. No work proposed in any permit application shall be undertaken until the permit 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 permit has been recorded.
9. Regulations
After public notice and public hearing, the Commission shall promulgate regulations to effectuate the purposes of this bylaw and shall be effective when voted and filed with the town clerk. Failure by the Commission to promulgate such 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.
10. Security
As part of a permit issued under this bylaw, 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 thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or more of the methods described below:
a. By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission, to be released in whole or in part upon issuance of a Certificate of Compliance for work performed pursuant to the permit
b. By accepting 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 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.
11. Enforcement
a. No person shall alter a resource area or a buffer zone, or cause, suffer, or allow alteration, 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.
b. Only upon the filing of either an Request for Determination or a Permit under this bylaw 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. In the absence of the filing of a Request for Determination or a Permit the Commission, its agents, officers and employees shall consult with Town Counsel prior to entering upon privately owned land for the purpose of determining compliance with this by-law or for any other purpose in furtherance of the objectives of this by-law.
c. The Commission shall have authority to enforce this bylaw, its regulations, and permits issued thereunder by violation notices, administrative orders, and civil 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.
d. In the case of civil action, the Commission with the approval of the board of selectmen may request the town counsel to take legal action as necessary to enforce the terms of this by-law under civil law.
e. Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
f. 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.
g. As an alternative to criminal prosecution in a specific case, the Commission may issue citations under the non-criminal disposition procedure set forth in G.L. c. 40, § 21D, which has been adopted by the Town in Article 10.3 of the general bylaws.
12. Burden of Proof
The applicant for a permit shall have the burden of proving by a preponderance of 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.
13. Appeals
A decision of the Commission shall be reviewable in the Superior Court in accordance with G.L. c. 249, § 4.. This in no way alters or amends and applicants rights to appeal as set forth in the Massachusetts Wetlands Protection Act M. G.L. c.131 § 40.
14. Relation to the Wetlands Protection Act
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. c. 131, § 40) and Regulations (310 CMR 10.00) thereunder.
15. Severability
The invalidity of any section or provision of this bylaw shall not invalidate any other section or provision thereof, nor shall it invalidate any permit or determination that has been issued previously.
or act on anything relative thereto.
*EXPLANATION: The proposed wetlands protection by-law will provide protection for water and wetland resources in Brookline that are currently unprotected, or not adequately protected, by existing state law. Enactment of a local wetlands by-law has been recommended in both the Comprehensive Plan and the Open Space Plan. The proposed wetlands protection by-law will provide protection for isolated wetlands larger than 2500 square feet, for vernal pools, and for intermittent streams, none of which are protected under the state Wetlands Protection Act. It will also increase the buffer zone around wetlands to 150 feet. Alterations that are proposed in the buffer zone will require review from the Conservation Commission to ensure that they will not adversely impact the wetland area. The proposed bylaw will provide significant benefit to the town's storm water management program, and will protect wildlife habitat as well as open space.
|
