[HISTORY: Adopted by the Special Town Meeting
of the Town of Newbury 9-25-2001 by Art. 2; amended in its entirety by the Annual Town Meeting 4-26-2005 by Art. 14.
Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 97.
A.
Purpose of the Massachusetts Wetlands Protection
Act. The State Wetlands Protect Act, G.L. c. 131, § 40,
is intended to further the following purposes:
|
1.
|
protection of groundwater supply;
| |
|
2.
|
protection of public and private water supply;
| |
|
3.
|
flood control;
| |
|
4.
|
storm damage prevention
| |
|
5.
|
prevention of pollution;
| |
|
6.
|
protection of land containing shellfish;
| |
|
7.
|
protection of fisheries; and
| |
|
8.
|
protection of wildlife habitat.
|
B.
Special Purpose of this Wetlands Bylaw. This Bylaw is intended to utilize the Town of Newbury's Home Rule
authority to protect additional resource areas, for additional values,
with additional standards and procedures stricter than those set forth
in the State Wetlands Protection Act, G.L. c. 131, § 40
and, specifically, to provide enhanced protection to the Plum Island
Barrier Beach for the following purposes.
|
1.
|
To prevent storm damage including coastal storm
flowage and to minimize environmental damage, loss of life, resulting
from storms' flooding and erosion;
| |
|
2.
|
To minimize public health threats resulting
from storm damage, including prevention of water pollution and protection
of water quality;
| |
|
3.
|
To prevent loss or diminution of the beneficial
functions of the values of storm and flood damage prevention or reduction
and pollution prevention provided by wetlands, beaches, dunes, barrier
beaches, and coastal banks;
| |
|
4.
|
To maintain vegetative buffers to wetlands and
water bodies so as to reduce and/or eliminate runoff and other non-point
discharges of pollutants to protect public health and preserve environmental
resources; and
| |
|
5.
|
To maintain vegetative cover so that the integrity and stability of coastal dunes and banks are maintained and so that the coastal dunes and banks can fulfill their functions and promote the interests identified in § 95-1A; and
| |
|
6.
|
To provide enhanced protection of the velocity
zones and primary dunes of the Plum Island Barrier Beach and in other
hazard prone areas of the Plum Island Barrier Beach, consistent with
Executive Order 181.
|
|
Except as permitted in writing by the Commission
or as provided in this Bylaw, no person shall engage in the following
activities ("activities"): removal, filling, dredging, discharging
into, building upon, discharging into or otherwise altering or degrading
any barrier beach as defined in 310 CMR 10.00 et seq., as the same
may be amended, and lands subject to tidal action and coastal storm
flowage or flooding.
|
|
This Bylaw is intended to utilize the Town's Home Rule authority to provide additional protection to the barrier beach and to land subject to coastal storm flowage to further the purposes identified in § 95-1B above and to provide additional performance standards that are more specific and more stringent than those set forth in the State Wetlands Protection Act, G.L. c. 131, § 40 and the accompanying regulations, 310 CMR 10.00 et seq.
|
|
Written application shall be filed with the Commission to perform activities on the portion of the Plum Island Barrier Beach located within the Town of Newbury and no activities affecting the portion of the Plum Island Barrier Beach located within the Town of Newbury shall commence without the applying for, obtaining and complying with an Order of Conditions or Determination of Applicability in accordance with the performance standards set forth in this Bylaw. Except as expressly permitted pursuant to a Variance granted in accordance with § 95-5, the Commission shall issue Orders of Conditions or Determinations of Applicability in accordance with the performance standards set forth in this Bylaw.
|
The following definitions shall apply in the
interpretation and implementation of this Bylaw.
A.
Building shall mean
a combination of any materials, whether portable or fixed, having
a roof enclosed within exterior walls or firewalls built to form a
structure for the shelter of persons, animals or property. Roof shall
include an awning or any similar covering, whether or not permanent
in nature. The term Building includes bathhouses, sheds and garages.
B.
Development shall include
the following activities:
(1)
Construction of a New Building or Structure on a vacant lot including without limitation a
shed, garage, coastal engineering structure, shear wall, vertical
wall or solid fence;
(2)
Construction of a new septic system or the addition
of flow to an existing or upgraded septic system;
(3)
Clearing of land, mining, extraction, beach scraping,
dredging, filling, excavation or drilling;
(4)
Construction of new or proposed expansions of roads,
driveways or parking lots, and/or paving of unpaved roads, driveways
or parking lots; and
(5)
Conversion of pervious surfaces to impermeable surfaces
and/or paving of existing unpaved roads, driveways or parking lots.
C.
Redevelopment shall
include the following activities:
(1)
Increase in the footprint of a Building or Structure,
including without limitation, a coastal engineering structure, a shear
wall, vertical wall, a shed, a garage, and/or a solid fence, that
would result in the sum of the footprints of all Buildings or Structures
on the lot exceeding 20% of the area of the lot;
(2)
Conversion of Porches, Carports and Decks to Usable
Interior Space below the first dwelling floor;
D.
Development and Redevelopment shall not include the following activities:
(1)
Bringing the electrical and/or plumbing system into
compliance with current regulatory requirements;
(2)
Construction, repair, or replacement of unpaved elevated
pedestrian walkways supported on open pilings and designed to minimize
the disturbance to the vegetative cover and traditional bird-nesting
habitat and the form and volume of the coastal dune, coastal beach,
or coastal bank;
(3)
Construction, repair or replacement of sand fencing,
designed to increase dune development, provided the fencing does not
constitute a barrier to wildlife movement or the lateral movement
of a coastal dune or coastal beach;
(4)
Repair or replacement of open pilings for an existing
Building;
(5)
Modification, maintenance, or repair of existing Buildings
or Structures within the limits of existing foundations, which do
not result in any addition to, or modification of the foundation itself,
or the footprint of Buildings or Structures, additionally, additions
or enclosures added above the first dwelling floor shall be allowed
pursuant to FEMA guidelines.
(6)
Construction, repair, or replacement of decks on open
pilings, with at least two feet above grade to allow sand transport
by wind or water;
(7)
Planting of native species that are indigenous to
Plum Island and that are compatible with the natural vegetative cover
excluding turf lawns;
(8)
Conversion of impervious to vegetated surfaces, provided
that erosion and sedimentation controls are implemented, and that
the impervious surface removed is disposed of off-site in accordance
with all applicable federal, state, and local statutes, bylaws and
regulations;
(9)
Relocating electrical, heating, ventilation, plumbing,
air conditioning and other service facilities for an existing Building
to prevent water from entering or accumulating during conditions of
flooding;
(10)
Construction, reconstruction, operation and maintenance
of underground and overhead utilities, such as electrical distribution
lines, transmission lines, communication lines, sewer pipes, water
lines, and gas lines, including all structures and interconnections
necessary to construct, reconstruct, operate, provide, and maintain
electrical, communication, water, sewer, and gas service;
(11)
Assessment activities that are temporary in nature,
have negligible impacts and are necessary for the planning and design
of otherwise permittable projects, such as the installation of monitoring
wells, exploratory borings, and natural gas service;
(12)
Temporary storage for not more than thirty days of
construction and/or demolition materials on non-vegetated portions
of the barrier beach, provided that best management practices are
used to minimize the adverse impacts of such storage and to protect
the interests identified in this Bylaw;
(13)
Placing an existing Building on open pilings; repairing
and/or replacing open pilings for an existing Building;
(14)
Elevating above flood elevation an existing Building
with a structurally sound foundation. In applying this subparagraph,
the Commission may require a certification from a professional engineer
or architect stating that the foundation is structurally sound;
(15)
Replacement of an existing Building with a New Building
that is placed on open pilings and that is located as far landward
of the existing Building as possible given the requirements of the
Plum Island Overlay District, provided that: (a) the sum of the footprints
of all Buildings or Structures on the lot not exceed 20% of the area
of the lot; (b) the New Building complies with all applicable federal,
state, and local regulations, including without limitation, the Plum
Island Overlay District and the Performance Standards set forth in
the Commission's Regulations;
(16)
For only those properties that do not have an existing
parking area or parking area of lesser size, construction of two parking
spaces that are no more than 9 feet by 18 feet per space provided
that there is no other area for parking on the property, and provided
further that the surface of the parking area is pervious and that
the construction complies with all the Performance Standards set forth
in the Commission's Regulations and 310 CMR 10.00;
(17)
Removal of stone groins, bulkheads, or other coastal
engineering structures;
(18)
Repair, restoration, modification or relocation of
existing stone groins or jetties
E.
The Flood Zone boundaries delineated on the Newbury
Flood Insurance Rate Map, Community Panel Number 250096 0005 C, Panels
of 10, and 9 of 10, revised July 2, 1992 shall apply.
|
Whenever FEMA delineates new boundaries, those
flood boundaries shall be presumed to depict accurately the boundaries
of the FEMA V Zone, the FEMA AO Zone, and the FEMA AH Zone within
the Land Subject to Coastal Storm Flowage. This presumption may be
overcome only by credible evidence such as engineering calculations
consistent with the best available FEMA guidance performed by a registered
engineer or other qualified professional expert in coastal wetlands
delineation.
| |||
|
Subject to and consistent with the preceding
paragraphs, for purposes of this Ordinance/Bylaw:
| |||
|
(1)
|
FEMA V -Zone shall
mean those portions of Land Subject to Coastal Storm Flowage that
are coastal high hazard areas or areas of special flood hazard within
the 100 year floodplain
| ||
|
(2)
|
FEMA AO Zone shall
mean those portions of land Subject to Coastal Storm Flowage that
are subject to inundation by moving water (usually sheet flow on sloping
terrain) where average depths are between one and three feet in height.
AO Zones are commonly associated with over wash and generally border
on the landward side of the V-Zone.
| ||
|
(3)
|
FEMA AH Zone shall
mean those portions of Land Subject to Coastal Storm Flowage that
are subject to shallow ponding where average water depths are between
one and three feet.
| ||
|
(4)
|
New Development
shall mean the construction of a new Structure or Building on a vacant
lot.
| ||
|
(5)
|
Structure shall
mean a combination of materials to form a configuration and includes,
but is not limited to buildings, platforms, radio towers, storage
bins, signs, swimming pools, septic systems, coastal engineering structures,
and fences.
| ||
|
(6)
|
Substantial Improvement shall mean any reconstruction, rehabilitation, addition,
or other improvement of a Structure or Building, the cost of which
equals or exceeds 50 percent of the value of the Structure or Building
before the "start of construction" of the improvement. This term includes
Structures or Buildings which have incurred "substantial damage",
regardless of the actual repair work performed. The term does not,
however, include either:
| ||
|
a.)
|
Any project for improvement of a structure to
correct existing violations of state or local health, sanitary, building
or safety code specifications which have been identified by the local
code enforcement official and which are the minimum necessary to assure
safe living conditions, or shall mean the total square feet within
the outermost dimensions of a building including decks, porches and
staircases without deduction for hallways, stairs, closets, thickness
of walls, columns, or other features.
| ||
|
b.)
|
Any alteration of a "historic structure" provided
that the alteration will not preclude the structure's continued designation
as a "historic structure".
| ||
|
(7)
|
Footprint shall
mean the total square feet within the outermost dimensions of a building
including decks, porches and staircases without deduction for hallways,
stairs, closets, thickness of walls, columns, or other features.
| ||
A.
No new Development shall be permitted within a FEMA
V-Zone or AO-Zone.
B.
No redevelopment shall be permitted within a FEMA
V-Zone or AO-Zone except that Structures or Buildings may be redeveloped/repaired
only in accordance with current local, state and federal regulatory
standards. In all instances, reconstruction, renovation or repairs
to Structures or Buildings shall be authorized as stated herein, provided
that the sum of the footprint of all structures or buildings would
not exceed 20% of the area of the lot;
C.
In all other areas of the Plum Island Barrier Beach
outside of the V-Zone and AO-Zone, all new Buildings and[1] shall comply with State Building Code Regulations for
elevation and flood proofing. All existing Buildings with Substantial
Improvements, and all horizontal expansions of the existing footprint,
shall comply with State Building Code Regulations for elevation and
flood proofing.
[1]
Editor's Note: So in original.
D.
In all areas of the Plum Island Barrier Beach, electrical,
heating, ventilation, plumbing and air conditioning and other service
facilities shall be designed to avoid or minimize impacts to coastal
beaches and coastal dunes.
E.
In all areas of the Plum Island Barrier Beach, Development or Redevelopment on or within 200 feet landward of the top of a coastal bank or dune shall have no adverse impact on the height, stability or function of the bank or dune to fulfill the purposes set forth in § 95-1B.
F.
In all areas of the Plum Island Barrier Beach, in
areas where there are coastal banks or primary or frontal dunes, all
new Buildings and Structures, excluding replacement of existing Building
and Structures, shall be set back from the beach dune interface at
a distance equal to thirty times the average yearly historical erosion
as shown by the most current CZM shoreline change map.
G.
In all areas of the Plum Island Barrier Beach, no
activity shall increase the elevation or velocity of flows in a floodplain.
H.
Within the FEMA V Zone, A Zone, or AO Zone, as defined in § 95-3 above, new or reconstructed Structures or Development that alters vegetation, interrupts sediment supply and/or changes the form or volume of a dune or beach, shall comply with the specific performance standards in this Bylaw and in the regulations promulgated pursuant hereto.
A.
The Conservation Commission may grant a variance from
the Performance Standards provided in this Bylaw and in any Regulations
promulgated by the Commission to implement this Bylaw only where the
Commission finds after conducting a public hearing that:
|
1.
|
there are no reasonable conditions or alternatives
that would allow the project to proceed in compliance with this Bylaw;
and
| |
|
2.
|
mitigating measures are proposed that will allow
the project to be conditioned so as to contribute to the protection
of the wetland resource areas located on the barrier beach; and
| |
|
3.
|
the variance is necessary to accommodate an
overriding public interest or to avoid a decision that so restricts
the use of the property as to constitute an unconstitutional taking
without compensation.
| |
|
This variance procedure does not authorize the
Commission to waive any requirement of the State Wetlands Protection
Act, but is intended only to authorize the Commission to waive, under
unusual circumstances, the additional requirements imposed by this
Bylaw.
| ||
B.
A request for a variance shall be made in writing
and shall include, at a minimum the following information:
|
1.
|
a description of alternatives explored that
would allow the project to proceed in compliance with this Bylaw and
an explanation of why each is unreasonable;
| |
|
2.
|
a description of the mitigating measures to
be used to contribute to the protection of the wetland resources located
on the barrier beach; and
| |
|
3.
|
evidence that an overriding public interest
is associated with the project which justifies waiver of these requirements
or evidence that the decision on this permit application so restricts
the use of the land that it constitutes an unconstitutional taking
without compensation.
|
A.
All applications to perform activities in the Town's
resource areas on the Plum Island Barrier Beach shall be either in
the form of a Request for Determination, a Notice of Intent, or an
Abbreviated Notice of Resource Area Delineation. The Commission in
an appropriate case may accept as the application and plans under
this Bylaw the application and plans (i.e., Notice of Intent, Request
for Determination of Applicability) under the State Wetlands Protection
Act. Such applications shall contain data and plans as specified in
the Commission's regulations, and shall be submitted in complete written
form to the Commission. The Commission or its designee shall be authorized
to make determinations of completeness for applications submitted
to the Commission and reject those applications that do not meet the
minimum submittal requirements of this Bylaw.
|
In order to provide sufficient review time,
the Commission may continue a public hearing or public meeting if
new information is submitted by the applicant, or applicant's agent,
less than seven (7) business days before the scheduled public hearing
or public meeting.
| |
|
The applicable forms must be signed by the applicant
or applicant's agent where required. The Commission may require further
information by regulation, guideline, or as otherwise deemed necessary
for review of the proposed Application by the Commission. In order
to comply with the provisions of this Bylaw, each application must
be complete as filed, and must comply with the rules set forth herein
and Commission's regulations.
|
A.
Commencement. The Commission shall commence
the public hearing or meeting within 21 days from receipt of a completed
application unless the applicant authorizes an extension in writing.
B.
Combination with State Law Hearing. The
Commission, in its discretion, may hear any oral presentation under
this Bylaw at the same public hearing or public meeting required to
be held under the provisions of the Wetlands Protection Act, G.L.
c. 131, § 40. Notice of the time and place of such hearing(s)
shall be given as required below.
C.
Notice. For a public hearing, written
notice of the time and place of the hearing shall be given at the
applicant's expense, not less than seven (7) calendar days prior to
the public hearing, by publication in a newspaper of general circulation
in Newbury, and by hand delivering or mailing, by certified mail return
receipt requested, at the mailing addresses shown on the most recent
applicable tax list of the assessors, a copy of such notice to all
abutters within one hundred feet of the property line of the land
on which the work is proposed, including, but not limited to, owners
of land directly opposite said proposed work on any public or private
street or way, and in another municipality or across a body of water.
Proof of such notification, with a copy of the notice mailed or delivered,
shall be filed with the Commission. All publications and notices shall
contain the name of the applicant, a description of the area where
the activity is proposed by street-address, if any, or other adequate
identification of the location of the area or premises which is the
subject of the notice, the date, time and place of the public hearing,
the subject matter of the hearing, and the nature of the action or
relief requested, if any. Public notice requirements for continued
public hearings under this Bylaw shall be the same as the notification
requirements set forth in 310 CMR 10.05(5)(b)3.
D.
Proof.
|
The applicant shall have the burden of proving
by a preponderance of credible evidence that the activity proposed
in the Request for Determination of Applicability or the Notice of
Intent will not have a significant or cumulatively detrimental effect
upon the interests and values protected by this Bylaw. Failure to
provide to the Commission adequate evidence for it to determine that
the proposed activity will not cause such impacts shall be sufficient
cause for the Commission to deny permission or to grant permission
with such conditions as it deems reasonable, necessary, or desirable
to carry out the purposes of this Bylaw; or to postpone or continue
the hearing or public meeting to another date certain to enable the
applicant and others to present additional evidence, upon such terms
and conditions as deemed by the Commission to be reasonable.
| |
|
Due consideration shall be given to possible
effects of the proposal on all interests and values protected under
this Bylaw.
|
E.
Continuances. The Commission may continue
a public hearing or public meeting in the following situations:
|
1.
|
With the consent of the applicant, to an agreed-upon
date, which shall be announced at the hearing; or
| |
|
2.
|
Without the consent of the applicant, to a specific
date within 21 days of the hearing/meeting at which the continuance
was made for the reasons stated at the hearing/meeting, including
but not limited to receipt of additional information from the applicant
or others.
|
F.
Investigations. The Commission, its agents,
officers, and employees, may enter upon privately owned land for the
purpose of carrying out its duties under this Bylaw and may make or
cause to be made such examination or survey as deemed necessary, subject
to the Constitutions of both the United States and the Commonwealth.
A.
Orders and Decisions.
|
If the Commission determines that the proposed
activity does not require the imposition of conditions to preserve
and protect the interests of this Bylaw, the applicant shall be so
notified in writing.
| |
|
If, after the hearing, the Commission determines
that the proposed activity is significant to one or more interests
and values of this Bylaw, the Commission shall vote to issue written
Orders of Conditions within 21 days of the close of the public hearing.
The Order of Conditions may describe such conditions, safeguards,
and limitations on time and use upon such activity in the event that
the Commission finds that necessary to protect those interests and
values. The Commission may require the Applicant to hire an appropriate
technical expert to monitor the project to ensure compliance with
the order of Conditions.
| |
|
The Commission may choose to issue an Order
of Conditions denying a project if it finds that the interests and
values of this Bylaw cannot be preserved and protected by the imposition
of such conditions, safeguards, or limitations. The Commission shall
state the reasons for such denial in the Order of Conditions.
|
B.
Security to Assure Performance. The Commission
may, as a part of its Order of Conditions, require that, in addition
to any security required by any other Town or State Board, Commission,
agency, or officer, the performance and observance of the conditions,
safeguards, and limitations imposed under this Bylaw on the applicant
and owner be secured by one, or both, of the following methods:
(1)
Deposit. By the deposit of money, sufficient
to complete the work as proposed, to secure performance of the conditions
and observance of the safeguards of such Order of Conditions. Such
security, if filed or deposited, shall be approved as to form and
manner of execution by Town Counsel or the Town Treasurer.
(2)
Land Restrictions(s). By an executed
and properly recorded (or registered, in the case of registered land)
conservation restriction, easement, or other covenant running with
the land. This method shall be used only with the consent of the applicant.
C.
Duration of Orders.
|
All Orders of Conditions shall expire three
(3) years after the date of issuance. The Commission shall extend
an Order for one (1) period of three (3) years, upon the request of
the applicant. The request for an extension of an Order of Conditions
shall be made to the Commission at least 30 days prior to expiration
of the Order of Conditions. The Commission may grant only two (2)
extensions for an individual Order of Conditions.
| |
|
No activity governed by an Order of Conditions
shall be performed unless and until all permits, approvals, and variances
required by the Bylaw of the Town shall have been obtained, such Order
of Conditions or notification shall have been recorded or registered
at the Southern Essex District Registry of Deeds or in the Southern
Essex District of the Land Court Department, and all applicable appeal
periods have expired. The Commission shall have the right to record
or register its Order of Conditions with said Registry or Registry
District. In the event that an Order of Conditions issued pursuant
to this Bylaw is identical to a final Order of Conditions issued pursuant
to the provisions of the Act, only one such order need be recorded
or registered.
|
D.
Modifications, Amendments, Revocations. The Commission shall have the power (on its own motion or upon the
petition of the applicant, or any person interested) to modify, amend,
or revoke an Order of Conditions. In revoking an Order of Conditions,
the Commission shall officially notify the interested parties through
certified mail and hold a public hearing within 21 days of the notification
date. A modification is a minor or insignificant change that will
not result in an adverse impact to wetland resource areas and/or interests
protected by this Bylaw. An amendment is a change of significant magnitude
that will require the imposition of additional conditions to ensure
adequate protection of wetland resource areas and/or interests protected
by this Bylaw. in the case of an amendment to an Order of Conditions,
the Commission shall have the discretion to decide if a public hearing
is warranted. This decision shall be based on the potential impact
of the proposed work and its effect on the ability of the identified
wetland resource areas to provide those interests as defined under
the Act and Bylaw. If the Commission determines that a public hearing
is warranted, the Applicant shall comply with the publication and
abutter notification requirements as required for new filings. No
public hearing is required for a modification to an Order of Conditions.
Written notification to the applicant by certified mail is required
in all cases where the Commission initiates a modification, amendment,
or revocation of an Order of Conditions. The Applicant shall record
modified and amended Orders of Conditions prior to the commencement
of authorized work under the Order.
|
The Commission or its designee shall, upon receiving
a written request, inspect the resource areas where the activity governed
by an Order of Conditions was carried out and issue a Certificate
of Compliance (or Partial Certificate of Compliance) to the owner
of the property, applicant, or applicant's representative, in a form
suitable for recording or registering, if it shall determine that
all of the activity(ies), or portions thereof, limited thereby have
been completed in accord with said Order. If the Order contains conditions
that continue past the completion of the work, such as maintenance
or monitoring, the Certificate of Compliance shall specify which of
the conditions shall continue. The Applicant shall record Certificates
of Compliance.
|
|
If the Commission determines that the work was
not performed in compliance with the Order, it may refuse to issue
a Certificate of Compliance. The written refusal shall be issued within
21 days of the receipt of a request for a Certificate of Compliance
and shall specify the reasons for denial.
|
|
The Certificate of Compliance shall be recorded
or registered at the Southern Essex District Registry of Deeds or
in the Southern Essex District of the Land Court Department. Certification
of recording shall be sent to the Commission.
|
After the recording of a Notice of Violation
or Order, any person who purchases, inherits, or otherwise acquires
real estate upon which work has been done in violation of the provisions
of this Bylaw or in violation of any Order issued under the Bylaw
shall forthwith comply with any such Order or restore such land to
its condition prior to any such violation; provided, however, that
no action, civil or criminal, shall be brought against such person
unless such action is commenced within three years following the recording
of the deed or the date of the death by which such real estate was
acquired by such person.
[Amended 11-12-2019 STM, Art. 13]
After public notice and public hearing, the
Commission may promulgate rules and regulations to administer and
enforce the Bylaw. 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.
In accord with the provisions of G.L. c. 40,
§§ 21D and 31 as well as every other authority and
power that may have been or may hereafter be conferred upon it, the
Town may enforce the provisions of this Bylaw, restrain violations
thereof, and seek injunctions and judgments to secure compliance with
its Orders of Conditions. Without limiting the generality of the foregoing:
A.
Any person who violates any provision of this Bylaw
or of any condition or a permit issued pursuant to it may be ordered
to restore the property to its original condition after holding a
hearing, and take other action deemed necessary to remedy such violations,
or may be fined, or both. Any person may be fined or issued a stop
work order or an order to restore for an unauthorized alteration of
an area subject to protection under the Bylaw or for failing to restore
illegally altered land to its original condition or failing to comply
with an order issued pursuant to the Bylaw. Fines may be levied pursuant
to G.L. c. 40, § 21. Each day or portion thereof during
which a violation continues shall constitute a separate offense; if
more than one, each condition violated shall constitute a separate
offense. This Bylaw may be enforced pursuant to G.L. c. 40, § 21D,
by a Town police officer, other persons having police powers, Conservation
Commissioners, or the Conservation Administrator. The penalties for
violations of this Bylaw or regulations promulgated hereunder may
be assessed as follows:
|
Violation Penalty/ Violation/Day
| |
|
Alteration of any wetland resource area Up to
$100
| |
|
Violation of any Order of Conditions Up to $100
|
B.
In the event of a violation of this Bylaw or of any
order issued there under, the Commission or its agents may issue a
stop work order to the owner, the applicant, or the applicant's agent
by certified mail, return receipt requested, or by posting the same
in a conspicuous location on said site. Any person who shall violate
the provisions of a stop work order shall be deemed in violation of
the Bylaw; but the failure of the Commission to issue a stop work
order for any reason shall not prevent the Town from pursuing any
other legal remedy at law or in equity to restrain violations of this
Bylaw or promulgated regulations and to secure compliance with its
Orders.
C.
The Town shall be the beneficiary of all fines imposed
on account of the violation of this Bylaw or promulgated regulations
in order to defray the expense of enforcing the same.
D.
Upon request of the Commission, the Selectmen and
Town Counsel may take such legal action as may be necessary to enforce
this Bylaw or promulgated regulations and permits issued pursuant
to it.
E.
Upon recommendation of the Commission, the Selectmen
may employ Special Counsel to assist the Commission in carrying out
the legal aspects, duties, and requirements of this Bylaw and promulgated
regulations.
A.
Upon receipt of an application for a Notice of Intent,
Request for Determination of Applicability, Abbreviated Notice of
Resource Area Delineation or at any time preceding the Commission’s
issuance of a Certificate of Compliance, the Commission is authorized
to require an applicant to pay a fee for the reasonable costs and
expenses borne by the Commission for specified expert engineering
and other consultant services deemed necessary by the Commission to
come to a final decision on the application.
[Amended 11-12-2019 STM, Art. 13]
(1)
If a revolving fund for consultant fees is authorized,
the applicant's fee shall be put into such revolving fund and the
Commission may draw upon that fund for specific consultant services
approved by the Commission.
(2)
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 acquirable
only through outside consultants would be necessary for the making
of an objective decision.
(3)
The Commission shall waive the consultant fee for
a permit application filed by the Town.
The captions used herein are for convenience
only and are expressly intended to have no legal or binding significance.
The invalidity of any section or provision of this Bylaw shall not
invalidate any other section or provision thereof, nor shall it invalidate
any Order of Conditions or decisions that have previously become final.
