[HISTORY: Adopted by the Town Meeting of the Town of Ipswich
as amended 10-15-2001 TM, approved
by Attorney General 2-19-2002 (Ch.
XII, § 10, of the 1973 Bylaws). Subsequent amendments noted
where applicable.]
B.
Purpose. The purpose of this bylaw is to maintain the rural, natural,
historic and scenic character of the Town's roadways. The bylaw,
under authority of the Scenic Road Act of 1973 (MGL c. 40, § 15C)
ensures that:
(1)
Town
ways will be recommended for designation as scenic roads in accordance
with the criteria stated in this bylaw; and
(2)
Trees
and stone walls within the rights of way or layout of all designated
scenic Town roads will not be altered without the required public
hearing, nor without following the other procedures set forth in this
bylaw.
[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
In the absence of contrary meaning established through legislative
or judicial action pursuant to MGL c. 40, § 15C, the following
terms contained in that statute, or otherwise, shall be defined as
follows:
A.
Abutter: Shall mean all property owners, including those across the
street, abutting the property where work requiring a scenic road hearing
is required.
B.
Cutting or Removal of Trees: Shall mean the removal of one or more
trees, trimming of major branches, (as defined herein), cutting of
roots, or any other work that would otherwise compromise a tree's
health, such as soil and /or root compaction, water deprivation, or
other conditions resulting from proposed work along a scenic road
sufficient in the opinion of the Planning Board or a certified arborist
to cause eventual destruction of a tree. This definition does not
apply to routine or emergency tree maintenance that removes only permanently
diseased or damaged limbs, trunks, roots and dead whole trees. Nor
does this definition apply to trimming work, including cutting of
major branches, by the Town's Utilities or Public Works Department,
provided that the Planning Board has reviewed the proposed work and
determined it to be in accordance with good practices. However, the
removal of whole, live trees by the Utilities or Public Works Departments
is included in this definition.
C.
Major Branch: Shall mean a living branch that is fully attached to
a tree (as defined herein) and that has a diameter of three inches
or more, 12 inches from the point at which said branch connects to
the tree.
D.
Posting: Shall mean the marking of a tree or stone wall along a road for the purpose of a scenic road hearing. For trees, such marking as described in MGL c. 87, § 3 (Shade Tree Act). For stone walls, a ribbon or other appropriate flagging material shall be temporarily affixed at the limit of work on both ends of the stone wall.
E.
Repair, Maintenance, Reconstruction or Paving Work: Shall mean any work done within the right-of-way by any person or agency, public or private. Within this definition is any work on any portion of the right-of-way which was not physically commenced at the time the road was designated as a scenic road. Construction of new driveways, bicycle paths, sidewalks or roadside paths, or alteration of existing ones is included, insofar as it takes place within the right-of-way. Roadside clearing of trees to provide for vehicular clearance or for improvements to the line-of-sight shall also be included in this definition. Construction or alteration of water, sewer, drainage, electric, telephone, cable TV, or other utilities within the right-of-way is also included to the degree that they impact trees and stone walls, except as exempted in Subsection B above.
F.
Roads: Shall mean a right-of-way of any way used and maintained as
a public way, including the vehicular traveled way plus necessary
appurtenances within the right-of-way, such as bridge structures,
drainage systems, retaining walls, traffic control devices, and sidewalks,
but not intersecting streets or driveways. When the boundary of the
right-of-way is an issue so that a dispute arises as to whether or
not certain trees or stonewalls or portions thereof are within or
without the way, the trees and stonewalls shall be presumed to be
within the way until the contrary is shown. Trees and stonewalls existing
on or partially within the boundary of the right-of-way shall be considered
to be within the right-of-way.
G.
Tearing Down or Destruction of Stone Walls: Shall mean the destruction
removal, covering or painting of more than 10 total linear feet of
stone wall involving more than one cubic foot of wall material per
linear foot above existing grade. Temporary removal and replacement
at the same location with the same materials is permitted without
Planning Board approval if the Town Highway Department is notified
before the work begins so that it can confirm that the wall is properly
replaced. Repair of a stone wall that does not involving tearing down
or destroying the wall is not covered by this bylaw.
H.
Trees: Shall include any living tree whose trunk has a diameter of
four inches or more as measured four feet above the ground. Nothing
in this definition shall be construed to permit a person, other than
the Tree Warden or his/her deputy, to trim, cut down, or remove a
public shade tree more than 1 1/2 inches in diameter one foot
from the ground.
I.
Warden: Shall mean the Town of Ipswich Tree Warden or designated
deputy.
A.
in determining which roads or portions of roads should be recommended
to Town Meeting for designation as scenic roads, the following criteria
should be considered:
(1)
Overall scenic beauty;
(2)
Contribution of trees to scenic beauty;
(3)
Contribution of stone walls to scenic beauty;
(4)
Age and historic significance of roads, trees, and stone walls;
(5)
Built features such as historic buildings, historic monuments, historic
burial grounds, historic structures, farm buildings and fencing; and
(6)
Road features such as historic layout, surface, carriage width, use
restrictions, and nonhistoric bridges.
A.
The Planning Board, the Select Board, the Conservation Commission,
the Historical Commission, or a petition of 10 citizens of the Town
may propose "scenic road" designation of any Ipswich road other than
a state highway. The Planning Board shall then hold a Public Hearing
notifying the Select Board, the Tree Warden, the Highway Department,
the Utilities Department, the Conservation Commission, and the Historical
Commission all property owners with land bordering the right-of-way
and the public by advertising in a newspaper of general circulation
in the area, the last publication to occur at least seven days prior
to the date of the hearing. The Planning Board shall make a recommendation
to Town Meeting on the merits of designation of the proposed road
as a scenic way. No road shall be designated a scenic road by Town
Meeting unless such designation is favorably recommended by the Planning
Board, Conservation Commission or Historical Commission. A majority
vote of Town Meeting is required for designation.
B.
Following designation by Town Meeting, the Planning Board shall:
(1)
Notify all municipal departments that may take action with respect
to such roads;
(2)
Notify the Massachusetts Highway Department;
(3)
Indicate such designation on all maps currently in use by municipal
departments; and
(4)
Notify all utility companies or other such parties, which may be
working on the border of such road.
C.
The 27 roads already designated as scenic roads by the Scenic Roads
Act of 1973 (MGL c. 40, § 15C) shall retain their status
as scenic for the purpose of this Scenic Road bylaw. These roads are
(including year of designation):
[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
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Argilla Road (1974)
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Boxford Road (1974)
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Candlewood Road (1974)
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Chebacco Road (1974)
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East Street, #2 (1989)
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Fellows Road (1974)
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Goodhue Road (1974)
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Heartbreak Road (1974)
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Labor in Vain Road (1974)
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Lakeman's Lane (1991)
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Linebrook Road from Howe Street to Leslie Road (2009)
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Linebrook Road from School to Howe Street (1988)
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Linebrook Road from Leslie Road to Topsfield Line (1976)
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Meetinghouse Green (1974)
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Mile Lane (2009)
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Mill Road (1988)
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Newbury Road (1974)
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Old England Road (1974)
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Old Right Road from Rt. 1 to Topsfield Line (1989)
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Old Right Road from Route 1 to Linebrook Road (2009)
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Paradise Road (2009)
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Pineswamp Road (1974)
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Plains Road (2009)
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Rocky Hill Road (1974)
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Sagamore Road (1974)
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Topsfield Road from Kennedy Drive to Topsfield Line (1988)
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Waldingfield Road (1974)
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[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
A.
Filing. Any person, organization or agency seeking the consent of
the Planning Board under MGL c. 40, § 15C, regarding road
repair, maintenance, reconstruction, or paving work that may involve
the cutting or removal or trees or the tearing down of stone walls,
or portions thereof, shall file a request with the Planning Board
and submit the following information:
(1)
A completed scenic road application, including two copies of a plan
showing proposed work and the extent of alterations or removal of
trees or stone walls, so that readers may locate it with reasonable
specificity on the ground without the need for additional plats or
references, and describing in reasonable detail the proposed changes
to trees and stone walls, and a statement of purpose, or purposes,
for the proposed action.
(a)
The plan shall show the name of the street or streets, the extent
of the Scenic Road right-of-way, names of abutters within 100 feet
of the proposed work, a title block and suitable space to record the
action of the Planning Board. A plan drawn to scale is preferred,
but not required.
(b)
One copy of the completed application and on copy of the plan
shall also be submitted to the Town Clerk.
(2)
Any further explanatory material useful to adequately inform the
Planning Board, including clearly identifiable digital or printed
photographs of the proposed work are and its existing conditions.
(3)
A list of abutters to the subject property.
B.
Notice. The Planning Board shall, as required by statute, give notice
of its public hearing to discuss the alterations that the applicant
wants to have done. Notice will be posted twice in a newspaper of
general circulation in the area, with the last publication occurring
at least seven days prior to the hearing.
(1)
The Applicant shall be responsible for the cost of advertising the
public hearing.
(2)
The notice will contain the time, date, place and purpose of the
hearing.
(3)
Copies of the notice shall be sent to the Select Board, the Tree
Warden, the Public Works Department, the Utilities Department, the
Conservation Commission and the Historical Commission before the public
hearing commences.
C.
Timing of the hearing. The Planning Board shall hold a public hearing
within 30 days of receipt of a properly filed request and shall take
action on the request within 45 days of the hearing being held.
D.
Decision. The Planning Board shall provide its written decision to
the applicant, with copy filed with the Town Clerk, within seven days
of taking action on the application. If a consolidated meeting has
been held involving the Tree Warden, then the Tree Warden shall issue
a separate written decision related to the public shade trees. The
Planning Board and/or the Tree Warden shall also provide copy of the
decision to the applicant, the Historical Commission, the Tree Warden/Highway
Department, and/or the Planning Board.
E.
Tree replacement. If the cutting or removal of whole trees is approved
by the Planning Board or Tree Warden, the Planning Board, at its discretion,
may require the applicant to replace the trees cut with nursery quality
trees, which are of Zone 6 hardiness at a minimum, that are native
to the region, and that are acceptable to the Planning Board, in consultation
with the Tree Warden. For trees that are 18 inches or more in caliper,
measured four feet from the ground, the Planning Board may require
the removed tree to be replaced with two trees of at least a two-and-one-half-inch
caliper, measured four feet from the ground. The location of the replacement
trees shall be at the direction of the Tree Warden, in consultation
with the Planning Board.
F.
Public shade trees. When required by MGL c. 87 (Shade Trees), notice
shall be given and the Planning Board hearing required by MGL c. 40,
§ 15C (Scenic Roads) shall be held in conjunction with those
held by the Tree Warden, with the Tree Warden responsible for the
consolidated notice acting under MGL c. 87 (Shade Trees). Consent
to an action by the Planning Board shall not be construed as consent
by the Tree Warden or vice versa. A Planning Board decision shall
contain a condition that no work shall take place until any applicable
provisions of MGL c. 87 (Shade Trees) have been complied with.
G.
Statute of limitations. The approval of the Planning Board or Tree
Warden under these regulations for any proposed work shall be valid
for two years from the date the decision is filed with the Town Clerk.
After two years from this date, the decision is void unless an extension
is granted before the expiration.
H.
Emergency repair. The requirements of this bylaw shall not apply
when the Tree Warden acts in an emergency in accordance with law.
In cases where a tree or branch poses a threat to public safety and
there is not sufficient time to obtain prior approval from the Planning
Board, the Planning Board shall be notified by the Tree Warden within
the calendar week after any action which would have been a violation
of this bylaw if the threat had not existed. Under no circumstances
are stone walls to be torn down or destroyed on a scenic road under
the auspices of emergency repair.
[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
In acting on applications concerning scenic roads, the Planning
Board shall take into consideration the following:
A.
Contribution of trees and/or stonewalls to scenic beauty;
B.
Age and historic significance of roads, trees and stone walls;
C.
Features of the road, such as surface, pavement width and bridges;
D.
Public safety;
E.
Local residential traffic patterns and overall traffic volume and
congestion;
F.
Compensatory actions proposed, such as tree and stone wall replacement;
G.
Functional importance and urgency of repair, maintenance, reconstruction
or paving;
H.
Additional evidence contributed by abutters, Town agencies and other
interested parties;
I.
Recreational uses of the road;
J.
Preservation of natural resources and historic resources;
K.
Scenic and aesthetic characteristics;
L.
Environmental values;
M.
Other planning information;
N.
Existence or absence of reasonable alternatives.
[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
A.
At a minimum, driveways should be consistent with Ipswich regulations
for residential driveways and curb cuts, and should comply with this
bylaw.
B.
Only one driveway cut per lot onto any scenic road should be allowed.
A new driveway on a scenic road should not exceed 12 feet in width,
unless it is a common driveway, in which case it should not exceed
16 feet in width.
C.
Stonewall sections to be removed for a driveway should not exceed
the driveway width by more than one foot.
D.
No tree which complies with § 185-5E of this bylaw with a trunk within the right-of-way exceeding four inches in diameter measured four feet above the ground should be removed for a driveway unless the curb cut cannot be safely located elsewhere.
E.
Driveways should be located in a manner that minimizes the required
cut and fill, so as to preserve the existing topography to the greatest
extent possible.
F.
No stone wall sections with greater than one cubic foot of wall material
per linear foot should be removed for a driveway unless the curb cut
cannot be safely located elsewhere.
G.
Stone removed for driveway breaches shall be used to repair other
sections of the wall along the road, at the sole expense of the applicant.
H.
Stone walls that are breached should be provided with appropriate
termini. Appropriate termini shall consist of a compatible material,
and shall be constructed from stone removed from the wall at the breach
when it is feasible to do so. Appropriate termini may consist of tapered
ends to the stone wall that turn back onto the driveway, or other
designs consistent with the existing wall.
I.
use of a common driveway will be considered to be a feasible alternative
to the demolition or removal of a stone wall for more than one driveway.
To the extent that common driveways would limit the destruction of
stone walls, they are encouraged.
A.
Failure to file with the Planning Board for permission to cut or
remove trees or for destruction of any portion of a stone wall within
the layout of any scenic road will require an immediate filing as
detailed above and the applicant shall be required to restore the
features if required by the Planning Board. Unless waived, the required
restoration shall consist of restoring the stone wall to its previously
existing condition and/or replacing the trees cut with nursery quality
trees that are acceptable to the Planning Board. For every three inches
of tree cut, measured across the stump, a nursery quality replacement
tree with a two-and-one-half-inch caliper, measured four feet from
the ground, shall be planted by the applicant. Failure to comply with
a duly issued decision of the Planning Board shall subject the applicant
to restoration as detailed above and other remedial measures that
the Planning Board deems necessary.
[Amended 10-19-2009,
approved by Attorney General 2-16-2010]
B.
Any violation of this bylaw, MGL c. 40, § 15C, or a Planning Board decision issued under this bylaw or MGL c. 40, § 15C, shall be punishable by a fine not to exceed $300 per violation; any such violation may also be enforced through non-criminal disposition in accordance with this bylaw and General Bylaws Chapter 325, § 325-4C. Each day, or portion thereof, that a violation of this bylaw continues without a Planning Board approved decision to take restorative action shall be deemed a separate offense.
C.
In addition to the foregoing remedies, the Town of Ipswich, acting
by and through its Planning Board, and with the approval of the Select
Board, shall have all other legal and equitable remedies which may
exist, including without limitation the right to seek injunctive relief.
In addition, the Town of Ipswich may in its discretion enforce the
provisions of this bylaw in the manner provided in MGL c. 40, § 21D.
D.
In all other aspects, all provisions of this bylaw shall remain in
full force
