[HISTORY: Adopted ATM 5-5-1986 by Art. 13; amended in its entirety
by ATM 5-2-1994 by Art. 29. Subsequent amendments noted where applicable.]
[Amended ATM 5-12-2014 by Art. 12]
The purpose of this chapter is to preserve and protect the environmental
quality of the wetlands, adjoining land areas and related resources
of the Town of Dover by regulating activities deemed to have a significant
effect upon them, including, but not limited to, the following: public
or private water supply; groundwater, flood control, erosion and sedimentation
control; storm damage prevention; plant life, including timber in
all stages of growth; water quality; fish, fisheries, shellfish, wildlife
and wildlife habitat; recreation; agriculture and aquaculture (collectively,
the interests protected by this chapter).
[Amended ATM 5-12-2014 by Art. 12]
No person shall remove, fill, dredge, alter or build upon or
within 100 feet of any freshwater wetland, marsh, wet meadow, bog,
swamp, vernal pool, bank, beach, bordering vegetated wetland, dune,
lake, river, pond, intermittent stream, isolated vegetated wetland,
estuary, upon or within any land under said water, upon any land subject
to flooding or inundation by groundwater, surface water or storm flowage
or within 100 feet of the one-hundred-year storm line without first
applying for, receiving and complying with a Permit issued by the
Conservation Commission. No person shall remove, fill, dredge, alter
or build upon or within 200 feet of any river or perennial stream,
without first applying for, receiving and complying with a Permit
issued by the Conservation Commission.
[Amended ATM 5-12-2014 by Art. 12]
A.
The Permit and Application required by this chapter shall not be
required for maintaining, repairing or replacing an existing and lawfully
located structure or facility used in the service of the public to
provide electric, gas, water, sanitary sewer, storm drainage, telephone,
telegraph or other telecommunication services, provided that the structure
or facility is not substantially changed or enlarged, provided that
written notice has been given to the Commission at least 21 and not
more than 60 days prior to commencement of work and provided that
the work conforms to performance standards and design specifications
in regulations adopted by the Commission.[1]
B.
The Permit and Application required by this chapter shall not apply
to emergency projects necessary for the protection of the health or
safety of the public, provided that the work is to be performed by
or has been ordered to be performed by any 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
certifies the work as an emergency project, and 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. A Permit
Application shall be filed with the Commission no later than 30 days
from the date that emergency project work commences or 60 days in
the case of an Immediate Response Action approved by DEP to address
an oil/hazardous material release. A Permit Application shall not
be required for emergency projects in response to severe weather emergencies
as declared by the Commissioner of the Department of Environmental
Protection following a destructive weather event requiring widespread
recovery efforts, debris clean-up or roadway or utility repair.
C.
The Permit and Application as provided in this chapter shall not
apply to work performed for normal maintenance or improvement of Land
in Agricultural Use.
[Amended ATM 5-12-2014 by Art. 12]
A.
Written Application for a Permit (hereinafter "Application") shall
be filed with the Commission to perform work regulated by this chapter
in or on a resource area or areas protected by this chapter. The Application
shall include plans that describe the proposed activities and their
effects on the environment of the resource areas. No work shall commence
without receiving and complying with the Permit issued pursuant to
this chapter.
B.
Contents of Application and plans shall be in accordance with the
Commission's Rules and Regulations.
C.
Such Application may, at the discretion of the Commission, be identical
in form to a Notice of Intent filed pursuant to MGL c. 131, § 40.
The completed Application shall be delivered to the Conservation Commission
in accordance with the rules and regulations of the Commission. The
Application shall be accompanied by a filing fee and a legal notice
fee as specified in the Commission's Rules and Regulations. No filing
fee is required when the Town of Dover files an Application for a
Permit. Notification of the filing shall be made to other Town Boards
and abutters in the form and manner as specified in the Commission's
Rules and Regulations.
A.
Upon written Request of any person, the Commission shall, within
21 days, make a written Determination (Determination of Applicability)
as to whether this chapter is applicable to any specific parcel or
parcels of land or to any specific work to be performed thereon. Such
a Request for Determination shall contain data and plans specified
by the Commission's Rules and Regulations and shall be accompanied
by a filing fee, legal notice fee and the applicant's signed agreement
accepting the responsibility for reasonable consultant's fees, as
specified in such Rules and Regulations.
B.
In acting on a Request for Determination the Commission shall reference
the data and plans relied upon and upon which the Determination is
contingent.
C.
Determinations shall expire 3 years from the date of issuance.
[Amended ATM 5-12-2014 by Art. 12]
A.
Any person filing an Application or a Request for Determination with
the Commission at the same time shall give written notice thereof,
by certified mail or hand delivery, or other generally recognized
method that provides proof of mailing to all abutters at their mailing
addresses, according to the most recent tax list of the assessors,
including owners of land directly opposite on any public or private
street or way, across a body of water and abutters to the abutters
within 300 feet of the property line which is the subject of the Application
or Request, including any in another municipality. The notice shall
include a copy of the Application or Request, together with the plans
submitted to the Commission, or shall state where copies may be examined
and obtained by abutters free of charge. When a person requesting
a Determination is other than the record owner of the subject parcel(s),
the Determination shall be sent by the Commission to the record owner,
as well as the persons making the Request.
[Amended ATM 5-12-2014 by Art. 12]
B.
The Commission shall hold a public hearing on an Application within
21 days of its receipt. Notice of the time and place of the hearing
shall be given by the Commission at the expense of the applicant,
not less than five days' prior to the hearing, by publication
in a newspaper of general circulation in Dover and by mailing in accordance
with WPA 310 CMR 10.05: (3)(b)1, a notice to the applicant, owner,
Board of Health, Planning Board, and by email to such other persons
as the Commission may determine per Rules and Regulations for the
Dover Wetlands Protection Bylaw.
[Amended 5-1-2023 ATM by Art. 20]
C.
In an appropriate case the Commission may combine its hearing under
this chapter with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40, and may combine the public notices
thereof.
D.
For reasons announced by the Commission at the hearing, the Commission
shall have authority to continue the hearing to a date certain announced
at the hearing, either for receipt of additional information offered
by the applicant or others or for information required of the applicant,
deemed necessary by the Commission in its discretion. In the event
the applicant objects to a continuance, the hearing shall be closed
and the Commission shall take action on such information as is available.
E.
In addition, the applicant shall pay the fee and expenses of any outside peer review consultants deemed necessary by the Commission in accordance with the Commission's Rules and Regulations and Massachusetts General Law Chapter 44, Section 53G. At the discretion of the Commission, no Permit shall be issued until such fees and expenses have been paid.
[Amended 5-1-2023 ATM by Art. 20]
A.
Within 21 days of the close of the hearing, the Commission shall
issue or deny a Permit for the work requested. If it issues a Permit,
the Commission shall impose conditions which it deems necessary or
desirable to protect the interests which are the subject of this chapter,
and all work shall be done in accordance with those conditions.
B.
If, after consideration of an Application, the Commission determines
that the area which is the subject of the Application does not have
significant interests protected by this chapter the Commission shall
inform the applicant within 21 days that the work does not require
a Permit.
[Amended ATM 5-12-2014 by Art. 12]
C.
Permits and Determinations shall expire 3 years from the date of
issuance.
D.
Any Permit may be renewed at the Commission's reasonable discretion
for additional three-year periods, provided that a written Request
for renewal is received by the Commission at least 45 days prior to
expiration of the Permit. A Determination shall not be renewed.
[Added ATM 5-12-2014 by Art. 12[1]]
E.
For good cause, including unexpected conditions actually encountered
at the parcel which is the subject of the Application, and after public
notice and hearing, the Commission may review, revoke or modify a
Permit issued under this chapter.
F.
In an appropriate case, the Commission may combine the Permit, the
Determination or other action on an Application or Request under this
chapter with the Order of Conditions or termination or other action
issued under the Wetlands Protection Act.
Any person who purchases, inherits or otherwise
acquires real estate upon which work has been done in violation of
the provisions of this chapter shall forthwith comply with any order
or restore such parcel to its condition prior to any such violation;
provided, however, that no civil or criminal action shall be brought
against such person unless commenced within 3 years following the
date of acquisition of the real estate by such person.
A.
After public notice and public hearing, the Commission
may promulgate Rules and Regulations to effectuate the purpose of
this chapter, including, but not limited to, regulations concerning
filing fees and payment of reasonable consultant fees. Failure by
the Commission to promulgate such Rules and Regulations or a legal
declaration of invalidity of any such Rules and Regulations by a court
of law shall not act to suspend or invalidate the effect of this chapter.
B.
Public notice shall be given at least 3 weeks prior
to such hearing by publication in a newspaper of general circulation
in Dover and by posting with the Town Clerk.
C.
The Commission's Rules and Regulations may define
and expand key terms and provisions contained herein, in any manner
not inconsistent with this chapter.
[Amended ATM 5-12-2014 by Art. 12]
[Amended ATM 5-12-2014 by Art. 12]
As part of a Permit issued under this chapter,
in addition to any security required by any other Town or state board,
agency or official, the Commission may require that the performance
and observance of the conditions imposed pursuant to this chapter
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 sufficient in the opinion of the Commission to secure performance
of the conditions and observance of the safeguards of the Permit.
B.
By 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 the Town of Dover
and members of the public, whereby the Permit conditions and safeguards
shall be observed and performed before any lot may be conveyed other
than by mortgage deed.
A.
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 chapter and may make or cause
to be made such examinations, surveys or sampling as the Commission
deems necessary.
B.
The Commission shall have authority to enforce this
chapter and regulations and Permits issued pursuant to this chapter
by issuing violation notices and administrative orders and by commencing
civil and criminal court actions.
C.
Upon Request of the Commission, the Board of Selectmen
and the 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.
D.
Town of Dover boards and officers, including any police
officer or other officer having police powers, shall have authority
to assist the Commission in enforcement of this chapter.
E.
The Commission may elect to utilize the noncriminal
disposition procedure set forth in MGL c. 40, § 21D. Any
person who violates any provision of this chapter, regulations promulgated
hereunder or Permits issued hereunder shall be punished by a fine
of not more than $300. Each day or portion thereof during which a
violation continues shall constitute a separate offense, and each
provision of the chapter, regulations or Permit violated shall constitute
a separate offense.
[Amended ATM 5-12-2014 by Art. 12]
The applicant shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the Application will not harm the interests protected by this chapter.
Failure to provide adequate evidence to the Commission which would
support a Determination that the proposed work will not harm the interests
protected by this chapter shall be sufficient cause for the Commission
either to deny a Permit or to grant a Permit with conditions.
This chapter is adopted under the Home Rule
Amendment of the Massachusetts Constitution and the Home Rule statutes,
independent of the Wetland Protection Act, MGL c. 131, § 40,
and regulations thereunder.
The invalidity of any section or provision of
this chapter shall not invalidate any other section or provision thereof,
nor shall it invalidate any Order of Conditions or Permit which previously
has been issued.
