[HISTORY: Adopted by the Town of Dennis 5-3-1988 Annual Town
Meeting, Art. 16. Amendments noted where applicable.]
The purpose of this bylaw is to further protect
the foreshores, wetlands and related water resources in the Town of
Dennis and their values and functions, including but not limited to
public or private water supply, groundwater quantity and quality,
storm damage prevention, flood control, erosion and sedimentation
control, prevention of water pollution, wildlife habitat, shellfish,
fisheries, recreation, public trust rights in trust lands, aesthetics
and agricultural and aquacultural values (collectively, the wetlands
values protected by this bylaw).
A.
Except as permitted by the Conservation Commission or as provided in this bylaw in § 187-3, no person shall remove, fill, dredge or alter in or within one hundred (100) feet of the following resource areas: bank, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp or lands bordering on the ocean or on any estuary, creek, river, stream, pond or lake, surface water body, vegetated wetland or unvegetated wetland, any land under said waters or within the limits of any land subject to flooding or inundation by groundwater, surface water, tidal action or coastal storm flowage.
B.
In the event that the Commission determines that an
activity occurring beyond the limit of jurisdiction noted above is
likely to have, is having or has had a significant effect on the wetlands
values of a resource area, the Commission may require the filing of
a notice of intent or a request for determination of applicability
for that activity.
C.
In determining whether a resource area is subject
to the provisions of this bylaw, the origin of the wetland, whether
natural or man-made, is not a relevant factor.
A.
The permit and application required by this bylaw
shall not be required for maintaining, repairing or replacing (but
not substantially changing or enlarging) an existing and lawfully
located structure or facility used in the service of the public to
provide electric, gas, water, telephone, telegraph or other telecommunications
services, provided that written notice has been given to the Commission
prior to the commencement of work, and provided that the work conforms
to the performance standards, design specifications, policy guidelines
and other regulations adopted by the Commission.
B.
The permit and application required by this bylaw
shall not be required for normal maintenance or improvement of land
or waters in an existing agricultural or aquacultural use which is
now and has been in production at least three (3) of the last five
(5) years. Expansion of existing uses in these areas or new uses in
areas within the jurisdiction of this bylaw shall require a permit.
C.
The permit and application required by this bylaw
shall not apply to emergency projects necessary for the protection
of wetlands values or 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.
D.
Prior to commencement of work, the Commission or its
agent must certify the work to be an emergency project. The work must
be performed only for the time and place certified by the Commission
for the limited purposes necessary to abate the emergency, but in
no instance shall the emergency period exceed thirty (30) days. All
emergency work must conform to the performance standards, design specifications,
policy guidelines and other regulations adopted by the Commission.
Within twenty-one (21) days of the commencement of an emergency project,
a permit application shall be filed with the Commission for review
as provided in 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.
A.
Written applications shall be filed with the Commission to perform activities regulated by this bylaw affecting resource areas protected by this bylaw. The application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on wetlands, resource areas and their values. No activities shall commence without receiving a permit issued pursuant to this bylaw, except as provided in § 187-3.
B.
The Commission may, at its discretion, accept as the
application and plans under this bylaw the notice of intent and plans
filed under the Wetlands Protection Act, MGL C. 131, § 40.
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
shall contain data and plans specified by the regulations of the Commission.
D.
At the time of filing a notice of intent or request
for determination of applicability, the applicant shall pay a filing
fee specified in the regulations of the Commission. The Commission
may waive the filing fee and costs and expenses for any applications
filed by a government agency.
A.
If the Commission, after a public hearing, determines
that the proposed activities which are the subject of a notice of
intent are not likely to have a significant and cumulative effect
upon the wetlands values protected by this bylaw, the Commission,
within twenty-one (21) days of the close of the public hearing, shall
issue a permit for the activities requested. If it issues a permit,
the Commission shall impose conditions which the Commission deems
necessary or desirable to protect those wetland values, and all activities
shall be in accordance with those conditions.
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 required or requested by the Commission; for
failure to meet the design specifications. performance standards,
policy guidelines or other requirements in regulations of the Commission;
for failure to avoid or prevent unacceptable significant immediate
and/or cumulative effects upon the wetlands values protected by this
bylaw; where it is deemed that the denial is necessary to preserve
the environmental quality of resource areas of either or both subject
land and contiguous land; and where no conditions would be adequate
to protect these values. Due consideration shall be given to any demonstrated
hardship on the applicant by reason of a denial, as presented at the
public hearing.
The applicant shall have the burden of proof
by a preponderance of credible evidence that the work proposed in
the application will not have an unacceptable significant and immediate
or cumulative effect upon the wetland 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.
This bylaw is adopted under the Home Rule Amendment
of the Massachusetts Constitution and the Home Rule Statutes, independent
of the Wetlands Protection Act (MGL C. 131, § 40) and regulations
thereunder, except where specifically included herein.
A.
The Commission shall conduct a public hearing on any
notice of intent or request for determination of applicability. At
the expense of the applicant, the Commission shall cause written notice
of the hearing to be published at least five (5) working days prior
to the public hearing in a newspaper of general circulation in the
Town of Dennis and by mailing a notice to the applicant.
B.
The Commission shall commence the public hearing within
twenty-one (21) days from the receipt of a completed notice of intent
or request for determination of applicability. The Commission or its
agents shall determine, for scheduling purposes only and in accordance
with the submission regulations of the Commission, that the notice
of intent or request for determination of applicability is complete.
The twenty-one-day deadline for a hearing may be extended by the Commission
or its agents only with the assent of the applicant. The Commission
shall issue its decision on the notice of intent or request for determination
of applicability no later than twenty-one (21) days after the close
of the public hearing thereon.
C.
The Commission may, in its discretion, combine its
hearing under this bylaw with the hearing conducted under the Wetlands
Protection Act (MGL C. 181, § 40).
D.
The Commission may, upon its own initiative or upon
the applicant's request, continue the public hearing to a date and
time certain announced at the hearing, for reasons stated at the hearing,
which may include the receipt of additional information offered by
the applicant or others or the receipt of information and plans required
of the applicant deemed necessary by the Commission.
After public notice and public hearing, the
Commission may from time to time promulgate performance standards,
design specifications, policy guidelines and other rules and regulations
to accomplish the purposes of this bylaw. Failure of 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 provisions of this bylaw.
A.
The Commission may require the establishment of an
escrow account or other security running to the town and sufficient
as to form and surety, in the opinion of the Commission's Counsel,
to secure faithful and satisfactory performance of work required by
any permit, in such sum and upon such conditions as the Commission
may require. Such escrow account or security shall provide that if
the work is not performed as required by the permit, the Commission
shall recover the proceeds of such escrow or security upon written
demand.
B.
Notwithstanding the above, the amount of such escrow
account or security shall not exceed the estimated cost of the work
required or the restoration of affected lands and properties if the
work is not performed as required, whichever is greater. The Commission
may, at its discretion, accept as security 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 Dennis, whereby the permit conditions shall
be performed and observed before any lot may be conveyed other than
by mortgage deed.
A.
The Commission and its agents, officers and employees
shall have the authority to enter upon privately owned land for the
purpose of performing their duties under this bylaw. With the authority
of the property owner or his designee, the Commission may make or
cause to be made such examinations, surveys or sampling as the Commission
deems necessary.
B.
The Commission shall have the authority to enforce
this bylaw, its regulations and permit issued thereunder by violation
notices, administrative orders and civil and/or criminal court actions.
C.
Upon request of the Commission, the Select Board and
Town Counsel may take legal action for enforcement under civil law.
Upon request of the Commission, the Chief of Police may take legal
action for enforcement under criminal law.
[Amended 10-3-2020 STM by Art. 12]
D.
Upon request of the Commission, municipal boards and
officers, including any police officer, natural resource officer or
other officers having police powers, shall have the authority to assist
the Commission in enforcement.
E.
Any person who violates any provision of this bylaw,
regulations thereunder or permits issued thereunder shall be punished
by a fine of not more than three hundred dollars ($300.).
F.
Each day or portion thereof during which violation
continues shall constitute a separate offense, and each provision
of the bylaw, regulations or permit violated shall constitute a separate
offense.
G.
In the alternative to criminal prosecution, the Commission
or its agents may elect to utilize the noncriminal disposition procedure
set forth in MGL C. 40, § 21D.
The invalidity of any section or provision of
this bylaw shall not invalidate any other section or provision thereof.
