[HISTORY: Adopted by the Town of Lancaster 10-15-2007 STM by Art. 3. Amendments noted where applicable.]
The purpose of this bylaw is to protect the wetlands, wildlife, water resources, flood-prone areas, and adjoining upland areas in the Town of Lancaster by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect on resource area values, including but not limited to the following:
Public or private water supply;
Erosion and sedimentation control;
Storm damage prevention;
Prevention and control of pollution;
Rare or threatened species habitat, whether plant or animal (according to the Natural Heritage and Endangered Species Program);
This bylaw is intended to utilize the Home Rule authority of this municipality so as to protect the resource areas under the Wetlands Protection Act (MGL c. 131, § 40; the "Act") to a greater degree, to protect additional resource areas beyond the Act recognized by the Town as significant, to protect all resource areas for their additional values beyond those recognized in the Act, and to impose in local regulations and permits additional standards and procedures stricter than those of the Act 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 and other relevant bylaws of the Town of Lancaster.
Except as permitted by the Conservation Commission, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas:
Ponds of any size;
Lands under water bodies;
Lands adjoining these resources out to a distance of 100 feet, known as the buffer zone;
Streams, brooks and creeks, whether perennial or intermittent;
Lands adjoining these resource areas out to a distance of 200 feet, known as the riverfront area;
Lands subject to flooding or inundation by groundwater or surface water;
Floodplain Overlay District (as established in Chapter 220, Zoning, of the Code of the Town of Lancaster); and
Twenty-five-foot no-build or no-alteration zone.
The jurisdiction of this bylaw shall not extend to uses and structures of agriculture that enjoy the rights and privileges of laws and regulations of the commonwealth governing agriculture, including work performed for normal maintenance or improvement of land in agricultural or aquacultural uses as defined by the Wetlands Protection Act Regulations found at 310 CMR 10.04.
The following definitions shall apply in the interpretation and implementation of this bylaw:
- Refers to the definition as provided by MGL c. 128, § 1A.
- Includes, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this bylaw:
- A. Removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any kind;
- B. Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns or flood retention characteristics;
- C. Drainage or other disturbance of water level or water table;
- D. Dumping, discharging or filling with any material which may degrade water quality;
- E. Placing of fill, or removal of material, which would alter elevation;
- F. Driving of piles and erection, expansion or repair of buildings or structures of any kind;
- G. Placing of obstructions or objects in water;
- H. Destruction of plant life, including cutting or trimming of trees and shrubs;
- I. Changing temperature, biochemical oxygen demand or other physical, biological, or chemical characteristics of any waters;
- J. Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater;
- K. Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.
- Includes 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.
- BUFFER ZONE
- Includes twenty-five-foot no-build or no-alteration area surrounding any type of wetland or vernal pool. It shall also include all lands within 100 feet of a wetland or floodplain resource area, and within 200 feet of a riverfront area, whether perennial or intermittent.
- INTERMITTENT STREAM
- Includes a body of water, including brooks and creeks, which moves in a definite channel due to a hydraulic gradient, and which flows within, into or out of areas subject to protection under the Wetlands Protection Act. An intermittent stream, or ephemeral stream, does not flow year round. It may flow in all seasons except during the driest summer months, or only after precipitation, or when groundwater levels or water from snowmelt are high. An ephemeral stream may have a fish population.
- PERENNIAL STREAM
- Includes a body of water, including brooks and creeks, which moves in a definite channel due to a hydraulic gradient, and which flows within, into or out of areas subject to protection under the Wetlands Protection Act. A perennial stream flows all year, except during periods of drought, or unless it is subject to withdrawals or controlled by dams or other restricting structures.
- Include 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.
- Follow the definition of 310 CMR 10.04 except that the size threshold of 5,000 square feet shall apply.
- RARE SPECIES
- Includes, without limitation, all vertebrate and invertebrate animals and all plant species listed as endangered, threatened, or of special concern by the Massachusetts Division of Fisheries and Wildlife and the National Heritage Endangered Species Program (NHESP), regardless whether the site in which they occur has been previously identified by the Division or Program.
- VERNAL POOL
- Includes, in addition to scientific definitions found in the regulations under the Wetlands Protection Act, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas or driveways which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, contains at least 200 cubic feet of water at some time during most years, is free of adult predatory fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts Division of Fisheries and Wildlife. The boundary of the resource area for vernal pools shall be 100 feet outward from the mean annual high-water line defining the depression, but shall not include existing lawns, gardens, landscaped or developed areas.
Editor's Note: See MGL c. 131, § 40.
Buffer zones are presumed significant to the protection of wetland resources and interests because activities undertaken in close proximity to resource areas have a high likelihood of adverse impact upon the wetland or other resources, either immediately, as a consequence of construction, or over time, as a consequence of daily operations or maintenance of such activities. Such adverse impacts from construction and use include, without limitation, erosion, siltation, loss of groundwater recharge, degradation of water quality and loss of wildlife habitat.
Vernal pools are presumed to provide essential breeding and rearing habitat functions, which in the case of any seasonal wetland, may not been certified as a vernal pool by the state. It may be that the depression or area does not provide the habitat functions specified for identification of noncertified vernal pools.
Notwithstanding any provision of this chapter to the contrary, the alteration of any residential, business or institutional building or customary appurtenance thereto, such as lawns, gardens, landscaped or other developed areas, where such structure or appurtenance existed prior to the effective date of this bylaw, shall not be subject to this bylaw but shall be regulated exclusively by the provisions of MGL c. 131, § 40 (the Wetlands Protection Act).
The applications and permits required by this bylaw shall not be required for work performed for normal maintenance or improvement of land in agricultural and aquacultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.
The applications and permits 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 Conservation Commission prior to commencement of work, and provided that the work conforms to any performance standards and design specifications in regulations adopted by the Commission.
The applications and permits required by this bylaw shall not be required 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.
Other than stated in this bylaw, the exceptions provided in the Wetlands Protection Act (MGL c. 131, § 40) and Regulations (310 CMR 10.00) shall not apply under this bylaw.
If the Conservation 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 on 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. The Commission shall take into account the extent to which the applicant has avoided, minimized and mitigated any such effect. The Commission also shall take into account any loss, degradation, isolation and replacement or replication of such protected resource areas elsewhere in the community and the watershed, resulting from past activities, whether permitted, unpermitted or exempt, and foreseeable future activities.
If it issues a permit, the Commission may impose conditions which the Commission deems necessary or desirable to protect said resource area values, and all activities shall be conducted in accordance with those conditions.
Where no conditions are adequate to protect said resource area values, the Commission is empowered to deny a permit for failure to meet the requirements of this bylaw.
It may also deny a permit:
For failure to submit necessary information and plans requested by the Commission;
For failure to comply with the procedures, design specifications, performance standards, and other requirements in regulations of the Commission; or
For failure to avoid, minimize or mitigate unacceptable significant or cumulative effects upon the resource area values protected by this bylaw.
Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.
The Commission may waive specifically identified and requested procedures, design specifications, performance standards or other requirements set forth in its regulations, provided that:
The Commission finds in writing after said public hearing that there are no reasonable conditions or alternatives that would allow the proposed activity to proceed in compliance with said regulations;
That avoidance, minimization and mitigation has been employed to the maximum extent feasible; and
That the waiver 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.
In reviewing activities within the one-hundred-foot buffer zone to a wetland and the twenty-five-foot no-build or no-alteration zone, the Commission shall presume these areas are important to the protection of other resource areas because activities undertaken in close proximity have a high likelihood of adverse impact, either immediately, as a consequence of construction, or over time as a consequence of daily operation or existence of the activities.
The Commission may establish in its regulations design specifications, performance standards, other measures and safeguards, and other work limits for protection of such lands, including without limitation, strips of continuous, undisturbed vegetative cover, unless the applicant convinces the Commission that the area or part of it may be disturbed without harm to the values protected by the bylaw.
In reviewing activities within the two-hundred-foot buffer zone to a riverfront, the Commission shall presume the riverfront area is important to all the resource area values unless demonstrated otherwise, and 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, the overall project purpose (e.g., residential, institutional, commercial, or industrial), logistics, existing technology, costs of the alternatives and overall project costs.
To prevent resource area loss, the Commission shall require applicants to avoid alteration wherever feasible, to minimize alteration, and where alteration is unavoidable and has been minimized to provide full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with specific plans, professional design, proper safeguards, adequate security, and professional monitoring and reporting to assure success, because of the poor performance of earlier replication technologies.
The Commission may require a wildlife habitat study of the project area, to be paid for by the applicant, whenever it deems appropriate, regardless the type of resource area or the amount or type of alteration proposed. The decision shall be based upon the Commission's estimation of the importance of the habitat area considering, but not limited to, such factors as proximity to other areas suitable for wildlife, importance of wildlife corridors in the area, or actual or possible presence of rare plant or animal species in the area. The work shall be performed by an individual who at least meets the qualifications set out in the wildlife habitat section of the Wetlands Protection Act Regulations (310 CMR 10.60).
The Commission shall presume that all areas meeting the definition of vernal pools, including the adjacent wetland buffer zone and twenty-five-foot no-build or no-alteration zones, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence which, in the judgment of the Commission, demonstrates that the basin or depression does not provide essential habitat functions. Any formal evaluation should be performed by an individual who at least meets the qualifications under the wildlife habitat section of the Wetlands Protection Act Regulations (310 CMR 10.60). The Commission holds the right to assign its own consultant for review.
A permit, determination of applicability (DOA) or order of resource area delineation (ORAD) 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 identify requirements which shall be enforceable for a stated number of years, indefinitely, or until permanent protection is in place, and shall apply to all present and future owners of the land.
For good cause, the Commission may revoke any permit, DOA, ORAD or any other order, determination or other decision issued under this bylaw after notice to the holder, the public, abutters within 300 feet, and Town boards (Select Board, Planning Board, Board of Appeals, Board of Health, and Building Commissioner), and after a public hearing. Amendments to any permits, DOA or ORAD shall be handled in the manner set out in the Wetlands Protections Act Regulations and policies thereunder.
The Commission, in an appropriate case, may combine the decision issued under this bylaw with the order of conditions, determination of applicability, order of resource area delineation or certificate of compliance issued under the Wetlands Protection Act and Regulations.
No work proposed in any application shall be undertaken until the permit, DOA or ORAD 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 document has been recorded. If the applicant fails to perform such recording, the Commission may record the documents itself and require the applicant to furnish the recording fee therefor, either at the time of recording or as a condition precedent to the issuance of a certificate of compliance, or issue a cease work order until evidence of such recording is received by the Commission.
After public notice and public hearing, the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw, effective when voted and filed with the Town Clerk. 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.
At a minimum the regulations shall reiterate the terms defined in this bylaw, define additional terms not inconsistent with the bylaw, and impose filing and consultant fees.
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 (310 CMR 10.00) thereunder. It is the intention of this bylaw that the purposes, jurisdiction, authority, exemptions, regulations, specifications, standards and other requirements shall be interpreted and administered as stricter than those under the Wetlands Protection Act and Regulations.
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, approval or determination which previously has been issued.
Applicants that have filed an application (notice of intent, request for determination of applicability, or abbreviated notice of resource area delineation) prior to the effective date of this bylaw shall not be subject to this bylaw, but shall be regulated exclusively by the provisions of the Wetlands Protection Act (MGL c. 131, § 40).
This bylaw shall take effect upon approval of the Attorney General, and after the bylaw has been posted, in accordance with MGL c. 40, § 32.