[HISTORY: Adopted by the City Council of
the City of Northampton 8-17-1989 (Ch. 24 of the 1977 Code). Amendments noted where applicable.]
[Amended 10-4-2007]
A.
The purpose of this chapter is protect the wetlands
and to maintain the quality of surface water, the quality and level
of the groundwater table and water recharge areas for existing or
potential water supplies; to protect the public health and safety;
to protect persons and property against the hazards of floodwater
inundation; to protect the community against the costs which may be
incurred when unsuitable development occurs in or adjacent to resource
areas; to minimize the impacts of new development and expansion on
wetland resource areas while encouraging projects that improve degraded
areas; and to provide for the reasonable protection and conservation
of certain irreplaceable natural features, resources and amenities
for the benefit and welfare of the present and future inhabitants
of the City of Northampton.
[Amended 2-17-2011]
B.
Accordingly, this chapter protects the resource areas
and adjoining areas in the City of Northampton by prior review and
control of activities likely to have a significant or cumulative effect
upon resource area values, including but not limited to the following:
public water supply, private water supply, groundwater, fisheries,
wildlife, wildlife habitat, rare species habitat, including rare plant
species, recreation, agriculture, aesthetic values, flood control,
erosion and sedimentation control, storm damage prevention, water
quality, and prevention of water pollution; these values are to be
known collectively as the "resource area values protected by this
chapter.” This chapter supplements the Wetlands Protection Act
and is intended to utilize the Home Rule authority of this municipality
to protect additional resource areas, for additional values, with
additional standards and procedures stricter than those of the Wetlands
Protection Act (MGL c. 131, § 40) 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 of Massachusetts.
Except as permitted by the Conservation Commission
or as provided in this chapter, no person shall remove, fill, dredge,
build upon, or alter the following resource areas:
A.
Any bordering vegetated wetland, freshwater wetland,
riverine wetland, marsh, wet meadow, bog or swamp, or within 100 feet
of said areas.
B.
Any bank or beach, or within 100 feet of said areas.
C.
Any lake, river, pond, or stream, whether intermittent
or continuous, natural or man-made, or within 100 feet of said areas.
D.
Any land under aforesaid waters.
E.
Any land subject to flooding or inundation by groundwater,
surface water, storm flowage, except artificially built detention
areas and drainage channels including streets and gutters which would
not otherwise be subject to jurisdiction under this chapter or 310
CMR, or within 40 feet of said areas subject to flooding or inundation.
F.
Seasonal wetlands, isolated wetlands, including kettle
holes, or within 100 feet of said areas.
G.
Vernal Pool Resource Area shown in the table below.
(See also definition.)
[Added 10-4-2007; amended 5-3-2018 by Ord. No. 18.064; 3-17-2022 by Ord. No. 21.355; 3-16-2023 by Ord. No. 23.246A]
|
Zoning District and/or Area of City
|
Vernal Pool Resource Area Size
| |
|---|---|---|
|
Central Business Districts, Florence Village
Districts, General Business, Neighborhood Business, Highway Business,
Entranceway Business, General Industrial, Office Industrial, Planned
Village, Medical, Urban Residential-B and Urban Residential-C and
municipal landfill properties
|
Vernal pool and areas within 100 feet of the
vernal pool
| |
|
Nonresidential uses only in the Business Park
District[1]
|
Vernal pool and areas within 100 feet of the
vernal pool
| |
|
All areas in the Water Supply Protection Zone
|
Vernal pool and areas within 200 feet of the
vernal pool
| |
|
All other areas not shown above (residential
uses in the Rural Residential, Suburban Residential, Special Conservancy,
Urban Residential A, Farms, Forests and Recreation)
|
Vernal pool and areas within 200 feet of the
vernal pool
|
|
Notes:
* There is no additional buffer zone around
a Vernal Pool Resource Area.
|
[1]
Editor's Note: The Business Park District was removed from
the Code 5-3-2018 by Ord. No. 18.064.
The following definitions shall apply in the
interpretation of this chapter:
Any agent or Conservation Commission staff who is appointed
agent by a majority vote of the Conservation Commission at a regularly
scheduled meeting of the Commission.
Includes, without limitations, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
Removal, excavation or dredging of soil, sand,
gravel, clay, minerals, or aggregate materials of any kind.
Changing of preexisting drainage characteristics,
flushing characteristics, sedimentation patterns, flow patterns, or
flood-retention characteristics.
Drainage or other disturbance of water level
or water table.
Dumping, discharging or filling with any material
which may degrade water quality.
Placing of fill, or removal of material, which
would alter elevation.
Driving of piles, erection or repair of buildings,
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life including cutting
of trees.
Changing water temperature, biochemical oxygen
demand, or other physical, chemical or biological characteristics
of surface and ground water.
Any activities, changes or work which may cause
or tend to contribute to pollution of any body of water or groundwater.
That area of land extending 100 feet horizontally (40 feet for lands subject to flooding) from the boundary of the resource areas defined in § 337-2.
[Amended 10-4-2007]
All certified vernal pools plotted by the Massachusetts Division
of Fisheries and Wildlife Natural Heritage and Endangered Species
Program's "Estimated Habitats of Rare Wetlands Wildlife and Certified
Vernal Pools Map." The Natural Heritage and Endangered Species Program
plots the geographic location of certified vernal pools; however,
applicants are required to delineate the boundary of the certified
vernal pool, which shall be reviewed by the Northampton Conservation
Commission.
[Added 10-4-2007]
The duly appointed Conservation Commission of the City of
Northampton.
Areas of existing structures, buildings, fill, pavement,
impervious surface, lack of topsoil, dump sites or releases of hazardous
materials.
[Added 2-17-2011]
As defined by 310 CMR 10.
[Amended 2-1-2007]
Freshwater wetlands that do not border on creeks, rivers,
streams, ponds, and lakes; isolated depressions which hold standing
water for extended periods of time, such as kettle holes which are
too small to be called ponds; and isolated depressions or closed basins
which are subject to flooding during periods of high-water table and
high input from spring runoff or snowmelt or heavy precipitation,
and support populations of nontransient macroorganisms (wetland plants
defined in MGL c. 131, § 40, or 310 CMR 10.00 or animals
visible to the naked eye) or serve as breeding habitat for select
species of amphibians which depend on wetlands for breeding habitat.
Isolated and seasonal wetlands include temporary ponds and pools and
vernal ponds and pools.
Depressions or closed basins which serve as ponding areas
for runoff, snowmelt, heavy precipitation, or high groundwater which
has risen above the ground surface, and areas which flood from a rise
in a bordering waterway or water body.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivisions thereof to the extent subject
to City ordinance, administrative agency, public or quasi-public corporation
or body, this municipality, and any other legal entity, its legal
representatives, agents or assigns.
[Amended 2-1-2007]
All confined basin depressions which, at least in most years, hold water for a minimum of two continuous months during the spring and/or summer, and are free of adult fish populations, and are at least 1,000 square feet in area. A presumed vernal pool shall no longer be considered as a presumed vernal pool if rebutted under § 337-10.
[Added 10-4-2007]
The area of land between the edge of a resource area and a parallel line located 50 feet away, measured horizontally, except as provided in § 337-10.
[Added 2-17-2011]
The primary resource being protected by this chapter, which is the areas of jurisdiction defined in § 337-2 excluding the one-hundred-foot buffer (40 feet for lands subject to flooding).
Includes all confined basin depressions which, at least in
most years, hold water for a minimum of two continuous months during
the spring and/or summer, and are free of adult fish populations,
and are less than 1,000 square feet in area, but larger than 30 square
feet in area. Except as permitted by the Conservation Commission or
as provided in this chapter, no person shall remove, fill, dredge,
build upon, or alter seasonal wetlands or within 100 feet of seasonal
wetlands.
[Added 10-4-2007]
Includes the certified vernal pool, presumed vernal pool and an area, as described in the table in § 337-2, extending laterally from the mean annual high water line defining the depression, but shall not include existing lawns, gardens, and landscaped or developed areas. There is no additional buffer zone around a vernal pool resource area. Presumed vernal pools shall be protected as a vernal pool resource area until and unless the presumption is rebutted under § 337-10.
[Added 10-4-2007]
A.
The Commission may exempt the one-hundred-foot buffer
area around a seasonal or isolated wetlands and/or the seasonal or
isolated wetland resource area itself if the area of the wetland is
less than 400 square feet and it does not appear likely that area
is a vernal pond or otherwise critical to the wetland values protected
by this chapter. Seasonal wetlands and isolated wetlands which are
less than 30 square feet are not within the jurisdiction of this chapter,
unless they contain a certified vernal pool, as defined under the
Wetlands Protection Act, MGL c. 131, § 40.
B.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this chapter shall not be required for detention basins, catch basins, manholes, and dropped inlets that discharge into an existing pipe nor for maintaining, repairing, or replacing, but not changing or enlarging, an existing or lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunications services, sanitary sewers and storm sewers, provided that the structure or facility is not changed or enlarged, provided that written notice has been given to the Commission at least 48 hours prior to commencement of work, and provided that the work conforms to performance standards in or cited by this chapter.
[Amended 10-4-2007]
C.
The application and permit 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 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, 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
in this chapter. If no member of the Commission or the Commission's
agent can be reached before emergency work begins, the required notice
must be given to the Commission within 24 hours after commencement
of the project. 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.
D.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this chapter shall not be required for the harvesting of forestry products under the provisions of MGL c. 132, §§ 40 to 46 when an approved forest cutting plan has been properly filed with the Conservation Commission nor shall they be required for the normal maintenance or improvement of lands in agricultural use (as defined in 310 CMR 10.04), provided that the work conforms to performance standards in or cited by this chapter.
E.
Other than as stated in this section, the exceptions
provided in the Wetlands Protection Act shall not apply under this
chapter.
[Amended 9-20-1990]
Any person desiring to know whether or not a
proposed activity or an area is subject to this chapter must request
in writing a determination from the Commission. Such a request shall
contain at least two copies of all data, forms, and plans specified
by this chapter and the Commission and must include permission for
the Commission and its agents to enter the property for the purpose
of evaluating the request.
A.
The Commission in an appropriate case may accept as
the request under this chapter the request for determination of applicability
filed under the Wetlands Protection Act, MGL c. 131, § 40.
B.
Written permit application shall be filed with the
Commission to perform activities regulated by this chapter affecting
resource areas protected by this chapter. The application shall include
at least two copies of all plans, forms, and such information as is
deemed necessary by the Commission to describe proposed activities
and their effects on the environment and must include permission for
the Commission and its agents to enter the property for the purpose
of evaluating the request and monitoring the project. When applications
include drainage calculations or the design of any facility that will
be dedicated to the City of Northampton, one copy of the application
shall be delivered to the Director of Public Works or his/her designee.
No activities shall commence without receiving and complying with
a permit issued pursuant to this chapter.
[Amended 12-4-2014]
C.
The Commission in an appropriate case may accept as
the application and plans under this chapter the notice of intent
and plans filed under the Wetlands Protection Act, MGL c. 131, § 40.
D.
At the time of an application or request, the applicant
shall pay a filing fee in addition to the fee paid under the Wetlands
Protection Act and 310 CMR, unless the applicant is a public agency
or board of the City of Northampton. Fees shall be placed in the Wetlands
Fees Account established as required under state law to hold fees
from the Wetlands Protection Act. The required permit fees are as
set forth in Chapter 174, Fees.
[Amended 6-1-2000; 6-7-2001; 2-1-2007]
E.
In addition, the Commission is authorized to require
the applicant to pay all the costs and expenses of any expert consultant
deemed necessary by the Commission to review the application or resource
area.
[Amended 9-20-1990; 10-4-2007]
A.
An application for any wetland permit (notice of intent,
request for determination of applicability, or abbreviated notice
of resource area delineation) shall be hand delivered or sent by certified
mail, return receipt, or certificate of mailing to the Conservation
Commission, care of the Northampton Office of Planning and Development.
Said applicant shall give written notice to the owner if other than
the applicant and, with the exception of a request for determination
of applicability, to all abutters at their mailing addresses shown
on the most recent applicable tax list of the assessors, including
owners of land directly opposite on any public or private street or
way, and other property owners within 100 feet of the property line
of the applicant, including any in another municipality or across
a body of water. The notice to abutters shall state where copies of
the application or request may be examined and obtained by abutters
and shall state where information on the date and time of the public
hearing may be obtained. An affidavit of the person providing such
notice, with a copy of the notice mailed or delivered, shall be filed
with the Commission as part of the application.
B.
After the application/request is received, the applicant
shall place a public notice sign provided by the Conservation Commission,
facing a public right-of-way and visible from the right-of-way at
the edge of the property upon which the permit or request is being
made.
[Amended 10-21-2010]
(1)
Said sign shall notify the public that an application
or request is pending on the property.
(2)
Said sign shall be posted at least five working days
before the first public hearing on the application or request.
(3)
A signed statement of the person posting said sign
stating that the required sign was provided shall be filed with the
Commission prior to the public hearing.
C.
The Commission shall conduct a public hearing on any
application, notice of intent, abbreviated notice of resource area
delineation (ANRAD), or request for determination of applicability.
Notice of said hearing shall be published in a newspaper of general
circulation in the City at least five working days prior to said hearing
at the expense of the applicant. The published notice, which shall
be prepared by the Commission, shall contain the following information:
the date, time, and place of the hearing; the location of the property
affected; the name of the applicant; and the action requested from
the Commission. The Commission shall deliver the notice to the newspaper.
[Amended 10-21-2010]
(1)
The Commission shall commence the public hearing within
28 days from receipt of a completed application (one which shows all
the information, based on a staff determination, necessary to make
a decision), unless the applicant extends the time period by a written
waiver.
(2)
The Commission shall have authority to continue the
hearing to a date and time announced at the hearing for reasons stated
at the hearing, which may include the receipt of additional information
offered by the applicant or others, information and plans required
of the applicant, deemed necessary by the Commission, or comments
and recommendations of other boards and officials of the City of Northampton.
In the event the applicant objects to a continuance or postponement,
the hearing shall be closed and the Commission shall take action on
such information as is available.
(3)
In addition, when there is snow on the ground and/or
the ground is frozen, the Commission may continue a hearing until
the snow melts and/or the ground thaws if it determines that an accurate
wetland delineation is not possible otherwise.
D.
The Commission shall issue its permit, permit denial,
or determination in writing within 21 days of the close of the public
hearing, unless an extension is authorized in writing or at the public
hearing by the applicant.
E.
The Commission shall combine its hearing under this
chapter with the hearing conducted under the Wetlands Protection Act,
MGL c. 131, § 40, and regulations, 310 CMR 10.00, in instances
of concurrent jurisdiction.
[Amended 9-20-1990; 12-4-2014]
The Commission shall provide copies of its agenda
to the Planning Department, Director of Public Works or his/her designee
and Building Inspector. The Commission shall not take final action
until five working days after such officials have received their notice
of the application. The Commission shall consider recommendations
from those officials and any other City boards and officials but they
shall not be binding on the Commission.
[Amended 9-20-1990]
A.
The Commission shall have the authority, after a public
hearing, to determine whether a specific parcel of land contains or
does not contain resource areas protected under this chapter. If the
Commission finds that no such resource areas are present, it shall
issue a negative determination.
B.
If the Commission, after a public hearing on the permit
application, determines that the activities which are the subject
of the application are likely to have a significant or cumulative
detrimental effect upon the wetland values protected by this chapter,
the Commission, within 21 days of the close of the hearing, shall
issue or deny a permit for the activities requested.
C.
The Commission shall have the right to refuse to issue
a permit if a previous permit on the same property or on contiguous
properties under the same or affiliated ownership has not been complied
with or has not received a certificate of compliance.
D.
If it issues a permit (order of conditions), the Commission
shall impose conditions which the Commission deems necessary or desirable
to protect those values, and all activities shall be done in accordance
with those conditions. The Commission can, at its discretion, require
that construction of erosion control features and other features that
protect the resource areas be completed before other work on the project
proceeds. The Commission shall record the order of conditions in the
Registry of Deeds or the Land Court for the district in which the
land is located, within the chain of title of the affected property,
provided that the applicant has provided adequate information on the
ownership of the parcel. Following recording, the Commission shall
provide the original signed order to the applicant by hand delivery
or certified mail. The applicant, however, and not the Commission
is responsible for insuring that the order is properly recorded and
that future buyers are advised of permit conditions. In addition,
the permittee or landowner shall notify the Commission when work is
due to begin on the project not less than three or more than 14 days
before work begins on the project. If work is suspended on a project
for more than 60 days, the permittee or landowner shall again notify
the Commission when work is due to begin. A copy of the permit (order
of conditions) shall be on site at all times during construction activities
related to the resource area or buffer zone.
[Amended 10-21-2010]
E.
The Commission is empowered to deny a permit for failure
to meet the requirements, design specifications and performance standards
of this chapter; for failure to submit necessary information and plans
requested by the Commission; for failure to avoid or prevent significant
or cumulative detrimental effects upon the wetland values protected
by this chapter; and where no conditions are adequate to protect those
values.
F.
A permit 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 for an additional period of up to three years, provided
that a request for renewal is received in writing by the Commission
prior to expiration, in accordance with 310 CMR 10.00, and that financial
guarantees and other securities required by the Commission are also
renewed.
[Amended 10-21-2010]
G.
For good cause, the Commission may revoke or amend
a permit issued under this chapter after public notice and public
hearing, and notice to the holder of the permit.
H.
The Commission in an appropriate case may combine
the permit or other action on an application issued under this chapter
with the order of conditions or other action issued or taken under
the Wetlands Protection Act, MGL c. 131, § 40.
I.
After all work is done in accordance with a permit
(order of conditions) issued under this chapter, the landowner or
the landowner's successors in interest shall apply for a certificate
of compliance. This application shall be accompanied by an as-built
plan if different from the original plan and by the project engineer's
statement of the project's compliance with the permit, unless the
requirement for the statement has been waived by the Commission.
J.
When it has been adequately demonstrated to the Commission
that the order of conditions was adhered to, the Commission shall
issue a certificate of compliance. The order of conditions and the
certificate of compliance may include conditions, such as maintenance
requirements, that are perpetual and do not expire with the issuance
of the certificate of compliance. The permittee or landowner shall
record the certificate of compliance in the Registry of Deeds or the
Land Court for the district in which the land is located, within the
chain of title of the affected property.
After public notice and public hearing, the
Commission shall promulgate required forms and submittal requirements
to accomplish the purposes of this chapter. The Commission may amend
its required forms and submittal requirements after public notice
and public hearing. Failure by the Commission to promulgate such forms
and submittal requirements or a legal declaration of their invalidity
by a court of law shall not act to suspend or invalidate the effect
of this chapter.
[Amended 10-4-2007]
A.
All work shall be subject to inspection and require
the approval of the Conservation Commission.
B.
To encourage infill development, which is considered more sustainable under the principles of smart growth and generally has a smaller environmental footprint than development in outlying areas, in the Central Business, General Business, Highway Business, Neighborhood Business, General Industrial, Special Industrial, Planned Village, Medical, Urban Residential-B and Urban Residential-C Zoning Districts, within those portions of the Water Supply Protection Overlay District which was zoned industrial as of January 1, 2006, the Conservation Commission hereby waives any of the § 337-10 performance standards that are over and above state law with the exception of the setback requirements in the Protected Zone Table (1), and the requirements in § 337-10E(2)(b).
[Amended 2-17-2011]
C.
[1]Artificial or replacement wetlands. If the applicant demonstrates
to the Commission that the replacement wetland is a restoration and
will provide wetland values equal or greater than the wetland values
being lost, the Commission may allow replacement wetlands to be the
same size as the disturbed area. If the applicant is attempting to
replace a wetland through replication, the area of replication must
be up to twice as large as the area of the original wetland that will
be destroyed. In those instances where replication is approved by
the Commission the following conditions must be met:
(1)
At minimum, the replicated wetland must reproduce
the values and functions of the original wetland as determined by
the Conservation Commission. Site conditions permitting, the Commission
may require that additional values and functions be incorporated into
the replication design. In particular, in circumstances where replacement
of specific functions and values would require substantial amounts
of time before being completely replicated (for example, those provided
by large mature trees), the Commission may require additional compensation
of area, functions, values, etc. beyond those required in other sections
of this chapter.
(2)
In most instances, the replication of wetlands will
result in the destruction of adjacent buffer zone areas. In such instances,
replication or additional permanent preservation of new buffer zone
areas may be required.
(3)
The top 12 inches of soil from the original wetland
must be transplanted with soil structure, especially lamination and
density profile, intact to the replication area. This is intended
to preserve plant, invertebrate, and planktonic communities of the
wetland and inhibit the blossoming of invasive species.
(4)
Any replication or restoration work that creates a
resource on abutting properties shall require an easement from the
abutting property owner covering the full extension of the resource
on that property prior to commencement of the work.
(5)
Standards for the replication shall be specified and
verified in terms of functions, values, and actual performance. Technical
and engineering specifications used for design and construction shall
be considered approximate. Criteria for acceptance and approval shall
be based solely on function and performance as specified in the order
of conditions. In other words, replications will be evaluated on what
they are expected to do, not how closely actual construction matched
the plan. For example, although elevations may be used for design
and planning of a pond, the standards shall be set in terms of volume
and depth of water over the course of a year. In vernal pool replication,
the pool must be capable of sustaining full development of vernal
pool species, regardless of design elevations or siting.
(6)
Replications that do not properly perform the approved
functions and values as specified in the order of conditions will
not be deemed acceptable no matter how closely they adhere to approved
engineered plans.
(7)
The Commission may set other conditions on a project-/site-specific
basis.
(8)
For limited development projects, as defined in the
Wetlands Protection Act regulations, where it is not be practical
to lay out an element of the project without a wetlands replication,
the Commission may waive some or all of the requirements of this section.
D.
Work within upland areas adjacent to wetlands. A growing
body of research evidence suggests that even "no disturbance" areas
reaching 100 feet from wetlands may be insufficient to protect many
important wetland resource characteristics and values. Problems with
nutrient runoff, erosion, siltation, loss of groundwater recharge,
poor water quality, vegetation change and harm to wildlife habitat
are greatly exacerbated by activities within 100 feet of wetlands.
These impacts may happen either immediately, or over time, as a consequence
of construction, or as a consequence of daily operation. Thus, in
general, work and activity within 100 feet of wetlands should be avoided
and discouraged and reasonable alternatives pursued.
(1)
Certain areas 50 feet to 100 feet from wetlands may
be suitable for temporary, limited or permanent disturbance as appropriate
when the applicant can demonstrate to the Commission's satisfaction
that the proposed work, activity or use will not affect wetland values
singularly or cumulatively and, by means of a written and plan view
assessment, that reasonable alternatives to the proposed work or activity
do not exist.
(a)
The Commission may allow the alteration of up
to 20% of the area within the fifty-foot to one-hundred-foot buffer
zone on a lot, or up to 2,000 square feet on a lot within a cluster
subdivision. This is a total, cumulative allowance for all projects
on a lot developed since the City first adopted a wetlands protection
ordinance (August 17, 1989). The proposed work must have no significant
adverse impact on the resource area, and the applicant must provide
evidence deemed sufficient by the Commission that the area being disturbed
will not harm the resource area values protected by the law.
(2)
The Commission shall not permit alteration within
resource areas or their associated protected zones, subject to the
following exceptions:
[Amended 2-17-2011]
(a)
Projects in areas downgradient of wetlands.
(b)
Projects in certain infill areas, in accordance with Protected Zone Table (1) in § 337-10, where development includes mitigation measures that will improve the existing condition of the wetlands or adjacent upland.
(c)
Limited projects, as defined in the Massachusetts Wetlands Protection
Act regulations, and walking and multiuse trails designed for nonmotorized
use.
(d)
Projects which will improve the natural capacity of a resource area(s)
to protect the interests identified in MGL c. 131, § 40
(although no such project may be permitted which will have any adverse
effect on specified wildlife habitat sites of rare vertebrate or invertebrate
species as identified by procedures established under 310 CMR 10.59).
Such projects include, but are not limited to, the removal of aquatic
nuisance vegetation to retard pond and lake eutrophication and the
thinning or planting of vegetation to improve habitat value, removal
of invasive nonnative vegetation, removal of fill and/or hazardous
materials. These projects may be standalone projects, or may be included
as portions of larger projects.
(e)
Agricultural activities, as defined in 310 CMR 10.04.
(f)
Erection of wetland boundary markers, such as stones or iron rods.
(g)
Work involving land under water shall conform to the performance
standards set forth in 310 CMR 10.56.
(h)
Projects in or affecting protected zones or resource areas containing
areas already degraded or developed, subject to the following criteria:
[1]
At a minimum, proposed work shall result in an improvement over existing
conditions of the capacity of the resource area to protect the interests
identified in MGL c. 131, § 40. When a lot is previously
developed but no portion of the resource area or its protected zone
is degraded, this section shall not apply.
[2]
Within the resource area and its protected zone, proposed work shall
not be located closer to the resource area than existing degraded
conditions.
[3]
Proposed work, including expansion of existing structures, shall
be located outside the resource area or toward the resource area boundary
and away from the resource.
[4]
The area of proposed work shall not exceed the amount of degraded
area.
[5]
When an applicant proposes restoration on the site of the degraded
area in the protected zone, alteration may be allowed, notwithstanding
the criteria of Subsection E(2)(h)[2], [3] and [4] of this section,
at a ratio in square feet of at least 1:1 of restored area to area
of alteration not conforming to the criteria. Restoration shall include
removal of all debris, but retaining any trees or other noninvasive
mature vegetation; grading to a topography which reduces runoff and
increases infiltration; coverage by topsoil at a depth consistent
with natural conditions at the site; and seeding and planting with
an erosion control seed mixture, followed by plantings of herbaceous
and woody species appropriate to the site.
[6]
When an applicant proposes mitigation either on site or in a protected
zone associated with the same resource area, alteration may be allowed,
notwithstanding the criteria of Subsection E(2)(h)[2], [3] and [4]
of this section, at a ratio in square feet of at least 2:1 of mitigation
area to area of alteration not conforming to the criteria. Mitigation
may include off-site restoration of protected zones; conservation
restrictions under MGL c. 184, §§ 31 to 33 to preserve
undisturbed protected zones that could be otherwise altered; the purchase
of development rights within protected zones; the restoration of bordering
vegetated wetland; projects to remedy an existing adverse impact on
the interests identified in MGL c. 131, § 40, for which
the applicant is not legally responsible; or similar activities undertaken
voluntarily by the applicant which will support a determination by
the Commission of no significant adverse impact.
[7]
The Commission shall include a continuing condition in the certificate
of compliance for projects under Subsection E(2)(h) prohibiting further
alteration within the restoration or mitigation area, except as may
be required to maintain the area in its restored or mitigated condition.
Prior to requesting the issuance of the certificate of compliance,
the applicant shall demonstrate that the restoration or mitigation
has been successfully completed for at least two growing seasons.
[Amended 5-3-2018 by Ord.
No. 18.064; 3-17-2022 by Ord. No. 21.355]
|
Zoning District
|
Protected Zone
| |
|
Central Business, General Business, Neighborhood
Business, General Industrial, Special Industrial, Planned Village,
Medical
|
10 feet from wetlands
| |
|
Urban Residential-B and Urban Residential-C
|
35 feet from wetlands
10 feet from wetlands may be allowed at the
discretion of the Conservation Commission if applicant provides extraordinary
mitigation, replication, restoration or open space preservation measures
| |
|
Other areas
|
Only in conformance with the performance standards
of this chapter
|
E.
Work within vernal pool resource area.
(1)
The City of Northampton Conservation Commission may issue an order of conditions for the construction, rehabilitation and maintenance of linear systems within the vernal pool resource area, but not within the vernal pool (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Linear systems include, but are not limited to: footpaths, bikepaths, pipelines, and conduits for the transmission of utilities (water, fuel, sewage, and power). Evaluation of such projects shall be based on the applicant's ability to avoid, minimize, and mitigate disturbance to the resource area. With the exception of existing linear systems, the applicant shall avoid disturbance in the resource area. The applicant must prove to the Conservation Commission, beyond a reasonable doubt, that avoidance is not possible. If avoidance is not possible, the applicant must provide documentation that any adverse impacts from the work will be minimized and that the design specifications are commensurate with the projected use and are compatible with the character of the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity, the extent to which adverse impacts are minimized, and the extent to which mitigation measures, such as resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
(2)
The City of Northampton Conservation Commission may issue an order of conditions for the construction of a driveway crossing within the one-hundred-foot to two-hundred-foot section of the vernal pool resource area (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Such projects may be permitted if the applicant provides evidence that the work will not cause adverse impacts to the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity and the extent to which mitigation measures, including resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
(3)
The City of Northampton Conservation Commission may issue an order of conditions for the rehabilitation and maintenance of existing structures and disturbed areas (structures or disturbed areas existing as of January 1, 2006) within the vernal pool resource area, but not within the vernal pool (although no such project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Such projects may be permitted if the applicant provides evidence that the work will not cause additional impacts to the vernal pool resource area. In the exercise of this discretion, the issuing authority shall consider the magnitude of the alteration and the significance of the project site to the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable alternatives to the proposed activity and the extent to which mitigation measures, including resource area replication, habitat restoration, and open space preservation, are provided to contribute to the protection of the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
F.
Vernal pool habitat. The presumptive definition for
vernal pools is based on systematic field observations in the City
of Northampton by the Northampton Conservation Commission and shows
that virtually all basins that possess the defined characteristics
actually host breeding vernal pool species. Undoubtedly, this is a
particular consequence of Northampton's enduring woodlands and wetlands.
(1)
Any ponded area located within a confined basin depression
and containing more than 1,000 square feet of water during the growing
season shall be presumed to be vernal pool habitat. This presumption
is rebuttable through any of the following means:
(a)
Demonstration that surface water was present
for fewer than 60 consecutive days during the growing season (March
15 through October 15) of any years, provided that rainfall during
the period of observation was at least 75% of the average over 20
years for that period in Northampton.
(b)
Proof that the ponded area either supports a
year-round population of fish or that the fish breed within the confines
of the ponded area.
(c)
Demonstration, through repeated observation
by competent field observers made during the spring months, that the
ponded area did not meet the criteria for certification as vernal
pool habitat as described in the Guidelines for the Certification
of Vernal Pool Habitat of the Massachusetts Division of Fisheries
and Wildlife. For such evidence to be considered sufficient and accurate,
a vernal pool observation plan must be approved by the Northampton
Conservation Commission prior to February 15 of the spring in which
the study will be conducted, and staff or agents of the Commission
must be granted access to the site as necessary.
(2)
If a presumed vernal pool is located entirely on an
adjacent property not owned or controlled by the applicant, the applicant
and Conservation Commission must attempt to gain permission from the
adjacent property owner to access the property to inspect the presumed
vernal pool. If said permission is not granted, and the presumed vernal
pool cannot be certified from observations made at the property boundary
line, the Northampton Conservation Commission will not assert regulatory
jurisdiction over the area of upland vernal pool resource area on
the applicant's property.
(3)
If a property owner grants permission by February
15 of any year, the Northampton Office of Planning and Development
or its agent will inspect and certify vernal pools (usually in the
spring of each year). The City or its agent will then either certify
eligible vernal pools with the Commonwealth of Massachusetts or provide
a statement that an inspected presumed vernal pool is not actually
a certified vernal pool in accordance with the necessary credible
evidence as required. A statement that a site is not a vernal pool
shall be presumptive under this chapter for three years but does not
indicate that it is not otherwise a resource area. The fee for this
work shall be made payable to the City or its agent, as applicable,
and shall be the same fee as being charged for the Massachusetts Department
of Environmental Protection notice of resource area delineation.
As part of a permit issued under this chapter,
except for permits issued for work being performed or contracted by
any department or agency of the City of Northampton, and in addition
to any security required by any other municipal or state board or
agency, the Commission may require that the performance and observance
of the conditions imposed hereunder be secured wholly or in part by
one or more of the methods described below:
A.
A financial guarantee, such as a proper bond or deposit
of money or negotiable securities or other undertaking of financial
responsibility sufficient in the opinion of the Commission. Surety
performance bonds, cash escrows, and standby letters of credit are
the usual forms of financial guarantees that will be accepted. Property
escrows will not be accepted. Permittees shall submit their estimates
of what the required improvements will cost, preferably with contractors'
bids to perform the work
(1)
The term of any financial guarantees must be at least
nine months longer than the time a permittee has to complete a project.
The Commission, at its discretion, may allow partial or complete release
of guaranteed funds as sections of a project are completed. The Commission
has the right not to release part of the guaranteed funds until after
the project is finished and a certificate of compliance is issued.
(2)
The Commission has the right to reject the terms of
a proposed financial guarantee, including the financial institution
holding guaranteed funds if it is not a local bank, and to determine
the amount of funds that must be guaranteed. The Commission's only
duty to secure release of guaranteed funds is to certify that required
improvements or conditions have not been completed on time or to a
satisfactory standard, as defined by the Commission.
(3)
At the discretion of the Commission, a joint financial
guarantee may be used to comply with Commission requirements and that
of other agencies, boards, and commissions in the City of Northampton;
provided, however, that all relevant parties agree on the terms and
the principal and that the guarantee is structured so that all relevant
parties agree before any funds are released.
B.
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 this municipality
and observed before any lot may be conveyed other than by mortgage
deed.
A.
The Commission, its agents, officers, and employees
shall have the 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. Any request for determination, application/notice
of intent, or request for certificate of compliance is evidence of
the landowner's permission for said parties to enter private land,
and all forms shall include this as a condition.
B.
The Commission shall have the responsibility, duty,
and authority to enforce this chapter, its regulations, and permits
issued thereunder by violation notices, administrative orders, and
civil and criminal court actions.
C.
Upon request of the Commission, the City Solicitor
shall take legal action for enforcement under civil law. Upon request
of the Commission, the Chief of Police or other appropriate official
shall take legal action for enforcement under criminal law.
D.
Municipal boards and officers, including any police
officer or other officer having police powers, shall have the authority
to assist the Commission in enforcement.
E.
Any person who violates any provision of this chapter, including any causing, suffering, or allowing of illegal work, any failure or refusal to comply with an enforcement order, violation notice or administrative order, and any failure or refusal to remove illegal fill, restore property, or obtain necessary Commission approval, or any person who violates the permits issued hereunder, shall be punished as set forth in Chapter 1, § 1-17, General penalty. Each day, or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the ordinance or permit violated shall constitute a separate offense.[1]
F.
In the alternative to criminal prosecution, the Commission
may utilize the noncriminal disposition procedure set forth in MGL
c. 40, § 21D, in accordance with City ordinance. Each day
or portion thereof during which a violation continues shall constitute
a separate offense and each provision of the ordinance or permit violated
shall constitute a separate offense. This fine may be in addition
to any levied under the Wetlands Protection Act, MGL c. 131, § 40.
The applicant for a permit shall have the burden
of proving by a preponderance of the credible evidence that the work
proposed in the application will not have, in the opinion of the Conservation
Commission, unacceptable significant or cumulative effect upon the
wetland values protected by this chapter. 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.
[Added 10-21-2010[1]]
A decision of the Commission shall be reviewable in the Superior
Court in accordance with MGL c. 249, § 4. Appeals shall
be made within 10 business days of the date of the decision by the
Commission, or the date of the signing and/or notarization of said
decision, whichever is the later. Notice of said appeal and a copy
of the complaint shall be sent, certified mail, or hand-delivered,
to the Conservation Commission so as to be received within said 10
days.
[1]
Editor's Note: This ordinance also renumbered former § 337-14
as § 227-15.
A.
This chapter 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 the
regulations thereunder.
B.
Unless otherwise stated in this chapter, the definitions,
procedures, and performance standards of the Wetlands Protection Act,
MGL c. 131, § 40, and associated regulations, 310 CMR 10.00,
shall apply.
