[HISTORY: Adopted by the Board of Aldermen of the City of
Melrose 5-7-2007 by Ord. No. 07-008.[1] Amendments noted where applicable.]
A.
The purpose of this chapter is to protect the wetlands, water resources,
and adjoining land areas in the City of Melrose by controlling activities
deemed by the Conservation Commission likely to have a significant
or cumulative effect upon resource area values, including but not
limited to the following: public or private water supply, groundwater,
flood control, erosion and sedimentation control, storm damage prevention,
water quality, water pollution control, fisheries, shell fisheries,
wildlife habitat, rare species habitats, including rare plant species,
native plant species, and recreation values (collectively, the "resource
area values protected by this chapter").
B.
This chapter is intended to utilize the home rule authority of the
City of Melrose 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 the
regulations promulgated thereunder at 310 CMR 10.00.
A.
Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall cause, suffer, allow, or commence
to remove, fill, dredge, build upon, degrade, discharge into, excavate,
clear, landscape, pollute, drain, construct upon, change the physical,
chemical, vegetative or biological characteristics of or otherwise
alter the following resource areas: any freshwater wetlands; marshes;
wet meadows; bogs; swamps; vernal pools; banks; lakes; ponds of any
size; rivers; streams (including intermittent streams); creeks; lands
under water bodies; and lands subject to flooding or inundation by
groundwater or surface water (collectively the "resource areas protected
by this chapter"). Said resource areas shall be protected whether
or not they border surface waters.
B.
In addition, lands abutting resource areas are integral in protecting
and preserving the resource areas and resource area values protected
by this chapter. Accordingly, land within 100 feet horizontally from
resource areas other than land subject to flooding or inundation by
groundwater or surface water is subject to regulation by the Commission
to the same extent as the resource area itself.
A.
The application and permit required by this chapter 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 chapter. Upon failure to meet these and other
requirements of the Commission, the Commission may, in its sole discretion,
after notice and a public hearing, revoke or modify an emergency project
approval and order restoration and mitigation measures.
B.
Any existing structure or use of such structure lawful at the effective
date of this chapter may continue although such structure or use does
not conform to this chapter. Any existing structure may be repaired,
maintained and improved but in no event made larger. Any nonconforming
structure which is destroyed may be rebuilt on the same location but
no larger than the original overall square footage.
A.
Permit applications.
(1)
No person may undertake any activity within the jurisdiction of the Commission, as defined in § 231-2 of this chapter, without first applying for, obtaining from, and complying with a permit from the Conservation Commission. Applications shall be filed with the Conservation Commission at the following address:
Melrose City Clerk's Office
Melrose City Hall
562 Main Street
Melrose, MA 02176
|
(2)
The Commission will accept as the application and plans under this
chapter any application and plans filed under the Wetlands Protection
Act if such application and plans also satisfy the filing requirements
set forth in this chapter. The Commission reserves the right to require
such other information as it deems necessary to render a decision
or take action under this chapter.
B.
Request for determination. Any person desiring to know whether or not a proposed activity is subject to this chapter may, in writing, request a determination from the Commission. Such a request for determination (RFD) shall include a narrative describing the proposed project and a site plan illustrating the proposed project, as further described in § 231-5B. The Commission will accept as the RFD under this chapter a request for determination of applicability under the Wetlands Protection Act if such application and plans also satisfy the filing requirements set forth in this chapter. The Commission reserves the right to require such other information as it deems necessary to render a decision or take action under this chapter.
C.
Filing fees.
(1)
At the time that an application is submitted, the applicant shall
pay a filing fee as set forth in this section. The fee is in addition
to that required by the Wetlands Protection Act. The fees shall be
calculated in accordance with the schedule listed below. Projects
conducted by the City and its departments are exempt from fees.
(2)
The following fee schedule has been determined by the Commission to be commensurate with the expense of providing review services to applicants, exclusive of consultant fees as set forth in Subsection D, notification costs as described in § 231-7A(1), and legal advertisement costs as described in § 231-7A(1):
D.
Consultant fee.
(1)
Upon receipt of an application, or at any point during the hearing
process, the Commission, in its sole discretion, is authorized to
require an applicant to pay a fee for the reasonable costs and expenses
borne by the Commission for specific expert engineering and other
consultant services deemed necessary by the Commission to come to
a final decision on the application. This fee is called the "consultant
fee." The specific consultant services may include, but are not limited
to, performing or verifying the accuracy of resource area survey and
delineation; analyzing resource area functions and values, including
wildlife habitat evaluations, hydrogeologic and drainage analysis;
and researching environmental or land use law. The minimum qualifications
of any consultant selected by the Commission shall consist of either
a bachelor's degree in or related to the field at issue or three
or more years of practice in the field at issue or a related field.
(2)
If a municipal revolving fund has been established pursuant to MGL
c. 44, § 53E, or a special act for deposit and Commission
use of filing and/or consultant fees described above, then such filing
and/or consultant fees shall be deposited therein, for uses set out
in the vote establishing the fund. This account shall be kept separate
from the account established for filing fees paid under the Wetlands
Protection Act.
(3)
The exercise of discretion by the Commission in making its determination
to require the payment of a consultant fee shall be based upon its
reasonable finding that additional information available only through
outside consultants is necessary to make an objective decision. Any
applicant aggrieved by the imposition of, or size of, the consultant
fee, or any act related thereto, may appeal according to the provisions
of the Massachusetts General Laws. Any unused portion of the consultant
fee shall be returned to the applicant.
(a)
The maximum consultant fee charged to reimburse the Commission
for reasonable costs and expenses shall be according to the following
schedule:
Project Cost
|
Maximum Fee
| |
---|---|---|
Up to $100,000
|
Up to $500
| |
$100,001 to $500,000
|
Up to $2,500
| |
$500,001 to $1,000,000
|
Up to $5,000
| |
$1,000,001 to $1,500,000
|
Up to $7,500
| |
$1,500,001 to $2,000,000
|
Up to $10,000
|
(b)
Each additional project cost increment of $500,000 (over $2,000,000)
may be charged not more than an additional maximum fee of $2,500 per
increment.
(c)
The "project cost" means the estimated entire cost of the project,
including but not limited to resource area delineation, building design
and construction, site preparation, landscaping, and all site improvements.
The project shall not be segmented to avoid the consultant fee. The
applicant shall submit estimated project costs at the Commission's
request, but the lack of such estimated project costs shall not impact
payment of the consultant fee.
E.
Deadlines.
(1)
The Commission will hold a public hearing within 21 days of the date of receipt of a complete application for permit. The Commission may also schedule a site visit of the property, as set forth in § 231-7C.
(2)
If the Commission determines that the application does not contain
all required documentation, the Commission will notify the applicant
of the information or materials that still need to be provided. The
applicant will deliver all such outstanding documentation at least
six business days prior to the next public hearing. Submission of
material by the applicant five business days or fewer before the public
hearing will constitute a constructive request by the applicant for
a continuation of the hearing if, in the sole opinion of the Commission,
the Commission, staff, or public has not had adequate or sufficient
time to properly consider said material. Omission of information at
any stage may require that the public hearing be continued pending
receipt of the information.
A.
Site work prior to filing and the public hearing. In order to clarify
the review process for the Commission and/or its agent, flagged stakes
shall be installed at the project site for the Commission's site
visit to mark the following locations:
(1)
All wetlands within 100 feet of the edge of the proposed alteration shall be marked with numbered flagging tape, which will correspond to the edge of wetlands numerically indicated on the plans as set forth in Subsection B; and
(2)
The corners of proposed buildings and drainage systems and delineation
of roadways nearest the protected resource areas shall be marked,
with the specific location noted on the flags to correspond to the
plan.
B.
Submission requirements applicable to all projects. Any application
for a permit under this chapter shall include such information and
plans as are deemed necessary by the Commission to describe proposed
activities and their effects on the resource areas protected by this
chapter. At a minimum, the application shall include the following:
(1)
Narrative detailing the proposed project; and
(2)
Site plan showing details of the proposed project as follows:
(a)
The following information shall be delineated:
[1]
Boundary of the resource area, showing flags numbered to correspond
with numbered flags installed at the site;
[2]
FEMA floodplain delineation, if applicable.
[3]
The fifteen- and twenty-foot setback requirements for the proposed project as set forth in § 231-6;
[4]
The one-hundred-foot buffer zones to the resource area;
[5]
One-hundred-foot inner and two-hundred-foot outer riparian zones,
if applicable;
[6]
Proposed erosion and sedimentation controls (e.g., stacked hay
bales and silt fences);
[7]
The limit-of-work line or note if the same as the erosion control
barrier;
[8]
Recorded easements or restrictions on or crossing the property
and metes and bounds of proposed conservation restrictions noting
the total restricted area;
[9]
Abutting property owners and map and parcel identification;
[10]
Elevation or sections of buildings, retaining walls or other
structures if any change in grade or elevation is proposed;
[11]
Proposed location of any fill or construction material to be
stored on site;
[12]
Extent of any new impervious surfaces and infiltration measures
proposed for runoff from such surfaces (e.g., dry wells, porous pavement);
[13]
Utility connections, if applicable;
[14]
Drainage details for any proposed stormwater management system
to mitigate stormwater runoff, if applicable; and
[15]
Landscape plan or buffer zone enhancement plan to detail the
approach to protect/enhance the buffer zone.
(b)
If the proposed project involves construction of residential,
commercial, or similar structure, or if it involves addition of structures
or change in elevation or grading within the one-hundred-year floodplain,
the plan shall contain a stamped and signed certification by a professional
land surveyor, a professional civil engineer (if applicable), or a
registered landscape architect (if applicable).
(c)
Provide one original stamped plan and seven copies of the plan.
(3)
Erosion and sedimentation control. Applicants shall be required to
show appropriate erosion control measures, including but not limited
to silt prevention devices, silt fences and/or hay bales. A narrative
erosion control plan shall be provided for all resource areas protected
by this chapter. Specifications shall be provided for both temporary
and permanent ground covers. The erosion control plan shall describe
all temporary and permanent methods to control erosion and siltation
on site.
No permit shall be granted unless the applicant's proposed
project complies with the following requirements or unless the Commission,
in its sole discretion, deems it necessary or desirable to waive any
provision herein.
A.
Setbacks. The following setbacks are minimum setbacks and may be
extended further if the Commission, in its sole discretion, deems
it necessary for the protection of the resource values protected by
this chapter. Minimum setbacks will be viewed on a case-by-case basis.
The Commission shall take into account the cumulative adverse effects
of loss, degradation, isolation, and replication of the resource areas
protected by this chapter. Information to be assessed includes, but
is not limited to, leaching, erosion, drainage, on-site ponding, and
general effect on wetlands.
(1)
General. No permit for any alteration or structure shall be issued
unless the proposed project complies with the following minimum setbacks:
(a)
No disturbance zone. A no disturbance zone shall be provided
and maintained in the area of land situated between a wetland and
a parallel line located 15 feet away, measured outward horizontally
from the edge of the wetland. The no disturbance zone shall be naturally
vegetated and free from oil, hazardous materials, and chemicals (including,
without limitation, fertilizers, herbicides and pesticides).
(b)
No construction zone. A no construction zone shall be provided
and maintained in the area of land situated between a wetland and
a parallel line located 20 feet away, measured outward horizontally
from the edge of the wetland. Lawns and landscaping are permitted
but structures and appurtenances thereto are prohibited in the no
construction zone.
(2)
Wetland-dependent structures. A zero-foot setback for wetland dependent
structures (drain outfalls, weirs, etc.) will be permitted where the
Commission, in its sole discretion, deems reasonable.
(3)
Upland access. A zero-foot setback for site improvements necessary
for upland access will be permitted where the Commission, in its sole
discretion, deems reasonable alternative access to be unavailable.
(4)
Wetland setbacks for preexisting structures. Projects associated
with preexisting structures or projects not presently in compliance
with this chapter may not increase the degree of nonconformance of
those structures or projects. No new alteration shall be commenced
and no new structure shall be located within the no construction zone
or no disturbance zone, as set forth in this chapter.
B.
Floodplain requirements. There shall be no net loss of flood storage
volume at any elevation. There shall be no increase in the rate of
runoff as a result of any project. The Commission may impose specific
planting and/or maintenance requirements in order to achieve floodplain
requirements. The Commission may also require the applicant to conduct
drainage calculation studies and to take other mitigation measures
as appropriate.
C.
Wildlife habitat. No project may result in the loss of critical habitat
or cause negative impacts on critical habitat of rare, threatened,
or endangered species, or species of special concern. Any applicant
proposing an alteration near a critical habitat area shall be required
to include a description of wildlife habitat characteristics observed
on the property. The Commission may require a wildlife habitat study
of the project area, to be paid for by the applicant, whenever it
deems appropriate, regardless of the type of resource area or the
amount or type of alteration proposed. The decision to perform a wildlife
habitat study 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 possible presence
of rare species in the area. The work shall be performed by an individual
who, at a minimum, meets the qualifications set out in the wildlife
habitat section of the Wetlands Protection Act.
D.
Stormwater management.
(1)
Any applicant proposing an increase of impervious area greater than
500 square feet within a buffer zone or land subject to flooding must
demonstrate that there will be no net increase in runoff peak discharge
rate and no net loss of recharge to groundwater.
(2)
This requirement may be met in one of two ways:
(a)
DEP Stormwater Policy method. An applicant may submit engineering
calculations using methods approved in the Massachusetts DEP Stormwater
Management Policy and guidance documents in effect at the time of
the application, showing pre- and post-development recharge and peak
discharge rates for a one-, two-, and ten-year storm. Drainage calculations
submitted in compliance with the DEP Stormwater Policy may be used
to satisfy this requirement but must include calculations for a one-year
storm in addition to those required under the DEP policy.
(b)
Low-impact development method.
[1]
As an alternative to the DEP method, applicants may receive
a presumption that the stormwater performance standard is met by applying
low-impact development (LID) best management practices to all new
impervious surfaces. The applicant may utilize as many or as few of
the following techniques as needed to effectively manage stormwater
on site, subject to the approval of the Commission:
[a]
Removal of preexisting impervious area of the same
or greater size in the same drainage area;
[b]
Use of permeable pavers in place of impervious
materials;
[c]
Design of surfaces so that runoff will be in the
form of sheet flow directed towards a naturally vegetated buffer area.
The width of the naturally vegetated area must be at least equal to
the width of the impervious area;
[d]
Direction of runoff flow to rain gardens or bioretention
areas. These areas should be large enough to accommodate the volume
of one inch of runoff over the area of contributing impervious surface;
[e]
Use of green roof systems;
[f]
Connection of runoff from new impervious areas
to dry wells or other infiltration devices. Said devices should be
large enough to accommodate the volume one inch of runoff over the
area of contributing impervious surface; or
[g]
Other similar stormwater management practices as
may be approved by the Commission on a case-by-case basis.
[2]
Applicants electing to apply LID methods are not required to
submit drainage studies unless required to do so under the Massachusetts
DEP Stormwater Management Policy. Use of low-impact development practices
is encouraged for all projects, including those involving under 500
square feet and those subject to the DEP Stormwater Management Policy.
The Commission may require the use of LID practices in any project
where the Commission deems such use necessary to preserve the values
protected under this chapter.
A public hearing shall be held for each filing. At the hearing,
the information is presented to the Commission and the public by the
applicant and/or the applicant's representative(s).
A.
Notice of this hearing is given as follows:
(1)
Notice to abutters.
(a)
Any person filing an application with the Conservation Commission
for anything other than an RFD shall at the same time send written
notice thereof, by hand delivery or form of mailing providing proof
of mailing (e.g., certified mail or certificate of mailing), 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 abutters to the abutters
within 100 feet of the property line of the applicant, including any
in another municipality or across a body of water. Applications for
an RFD do not require abutter notification.
(b)
In addition, any person filing an application for an alteration
to take place on property bordering Swains Pond, Towners Pond, or
Ell Pond shall give written notice thereof to all abutters to such
pond.
(c)
The notification required under this section shall be made at
the expense of the applicant and shall have enclosed a copy of the
application, with plans, or shall state where copies may be examined
or obtained by abutters. The notification shall also state where information
regarding the date, time, and place of the public hearing may be obtained.
The applicant shall mail, send by overnight delivery or hand deliver
to the Commission a copy of the notice sent to abutters as required
under this section.
(d)
An applicant may use the notice forms provided by the Department
of Environmental Protection pursuant to the Wetlands Protection Act
to satisfy the notice requirements of this chapter, provided that
all other applicable requirements under this chapter are also satisfied.
(e)
The applicant shall present either the certified mail receipts
or certificate of mailing receipts for all abutters at the beginning
of the public hearing. The presentation of the receipts for all abutters
identified on the tax list shall constitute compliance with abutter
notification requirements. The Conservation Commission shall determine
whether the applicant has complied with abutter notification requirements.
(f)
When a person requesting a permit or determination is other
than the owner of the subject property, the request, the notice of
the hearing, and the determination itself shall be sent by the Commission
to the owner, as well as to the person making the request.
(2)
Legal notice. Notice of the date, time and place of the public hearing
shall be given by the Commission at the expense of the applicant,
not less than five days prior to such hearing, by publication in a
newspaper of general circulation in Melrose, and by mailing a notice
to the applicant.
B.
Public hearing.
(1)
The Commission shall commence the public hearing within 21 days from
receipt of a complete application, unless the applicant authorizes
an extension for the hearing. The Commission shall have authority
to continue the hearing to a specific date announced at the hearing,
for reasons stated at the hearing, which may include the need for
additional information from the applicant or other reasons deemed
necessary by the Commission in its sole discretion.
(2)
The Commission in an appropriate case may elect to combine its hearing
under this chapter with the hearing or meeting conducted under the
Wetlands Protection Act.
C.
Investigations. The Commission, its agents, officers, consultants
and employees may enter upon the land that is the subject of an application
for the purpose of carrying out its duties under this chapter and
may make or cause to be made such examination or survey as the Commission,
in its sole discretion, deems necessary.
A.
The Commission shall make its determination in writing within 21
days of the close of the public hearing. The Commission shall either:
(1)
Make a determination that the applicant's proposed project is
not likely to have a significant individual or cumulative adverse
effect upon any resource area protected by this chapter, in which
case the Commission may issue a permit or other order with or without
conditions; or
(2)
Make a determination that the applicant's proposed project is
likely to have a significant individual or cumulative adverse effect
upon any resource area protected by this chapter, in which case the
Commission shall deny or grant the applicant a permit or other order,
with or without conditions.
B.
Issuance.
(1)
If it issues a permit, the Commission shall impose conditions which
the Commission, in its sole discretion, deems necessary or desirable
to protect the values protected by this chapter, and all activities
shall be done in accordance with those conditions. The Commission
shall take into account the cumulative adverse effects of loss, degradation,
isolation, and replication of protected resource areas throughout
the community and the watershed, resulting from past activities, permitted
and exempt, and foreseeable future activities.
(2)
The Commission in an appropriate case may combine the decision issued
under this chapter with the order of conditions, order of resource
area delineation, determination of applicability, or certificate of
compliance issued under the Wetlands Protection Act.
(3)
No work proposed in any application shall be undertaken until the
permit or other determination issued by the Commission with respect
to such work has been recorded by the applicant 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.
C.
Expiration. A permit shall expire three years from the date of issuance.
Notwithstanding the above, the Commission, in its sole 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, in the Commission's sole discretion, 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 owners, current and future, of
the land.
D.
Denial of permit.
(1)
Where no conditions are adequate to protect the resource values protected
by this chapter, the Commission is empowered, in its sole discretion,
to deny a permit for failure to meet the requirements of this chapter.
It may also deny a permit for the following reasons: for failure to
submit necessary information and plans requested by the Commission;
for failure to meet the design specifications, performance standards,
or other requirements of this chapter; or for failure to avoid or
prevent unacceptable, significant, or cumulative effects upon the
resource area values protected by this chapter.
(2)
Applicants shall have the burden of proving by a preponderance of
the credible evidence that the work proposed in the application will
not have unacceptable significant or cumulative effect upon the resource
area 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 an application or grant a permit
with conditions.
E.
Responsibility of compliance. After the recording of a permit hereunder,
any person who purchases, inherits or otherwise acquires real estate
upon which activities have been conducted in violation of the provisions
of this chapter or in violation of any permit issued under this chapter
shall comply with any such permit or restore such land to its condition
prior to any such violation.
F.
Certificate of compliance. When an applicant has completed a project,
it shall obtain a certification of compliance from the Commission
by filing a written request with the Commission. The written request
shall include a certification by an applicable professional that the
project was completed in compliance with the permit and shall set
forth what deviation (if any) exists from the permit. Prior to the
issuance of a certificate of compliance, the Commission shall make
a site inspection. The applicant or applicant's agent shall be
present for the site inspection. Within 21 days of receipt of the
applicant's written request for a certificate of compliance,
the Commission shall determine whether the project was completed in
compliance with the permit. If the Commission determines, in its sole
discretion, after review and inspection, that the project has not
been completed in compliance with the permit, it may refuse to issue
a certificate of compliance. Such refusal shall be in writing and
shall specify the reasons for denial. If the Commission determines,
in its sole discretion, after review and inspection, that the project
has been completed in accordance with the permit, the Commission shall
issue a written certificate of compliance.
G.
Revocations; modifications; amendments. For good cause, the Commission
at a public hearing may, in its sole discretion, revoke, modify or
amend a permit or other determination issued pursuant to this chapter
or the Wetlands Protection Act, after notice to the holder of such
permit or other determination, and notice to the public, abutters
and City boards. Good cause for such revocation or modification shall
include, but is not limited to, the following:
(1)
Failure by the applicant or his successors to comply with the terms
of a permit or other determination issued pursuant to this chapter
or the Wetlands Protection Act;
(2)
The receipt of new information relating to the project which indicates
that previous information presented to the Commission was inaccurate;
or
(3)
Changes to the project after completion of the Commission's
review.
A.
Strict compliance with this chapter may be waived when, in the sole
judgment of the Commission, such action is in the public interest
and is consistent with the intent and purpose of the chapter. In addition,
any person may request a waiver by submitting a waiver request to
the Commission in writing. The waiver request shall be presented at
the time of filing the application, along with a written justification
stating why a waiver is desired or needed, is in the public benefit,
or otherwise is in the interest of justice, and is consistent with
the intent and purpose of the chapter. In evaluating whether a waiver
shall be granted, the Commission shall consider whether there are
any practicable alternatives to the proposed project with less adverse
impacts upon the resource areas protected by this chapter. The Commission
may require the applicant to conduct an analysis of alternatives to
show that there are no practicable alternatives.
B.
The Commission may waive the filing fee, consultant fee, and costs
and expenses for an application filed by a government agency.
[Amended 8-21-2017 by Ord. No. 2018-4]
After public notice and public hearing, the Commission may promulgate
rules and regulations to effectuate the purposes of this chapter,
effective when voted and filed with the City Clerk. Such regulations
may impose reasonable fees upon applicants to cover the Commission's
administrative costs. 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 chapter.
The following definitions shall apply in the interpretation
and implementation of this chapter. Terms not defined herein shall
have the meanings given in the Wetlands Protection Act.
Owner of land abutting the activity.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
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, erection, expansion or repair of buildings, or
structures of any kind, including temporary structures;
G.
Introducing chemicals (including, without limitation, pesticides,
herbicides or fertilizers), oil or hazardous materials;
H.
Placing of obstructions or objects in water;
I.
Harming or destroying of plant life;
J.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters;
K.
Any activities, changes, or work which may cause or tend to contribute
to pollution of any body of water or groundwater; and
L.
APPLICANT
APPLICATION
BANK
BUFFER ZONE
CITY
COMMISSION
COMMONWEALTH
CONSULTANT FEE
DAYS
LAND SUBJECT TO FLOODING
(1)
(2)
(3)
PERSON
POND
RARE SPECIES
RFD
VERNAL POOL
WETLANDS
WETLANDS PROTECTION ACT
Incremental activities that have, or may have, a cumulative adverse
impact on the resource areas protected by this chapter.
Any person submitting an application to the Commission.
Any written request for action or determination by the Commission,
including but not limited to a request for a permit, RFD, waiver,
certificate of compliance, or any request pursuant to the Wetlands
Protection Act.
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.
Lands abutting within 100 feet horizontally outward from
any resource area.
The City of Melrose, Massachusetts, a municipal corporation.
The Conservation Commission of the City of Melrose.
The Commonwealth of Massachusetts.
The fee charged to an applicant to cover the reasonable costs
and expenses borne by the Commission for specific expert engineering
and other consultant services.
In calculating time periods under this chapter, shall mean
business days for periods less than or equal to five days and calendar
days for periods of greater than five days.
The area bounded by the estimated maximum lateral extent
of floodwater which would result from the statistical one-hundred-year
frequency storm. Said boundary shall be that determined by reference
to the most recently available data prepared for the community under
the National Flood Insurance Program (NFIP, currently administered
by the Federal Emergency Management Agency, successor to the U.S.
Department of Housing and Urban Development). Where NFIP profile data
is unavailable, the boundary of bordering land subject to flooding
shall be the maximum lateral extent of floodwater which has been observed
or recorded. In the event of a conflict, the issuing authority may
require the applicant to determine the boundary of bordering land
subject to flooding by engineering calculations which shall be:
[Amended 8-21-2017 by Ord. No. 2018-4]
Based upon a design storm of seven inches of precipitation in
24 hours (i.e., a Type III Rainfall, as defined by the U.S. Natural
Resources Conservation Service);
Based upon the standard methodologies set forth in U.S. Natural
Resources Conservation Service Technical Release No. 55, Urban Hydrology
for Small Watersheds, and Section 4 of the U.S. Natural Resources
Conservation Service, National Engineering Hydrology Handbook; and
Prepared by a registered professional engineer or other professional
competent in such matters.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to City ordinances, administrative agency, public or quasi-public
corporation or body, this municipality, and any other legal entity,
its legal representatives, agents, or assigns.
Shall follow the definition of 310 CMR § 10.04.
Includes, without limitation, all vertebrate and invertebrate
animal and all plant species listed as endangered, threatened, or
of special concern by the Massachusetts Division of Fisheries and
Wildlife (the Division), regardless of whether the site in which they
occur has been previously identified by the Division.
A request for determination from the Commission.
An intermittent pond that meets the criteria set forth in
"Guidelines for Certification of Vernal Pool Habitat" issued by the
Massachusetts Division of Fisheries and Wildlife. Prior certification
is not required. Vernal pools function as essential breeding habitat
for a variety of amphibian species, such as wood frog (Rana sylvatica)
and mole salamanders, and provide other important wildlife habitat
functions for amphibians and other wildlife. Vernal pool habitat includes
a one-hundred-foot setback area.
Any freshwater wetlands, marshes, wet meadows, bogs, swamps,
vernal pools, banks, lakes, ponds of any size, rivers, streams (including
intermittent streams), creeks, or lands subject to flooding or inundation
by groundwater or surface water.
The Wetlands Protection Act at MGL c. 131, § 40,
and the regulations promulgated thereunder at 310 CMR 10.00.
As part of a permit issued under this chapter, in addition to
any security required by any other municipal or state board, agency,
or official, the Commission may require that the performance and observance
of the conditions imposed hereunder (including conditions requiring
mitigation work) 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 or
other undertaking of financial responsibility sufficient, in the opinion
of the Commission, to be released in whole or in part upon issuance
of a certificate of compliance for work performed pursuant to the
permit. If the applicant fails to perform and observe the required
conditions within a reasonable time and, in the case of a wetlands
replication project, within two years, the applicant shall forfeit
such bond, deposit or security, and a certificate of compliance shall
not be granted until the conditions are satisfied.
B.
By accepting 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,
whereby the permit conditions shall be performed and observed before
any lot may be conveyed other than by mortgage deed. This method shall
be used only with the consent of the applicant.
[Amended 8-21-2017 by Ord. No. 2018-4]
Any land held by the Commission, no matter how such land originally
came to be under the Commission's control, shall be held by the
Commission for the purpose of protecting open space and promoting
the resource values protected by this chapter for the benefit of the
residents of the City. Pursuant to the Conservation Commission Act
(HB § 18.9)[1] and MGL c. 40, § 15A, such land may not be transferred
without a unanimous vote of the Commission, a vote of the City Council
and a two-thirds vote of the Legislature of the commonwealth.
[1]
Editor's Note: See MGL c. 40, § 8C.
A.
Enforcement shall be taken upon any person who commences an activity
under the jurisdiction of the Commission without a permit or otherwise
fails to restore illegally altered land to its original condition,
or fails to comply with a permit, order of conditions or an enforcement
order (including a stop-work order) issued pursuant to this chapter.
B.
No person shall subdivide or segment land for the purpose of circumventing
the requirements of this chapter. No person shall injure or destroy
plant life located in any of the resource areas protected by this
chapter, including but not limited to cutting trees or their roots.
C.
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, subject to
the constitutions and laws of the United States and the commonwealth.
D.
The Commission shall have authority to enforce this chapter, its
regulations, and permits issued thereunder by:
(1)
In the case of minor infractions, administration actions, violation
notices, and enforcement orders (including stop-work orders);
(2)
In the case of major infractions, civil actions including injunctions
and fines; and
(3)
In the case of repeat offenders and major violations, criminal court
actions.
E.
Any person who violates provisions of this chapter may be ordered
to restore the property to its original condition and take any other
action that the Commission, in its sole discretion, deems necessary
to remedy such violation, or may be fined, or both.
F.
If a civil action, administration action, final order, penalty, violation
notice, enforcement order, stop-work order, criminal court action,
fine or an adjustment for a violation is contemplated, the Commission
will discuss this matter at a public meeting with notice and an invitation
to participate to the City Solicitor. The property owner will be given
at least 48 hours' notice in writing of the date, time and place
of the public meeting, by certified mail, return receipt requested,
or hand delivery. If a majority of the Commission present at the meeting
finds, by a preponderance of the evidence, that a violation has occurred,
then the owner may be fined not more than $300 per offense per day.
Each violation may be considered a separate offense. Each day the
violation continues constitutes a separate violation under this chapter.
G.
Upon request of the Commission, the case may be referred to the City
for enforcement. Upon request of the Commission, the Chief of Police
shall take legal action for enforcement under criminal law.
H.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement. Any enforcement order shall be published, at the applicant's
expense, in one or more local newspapers. In addition, the enforcement
order shall be recorded on the deed for the property at issue.
I.
As an alternative to criminal prosecution in a specific case, the
Commission may issue citations under the noncriminal disposition procedure
set forth in MGL c. 40, § 21D. The following fine structure
shall be utilized to maintain fairness and consistency. Each violation
may be considered a separate offense. Each day the violation continues
constitutes a separate violation under this chapter.
[Amended 8-21-2017 by Ord. No. 2018-4]
(1)
Unpermitted alteration of the buffer zone carries a fine of $150.
(2)
Unpermitted alteration of the no disturbance zone carries a fine
of $200.
(3)
Unpermitted alteration of a resource area carries a fine of $300
for each resource area altered.
(4)
Failure to secure necessary permits required to perform work within
an area subject to protection under this chapter carries a fine of
$150.
(5)
Leaving unpermitted fill in place within a resource area and/or buffer
zone carries a fine of $300.
(6)
Failure to record with the Registry of Deeds an order of conditions
issued under the chapter carries a fine of $150.
(7)
Failure to notify the Commission prior to start of work carries a
fine of $100.
(8)
Failure to comply with all conditions of a permit issued under the
chapter carries a fine of $300.
(9)
Failure to have the necessary permits and approved drawings and plans
available at the project site at all times carries a fine of $300.
(10)
Failure to properly use, maintain, and/or install erosion controls
carries a fine of $100 for the first offense, $200 for the second
offense, and $300 for each subsequent offense.
(11)
Conducting work outside the scope shown on an approved plan
approved under this chapter carries a fine of $300.
(12)
Failure to notify the Commission in writing in regard to any
changes to an approved plan under this chapter carries a fine of $300.
(13)
Failure to properly secure any stockpiled material within the
one-hundred-foot buffer zone associated with an approved project carries
a fine of $300.
(14)
Failure to permanently stabilize all disturbed areas associated
with an approved project within 30 days of completion of the project
carries a fine of $300.
(15)
Failure to request a certificate of compliance or an order of
conditions within six months of completion of the project carries
a fine of $300.
(16)
Failure to submit required replication monitoring reports carries
a fine of $300.
(17)
Failure to design required replication area as specified in
approved plans carries a fine of $300.
(18)
Failure to record the certificate of compliance with the Registry
of Deeds carries a fine of $150.
(19)
Failure to comply with requirements listed on the City of Melrose's
notice of violation or enforcement order carries a fine of $300 per
day.
A decision of the Commission shall be reviewable in the Superior
Court in accordance with MGL c. 249, § 4.
This chapter is adopted under the Home Rule Amendment of the
Massachusetts Constitution and the home rule statutes, independent
of the Wetlands Protection Act.
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision thereof, nor shall it
invalidate any permit, approval or determination which previously
has been issued.