[HISTORY: Adopted by the Town Meeting of the Town of Dartmouth 11-18-1986, approved 1-6-1987; last amended 6-7-2011, approved 9-15-2011 (Art. 66
of the 2011 General By-Laws). Subsequent amendments noted where applicable.]
The purpose of this By-Law is to protect the wetlands, related
water resources, and adjoining land areas in this municipality by
controlling activities deemed by the Conservation Commission likely
to have a significant or cumulative effect upon wetland values, including
but not limited to the following: public or private water supply,
groundwater, flood control, erosion and sedimentation control, storm
damage prevention, water pollution prevention, fisheries, shellfish,
wildlife habitat, recreation, and aesthetics (collectively, the "wetland
values protected by this by-Law").
Except as permitted by the Conservation Commission or as provided
for in this By-Law, no person shall remove, fill, dredge, build upon,
or alter land in or within a one-hundred-foot buffer zone of the following
resource areas: any freshwater wetland, coastal wetland, marsh, wet
meadow, bog, swamp, or vernal pond; any bank, beach, dune, or flat;
any lake, river, pond, stream, estuary, or the ocean; or any land
under said waters. Included in this jurisdiction is any land subject
to flooding or inundation by groundwater, surface water, tidal action,
or coastal storm flowage.
A.
The alteration
of sand dunes is prohibited whenever the Conservation Commission determines
that such alteration would increase the potential for flood damage.
[Added 6-1-2021 ATM by Art. 20, approved 9-27-2021]
A.
Public services. The permit and application required by this By-Law
shall not be required for maintain, repairing, or replacing, but not
substantially changing or enlarging, an existing and lawfully located
structure or facility used in the service of the public to provide
electric, gas, water, telephone, telegraph or other telecommunication
services, provided that the structure or facility is not substantially
changed or enlarged, provided that written notice has been given to
the Commission prior to commencement of work, and provided that the
work conforms to performance standards and design specifications in
regulations adopted by the Commission.
B.
Emergencies.
(1)
The permit and application required by this By-Law 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 or within 24 after commencement, provided that the Conservation
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 Conservation Commission for the limited purposes necessary
to abate the emergency, and provided that within 21 days of commencement
of any emergency project a permit application shall be filed with
the Commission for review as provided in this By-Law.
(2)
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.
(3)
Other than stated in this section the exceptions provided in the
Wetlands Protection Act shall not apply.
A.
Written application shall be filed with the Commission to perform
activities regulated by this By-Law affecting resource areas protected
by this By-Law. The application shall include such information and
plans as are deemed necessary by the Commission to describe proposed
activities and their effects on the environment. No activities shall
commence without receiving and complying with a permit issued pursuant
to this By-Law.
B.
The Commission in an appropriate case may accept as the application
and plans under this By-Law the Notice of Intent and plans filed under
the Wetlands Protection Act, Massachusetts General Laws Chapter 131,
Section 40.
C.
Any person desiring to know whether or not proposed activity or an
area is subject to this By-Law may in writing request a determination
from the Commission. Such a request for determination shall contain
data and plans specified by the regulations of the Commission.
D.
At the time of an application or request the applicant shall pay
a filing fee specified in regulations of the Commission. This fee
is in addition to that required by the Wetlands Protection Act, Massachusetts
General Laws Chapter 131, Section 40. In addition, the Commission
is authorized to require the applicant to pay costs and expenses of
any expert consultant deemed necessary by the Commission to review
the application or request up to a maximum of $3,500. The Commission
may waive the filing fee and costs and expenses for an application
or request filed by a government agency. A Revolving Consultant Fee
Account shall be established in which the expert consultants fee shall
be deposited to by the applicant and the Conservation Commission will
draw upon to pay for the services of the expert consultants hired
by the Conservation Commission.
[Amended 10-18-2022 FATM by Art. 12, approved 3-20-2023]
A.
The Commission shall conduct a public hearing on any application
or request for determination within 21 days from receipt of a completed
application or request for determination. Written notice shall be
given at the expense of the applicant, five working days prior to
the hearing, in a newspaper of general circulation in the municipality.
B.
The Commission shall issue its permit or determination in writing
within 21 days of the close of the public hearing thereon.
C.
The Commission in an appropriate case may combine its hearing under
this By-Law with the hearing conducted under the Wetlands Protection
Act, Massachusetts General Laws Chapter 131, Section 40.
D.
The Commission shall have authority to continue the hearing to a date certain announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information offered by the applicant or others, information and plans required of the applicant, deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in § 360-6. 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.
Any person filing a permit application or a request for determination
with the Commission shall provide a copy thereof at the same time,
by certified mail or hand delivery, to the Planning Board, Board of
Appeals, Board of Health, Building Department, and Department of Public
Works. The Commission shall not take final action until such boards
and officials have had 14 days from receipt of notice to file written
comments and recommendations with the Commission, which the Commission
shall take into account but which shall not be binding on the Commission.
The applicant shall have the right to receive any such comments and
recommendations, and to respond to them at a hearing of the Commission,
prior to final action.
A.
If the Commission after a public hearing determines that the activities
which are the subject of the application are likely to have a significant
or cumulative effect upon the wetland values protected by this By-Law,
the Commission within 21 days of the close of the hearing, shall issue
or deny a permit for the activities requested. If it issues a permit,
the Commission shall impose conditions which the Commission deems
necessary or desirable to protect those values, and all activities
shall be done in accordance with those conditions.
B.
The Commission is empowered to deny a permit for failure to meet
the requirements of this By-Law; for failure to submit necessary information
and plans requested by the Commission; for failure to meet the design
specifications, performance standards, and other requirements in regulations
of the Commission; for failure to avoid or prevent unacceptable significant
or cumulative effects upon the wetland values protected by this By-Law;
and where no conditions are adequate to protect those values. Due
consideration shall be given to any demonstrated hardship on the applicant
by reason of denial, as presented at the public hearing.
C.
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 additional
one-year periods, provided that a request for renewal is received
in writing by the Commission prior to expiration.
D.
For good cause the Commission may revoke or modify a permit issued
under this By-Law after public notice and public hearing, and notice
to the holder of the permit.
E.
The Commission in an appropriate case may combine the permit or other
action on an application issued under this By-Law with the Order of
Conditions issued under the Wetlands Protection Act.
Upon completion of the work described in the Permit and shown
on the final Plan of Record, the applicant may request in writing
that a Certificate of Compliance be issued. A request for a Certificate
of Compliance shall be reviewed by the Commission within 21 days of
receipt thereof.
A.
After public notice and public hearing the Commission shall promulgate
rules and regulations to effectuate the purposes of this By-Law. 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 By-Law.
B.
At a minimum these regulations shall define key terms in this By-Law
not inconsistent with this By-Law.
The following definitions shall apply in the interpretation
and implementation of this By-Law.
A.
The term "person" shall include any individual, group of individuals,
association, partnership, corporation, company, business organization,
trust, estate, the Commonwealth or political subdivision thereof to
the extent subject to town By-Laws, administrative agency, public
or quasi-public corporation or body, this municipality, and any other
legal entity, its legal representatives, agents, or assigns.
B.
The term "alter" shall include, without limitation, the following
activities when undertaken to, upon, within or affecting resource
areas protected by the By-Law:
(1)
Removal, excavation or dredging of soil, sand, gravel, or aggregate
materials of any kind;
(2)
Changing of pre-existing drainage characteristics, flushing characteristics,
salinity, distribution, sedimentation patterns, flow patterns, or
flood retention characteristics.
(3)
Drainage or other disturbance of water level or water table;
(4)
Dumping, discharging or filling with any material which may degrade
water quality;
(5)
Placing of fill, or removal of material, which would alter elevation;
(6)
Driving of piles, erection or repair of buildings, or structures
of any kind;
(7)
Placing of obstructions or objects in water;
(8)
Destruction of plant life including cutting of trees;
(9)
Changing water temperature, biochemical oxygen demand, or other physical
or chemical characteristics of water;
(10)
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
As part of a Permit issued under this By-Law, 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 be in 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;
B.
By a conservation restriction, easement or other covenant enforceable
in a court of law, executed and duly recorded by the owner of record,
running with the land to the benefit of this municipality whereby
the permit conditions shall be performed and observed before any lot
may be conveyed other than by mortgage deed.
A.
The Commission, its agents, officers, and employees shall have authority
to enter upon privately owned land for the purpose of performing their
duties under this By-Law and may take or cause to be made such examinations,
surveys or sampling as the Commission deems necessary.
B.
The Commission shall have authority to enforce this By-Law, its regulations,
and Permits issued thereunder by violation notices, administrative
orders, and civil and criminal court actions.
C.
Upon request of the Commission, the Select Board and the Town Counsel
shall take legal action for enforcement under civil law. Upon request
of the Commission the chief of police shall take legal action for
enforcement under criminal law.
D.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
E.
Any person who violates any provision of this By-Law, regulations
thereunder, or permits issued thereunder, shall be punished by a fine
of not more than $300. Each day or portion thereof during which a
violation continues shall constitute a separate offense, and each
provision of the By-Law, regulations, or permit violated shall constitute
a separate offense.
F.
In the alternative to criminal prosecution the Commission may elect
to utilize the noncriminal disposition procedure set forth in Massachusetts
General Laws Chapter 40, Section 21D.
A.
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 unacceptable significant or cumulative effects
upon the wetland values protected by this By-Law.
B.
Failure to provide adequate evidence to the Commission supporting
this burden shall be sufficient cause for the Commission to deny a
Permit or grant a Permit with conditions.
This By-Law is adopted under the Home Rule Amendment of the
Massachusetts Constitution and the Home Rule statutes, independent
of the Wetlands Protection Act, Massachusetts General Laws Chapter
131, Section 40, and regulations thereunder.
The invalidity of any section or provision of this By-Law shall
not invalidate any other section or provision thereof, nor shall it
invalidate any Permit or Determination which previously has been issued.
