[HISTORY: Adopted by the Town Meeting of the Town of Dalton 5-2-2022 ATM by Art. 16. Amendments noted where applicable.]
A.
The purpose of this bylaw is to protect the wetlands, water resources,
and adjoining land areas in the Town of Dalton by giving the Conservation
Commission greater oversight of activities likely to have a significant
or cumulative effect upon resource area values, including but not
limited to the following: public and private water supply, groundwater,
flood control, erosion and sedimentation control, storm damage prevention,
water quality, water pollution prevention, wildlife habitat, rare
species habitat including rare plant species, agriculture, and aquaculture
(collectively, the "resource area values protected by this bylaw").
B.
This bylaw 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 MA Wetlands Protection Act (MGL c. 131, § 40) and
the Regulations thereunder (310 CMR 10.00 et seq.).
C.
The regulatory procedures applied by the Conservation Commission
to administer this bylaw are similar to those employed under the MA
Wetlands Protection Act (MGL c. 131, § 40) and Wetlands
Regulations (310 CMR 10.00 et seq.). This bylaw and the MA Wetlands
Protection Act and Regulations share much procedural terminology in
common. In both cases, an application for permission to do work in
or near a wetland resource area is known as a Notice of Intent ("NOI")
and the document issued by the Commission that allows that work to
go forward, subject to certain conditions, is known as an Order of
Conditions ("OOC"). An application to request a determination of the
applicability of this bylaw is a Request for Determination of Applicability
("RDA").
Except as permitted by the Conservation Commission or as provided
in this bylaw, no person shall remove, fill, dredge, build upon, degrade,
discharge into, or otherwise alter the following wetland resource
areas: any freshwater wetland; marsh; wet meadow; bog; swamp; vernal
pool; bank; reservoir; lake; pond; river; creek; intermittent stream;
water within water bodies and land under water bodies; land subject
to flooding or inundation by groundwater, surface water, or storm
flowage; and the following lands abutting wetland resource areas:
land within 100 feet of any freshwater wetland, marsh, wet meadow,
bog, swamp, vernal pool, bank, reservoir, lake, pond or intermittent
stream (hereinafter, "buffer zone") subject to exceptions set forth
below; land within 200 feet of the mean annual high water line of
perennial rivers and streams (hereinafter, "riverfront area"); land
within 200 feet of any lake, pond, river or stream that is a public
water supply; and land within 200 feet of any lake or pond that is
a tributary to any public water supply (collectively, the "wetland
resource areas protected by this bylaw"). Said resource areas shall
be protected whether or not they border surface waters.
A.
The application and permit required by this bylaw shall not be required
for maintaining, repairing, or replacing, but not substantially changing
or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water,
telephone, telegraph, or other telecommunication services, or sanitary
or storm sewers, provided that written notice has been given to the
Commission prior to the commencement of work, and provided that the
work conforms to performance standards and design specifications in
regulations adopted by the Commission.
B.
The application and permit required by this bylaw shall not be required
for work performed for normal maintenance or improvement of land in
agricultural use at the time the work takes place.
C.
The application and permit required by this bylaw shall not be required
for emergency projects necessary for the protection of the health
and safety of the public, provided that the work is to be performed
by or has been ordered to be performed by an agency of the commonwealth
or a political subdivision thereof; provided that advance notice,
oral or written, has been given to the Commission, prior to commencement
of the work or within 24 hours after commencement; provided that the
Commission or its agent certifies the work as an emergency project;
provided that the work is performed only for the time and place certified
by the Commission for the limited purposes necessary to abate the
emergency; and provided that within 21 days of commencement of an
emergency project a permit application shall be filed with the Commission
for review as provided by this bylaw. Upon failure to meet these and
other requirements of the Commission, the Commission may, after notice
and a public hearing, revoke or modify an emergency project approval
and order restoration and mitigation measures.
D.
The application and permit required by this bylaw shall not be required
for exemptions under the Rivers Act [310 CMR 10.58(6)].
A.
A Notice of Intent shall be filed with the Commission by the person
seeking to perform activities involving any alteration of resource
areas protected by this bylaw. The NOI shall include such information
and plans as are specified in the Regulations of the Commission to
describe proposed activities and their effects on the resource areas
protected by this bylaw. No activities subject to the Commission's
jurisdiction shall commence without the applicant receiving and complying
with an Order of Conditions issued pursuant to this bylaw.
B.
The Commission may accept as the NOI and plans under this bylaw the
NOI and plans filed under the Wetlands Protection Act (MGL c. 131,
§ 40) and Regulations (310 CMR 10.00 et seq.).
C.
Any person desiring to know whether or not a proposed activity or
an area is subject to jurisdiction under this bylaw may request in
writing a determination from the Commission. Such a Request for a
Determination of Applicability shall include information and plans
as are deemed necessary by the Commission to locate the subject property,
and understand the impact of the proposed work on areas subject to
protection under the bylaw. The Commission may require delineations
of resource areas protected under the bylaw. The Commission may accept
as the RDA and plans under this bylaw the RDA and plans filed under
the Wetlands Protection Act (MGL c. 131, § 40) and Regulations
(310 CMR 10.00 et seq.).
D.
At the time of submission of a NOI or RDA to the Commission, the
applicant shall pay a filing fee specified in the Regulations of the
Commission. The fee is in addition to that required by the Wetlands
Protection Act (MGL c. 131, § 40) and Regulations (310 CMR
10.00 et seq.). The filing fee shall be commensurate with the reasonable
expenses incident to the Commission's processing and review of
the application.
E.
Upon receipt of a NOI or RDA, or at any point during its deliberative
process, as provided by MGL c. 44, § 53G, the Commission
is authorized to impose upon the applicant a reasonable fee, to be
collected in advance, and estimated to be sufficient to pay for the
employment of outside consultants, engaged by the Commission, for
specific expert services deemed necessary by the Commission to come
to a final decision on the NOI or RDA. 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, and hydrogeologic and drainage analysis.
The Commission may require the payment of the consultant fee at any
point in its deliberations prior to a final decision. Any unexpended
portion of the consultant fee shall be returned to the applicant.
F.
The Commission may waive the filing fee, consultant fee, and any
other costs or expenses associated with processing a NOI or RDA filed
by a government agency.
A.
Within 21 days after the date of receipt of a completed RDA, the
Conservation Commission shall hold a public meeting to consider issuing
a Determination of Applicability. Notice of the time and place of
the public meeting shall be given by the Conservation Commission not
less than five days' prior to such meeting by publication in
a newspaper of general circulation in Dalton at the applicant's
expense. Notice shall also be given in accordance with the Open Meeting
Law. The determination shall be issued within 21 days of submission
of a complete RDA application, unless the matter is continued to a
date and time certain, agreed to by written consent of the applicant.
Said determination shall be signed by a majority of the Conservation
Commission, and copies thereof shall be sent by the Commission to
the person making the request and to the owner of the property. Delivery
of the determination shall be by hand delivery or certified mail.
Said determination shall be valid for three years from the date of
issuance.
B.
Any person filing a NOI with the Commission at the same time shall
give written notice thereof, by certified mail, by hand delivery or
by certificates of mailing, to all abutters at their mailing addresses
shown on the most recent certified 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 300 feet of the property
line of the applicant, including any in another municipality or across
a body of water. The notice to abutters shall have enclosed a copy
of the NOI with plans, or shall state where copies may be examined
and whom to contact for additional information or to obtain a copy
of the NOI. An affidavit of the person providing such notice, with
a copy of the abutters list and the notice mailed or delivered, shall
be filed with the Commission.
C.
The Commission shall conduct a public hearing on any complete NOI
it receives within 21 days of receipt, with written notice given not
less than five business days' prior to the hearing in a newspaper
of general circulation in Dalton at the applicant's expense.
The Commission shall commence the public hearing within 21 days from
receipt of a complete NOI unless the matter is continued to a date
and time certain, agreed to by written consent of the applicant. The
Commission shall have the authority to continue the hearing, with
the consent of the applicant, to a date and time certain announced
at the hearing, for reasons stated at the hearing, which may include
the anticipated or requested receipt of additional information from
the applicant or others deemed necessary by the Commission in its
discretion. In the event that the applicant objects to a continuance,
the hearing shall be closed and the Commission shall take action on
such information as is available. The Commission shall issue an OOC
in writing within 21 days of the close of the public hearing, unless
an extension is authorized in writing by the applicant.
D.
The Commission may combine its hearing under this bylaw with the
hearing conducted under the Wetlands Protection Act (MGL c. 131, § 40)
and Regulations (310 CMR 10.00 et seq.).
Upon receipt of a complete NOI, the Commission shall provide
a brief summary thereof, with information as to where the complete
NOI may be reviewed, to the Planning Board, Board of Health, and Building
Commissioner. If the NOI pertains to property within 300 feet of a
neighboring municipality, the Commission will also send a copy of
the same summary to the Conservation Commission of the neighboring
municipality.
A.
The Commission shall have the authority, after a public meeting,
to determine whether a specific parcel of land contains or does not
contain resource areas protected under this bylaw. If the Commission
finds no resource area values protected by this bylaw would be adversely
impacted by the proposed project, it shall issue a negative determination.
The Commission may impose conditions to be followed by the applicant,
with a negative determination. These conditions will be included with
the Determination of Applicability documentation issued to the applicant.
If the Commission issues a positive determination, filing of a NOI
will be required.
B.
If the Commission, after a public hearing, determines that the activities
which are the subject of a NOI are likely to have a significant individual
or cumulative negative effect upon the resource area values protected
by this bylaw, the Commission may issue a decision disapproving the
activities or uses proposed within 21 days of the close of the public
hearing. If the Commission approves the activities or uses proposed,
the Commission shall impose conditions which it deems necessary or
desirable to protect the resource areas and associated values protected
under this bylaw, and all activities shall be done in accordance with
those conditions. The document issued by the Commission which includes
its approval and imposed conditions is known as the Order of Conditions.
C.
The Commission is empowered to disapprove a NOI for failure to meet
the requirements of this bylaw; 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 resource area values protected by this
bylaw; 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.
D.
Lands adjacent to resource areas are presumed important to the protection
of those resource areas because activities undertaken in close proximity
to resource areas have a high likelihood of adverse impact upon the
wetland resource area, either immediately, as a consequence of construction,
or over time, as a consequence of daily operation or existence of
the activities. These adverse impacts from construction and use can
include, without limitation, erosion, siltation, loss of groundwater
recharge, poor water quality and loss of wildlife habitat. The Commission
therefore may require that the applicant maintain a strip of continuous,
undisturbed vegetative cover within, or in some instances up to the
full extent of the 200-foot riverfront area or 100-foot buffer zone.
Through regulations promulgated hereunder, the Commission may establish
more specific criteria applicable to no-disturb areas within the buffer
zone and/or riverfront area.
E.
To prevent wetlands loss, the Commission: shall require applicants
to avoid wetlands alteration wherever feasible; shall require applicants
to minimize wetlands alteration; and, where alteration is unavoidable,
shall require full mitigation. Because of the high likelihood of failure
of replication, the Commission may authorize or require replication
of wetlands on a two-to-one basis as a form of mitigation, and with
professional design and monitoring by a licensed wetlands specialist
for three years of growth, to assure success.
F.
An OOC shall expire three years from the date of issuance. Notwithstanding,
the Commission at its discretion may issue an OOC 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 prior to such work. At the Commission's
discretion, an OOC may be renewed for up to an additional three-year
period, provided that a request for a renewal is received in writing
by the Commission more than 30 days' prior to expiration. Notwithstanding
the above, an OOC may contain requirements which shall be enforceable
for a stated number of years, indefinitely, or until permanent protection
(e.g., a conservation restriction or easement) is in place, and shall
apply to all owners of the land subject to the OOC.
G.
For good cause, the Commission may revoke or modify an OOC issued
under this bylaw after public notice to the holder of the OOC, notice
to the public and other Town boards, and a public hearing.
H.
The Commission may combine the OOC or determination issued under
this bylaw with the OOC or Determination of Applicability issued under
the Wetlands Protection Act (MGL c. 131, § 40) and Regulations
(310 CMR 10.00 et seq.).
I.
No work proposed in any NOI shall be undertaken until the OOC issued
by the Commission with respect to such work has been recorded in the
Berkshire Middle Registry of Deeds or, if the land affected is registered
land, in the registry section of the Land Court for the Berkshire
County District, and until the holder of the OOC notifies the Commission
of its recording and provides the relevant book and page references.
J.
Upon completion of work proposed in any NOI and undertaken according
to an OOC issued by the Commission, the holder of the OOC shall submit
to the Conservation Commission a written request for a Certificate
of Compliance ("COC") with the recorded OOC. If the NOI included plans
prepared and signed by a licensed professional(s), the request for
COC must include signed statement(s) by said licensed professional(s)
that the work has been completed in substantial compliance with the
final plans. If the Commission determines that all work has been completed
according to the OOC, it shall issue a COC, which the holder of the
OOC shall have recorded in the registry of deeds or, if the land affected
is registered land, in the registry section of the Land Court for
the district wherein the land lies, and the holder of the COC shall
notify the Commission of its recording and shall provide the relevant
book and page references.
After public notice and public hearing, the Commission may promulgate
rules and regulations to effectuate the purposes of this bylaw effective
when voted by the Commission and filed with the Town Clerk. The Commission
may amend the rules and regulations after public notice and public
hearing. Failure by the Commission to promulgate such rules and regulations
or a legal declaration of their invalidity by a court of law shall
not act to suspend or invalidate the effect of this bylaw.
The following definitions shall apply in the interpretation
and implementation of this bylaw:
Shall include, without limitation, the following activities
when undertaken to, upon, within, or affecting resource areas protected
by this bylaw:
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 or clearing of
grasses, shrubs or trees;
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters;
Any activities, changes, or work which may cause or tend to
contribute to pollution of any body of water or groundwater;
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
Shall include 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.
In the determination of buffer zone, shall mean existing
as of the date this bylaw becomes effective.
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 bylaws, administrative agency, public or quasi-public corporation
or body, Town of Dalton, and any other legal entity, its legal representatives,
agents, or assigns.
Shall include any open body of fresh water with a surface
area observed or recorded within the last 10 years of at least 5,000
square feet. Ponds shall contain standing water except for periods
of extended drought. Not included are swimming pools, artificially
lined ponds or pools, or constructed wastewater lagoons. The buffer
zone for ponds shall extend 100 feet from mean annual high-water or
one-half the distance from existing house foundation, whichever is
smaller, but in no case shall the buffer zone include existing lawns,
gardens, landscaped or developed areas.
Shall include, without limitation, all vertebrate and invertebrate
animal and plant species listed as endangered, threatened, or of special
concern by the Massachusetts Division of Fisheries and Wildlife, regardless
of whether the site in which they occur has been previously identified
by the Division.
Shall include, in addition to that already defined under
the Wetlands Protection Act, MGL c. 131, § 40, and Regulations
thereunder, 310 CMR 10.00, any confined basin or depression not occurring
in existing lawns, gardens, landscaped areas, or driveways which,
at least in most years, holds water for a minimum of two continuous
months during the spring and/or summer, contains at least 200 cubic
feet of water at some time during most years, is free of adult predatory
fish populations, and provides essential breeding and rearing habitat
functions for amphibian, reptile, or other vernal pool community species,
regardless of whether the site has been certified by the Massachusetts
Division of Wildlife and Fisheries. The presumption of essential habitat
value may be overcome by the presentation of credible evidence which
in the judgment of the Commission demonstrates that the basin or depression
does not provide the habitat functions as specified in the bylaw regulations.
The buffer zone for vernal pools shall extend 100 feet from the mean
annual high-water line defining the depression, or one-half of the
distance between the vernal pool and any existing house foundation,
whichever is smaller. In either case the buffer zone for vernal pools
shall not extend over existing lawns, gardens, landscaped or developed
areas.
A.
As part of an OOC issued under this bylaw, 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 thereunder (including conditions requiring
mitigation work) be secured wholly or in part by one or both of the
methods described below:
(1)
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
OOC.
(2)
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. This method shall be
used only with the consent of the applicant.
A.
No person shall remove, fill, dredge, build upon, degrade, or otherwise
alter resource areas protected by this bylaw, or cause, suffer, or
allow such activity, or leave in place unauthorized fill, or otherwise
fail to restore illegally altered land to its original condition,
or fail to comply with an OOC or an enforcement order issued pursuant
to this bylaw.
B.
The Commission, its agents, officers, and employees shall have authority
to request authorization to enter upon privately owned land for the
purpose of performing their duties under this bylaw 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 of Massachusetts. Refusal to grant voluntary
access to private property to the Commission or its representatives
may be grounds for denial of a permit application pending before the
Commission.
C.
The Commission shall have authority to enforce this bylaw, its regulations,
and permits issued thereunder by violation notices, administrative
orders, and civil and criminal court actions. Any person who violates
provisions of this bylaw may be ordered to restore the property to
its original condition and take other action deemed necessary to remedy
such violations, or may be fined, or both.
D.
Upon request of the Commission, the Selectboard may authorize Town
counsel to take legal action for enforcement under civil law. Upon
request of the Commission, the Chief of Police may take legal action
for enforcement under criminal law.
E.
Any person authorized by the Commission shall have authority to assist
the Commission in enforcement.
F.
Any person who violates any provision of this bylaw, or regulations,
administrative orders issued thereunder, or has failed to obtain the
necessary Commission approval, may be punished by a fine of not more
than $300 per each offense. Each day or portion thereof during which
a violation continues, or unauthorized fill or other alteration remains
in place, shall constitute a separate offense, and each provision
of the bylaw, regulations, permits, or administrative orders violated
shall constitute a separate offense.
The person who submits a NOI to the Commission shall have the
burden of proving by a preponderance of the credible evidence that
the work proposed in the NOI will not have unacceptable significant
or cumulative effect upon the resource area values protected by this
bylaw. Failure to provide adequate evidence to the Commission supporting
this burden shall be sufficient cause for the Commission to disapprove
proposed work or other activities or to approve proposed work or other
activities with strict conditions.
A decision of the Commission under this Wetlands Bylaw shall
be reviewable in the Superior Court in accordance with MGL c. 249,
§ 4.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts
Constitution and the Home Rule statutes, independent of the Wetlands
Protection Act (MGL c. 131, § 40) and Regulations (310 CMR
10.00) thereunder. The provisions of this bylaw are intended to be
more stringent and more protective of the wetland resource areas and
associated values protected hereunder.
