[HISTORY: Adopted by the Annual Town Meeting of the Town of Yarmouth 4-7-1981 by Art. 16. Amendments noted where applicable.]
Editor's Note: This chapter was derived from a bylaw adopted by the Annual Town Meeting 4-10-1980 by Art. 27, approved 8-11-1980.
The purpose of this chapter is to protect the foreshores, wetlands and groundwater supply of the Town of Yarmouth by controlling activities deemed to have a significant effect on wetland and water quality values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion control, storm damage, water pollution, fisheries, shellfish, wildlife and recreation.
No person shall remove, fill, dredge or alter any bank, freshwater wetland, beach, dune, flat, marsh, bog or swamp or estuary, creek, river, stream, pond, lake or the ocean, or land under or bordering on said waters or wetlands, or any land subject to tidal action, coastal storm flowage or flooding, or construct any causeway, bridge, marina, wharf, dock or other similar structure in, on, over or within 100 feet of any of the aforesaid, other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully, meaning fulfilling the requirements of all applicable permits, including Massachusetts General Laws Chapter 91 and Corps of Engineers 403 and 404, located structure or facility used in the service of the public and used to provide electric, gas, water, telephone or telecommunication services, without first filing written notices of his intention to remove, fill, dredge, alter or construct by sending a separate letter, by certified mail, to the Yarmouth Conservation Commission and without receiving and complying with an order of conditions and provided that all appeal periods have lapsed. Such notice of intention shall include such plans as may be necessary to describe such proposed activity and its effect on the environment. The same plans and specifications required to be filed by an applicant under Massachusetts General Laws Chapter 131, Section 40, will be accepted as fulfilling the requirements of this chapter.
[Amended 4-15-1987 by Art. 43]
Said Commission shall hear any oral presentation under this chapter at the same public hearing required to be held under the provisions of said Chapter 131, Section 40, of the Massachusetts General Laws.
Definitions set forth in said chapter and section and in the regulations issued and as may be amended by the Department of Environmental Quality Engineering, or any successor thereto, are hereby made a part of this chapter with the exception of land subject to flooding, which definition is further amended in the following section.
[Amended 4-15-1987 by Art. 43]
The Yarmouth Conservation Commission may, from time to time, adopt such additional definitions, regulations and performance standards as it may deem necessary to protect the interests of this chapter. Said definitions shall become effective upon publication following a public hearing.
[Amended 4-12-1984 by Art. 48, approved 6-1-1984; 4-15-1987 by Art. 43]
As used in this chapter, the following terms shall have the meanings indicated:
- LAND SUBJECT TO FLOODING (both bordering and isolated areas)
- As per 310 CMR 10:57-2A and 10:57-2B with an additional one-hundred-foot buffer zone of jurisdiction not described in said regulations.
- Includes any individual, group of individuals, association, partnership, corporation, company, business, organization, trust, estate, administrative agency, public or quasi-public corporation or body or any other legal entity or its legal representative, agents or assigns, the commonwealth or any department and political subdivision thereof.
The Commission may make a determination as to whether or not this chapter applies to a specific situation prior to the filing of a written notice of intention under the provisions hereof within 21 days of the receipt of a written request, by certified mail or by hand, from any person desiring such determination.
The Commission, its agents, officers and employees may enter upon the land on which the proposed work is to be done in response to a request for a prior determination or for the purpose of carrying out its duties under this chapter and make or cause to be made such examination or survey as it deems necessary.
The Conservation Commission is empowered to deny permission for any dredging, filling, altering or constructing on subject lands within the Town if, in its judgment, such denial is necessary to fulfill the purposes of this chapter on either the subject lands or land within 100 feet of said subject lands. Due consideration shall be given to possible effects of the proposal on all values to be protected under this chapter and to any demonstrated hardship on the petitioner by reason of denial, as brought forth at the public hearing.
The Commission may, as an alternative to denial, impose such written conditions as it deems necessary to contribute to the protection and preservation of subject lands in accordance with the purpose of this chapter.
Notice required by § 143-2 of this chapter shall not apply to emergency projects necessary for the protection of the health or safety of the citizens of Yarmouth and to be performed by an administrative agency of the commonwealth or of the Town. An "emergency project" shall mean any project certified to be an emergency by the Yarmouth Conservation Commission. In no case shall any filling, dredging, constructing or altering commence prior to any emergency certification nor extend beyond the time necessary to abate the emergency.
Any person filing a notice of intention or requesting a prior determination under this chapter shall, in writing and at the same time, notify all abutters, and the owner of the subject property on which work is proposed or for which prior determination is sought if different from the petitioner, by certified mail or hand delivery or by publication in a local newspaper, of his intention to so alter or request said determination. A list of persons so notified shall be presented to the Yarmouth Conservation Commission with said notice of intention or request for prior determination. Said notification shall include the date, time and place of the hearing.
The Conservation Commission may require the posting of a bond with surety, running to the municipality and sufficient as to form and surety, in the opinion of the Commission's Counsel, to secure faithful and satisfactory performance of work required by any final order of conditions, in such sum and upon such conditions as the Commission may require. Other evidence of financial responsibility which is satisfactory to the Commission may be accepted in lieu of bonding. Notwithstanding the above, the amount of such bond shall not exceed the estimated cost of the work required or the restoration of affected lands and properties if the work is not performed as required, whichever is greater. Forfeiture of any such bond shall be recoverable at the suit of the municipality in Superior Court.
If the Conservation Commission has failed to hold a hearing within 21 days of filing of a notice of intent under this chapter, or if the Commission, after holding such hearing, has failed within 21 days therefrom to issue an order, or if the Commission, upon a written request by any person to determine whether this is applicable to any work, fails within 21 days to make said determination or where an order does not issue from said Commission, the applicant, any person aggrieved by said Commission's order or failure to act or any 10 residents of the Town of Yarmouth may, within 21 days of the Commission's order or failure to act, appeal therefrom to the First Barnstable Division of the Trial Courts of the commonwealth.
An appeal shall be perfected by filing a complaint with the First Barnstable Division of the Trial Courts of the commonwealth and by sending a copy thereof by certified mail, return receipt requested, to the Town Clerk and the Conservation Commission of the Town of Yarmouth and, if the appellant is other than the petitioner, to the petitioner, all within 21 days of said order or failure to act. The Court shall hear all evidence pertinent to the authority and findings of the Commission and determine the facts and, upon the facts so determined, annul such decision if found to exceed the authority of the Commission or make such other decree as justice and equity may require. The Selectmen are instructed to petition the Great and General Court of the commonwealth to confer appellate jurisdiction over this chapter to the First Barnstable Division of the Trial Courts of the commonwealth in accordance with and to effectuate the purposes and provisions of the chapter as amended; and this chapter, as amended, is accepted and adopted, provided that the Great and General Court of the commonwealth, by Special Act of the Legislature, confers such appellate jurisdiction over this chapter upon the First Barnstable Division of the Trial Courts of the Commonwealth.
[Added 4-8-1986 by Art. 17, approved 5-8-1986]
Any person, as defined in § 143-3 of this chapter, who violates or causes to be violated § 143-2A of this chapter shall be punished by a fine of not less than $100 or more than $300 for each violation and, in addition, not less than $300 for each subsequent violation. This section shall be enforced by any officer having police powers in the Town of Yarmouth.