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WETLANDS ADMINISTRATION
BYLAW
ARTICLE
XXX
On May 9, 1988,
Holliston’s Town Meeting approved a new wetlands administration
bylaw (Article XXX) that encompassed the addition of wildlife
habitat protection, strengthened the role of the Conservation
Commission and simplified administrative matters. The bylaw was
subsequently amended at Town Meetings on May 24, 1990 and May 5,
1998. This document presents the text of the bylaw as approved and
amended by Town Meeting.
SECTION 1.
MEMBERSHIP
The Town shall have a Conservation Commission
consisting of seven (7) members appointed by the Board of
Selectmen in May for a term of three (3) years each and so
appointed that no more than three (3) nor less than two (2) shall
expire in any one year.
SECTION 2.
PURPOSE
The Conservation Commission shall have the duties
and powers specified in the General Laws, including, but not
limited to, Chapter 40, Sections 5 and 8C as amended, and Chapter
131, Section 40, as amended. Such duties and powers include, but
are not limited to, the following:
a. the promotion
and development of the natural resources and protection of
watershed resources of the Town;
b. the researching of
local land areas and the coordination of the activities of
unofficial bodies organized for similar purposes;
c. the
advertising, preparation and distribution of books, maps, charts,
plans and pamphlets which in its judgment it deems necessary for
its work;
d. the receiving of gifts, bequests or devises of
personal property or interests in real property in the name of the
Town subject to the approval of the Selectmen;
e. the
acquisition, in the name of the Town, by option, purchase, lease
or otherwise, the fee in such land or water rights, conservation
restrictions, easements or other contractual rights as may be
necessary to acquire, maintain, improve, protect, limit the future
use of, or otherwise conserve and properly utilize open spaces in
land and water areas within the Town, and the management and
control of same;
f. the regulation and protection of
wetlands, related water resources and adjoining land areas in the
Town of Holliston, including the authority to regulate or prohibit
the removal, filling, dredging or altering of any area likely to
have a significant effect upon public or private water supply,
ground water, flood control, storm damage prevention, erosion,
prevention of pollution, wildlife habitat or recreation.
SECTION 3. JURISDICTION
Except as
permitted by the Conservation Commission, or as provided in this
bylaw, no person shall remove, fill, dredge, build upon, or alter
the following resource areas:
land within 100
feet of any, freshwater wetland, marsh, wet meadow, bog, or swamp
land within 100 feet of any bank, beach, dune, or flat, any lake,
river, pond, stream, or estuary, any land under said waters; or
within 100 feet of any land subject to flooding or inundation by
ground water, or surface water.
No person shall
remove, fill, dredge, or alter any bank, freshwater wetland,
marsh, wet meadow, bog or swamp or lands bordering on any estuary,
creek, river, stream, pond or lake, or any land subject to
flooding,
other than in the course of 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 and used to provide
electric, gas, water, drainage, teleTelephone:, telegraphs and the
telecommunication services, without filing written notice of his
intention so to remove, fill, dredge, or alter and without
receiving and complying with an order of conditions and provided
all appeal periods have elapsed.
Such notice shall
be sent by certified mail or hand delivered to the Holliston
Conservation Commission, including such plans as may be necessary
to describe such proposed activity and its effect on the
environment.
The same notice, plans, and
specifications required to be filed by an applicant under
Massachusetts General Law, Chapter 131, Section 40, and 310 CMR 10
et seq., as amended, may be accepted as fulfilling the
requirements of this bylaw. The said Commission, in its
discretion, may hear any oral presentation under this bylaw at the
same public hearing required to be held under the provisions of
said Chapter 131, Section 40 of the Massachusetts General Laws.
SECTION 4. APPLICATIONS FOR PERMITS AND REQUESTS
FOR DETERMINATION
Written application shall be filed with
the Commission to perform activities regulated by this bylaw
affecting resource areas protected by this bylaw. 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, including, but not limited to, all
information normally required in a building permit application and
copies of all applications for approval from the Town of
Holliston, the Commonwealth of Massachusetts or the United States
Government relating to work subject to this bylaw.
The application shall also include a list of
abutters certified by the Board of Assessors, including those
across a traveled way.
No activities shall commence
without receiving and complying with a permit issued pursuant to
this bylaw.
The Commission, in an appropriate case,
may accept as the application and plans under this bylaw, the
Notice of Intent and plans filed under the Wetlands Protection
Act, M.G.L. Chapter 131, Section 40.
At the time of
a permit application or request for determination or application
for a Certificate of Compliance, the applicant shall pay a filing
fee specified in the regulations of the Commission. The fee shall
be deposited in a dedicated account, for use only for wetlands
protection activities, from which the Commission may withdraw
funds without further appropriation. The Conservation Commission
shall use such filing fees to implement this Article, the
regulations promulgated hereunder, and any policies developed by
the Conservation Commission, including but not limited to the
employment of a Conservation Agent, the responsibilities of such
Conservation Agent to include, but not be limited to, delineating
resource areas, performing site visits, briefing the Conservation
Commission, serving as liaison between the Conservation
Commission, applicants, abutters, consultants and other interested
parties, drafting determinations of applicability and orders of
conditions, verifying implementation of erosion control measures,
facilitating public hearings, issuing certificates of compliance
and enforcing the provisions of this Article, the regulations
promulgated hereunder, and the policies developed by the
Conservation Commission. This fee is in addition to that required
by the Wetlands Protection Act (General Laws Chapter 131, Section
40) and Regulations (310 CMR 10.00), however, the Conservation
Commission may credit this fee towards the fee required with the
filing pursuant to the Wetlands Protection Act and its
Regulations. The Conservation Commission may waive the filing fee
for an application, request for determination or application for a
Certificate of Compliance filed by a government agency. (5/5/98)
In order to enforce the provisions of Article XXX,
the regulations promulgated hereunder, and the policies developed
by the Conservation Commission, or at any point during the review
of an application until a Certificate of Compliance is issued, the
Conservation Commission may find that the assistance of outside
consultants is warranted due to the size, scale or complexity of a
proposed project or because the project may have a significant
effect upon the values the Conservation Commission is authorized
to protect. Upon reaching such a finding, the Conservation
Commission may require an applicant to pay the reasonable costs
and expenses for consultant services deemed necessary by the
Conservation Commission. This fee is called the Consultant Fee.
The consultant services may include, but shall not be limited to,
ascertaining the extent of the Conservation Commission’s
jurisdiction, analyzing resource area functions and values,
evaluating wildlife habitat; analyzing hydrogeologic and drainage
conditions, providing assistance during appeal or litigation,
researching environmental or land use law, and inspecting work to
insure compliance with Article XXX. (5/5/98)
Outside
consultants shall be chosen by the Commission. Any applicant may
take an administrative appeal from the selection of the outside
consultant to the Board of Selectmen who shall approve or
disapprove the selection within thirty (30) days. The grounds for
such an appeal shall be limited to claims that the consultant
selected has a conflict of interest or does not possess the
minimum required qualifications. The standard of qualification
shall consist of Mass. certification or license in the field at
issue or references mutually acceptable to the Commission and the
applicant, showing expertise and experience in the field at issue.
The required time limit for action upon an application by the
Commission shall be extended by the duration of the administrative
appeal. (5/24/90)
SECTION 5. NOTICE AND
HEARINGS
Any person filing an application or a request for
determination with the Commission shall, at the same time, give
written notice thereof by certified mail or hand delivery to the
Inspector of Buildings of the Town of Holliston. The notice shall
include a general description of the proposed work to be performed
and state that an application has been filed with the Conservation
Commission.
The Commission shall conduct a public
hearing on any application or request for determination with
written notice given at the expense of the applicant, five (5)
working days prior to the hearing, in a newspaper of general
circulation in the Town of Holliston.
The Commission
shall commence the public hearing within twenty-one (21) days from
receipt of a completed application or request for determination.
An application shall not be deemed complete unless the filing fee
is paid.
The Commission shall issue its permit or
determination in writing within twenty-one (21) days of the close
of the public hearing thereon.
The Commission may
combine its hearing under this bylaw with the hearing conducted
under the Wetlands Protection Act, MGL, Chapter 131, Section 40.
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, and deemed necessary by the
Commission in its discretion. 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.
SECTION 6. PERMITS, DETERMINATIONS,
AND CONDITIONS
If the Commission, after a public hearing,
determines that the activities which are the subject of the
application are likely to have a significant effect upon the
values protected by this bylaw, the Commission, within twenty one
(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 to protect those values, and all activities shall be
done in accordance with those conditions.
The
Commission is empowered to deny a permit
- 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
effects upon the 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.
A permit shall expire
three (3) years from the date of issuance. Any permit may be
renewed for additional one (1) year periods, provided that a
request for a renewal is received in writing by the Commission
thirty (30) days prior to expiration.
For good cause, the
Commission may revoke or modify a permit issued under this bylaw
after public notice and public hearing, and written notice to the
holder of the permit.
The Commission, in an appropriate
case, may combine the permit or other action on an application
issued under this bylaw with the Order of Conditions or
Determination of Applicability issued under the Wetlands
Protection Act.
SECTION 7. REGULATIONS
After
public notice and public hearing, the Commission shall promulgate
or amend rules and regulations to effectuate the purposes of this
bylaw. 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.
SECTION 8. ENFORCEMENT
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 bylaw and may make or cause to
be made such examinations, surveys or sampling as the Commission
deems necessary.
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.
Upon request of the
Commission, the Board of Selectmen 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.
Municipal
boards and officers, including any police officer or other officer
having police powers, shall have authority to assist the
Commission in enforcement.
Any person who violates
any provision of this bylaw, regulations thereunder, or permits
issued thereunder, shall be punished by a fine of not more than
$100.00. Each day or portion thereof during which a violation
continues shall constitute a separate offense, and each provision
of the bylaw, regulations, or permit violated shall constitute a
separate offense.
In the alternative to criminal
prosecution, the Commission may elect to utilize the non-criminal
disposition procedure set forth in G.L. Chapter 40, Section 21D.
SECTION 9. BURDEN OF PROOF
The applicant
for a permit shall have the burden of providing by a preponderance
of the credible evidence that the work proposed in the application
will not have unacceptable significant effect upon the wetland
values protected by this bylaw.
SECTION 10.
RELATION TO THE WETLANDS PROTECTION ACT
This bylaw is
adopted under the Home Rule Amendment of the Massachusetts
Constitution and Home Rule statues, independent of the Wetlands
Protection Act, M.G.L. Chapter 131, Section 40, and regulations
thereunder.
SECTION 11. SEVERABILITY
The
invalidity of any section or provision of this bylaw shall not
invalidate any other section or provision thereof, nor shall it
invalidate any permit or determination which previously has been
issued.
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