Sent: Tuesday, March 29, 2005 11:42 AM
To: Charles Hodgkinson
Subject: Wetlands Protecton Bylaw (Non-Zoning)
Here is the actual bylaw for the Conservation Commission "slot" on the
Wetlands Protection ByLaw (Non- Zoning)
As amended through April 1990
Section 1. Purpose
The purpose of this bylaw is to protect the wetlands, related ware
resources, and adjoining land areas in Chilmark by prior review and control
of activities deemed by the Conservation Commission likely to have
significant adverse impact or significant cumulative adverse 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, prevention of water pollution, fisheries,
shellfish, wildlife habitat, recreation, agriculture, and aquaculture values
(collectively, the "wetland values protected by this bylaw").
Section 2. Jurisdiction
Except as permitted by the Conservation Commission or as provided in
this Balaena person shall remove, fill, dredge, build upon, or alter the
following resource areas: any freshwater wetland, coastal wetland, marsh,
wet meadow, bog or swamp and land lying within 100 feet thereof; any bank,
beach, dune, or flat and land lying within 100 feet thereof; any lake,
river, pond, stream, estuary, or the ocean; any land under said waters; or
any land subject to flooding or any land subject to inundation by
groundwater, surface water, tidal action, or coastal storm flowage and land
lying within 100 feet thereof.
Section 3. Exceptions
The permit and applications required by this bylaw shall not be required
for maintaining Chilmark's salt ponds for the culture of fish and shellfish,
or 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 for replacing pilings or
repairing but not changing or expanding existing and lawfully located docks
and moorings, provided that written notice has been given to the Commission
prior to commencement of work, and provided that the work conforms to
performance standards in regulations adopted by the Commission.
The permit and applications required by this bylaw 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
by an agency of the Commonwealth or a political subdivision thereof,
provided that the advance notice, oral or written, has been given to the
Commission or within 24 hours after commencement, 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 project
a permit application shall be filed with the Commission for review as
provided in 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
The permit and application required by this bylaw shall not apply to
maintenance of drainage and flooding systems of cranberry bogs, to work
performed for normal maintenance or improvement of land in agricultural use
or in aquacultural use.
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. No activities shall commence without receiving
and complying with a permit issued pursuant to this bylaw.
The Commission may accept as the application and plans under this bylaw
the Notice of Intent and plans filed under the Wetlands Protection Act, G.L.
c. 131, Sec. 40.
Any person desiring to know whether or not proposed activity or an area
is subject to this bylaw way request in writing a Determination of
Applicability (Request for a Determination). Such a request for
determination shall contain data and plans specified by the regulations of
the Commission. The applicant shall pay a filing fee specified in the
regulations of the Commission. The Commission may waive the filing fee and
costs and expenses for an application or request filed by a person having no
financial connection with the property which is the subject of the request.
In addition to the filing fee, the Commission is authorized to require
any applicant to pay the reasonable costs and expenses borne by the
Commission for specific expert engineering and consultant services deemed
necessary by the Commission to review a Notice of Intent and/or Request for
Determination up to a maximum of Two thousand and five hundred dollars
($2,500.00). Said payment can be required at any point in the deliberations
prior to a final decision rendered. Said services may include but are not
necessarily limited to wetland surveys and delineation, wetland resource
area reports. hydrogeologic and drainage analysis, wildlife evaluation,
shellfish surveys and environmental/land use law. The Commission is hereby
authorized to charge for said fee when a Notice of Intent and/or Request for
Determination proposes any of the following:
250 square feet or greater of alteration of fresh water or coastal wetland;
25 linear feet or greater of alteration of a bank or waterway;
250 square feet or greater of alteration of the 100 foot buffer zone of the
alteration of greater than 250 square feet of land under a water body;
discharge of any pollutants into or contributing to surface or groundwaters
or resource areas;
or the construction of a detention or retention basin.
Any unused portion of said fee shall be returned by the Commission to
the applicant within forty-five calendar days of written request for same by
the applicant unless the Commission decides in a public meeting that other
action is necessary. Any applicant aggrieved by the imposition of, or the
size of the fee, or any act related thereto, may appeal according to the
provisions of Massachusetts General Laws.
Section 5. Notice and Hearings
Any person filing an application or a request for determination with the
Commission at the same time shall give written notice thereof to all
abutters according to the most recent records of the assessors, including
those across a traveled way and those within 300 feet across a body of
water. The notice to abutters shall enclose a copy of the application or
request, with plans, or shall state where copies may be examined and
obtained by abutters free of charge. When a person requesting a
determination is other than the owner, 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.
The Commission shall conduct a public hearing on any application and a
public meeting on the determination of applicability, with notice given at
the expense of the applicant , five working days prior to the hearing, in a
newspaper of general circulation in Chilmark.
The Commission shall have authority to continue the hearing to a date
announced at the hearing, for reasons stated at the hearing, which may
include receipt of additional information and plans required of the
applicant 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
The Commission shall issue its permit or determination in writing within
21 days of the close of the public hearing thereon.
Section 6: Permits, Determinations, and Conditions
Determinations: If in response to a Request for Determination, the
Commission determines that the activities which are the subject of the
application are within the area described in section two and that such
activities will alter the resource area, the applicant must then apply for a
permit for such activities.
If the Commission after a public hearing determines that the activities
which are the subject of the application are likely to have a significant
adverse impact or significant cumulative effect on the wetland values
protected by this bylaw, 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.
The Commission is empowered to deny a permit for failure to submit
necessary information and plans requested by the Commission; for failure to
met the design specifications, performance standards, and other requirements
in regulations of the Commission; for failure to avoid or prevent
unacceptable significant or cumulative effects on the wetlands values
protected by this bylaw; and where no conditions are adequate to protect
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 the annual notification of time and location is given to
the Commission. Any permit may be renewed once for an additional one year
period, provide that a request for renewal is received in writing by the
Commission prior to expiration or is renewed by the Commission prior to its
For good cause the Commission may revoke or modify a permit issued under
this Bylaw after public notice and public hearing, and notice to the holder
of the permit.
The Commission may combine the permit or other action on an application
issued under this bylaw with the Order of Conditions issued under the
Wetlands Protection Act.
If the applicant is denied a permit for the activity he proposes, he may
appeal to a special meeting of a joint committee of the majority of each of
the following permitting boards: Board of Selectmen, Board of Health,
Planning Board. The meeting shall be called by the chairman of the Board of
Selectmen and written notice shall be made to the applicant and to all
members of the boards concerned. After hearing all the evidence provided by
the applicant and the Conservation Commission, said committee shall, by
majority vote, decide if the proposed activity is likely to have a
significant or cumulative effect on the value of Chilmark resources
protected by this law.
Section 7: Regulations
After public notice and public hearing the Commission may promulgate
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: Definitions
The following definitions shall apply in the interpretation and
implementation of this bylaw. Otherwise the definitions adopted in the
regulations governing the Massachusetts Wetland Protection Act (Chapter 131,
Section 40) compiled and in full force and effect6/30/83, shall apply.
The term "person" shall include any individual, group of individuals,
association, partnership, corporation, company, business organization,
trust, estate, the United States Government, the Commonwealth and political
subdivisions thereof to the extent subject to town bylaws, administrative
agency, public or quasi-public corporation or body, Chilmark, and any other
legal entity, its legal representatives, agents, or assigns.
The term"alter' shall include, without limitation, the following
activities when undertaken to, upon, within or affecting resource areas
protected by this bylaw:
a) Removal, excavation or dredging of soil, sand , gravel, or aggregate
materials of any kind;
b) Changing of pre-existing 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
e) Placing of fill, or removal of material, which would alter elevation;
f) Driving of piles in new locations;
g) Destruction of wetland vegetation. Mowing of lawns and normal
maintenance of trees and shrubs and the non-commercial cutting of firewood
for personal use shall not be considered destruction.
h) Changing water temperature, biochemical oxygen demand, or other
physical or chemical characteristics of water;
i) Any activities, changes, or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Section 9: Security
As part of a permit 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 hereunder be secured wholly or in part by a proper bond or
negotiable securities or other undertaking of financial responsibility
sufficient in the opinion of the Commission.
Section 10: 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 the 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, Board of Selectmen and 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
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
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 $300. 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. c. 40,
Section 11: Burden of Proof
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 protected by this bylaw will not have unacceptable significant
or cumulative effect upon the wetland values protected by this bylaw.
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.
Section 12: Relation to the Wetlands Protection Act
This bylaw is adopted under the Home Rules Amendment of the
Massachusetts Constitution and the Home Rule statutes, independent of the
Wetlands Protection Act, G.L. c. 131, Section 40, and regulations thereunder
and independent of the Zoning Act, Massachusetts General Laws , Chapter 40A.
Section 13: Severability
The invalidity of any section or provision of this bylaw shall not
invalidate any other section or provision hereof, nor shall it invalidate
any permit or determination which previously has been issued.
Originally adopted at ATM April 28, 1986,
amended by additions to Section 4 in 1989 and 1990.