ARTICLE 23
WETLANDS PROTECTION
SECTION 1. Purpose
The purpose of this by-law is to preserve and protect the floodplains and wetlands of the Town of Sharon by regulating and controlling activities deemed to have significant or cumulative effect upon the functions and characteristics of such floodplains and wetlands, including, but not limited to, the following: Public or private water supply, groundwater, flood control, erosion and sedimentation control, protection of surrounding land and homes and buildings, storm damage prevention, protection of streams, ponds and other bodies of water, prevention of pollution, water quality enhancement, and protection of fisheries, shellfish, wildlife habitat, scenic vistas, recreation and aesthetics (collectively, the "interests protected by this by-law"). This By-Law is intended to utilize the Home Rule authority of this municipality to protect additional resource areas and interests with standards and procedures stricter than those pursuant to the Wetlands Protection Act, G.L. Ch. 131, S. 40 and regulations thereunder, 310 CMR 10.00.
SECTION 2. Definitions
The following definitions shall apply in the interpretation and implementation of this by-law:
2.1 The term "Commission" shall mean the Conservation Commission of the Town of Sharon, a lawfully constituted agency empowered to regulate and control activities governed by this by-law.
2.2 The term "person" shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the Federal Government or agencies thereunder to the extent subject to Town By-Laws, the Commonwealth or political subdivisions thereof to the extent subject to Town By-Laws, administrative agencies, public or quasi-public corporations or bodies, the Town of Sharon, and any other legal entity, its legal representatives, agents or assigns.
2.3 The term "buffer zone" shall be the land within one hundred (100) feet horizontally landward from the perimeter or outer border of any wetland, floodplain, vernal pool or body of water.
2.4 The term "alter" shall include, without limitation, the following actions when undertaken in areas subject to this by-law
a) Removal, excavation or dredging of soil, muck, humus, sand, gravel or aggregate materials of any kind;
b) changing drainage characteristics, flushing characteristics, sedimentation patterns, flow patterns and 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 water quality, or interfere with the functioning of wetland, floodplains, bank or bodies of water;
e) Diving of piles or erection of buildings or structures of any kind;
f) Placing of obstructions in a body of water, whether or not they interfere with the flow of water;
g) Destruction of plant life, plant life shall include those species specified in the Woodlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40, paragraphs 5, 7, 8, 9, 10, and plant life that is significant to physical stability of the bank, flood control, storm damage prevention, prevention of pollution and/or protection of fisheries and wildlife habitat.
h) Changing of water temperature, biochemical oxygen demand (BAD), or other physical or chemical characteristics of either ground- or surface- water.
2.5 The term "banks" shall mean that part of land adjoining any body of water which confines the water.
2.6 The terms relative to agricultural practices shall include:
a) The term "land in agricultural use" shall mean any qualifying woodland within a farm which is qualified, or eligible to be qualified, under the Farmland Assessment Act, Massachusetts General Laws, Chapter A, Sections 1 to 5.
b) The term "qualifying woodland" shall mean only inland fresh water areas which are seasonally flooded basins or flats or inland fresh meadows.
c) The term "normal maintenance or improvement" of land in agricultural use shall mean only
1. Tilling practices customarily employed in the raising of crops;
2. Pasturing of animals, including such fences and protective structures as may be required;
3. Use of fertilizers, pesticides, herbicides, and similar materials subject to state and federal regulation covering their use;
4. Constructing, grading, or restoring of field ditches, sub-surface drains, grass waterways, culverts, access roads, and similar practices to improve drainage, prevent erosion, provide more effective use of rainfall, improve equipment operation and efficiency, in order to improve conditions for the growing of crops
(d) "Improvement" of land in agricultural use may also include more extensive practices such as the building of ponds, dams, structures for water control, water and sediment basins, and related activities, but only where a plan for such activity approved by the Conservation District of the Soil Conservation Service is furnished to the Commission prior to the commencement of work. All such activity shall subsequently be carried out in accordance with the said plan. In the event that the work is not carried out in accordance with the required plan, the Commission may place a stop order on said work and have recourse to such measures as if the plan were an order of condition.
2.7. The term "vernal pool" shall mean a naturally occurring, confined basin depression which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, which is free of adult fish populations and which provides essential breeding habitat for certain amphibians and/or food, shelter, migration and breeding habitat for other wildlife species as well as the area within one hundred (100) feet of the mean annual boundary of such depressions. Such sites shall be protected regardless whether they have been certified by the Massachusetts Division of Fisheries and Wildlife.
2.8. The Commission may adopt definitions, not inconsistent with this Section 2, in its regulations promulgated pursuant to Section 8 of this By-Law.
SECTION 3.0. Jurisdiction
No person shall remove, fill, dredge, drain, build upon, or alter any bank, freshwater wetland, vernal pool, beach, flat, marsh, wet meadow, bog, swamp, or lands bordering on any creek, river, stream, pond or lake, or any land under said waters, or any land subject to storm flowage, or flooding, or inundation by groundwater or surface water, or the buffer zone, without filing written notice of the intention to do so with the Commission in accordance with the provisions set forth in this By-Law and without receiving and complying with the Order of Conditions issued by the Commission and provided all appeal periods have elapsed, unless the Commission shall have determined that this By-Law does not apply to the activity proposed.
3.1. This By-Law shall not apply to the following activities:
a) Emergency projects necessary for the protection of the health or safety of the residents of Sharon which are to be performed, or which are ordered to be performed, by a board, committee, commission or civil defense of the Town of Sharon and certified as necessary by the Commission. No emergency project may continue beyond the time, or exceed the scope, needed to abate the emergency. Emergency projects shall mean any projects certified to be an emergency by the Commissioner of the Department of Environmental Quality Engineering and the Commission if this By-Law and Massachusetts General Laws, Chapter 131, Section 40, are both applicable, or by the Commission, if only this By-Law is applicable.
b) Maintenance, repair or replacement, without substantial change or enlargement, or existing and lawfully located structures or facilities used in the service of the public and used to provide electric, gas, water, sewerage, drainage, railroad transportation, telephone, telegraph and other telecommunication services to the public.
c) Normal maintenance or improvement of land in agricultural use. The Commission shall determine whether the requirements of the By-Law apply to activities proposed that may change land in agricultural use and affect the interests protected by this By-Law.
d) Maintenance and repair of existing public ways.
e) Normal maintenance, repair, replacement of, or improvement or addition to, any existing betterment to private, owner-occupied property, including, but not limited to, fences, hedges, docks, boat moorings, trees, shrubs, lawns, gardens, mailboxes or lamp posts. Normal maintenance and repair of existing retaining walls shall also be included in the above mentioned activities.
3.2. Any person who desires a determination as to whether this By-Law applies to an area, or to any activity proposed thereon, shall submit a written Request for Determination of Applicability to the Commission, signed by the owner of the area, or the applicants, if such applicant believes an owner to be acting improperly on an area, on a form obtainable from the Commission, together with plans showing the existing characteristics of the area and the nature and extent of the activities to be performed thereon. The information submitted shall also include: a list of the names and addresses of all abutters to the area, lot lines, town ways, the location of all wetlands, vernal pool, floodplains, water courses, and buffer zones, existing buildings, and all changes proposed, and such other information as the Commission may, by regulation, require.
The Request for Determination of Applicability shall be delivered to the Commission by certified mail, return receipt requested, together with a certification that all abutters to the area subject to the determination, and the owner, if the person making the request is other than the owner, have been sent notice that a determination is being requested hereunder, and to such other persons as the Commission may, be regulation, require. In order to comply with the provisions of the By-Law, each application must be complete, as filed, and must comply with the rules set forth herein. The Commission, in its discretion, may hear any oral presentation under this By-law at the same public hearing required to be held under the provisions of Chapter 131, Section 40, of the Massachusetts General Laws.
Notice of the time and place of such hearing shall be given by the Commission, at the expense of the applicant, not less than five (5) days prior to the public hearing, by publication in a newspaper of general circulation in Sharon and by mailing a notice of certified mail, return receipt requested, to the applicant, or owner, if a person other than the applicant. All publications and notices shall contain the name of the applicant, a description of the area where the activity is proposed by street address, if any, or any other adequate identification of the location of the area or premises which is the subject of the notice, the date, time and place of the public hearing, the subject matter of the hearing, and the nature of the action, or relief requested, if any.
The Commission shall send its Determination of Applicability to the applicant, and the owner of the site, if a person other than the applicant, by certified mail within twenty-one (21) days after the receipt of the Request for Determination of Applicability. If the Commission shall determine that the By-Law applies to the activity proposed, or occurring, the owner, or his legally authorized representative, must file a Notice of Intent.
SECTION 4.0. Procedure
Unless the Commission shall have determined that this By-Law does not apply to such activity pursuant to the provisions of Section 3.2 above, every person who wishes to remove, fill, dredge or alter any wetland, vernal pool, floodplain or buffer zone shall first file a written Notice of Intent with the Commission, signed by the owner of the area, or his legally authorized representative, on a form available from the Commission, together with a list of the names and addresses of all abutters to the area subject to such Notice, and with such Notice, such plans and additional information as the Commission may deem necessary, by regulation, or otherwise, to describe the nature of the activity proposed and its effect on the wetlands, floodplains and buffer zones. The Notice of Intent shall be delivered to the Commission by hand, or by certified mail, return receipt requested, together with a certification that all abutters to the area subject to the Notice of Intent, and the owner, if the person making the application is other than the owner, have been sent notice that a Notice of Intent has been filed hereunder, and to such other persons as the Commission may, by regulation, determine. The plans shall show the location of the wetland boundaries and shall be at such scale as the Commission may deem necessary, by regulation, or otherwise. All drawings and plans should be stamped and signed and dated by such registered professional as the Commission may require, by regulation, or otherwise. In addition, the Notice of Intent, with its plans, will show lot lines, town ways, the names of all abutters, the location of all wetland areas, vernal pool, floodplains, water courses and buffer zones, pertinent physical features of the land, existing buildings, and all changes proposed to be made. In order to comply with the provisions of this By-Law, each Notice must be complete, as filed, and comply with the rules set forth herein.
No such Notice shall be accepted as complete before all permits, variances, and approvals, required by the By-Laws of the Town of Sharon with respect to the proposed activity, which are obtainable at the time, of such Notice, have been obtained, or if not obtainable at that time, have been applied for, as provided in Massachusetts General Laws, Chapter 131, Section 40.
4.1. Any person or persons requesting a hearing before the Sharon Conservation Commission shall be required to make a payment in the amount of $35.00 per hearing, said amount payable to the Town of Sharon which in turn will be placed in the Advertising Fund for purpose of payment of the advertisement of the hearing notice and any other associated costs. The Commission shall hold a public hearing on the activity proposed within twenty-one (21) days of receiving such completed Notice of Intent. Notice of the time and place of such hearing shall be given by the Commission, at the expense of the applicant, not less than five (5) days prior to the public hearing, by publication in a newspaper of general circulation in Sharon, and by mailing a notice by certified mail to the applicant, and the owner, if a person other than the applicant, and to the Sharon Board of Health and the Sharon Planning Board. All publications and notices shall contain the name of the applicant, a description of the area where the activity is proposed, by street address, if any, or other adequate identification of the location of the area or premises which is the subject of the notice, the date, time and place of the public hearing, the subject matter of the hearing, and the nature of the action, or relief requested, if any. Such hearing may be held at the same time and place as any public hearing required to be held under Massachusetts General Laws Chapter 131, Section 40, or otherwise. If the Commission determines that additional information is necessary, the hearing may be continued to a future date for as many hearings as may be deemed necessary by the Commission.
4.2. The applicant shall have the burden of proving, by a preponderance of the credible evidence, that the activity proposed in the Notice of Intent will not cause significant harm to any of the interests sought to be protected by this By-Law. Failure to provide to the Commission adequate evidence for it to determine that the proposed activity does not cause significant harm to the interests sought to be protected by this By-Law shall be sufficient cause for the Commission to deny such permit, or to grant such permit with such conditions as the Commission deems reasonable, necessary, or desirable to carry out the purposes of this By-Law, or to postpone or continue the hearing to another date certain to enable the applicant and others to present additional evidence, upon such terms and conditions as seems to the Commission to be just.
4.3. The Commission, in its sole discretion, may hear any oral presentation under this By-Law by any interested or aggrieved party, at the same public hearing required for a filed Notice of Intent or Request for Determination of Applicability.
4.4. If, after the hearing, the Commission shall determine that the proposed activity is significant to one or more interests of this By-Law, the Commission may, by written order issued within twenty-one (21) days after the close of such hearing, impose such conditions, safeguards, and limitations on time and use upon such activity as it deems necessary to protect those interests; but the Commission may prohibit such activity altogether, in the event that it finds that the interests of this By-Law can not be preserved and protected by the imposition of such conditions, safeguards or limitations. Due consideration shall be given to possible effects of the proposal on all values to be protected under this By-Law can not be preserved and protected under this By-Law and to any demonstrated hardship on the applicant by reason of a denial, as brought forth at the public hearing. If the Commission shall determine that the activity proposed does not require the imposition of conditions to preserve and protect the interests of this By-Law, the applicant shall be notified in writing. No condition shall be imposed, nor shall any determination be rendered by the Commission, unless the Commission meets with a quorum present.
4.5. The Commission may, as part of its Order of Conditions, require, in addition to any security required by any other Town or State board, committee, commission, agency or officer, that the performance and observance of the conditions, safeguards and limitations imposed under this By-Law by the applicant and owner be secured by one, or both of the methods described in the following clauses:
a) By a proper bond, or the deposit of money or negotiable securities, sufficient, in the opinion of the Commission, to secure the performance of the conditions and observance of the safeguards of such Order of Conditions. Such bond or security, if filed or deposited, shall be approved as to form and manner of execution by Town Counsel, or the Town Treasurer. And/or,
b) By a conservation restriction, easement, or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land).
4.6. In the event all activity authorized by the Order of Conditions is not completed within three (3) years after the date of issuance, the authorization contained therein shall expire, unless the Order has been renewed prior to expiration, such renewal being subject to all of the Conditions of this By-Law. An Order of Conditions may be renewed, upon written request of the applicant, for a period of up to three years. No activity governed by an Order of Conditions shall be carried on unless, and until, all permits, approvals and variances required by the By-Laws of the Town of Sharon shall have been obtained, and unless such Order of Conditions shall have been recorded or registered at the Norfolk County Registry of Deeds or in the Norfolk County District of the Land Court Department and until all applicable appeals periods have expired. The Commission shall have the right to record or register its Order of Conditions with said Registry or Registry District. In the event that an Order of Conditions, issued pursuant to this By-Law, is identical to a final Order of Conditions issued pursuant to the provisions of Massachusetts General Laws, Chapter 131, Section 40, only one such order need be recorded or registered.
4.7. The Commission shall have the power, on its own motion, or upon the petition of any person interested, to modify or amend any such Order of Conditions after notice to all persons interested.
SECTION 5.0. Certificate of Compliance
The Commission shall, upon receiving a written request therefore, inspect the woodlands, vernal pool, floodplain and buffer zones, where the activity governed by an Order of Conditions was carried out, and issue a Certificate of Compliance to the owner of the property in a form suitable for recording, or registering, if the Commission shall determine that all of the activity, or activities, or portions thereof, limited thereby, have been completed in accord with said Order. The written request for a Certificate of Compliance shall be accompanied by evidence of the prior recording, or registering, of the governing Order of Conditions.
SECTION 6.0 Pre-Acquisition Violation
Any person who purchases, inherits, or otherwise acquires real estate upon which work has been done in violation of the provisions of this By-Law, or in violation of any Order of Conditions issued under this By-Law, shall forthwith comply with any such Order, or restore the land to its condition prior to any such violation; provided, however, that no action, civil or criminal, shall be brought against such a person, unless such action is commenced within three years following the recording of the deed, or the date of the death by which such real estate was acquired by such person.
SECTION 7.0. Right Of Entry
Any applicant who is an owner, or any applicant legally authorized to represent the owner, who requests the Commission to evaluate a written Request for Determination of Applicability, gives the Commission, and its agents, the right of entry to the owner's property for the purpose of making the Determination.
7.1Any applicant who is an owner, or any applicant legally authorized to represent the owner, who files with the Commission of Notice of Intent, gives the Commission, and its agents, the right of entry to the owner's property for the purpose of evaluating the information provided in the Notice of Intent.
SECTION 8.0 Guidelines And Rules And Regulations
The Commission shall be empowered to establish "Guidelines Governing the Organization and Operation of the Sharon Conservation Commission" (Guidelines"). The Guidelines shall include:
a) name and purpose
b) elections
c) officers
d) consultants and honorary members
e) duties of members
f) committees
g) meetings
h) quorum
i) appointments and vacancies
j) hearings
k) annual report
l) commission employees
m) contracted services and supplies
n) other items found necessary by the Commission.
8.1 Additionally, after due notice and public hearing, the Commission may promulgate "Rules and Regulations" to effectuate the purposes of this By-Law. These Rules and Regulations may further define key terms in this By-Law, as well as establish information requirements necessary to process applications, among other requirements.
8.2 Failure of the Commission to establish such Guidelines, or 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.
SECTION 9.0 Filing Fees
In addition to the statutory fees required for filings under Massachusetts General Laws, Chapter 131, Section 40, the Town of Sharon establishes the following fees for action under the Woodlands Protection By-Law:
a) Request for Determination of Applicability, and its determination -- no fee.
b) Filing an Abbreviated Notice of Intent, and resulting Order of Conditions or Notification of Non-Significance -- $20.00.
c) Filing a Notice of Intent, and resulting Order of Conditions or Notification of Non-Significance -- $25.00 per acre of the entire parcel (governed by the deed (s) recorded in the Registry, or registered in the Land Court, and designated in the Notice of Intent). Acreage shall be as shown on Board of Assessors maps, rounded to the nearest acre -- minimum fee shall be $30.00.
d) Request for an Extension Permit, and resulting permit -- $20.00.
e) Request for a Certificate of Compliance, and resulting Certificate -- $20.00.
9.1. Fees are payable by cash or check to the Town of Sharon at the time of request or filing, and are not refundable. Town, county, state or federal projects are exempt from fees. The Commission, upon a majority vote, may waive the fees in the event of hardship or other cause.
SECTION 10.0. Enforcement
In accordance with the provisions of Massachusetts General Laws, Chapter 40, Sections 21D and 31, as well as every other authority and power that may have been, or may hereafter be conferred upon it, the Town of Sharon may enforce the provisions of this By-Law, restrain violations thereof, and seek injunctions and judgments to secure compliance with its Orders of Conditions. Without limiting the generality of the foregoing:
10.1 Any person who violates any provision of this By-Law, or any condition or a permit issued pursuant to it, shall be punished by a fine pursuant to Massachusetts General Laws, Chapter 40, Section 21, and pursuant to the Town of Sharon By-Laws, Article 11. Each day, or portion thereof, during which a violation continues, shall constitute a separate offense; if more than one, each condition violated shall constitute a separate offense. This By-Law may be enforced pursuant to Massachusetts General Laws, Chapter 40, Section 21D, by a Town of Sharon police officer, or other officer having police powers.
10.2. In the event of a violation of this By-Law, or of any order issued thereunder, the Commission or its agents, may issue a stop order to the owner, the applicant, or their agent, by certified mail, return receipt requested, or by posting the same in a conspicuous location on the site affected. Any person who shall violate the provisions of a stop order shall be deemed in violation of the By-Law; but the failure of the Commission to issue a stop order, for any reason, shall not prevent the Town of Sharon from pursuing any other legal remedy at law, or in equity, to restrain violations by this By-Law and to secure compliance with its orders.
10.3. The Town of Sharon shall be the beneficiary of all fines imposed on account of the violation of this By-Law in order to defray the expense of enforcing the same.
10.4. Upon the request of the Commission, the Board of Selectmen and Town Counsel shall take such legal action as may be necessary to enforce this By-Law and permits issued pursuant to it.
10.5. Upon the recommendation of the Commission, the Board of Selectmen may employ Special Counsel to assist the Commission in carrying out the legal aspects, duties and requirements of this By-Law.
SECTION 11.0. Relationship Of This By-Law To Massachusetts General Laws:
This By-Law is intended to utilize the Home Rule authority of this municipality to protect additional resource areas and interests with standards and procedures stricter than those pursuant to the Wetland Protection Act, G.L. Ch. 131, S. 40 and regulations thereunder, 310 CMR 10.00.
SECTION 12.0. Severability
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 Order of Conditions which have previously become final.