§ 168-1. Purpose.
§ 168-2. Jurisdiction.
§ 168-3. Exceptions.
§ 168-4. Permit applications; requests for determination.
§ 168-5. Notice and hearings.
§ 168-6. Coordination with other boards.
§ 168-7. Determination on permit.
§ 168-8. Promulgation of rules and regulations.
§ 168-9. Definitions.
§ 168-10. Security.
§ 168-11. Enforcement.
§ 168-12. Burden of proof.
§ 168-13. Statutory authority.
§ 168-14. Severability.
[HISTORY: Adopted 5-11-1987 Annual Town Meeting, Art. 15. Amendments noted where applicable.]
§ 168-1. Purpose.
The purpose of this chapter is to protect the wetlands, related water resources and adjoining land areas in Great Barrington by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative 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, water pollution, fisheries, shellfish, wildlife habitat, recreation, aesthetics, agriculture and aquaculture values (collectively, the “wetlands values protected by this chapter”)
§ 168-2. Jurisdiction.
Except as permitted by the Conservation Commission or as provided in this chapter, no person shall remove, fill, dredge, build upon or alter the following resource areas: within one hundred (100) feet of any freshwater wetland, marsh, wet marsh, wet meadow, bog or swamp, or any bank, beach, dune or flat; or within one hundred (100) feet of any lake, river, pond or stream that is not a public or private water supply or tributary thereto, or any land under said waters; or within one hundred (100) feet of any land subject to flooding, defined as “floodplain” by the Great Barrington Flood Boundary Map dated July 1982 and the Great Barrington Flood Insurance Rate Map dated July 19, 1982; or within five hundred (500) feet of any lake, river, pond or stream that is a public or private water
supply; or within two hundred (200) feet of any lake, river, pond or stream that is a tributary of any public or private water supply.
§ 168-3. Exceptions.
A. The permit and application required by this chapter shall not be required for maintaining, repairing or replacing 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, provided that the structure of facility is not substantially changed or enlarged; provided that written notice has been given to the Commission prior to commencement of work; and provided that the work conforms to performance standards and design specifications in regulation adopted by the Commission.
B. The permit and application required by this chapter 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 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 work or within twenty-four (24) hours after commencement; provided that the Conservation 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 Conservation Commission for the limited purposes necessary
to abate the emergency; and provided that within twenty-one (21) days of commencement of an emergency project, a permit application shall be filed with the Commission for review as provided in this chapter. 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 other restoration and mitigation measures.
C. The Commission shall grant an agricultural exemption for maintenance of agricultural land, provided that the work conforms to the performance standards and design specifications in regulations adopted by the Commission, and provided that such work is routinely done at intervals of two (2) years or less, and provided that prior to commencement of work the applicant submits to the Commission the following:
(1) A letter from the local Board of Assessors stating that the project site received an agricultural tax exemption at least one (1) year prior to the writing of said letter.
(2) A written statement from the applicant describing the proposed work and explaining why it is routine maintenance.
(3) A map identifying the project site and all resource areas that might be affected by it and are near it.
D. Other than as stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply.
§ 168-4. Permit applications; requests for determination.
A. Written application shall be filed with the Commission to perform activities regulated by this chapter affecting resource areas protected by this chapter. 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 chapter.
B. The Commission, in an appropriate case, may accept as the application and plans under this chapter the notice of intent and plans filed under the Wetlands Protection Act, MGL C. 131, § 40.
C. Any person desiring to know whether or not proposed activity of an area is subject to this chapter may request in writing a determination from the Commission. Such a request for determination shall contain data and plans specified by the regulations of the Commission.
D. At the time of an application or request, the applicant shall pay a filing fee specified in regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, MGL C. 131, § 40. In addition, the Commission is authorized to require the applicant to pay the costs and expenses of any expert consultant deemed necessary by the Commission to review the application or request, up to a maximum of two thousand five hundred dollars ($2,500.). The Commission may waive the filing fee, costs
E. and expenses for an application or request filed by the Town of Great Barrington, for an application or request filed by any other government agency or for a request for determination filed by a person having no financial connection with the property that is the subject of the request.
§ 168-5. Notice and hearings.
A. The Commission upon receipt and acceptance of a notice of intent or a request for determination shall give written notice of the date, time, place and subject matter for a public hearing on the application. This written notice shall be sent by first class mail to all parties of interest, i.e., the applicant, abutters, owners of land directly opposite on any public or private street or way and owners of land within three hundred (300) feet of the property line, all as they appear on the most recent applicable tax list.[Amended 6-1-1992 ATM, Art. 5]
B. The Commission shall conduct a public hearing on any application or request for determination, with notice published, at the expense of the applicant, at least five (5) working days prior to the hearing, in a newspaper of general circulation in Great Barrington.
C. The Commission shall commence the public hearing within twenty-one (21) days from receipt of an accepted application or request for determination. An application shall be considered accepted when the date and time of such acceptance are written or stamped on its face by a person authorized by the Commission to perform such duty. A submitted application or request for determination shall be accepted or rejected within five (5) business days of receipt by the Commission. If it is rejected, the person authorized by the Commission to perform such duty shall notify the applicant in writing of the reason for such rejection and the date of such action. No application shall be accepted by the
Commission until all other permits obtainable at the time have been requested and all filing fees have been paid.
D. The Commission shall issue its permit or determination in writing within twenty-one (21) days of the close of the public hearing thereon.
E. The Commission, in an appropriate case, may combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act, MGL C. 131, § 40.
F. Before making its decision, the Commission shall conduct a site inspection.
G. The Commission shall have authority to continue the hearing by no more than sixty (60) days to a place, date and time 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, deemed necessary by the Commission in its discretion, or comments and recommendations of boards and officials listed in § 168-6. In the event the applicant objects to a continuance or postponement for supplementary information, the hearing may be closed and the Commission may take action on such information as is available.
§ 168-6. Coordination with other boards.
Any person filing a permit application or a request for determination with the Commission shall provide a copy thereof at the same time, by certified mail or hand delivery, to the special permit granting authority, Planning Board and Building Inspector. The Commission shall not take final action until such boards and officials have had fourteen (14) days from receipt of notice to file written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission. The applicant shall have the right to receive any such comments and recommendations as to respond to them at a hearing of the Commission prior to final action.
§ 168-7. Determination on permits.
A. If the Commission, after a public hearing, determines that the activities which are the subject of the application are likely to have a significant or cumulative effect upon the wetland values protected by this chapter, 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 or desirable to protect those values, and all activities shall be performed in accordance with those conditions.
B. The Commission is empowered to deny a permit for failure to meet the requirements of this chapter; 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 wetland values protected by this chapter; 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.
C. A permit shall expire three (3) years from the date of issuance. Notwithstanding the above, the Commission in its discretion may issue a permit expiring five (5) 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. Any permit may be renewed once for an additional one-year period, provided that a written request for a renewal is received by the Commission prior to the expiration.
D. For good cause the Commission may revoke or modify a permit issued under this chapter, after public notice and public hearing and after notice to the holder of the permit.
E. The Commission, in an appropriate case, may combine the permit or other action on an application issued under this chapter with the order of conditions issued under the Wetlands Protection Act.
§ 168-8. Promulgation of rules and regulations.
A. After public notice and public hearing, the Commission shall promulgate rules and regulations, including a fee schedule, to effectuate the purposes of this chapter, and shall file a copy of such rules and regulations with the Town Clerk. 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 chapter.
B. At a minimum, these regulations shall define key terms in this chapter in a manner consistent with the intent of this chapter.
§ 168-9. Definitions.
The following definitions shall apply in the interpretation of this chapter.
ALTER- Includes, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this chapter:
A. Removal, excavation or dredging of soil, sand, gravel or aggregate materials of any kind.
B. Changing of preexisting 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 water quality.
E. Paving of fill or removal of material which would alter elevation.
F. Driving of piles or erection or repair of buildings or structures of any kind.
G. Placing of obstructions or fixed objects in water.
H. Destruction of plant life, including cutting of trees.
I. Changing water temperature, biochemical oxygen demand or other physical or chemical characteristics of water.
J. Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.
PERSON- Includes 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, this municipality and any other legal entity, its legal representatives, agents or assigns.
§ 168-10. Security.
As part of a permit used under this chapter, 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:
A. By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission.
B. 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 the Town of Great Barrington whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed.
§ 168-11. Enforcement.
A. 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 chapter and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary.
B. The Commission shall have authority to enforce this chapter, its regulations and permits issued hereunder by violation notices, administrative orders and civil and criminal court actions.
C. 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.
D. Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
E. Any person who violates any provision of this chapter, regulations thereunder or permits issued thereunder shall, upon conviction, be punished by a fine of not more than three hundred dollars ($300.). Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the chapter regulations or permit violated shall constitute a separate offense.
F. In the alternative to criminal prosecution, the Commission may elect to utilize the noncriminal disposition procedure set forth in MGL C.40, § 21D.
§ 168-12. 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 will not have unacceptable significant or cumulative effect upon the wetland values protected by this chapter. 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.
§ 168-13. Statutory authority.
This chapter is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act, MGL C, § 40, and regulations thereunder.
§ 168-14. Severability.
The invalidity of any section or provision of this chapter 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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