Lynnfield Environmental Bylaw

Lynnfield Environmental Bylaw
ADOPTED 4/25/2005
AMENDED Section V, paragraph one on 10/18/10
Table of Contents

I. Purpose
The purpose of this bylaw is to protect the wetlands, water resources and adjoining land areas in the Town of Lynnfield by controlling activities deemed by the Conservation Commission likely to have a significant effect, singly or cumulatively, upon resource area values as defined under §VIII.  This bylaw is intended to utilize the Home Rule authority of this municipality to protect additional resource areas, for additional values, with additional standards and procedures more protective than those of the Wetlands Protection Act (G.L. c. 131, §40) and the regulations of the Department of Environmental Protection thereunder (310 CMR 10.00), subject, however, to the rights and benefits accorded to agricultural uses and structures of all kinds under the laws of the Commonwealth.

II. Jurisdiction
Except as permitted by the Conservation Commission or as provided in this bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into or otherwise alter resource areas as defined in §VIII.  Said resource areas shall be protected whether or not they border surface waters.  This bylaw shall apply only to projects for commercial or industrial use; for residential projects including two or more dwelling units; and for construction of single-family homes on newly created lots.  Without limiting the generality of the foregoing, this bylaw shall apply to all of the land included in any subdivision approved by the Planning Board, and all of the land included in any division of land pursuant to a plan endorsed under G.L. c. 41, § 81P, after the enactment hereof, regardless whether the lots so created are constructed simultaneously or one at a time.  

III. Exemptions and Exceptions
This bylaw shall not apply to any individual residential lot for single-family use, created before the enactment hereof.  This bylaw shall not apply to the repair, renovation, reconstruction, extension or improvement of any single-family home existing on the date of enactment hereof.
The application and permit required by this bylaw shall not be required for work performed for normal maintenance or improvement of land in agricultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.
The application and permit required by this bylaw shall not be required for emergency projects necessary for the protection of the health and 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 24 hours after commencement; provided that the 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 Commission for the limited purposes necessary to abate the emergency; and provided that within 21 days of commencement of an emergency project a permit application shall be filed with the Commission for review as provided by 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 mitigation measures.

IV. Applications and Fees
Written application shall be filed with the Conservation Commission to perform activities affecting resource areas protected by this bylaw. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by this bylaw. 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 any application and plans filed under the Wetlands Protection Act (G.L. c. 131, §40) and Regulations (310 CMR 10.00).
Any person desiring to know whether or not a proposed activity or an area is subject to this bylaw may in writing request a determination from the Commission. Such a Request for Determination (“RFD”) shall include such information and plans as are deemed necessary by the Commission.
At the time of an application, the applicant shall pay a filing fee specified in Regulations of the Commission. The fee is in addition to that required by the Wetlands Protection Act and Regulations.
Upon receipt of an application, or at any point during the hearing process, the Commission is authorized to require an applicant to pay a fee for the reasonable costs and expenses borne by the Commission for specific expert engineering and other consultant services deemed necessary by the Commission to come to a final decision on the application. This fee is called the “consultant fee.” The specific consultant services may include, but are not limited to, performing or verifying the accuracy of resource area survey and delineation; analyzing resource area functions and values, including wildlife habitat evaluations and hydrogeologic and drainage analysis; and researching environmental or land use law.
If a municipal revolving fund has been established, pursuant to G.L. c. 44, §53G or a special act, for deposit and Commission use of filing and/or consultant fees described above, then such filing and/or consultant fees shall be deposited therein, for uses set out in the vote establishing the fund. This account shall be kept separate from the account established for filing fees paid under the state Wetlands Protection Act.
The exercise of discretion by the Commission in making its determination to require the payment of a consultant fee shall be based upon its reasonable finding that additional information available only through outside consultants is necessary for the making of an objective decision. Any applicant aggrieved by the imposition of, or size of, the consultant fee, or any act related thereto, may appeal according to the provisions of the Massachusetts General Laws.
The Commission may waive the filing fee, consultant fee, and costs and expenses for a permit or other application or RFD filed by a government agency, including an agency of the Town of Lynnfield.
The Commission shall return any unused portion of the consultant fee to the applicant unless the Commission decides at a public meeting that other action is necessary.
The maximum consultant fee charged to reimburse the Commission for reasonable costs and expenses shall be according to the following schedule:
Project Cost ($)
Maximum Fee ($)
0 – 500,000  
2,500
500,001 – 1,000,000  
5,000
1,000,001 – 1,500,000  
7,500
1,500,001 – 2,000,000  
10,000
Each additional $500,000 project cost increment (over $2,000,000) may be charged not more than an additional $2,500 maximum fee per increment.
The project cost means the estimated entire cost of the project, including but not limited to resource area delineation, building design and construction, site preparation, landscaping and all site improvements. The consultant fee shall be paid pro rata for that portion of the project cost applicable to those activities within resource areas protected by this bylaw. The project shall not be segmented to avoid the consultant fee. The applicant shall submit estimated project costs at the Commission’s request, but the lack of such estimated project costs shall not affect payment of the consultant fee.
 

V. Notice and Hearings
Any person filing a permit or other application, but not an RFD, with the Conservation Commission shall also provide notification to the owners of any property within 100 feet of the property line of the land where the activity is proposed, including any in another munipality or across a public or private street or a body of water, such persons being referred as “abutters”.  The applicant shall provide notification at the mailing addresses shown on the most recent applicable tax list from the assessor’s office.  Notification shall be at the applicant’s expense.  The notification shall state where copies of the application or request, with plans, may be examined and copied and where information on the date, time and location of the public hearing may be obtained.  The applicant shall notify abutters by certified mail, return receipt requested, or by certificates of mailing.  Mailing at least seven (7) days prior to the public hearing shall constitute timely notice.  The applicant shall present either the certified mail receipts or certificate of mailing receipts for all abutters at the beginning of the public hearing.  The presentationi of the receipts for all abutters identified on the tax list shall constitute compliance with abutter notification requirements.  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 permit application or Abbreviated Notice of Resource Area Delineation (“ANORAD”) with written notice given at the expense of the applicant, at least five business days prior to the hearing, in a newspaper of general circulation in the municipality.  The Commission shall conduct a public meeting on a RFD application with written notice given at the expense of the applicant in a newspaper of general circulation in the municipality.
The Commission shall commence the public hearing/meeting within 21 days from receipt of a completed permit application, ANORAD or RFD unless an extension is authorized in writing by the applicant. The Commission shall have authority to continue the hearing/meeting to a specific date announced at the hearing/meeting, for reasons stated at the hearing/meeting, which may include the need for additional information from the applicant or others deemed necessary by the Commission in its discretion.
The Commission shall issue its permit, other order or determination in writing within 21 days of the close of the public hearing thereon unless an extension is authorized in writing by the applicant.
The Commission in an appropriate case may combine its hearing under this bylaw with the hearing conducted under the Wetlands Protection Act (G.L. c. 131, §40) and Regulations (310 CMR 10.00).

VI. Permits and Conditions
If the Conservation Commission, after a public hearing, determines that the activities which are subject to the permit application or the land and water uses which will result therefrom are likely to have a significant effect, individually or cumulatively, upon the resource area 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 shall take into account the cumulative adverse effects of loss, degradation, isolation and replication of protected resource areas throughout the community and the watershed resulting from past activities, permitted and exempt.
Where no conditions are adequate to protect those resource area values, the Commission is empowered to deny a permit for failure to meet the requirements of this bylaw. It may also deny a permit: 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; or for failure to avoid or prevent unacceptable significant or cumulative effects upon the resource area values protected by this bylaw. Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.
Lands within 200 feet of rivers, and lands within 100 feet of ponds, lakes, vernal pools (whether certified or uncertified), isolated wetlands, and other resource areas, are presumed important to the protection of these resource areas because activities undertaken in close proximity have a high likelihood of adverse impact upon these areas, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include erosion, siltation, loss of groundwater recharge, poor water quality and loss of wildlife habitat. The Commission may therefore establish performance standards for protection of such lands including strips of continuous, undisturbed vegetative cover within the 200-foot or 100-foot area, or other form of work limit or setback to buildings, roads, landscaping and other features, unless the applicant convinces the Commission that the area or part of it may be disturbed without harm to the values protected by the bylaw. The specific size of each type of protected area may be established by regulations of the Commission.
In the review of areas within 200 feet of rivers, no permit issued hereunder shall permit any activities unless the applicant, in addition to meeting the otherwise applicable requirements of this bylaw, has proved by a preponderance of the evidence that (1) there is no practicable alternative to the proposed project with less adverse effects, and that (2) such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or values protected by this bylaw. The Commission shall regard as practicable an alternative which is reasonably available and capable of being done after taking into consideration the proposed property use, overall project purpose (e.g., residential, institutional, commercial or industrial purpose), logistics, existing technology, costs of the alternatives and overall project costs.
To prevent wetlands loss, the Commission shall require applicants to avoid wetlands alteration wherever feasible; shall minimize wetlands alteration; and, where alteration is unavoidable, shall require full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with adequate security, professional design, and monitoring to assure success, because of the high likelihood of failure of replication.
The Commission may require a wildlife habitat study of the project area, to be paid for by the applicant, whenever it deems appropriate, regardless of the type of resource area or the amount or type of alteration proposed. The decision shall be based upon the Commission’s estimation of the importance of the habitat area considering (but not limited to) such factors as proximity to other areas suitable for wildlife, importance of wildlife “corridors” in the area, or possible presence of rare species in the area. The work shall be performed by an individual who at least meets the qualifications set out in the wildlife habitat section of the Wetlands Protection Act Regulations (310 CMR 10.60).
The Commission shall presume that all areas meeting the definition of “vernal pools” under §VIII of this bylaw, including the adjacent area, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence which, in the judgment of the Commission, demonstrates that the basin or depression does not provide essential habitat functions.  Any formal evaluation should be performed by an individual meeting the qualifications under the wildlife habitat section of the Wetlands Protection Act Regulations.
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. Any permit may be renewed for additional one- to three-year periods, provided that a request for a renewal is received in writing by the Commission prior to expiration. Notwithstanding the above, a permit may identify requirements which shall be enforceable for a stated number of years, indefinitely, or until permanent protection is in place, and shall apply to all owners of the land.
For good cause the Commission may revoke any permit, other order, determination or other decision issued under this bylaw after notice to the holder of the permit, the public, abutters and town boards, pursuant to §V, and a public hearing. Amendments to permits or determinations shall be handled in the manner set out in the Wetlands Protection Act Regulations and policies thereunder.
The Commission in an appropriate case may combine the decision issued under this bylaw with the Order of Conditions, Order of Resource Area Delineation (“ORAD”), Determination of Applicability or Certificate of Compliance issued under the Wetlands Protection Act and Regulations.
No work proposed in any application shall be undertaken until the permit or ORAD issued by the Commission with respect to such work has been recorded in the registry of deeds or, if the land affected is registered land, in the registry section of the land court for the district wherein the land lies, and until the holder of the permit certifies in writing to the Commission that the document has been recorded. If the applicant fails to perform, the Commission may record the documents itself at the applicants expense.

VII. Regulations
After public notice and public hearing, the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw, effective when voted and filed 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 bylaw.
At a minimum these regulations shall define key terms in this bylaw not inconsistent with the bylaw, and procedures governing the amount and filing of fees.

VIII. Definitions
The following definitions shall apply in the interpretation and implementation of this bylaw.
The term “alter” shall include the following activities when undertaken 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 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 (including, without limitation, bituminous material and concrete) which may degrade water quality;
E.
Placing of fill, or removal of material, which would alter elevation;
F.
Driving of piles, erection, expansion or repair of buildings or structures of any kind;
G.
Placing of obstructions or objects in water;
H.
Destruction of plant life including cutting or trimming of trees and shrubs;
I.
Changing temperature, biochemical oxygen demand or other physical, biological or chemical characteristics of any waters;
J.
Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater;
K.
Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw; and
L.
Destruction of wildlife habitats or state and federally-listed rare plant species.
The term “bank” shall include the land area which normally abuts and confines a water body; the lower boundary being the mean annual low flow level, and the upper boundary being the first observable break in the slope or the mean annual flood level, whichever is higher.
The term “person” shall include 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 town, and any other legal entity, its legal representatives, agents or assigns.
The term “pond” shall follow the definition of 310 CMR 10.04 except that the minimum size threshold shall be 5,000 square feet.
The term “rare species” shall include, without limitation, all vertebrate and invertebrate animal and all plant species listed as endangered, threatened or of special concern by the Massachusetts Department of Fish & Game and the U.S. Fish & Wildlife Service, regardless of whether the site in which they occur has been previously identified by the Division.
The term “resource area” shall include any freshwater wetlands; marshes; wet meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds of defined size; rivers; streams; creeks; beaches; estuaries; lands under water bodies; lands subject to flooding or inundation by groundwater or surface water; lands subject to flooding; and lands abutting any of the aforesaid resource areas.
The term “resource area values” shall include public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention including water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, aquaculture, and recreation values deemed important to the community.
The term “vernal pool” shall include, in addition to scientific definitions found in the regulations under the Wetlands Protection Act, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas or driveways which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, contains at least 200 cubic feet of water at some time during most years, is free of adult predatory fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts Department of Fish & Game. The boundary of the resource area for vernal pools shall be 100 feet outward from the mean annual high-water line defining the depression, but shall not include existing lawns, gardens or landscaped or developed areas.
Except as otherwise provided in this bylaw or in regulations of the Conservation Commission, the definitions of terms and procedures in this bylaw shall be as set forth in the Wetlands Protection Act (G.L. c. 131, §40) and Regulations (310 CMR 10.00).

IX. 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 Conservation Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or more of the methods described below:
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, to be released in whole or in part upon issuance of a Certificate of Compliance for work performed pursuant to the permit; or
B. By accepting 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 Lynnfield whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed. This method shall be used only with the consent of the applicant.

X. Enforcement
No person shall remove, fill, dredge, build upon, degrade or otherwise alter resource areas protected by this bylaw, or cause, suffer or allow such activity, or leave in place unauthorized fill, except pursuant to a permit with conditions issued by the Conservation Commission.  Nor shall any person otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
The Conservation Commission, its agents, officers and employees shall have authority to enter upon privately owned land, after reasonable notice to the owner, 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, subject to the constitutions and laws of the United States and the Commonwealth.
The Commission shall have authority to enforce this bylaw, its regulations and permits issued thereunder by violation notices, non-criminal citations under G.L. c. 40, §21D, and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations, or may be fined, or both.
Upon request of the Commission, the board of selectmen and town counsel shall take legal action for enforcement under civil law, which may include an action for injunctive relief. 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, or regulations, permits or administrative orders issued hereunder, shall be punished by a fine of $100 for a first offense; $200 for a second offense committed within twelve (12) months of the first offense; and $300 for the third and any subsequent offense committed within twelve (12) months of a first offense. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the bylaw, regulations, permits or administrative orders violated shall constitute a separate offense.
As an alternative to criminal prosecution in a specific case, the Commission may issue citations under the non-criminal disposition procedure set forth in G.L. c. 40, §21D, which has been adopted by the Town in Chapter 8 of the general bylaws.
If the Commission commences any enforcement action with respect to this bylaw, or any applicant appeals from a decision or action of the Commission under this bylaw, whether by means of an action in the nature of mandamus or otherwise, and such action results in a judgment for the Commission to any extent at all, then the Commission shall recover from the party against whom enforcement was sought, or from the appellant, as the case may be, the Commission’s reasonable attorneys’ fees and costs so incurred.  It shall not be a defense to the collection of such fees that the work of the Commission’s attorney overlapped to any extent with enforcement action or defense of an appeal under the Commonwealth’s wetland protection regulations.

XI. 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 permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw. Failure to provide adequate evidence to the Conservation Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.

XII. Appeals
A decision of the Conservation Commission shall be reviewable in the superior court in accordance with G.L. c. 249, §4.

XIII. Relation to the Wetlands Protection Act
This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act (G.L. c. 131, §40) and Regulations (310 CMR 10.00) thereunder.

XIV. 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, approval or determination which previously has been issued.
 
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