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2026 Annual Town Meeting, Town of Arlington, MA
Article: 10
Warrant Article Title:
BYLAW AMENDMENT / WETLANDS PROTECTION
Warrant Article Text:
To see if the Town will vote to amend Title V, Article 8 of the
Town Bylaws ("Wetlands Protection") to update the penalties for
violation, adjust the fee schedule, and make certain clerical
changes to increase the Bylaw's effectiveness and clarity; or take
any action related thereto.
Requested By:
the Conservation Commission
Report Excerpt:
Vote and comment to Town Meeting - Favorable Action (5-0)
The Board supports the request of the Conservation Commission to update
several areas of the Town’s Wetlands Protection Bylaw. The proposed
changes include transferring the list of fees and fee structure from the
Town’s bylaws to the Conservation Commission’s wetland regulations and
other administrative changes. The Board notes that the Conservation
Commission recommended the proposed changes after consultation with
the Massachusetts Department of Environmental Protection.
After consideration, the Board unanimously voted favorable action on this
article.
Vote Language:
That the Town does and hereby amend Title V, Article 8 of the
Town’s Bylaws so that the Section reads:
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ARTICLE 8
WETLANDS PROTECTION
(ART. 77, ATM – 05/15/00)
(ART. 10, ATM - __/__/26)
SECTION 1. PURPOSE
The purpose of this Wetlands Protection Bylaw is to protect the
wetlands, water resources, and adjoining land areas in Arlington by
controlling activities deemed by the Conservation Commission
likely to have a significant or cumulative effect upon resource area
interests and values, including but not limited to, the following:
public or private water supply, groundwater supply, flood control,
erosion control and sedimentation control, storm damage
prevention, other water damage prevention, prevention of pollution,
protection of surrounding land and other homes or buildings,
wildlife protection wildlife species and individuals, plant or
wildlife habitat, aquatic species and their habitats, mitigating the
negative impacts of climate change, resilience to the impacts
of climate change, and the natural character or recreational
values functions of the wetland resources (collectively, the
"resource area interests and values protected by this Bylaw").
This Bylaw is intended to utilize the Home Rule authority of this
municipality to protect additional resource areas, for additional
interests and values, with additional standards and procedures
stricter that those of the Wetlands Protection Act (G.L. c. 131, § 40)
and Regulations thereunder (310 CMR 10.00).
SECTION 2. DEFINITIONS
The following definitions shall apply in the interpretation and
implementation of this Bylaw:
A.“Abutter” shall mean the owner of any land within 100 feet if
the property line of the land where the activity is proposed, as
determined by the most recent assessors’ records including
any land located directly across a street, river, stream or pond,
or municipal boundary that is within 100 feet of the property
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line of the land where the activity is proposed. For activities
proposed within Land under Water Bodies or within a public right-
of-way, an “abutter” shall mean the owner of any land within 100
feet of the project’s limits of work.
B.“Alter” shall mean to change the conditions of any area subject
to protection by this Bylaw and shall include but not be limited
to one or more of the following actions upon the resource
areas protected by this Bylaw:
1. fill, removal, excavation or dredging of soil, sand, gravel
or aggregate material of any kind;
2. changing of pre-existing drainage characteristics,
flushing characteristics, salinity distribution,
sedimentation patterns, flow patterns or flood storage
retention areas;
3. drainage, disturbing or lowering of the water level or
water table
4. the dumping, discharging or filling with any material
which could degrade the water quality;
5. driving of pilings, erection of buildings or structures of
any kind;
6. placing of any object or obstruction whether or not it
interferes with the flow of water;
7. destruction, extensive trimming (defined as 20% or more
of limbs or growth), or removal of natural or planted
plant life, vegetation, or trees;
8. changing of water temperature, biochemical oxygen
demand, nutrient concentration, chemical concentration,
or other characteristics of the receiving water;
9. any activities, changes or work which pollutes any
stream or body of water, whether located in or out of the
Town of Arlington;
10. application of pesticides and herbicides;
11. any activity, change or work with adversely effects
groundwater or drinking water supply;
12. any activity, change or work which adversely
impacts the ability of the resource area to be resilient to
climate change impacts; or
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13. any incremental activity that has or may have an
adverse cumulative effect on the interests and values
protected by the Bylaw.
C.“Applicant”: shall mean a person filing a Request for
Determination of Applicability, Notice of Intent, or other
application with the Commission.
D.“Bank” shall be defined as the portion of the land surface
which normally abuts and confines a water body, often
between the mean annual low flow level and the first
observable break in the slope or the mean annual flood level,
whichever is lower;
E.“Bordering” shall be defined to include any land within either
of the following or the greater thereof:
1. 100 feet horizontally lateral from the edge of any marsh,
freshwater wetland, vernal pool, wet meadow, bog,
swamp, river, stream, creek, pond, reservoir, or lake; or
2. Within the maximum lateral extent of the water elevation
of the statistical 100-year frequency storm.
F. “Bordering Land Subject to Flooding” shall mean the land
within the estimated or observed maximum lateral extent of
flood water which will theoretically result or has resulted from
the statistical 1%-annual-chance flood; said boundary shall be
determined by reference to the most recently available flood
profile data prepared for the Town of Arlington within which
the work is proposed under the Federal Emergency
Management Agency’s Natural Flood Insurance Program
(“NFIP”). Said boundary, so determined, shall be presumed
accurate. This presumption may be overcome only by credible
evidence from a registered professional engineer or other
professional competent in such matters.
Notwithstanding the foregoing, where NFIP profile data is
unavailable or is determined by the Commission to be
outdated, inaccurate, or not reflecting the current conditions,
the boundary of Bordering Land Subject to Flooding shall be
the maximum lateral extent of floodwater which has been
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observed or recorded, or other evidence presented and
considered by the Commission.
G.“Cumulative Effect” shall mean an effect that is significant
when considered in combination with other activities that have
occurred, are going on simultaneously, or that are likely to
occur, whether such other activities have occurred or are
contemplated as a separate phase of the same project, such
as the build-out of a subdivision or an industrial park, or
unrelated but reasonably foreseeable actions, including other
development projects that are currently under construction,
under review or that may be expected to come forward.
H.“Groundwater” shall mean all subsurface water contained in
natural geologic formations or artificial fill including soil water
in the zone of aeration. Activities within 100 feet of resource
areas shall not significantly alter the existing quality or
elevation of naturally occurring groundwater.
I. “Isolated Land Subject to Flooding” shall mean an isolated
depression or closed basin without an inlet or an outlet. It is
an area which at least once a year confines standing water to
an average depth of at least six inches and has a surface area
of 1,000 square feet or greater. Isolated Land Subject to
Flooding may be underlain by pervious material, which in turn
may be covered by a mat of peat or muck.
J. “Permit” shall mean the document issued by the Conservation
Commission pursuant to this Bylaw which allows work in
accordance with conditions set by the Commission in the
resource areas protected by this Bylaw.
K.“Person” shall include any individual, group of individuals,
associations, partnerships, corporations, business
organizations, trust, estate, Commonwealth of Massachusetts
when subject to Town Bylaws, any public or quasi-public
corporation or body when subject to Town Bylaws or any other
legal entity, including the Town of Arlington or its legal
representative, agents or assigns.
L. “River” shall mean any natural flowing body of water that
empties to any ocean, lake, pond, reservoir, stream, or other
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river.
M."Riverfront Area” shall mean the area of land between a river’s
or perennial stream’s mean annual high-water line and a
parallel line measured 200 feet horizontally landward of the
mean annual high-water line.
N.”Wildlife Habitat” shall mean the area being used by or
necessary to provide breeding or nesting habitat, shelter,
food, and water for any animal species.
Additional Definitions: The Conservation Commission may in its
rules and regulations provide such other definitions, or terms
used in this Bylaw, as it deems useful in order to administer or
carry out its obligations under this Bylaw. Except as otherwise
provided in this Bylaw or in regulations of the Commission, the
definitions of terms in this Bylaw shall be set forth in the
Wetlands Protection Act (G.L. c. 131, §40) and Regulations
(3.10 CMR 10.00).
SECTION 2 3. JURISDICTION
Except as permitted by the Conservation Commission or as
provided in this Bylaw, no person shall remove, fill, dredge,
discharge into, build upon, degrade or otherwise alter any marsh,
freshwater wetland, vernal pool, wet meadow, bog, swamp, river,
stream, creek, pond, reservoir, or lake, or any bank to said
waters, or any land under said waters, or any land bordering
thereon or riverfront area as hereinafter defined, or any land
subject to flooding or inundation (collectively, "the resource areas
protected by this Bylaw" or "resource areas")
SECTION 3 4. EXEMPTIONS
The application procedure and permit required by this Bylaw shall
not apply to emergency projects necessary for the protection of
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; advanced
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oral or written notice has been given to the Commission prior to
commencement of work or within 24 hours after commencement
of said work; the Commission or its agent certifies the work as an
emergency project; the work is performed only for the time and
place certified by the Commission for the limited purposes
necessary to abate the emergency; the work not be undertaken
for a period of more than 30 days; and within 21 days of
commencement of an emergency project a permit application
shall be filed with the Commission for review as provided by the
Bylaw.
Upon failure to meet these and other requirements of the
Commission, the Commission may, after notice and public
hearing, revoke or modify an emergency project approval and
order restoration and mitigation measures, and/or take
enforcement action.
SECTION 4 5. APPLICATION FOR AND ISSUANCE OF
ADMINISTRATIVE REVIEW, DETERMINATION
OF APPLICATION, OR PERMIT
Each Request for Determination of Applicability, Notice of Intent
or other appropriate application shall be submitted in writing on
the application form and in a manner specified by the Commission
and accompanied by a filing fee to be determined in accordance
with the fee schedule in Section 15 of this Bylaw, payable to the
“Town of Arlington” schedule specified within the Arlington
Regulations for Wetlands Protection. The application shall
include such information and plans as are deemed necessary by
the Commission to describe the proposed activities and their
effect on the resource areas and resource area interests and
values protected by this Bylaw. No activity shall commence
without receiving and complying with a permit or determination of
applicability or other decision issued by the Commission pursuant
to this Bylaw.
Upon submitting any such application to the Commission, the
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applicant grants the Conservation Commission and its agent(s),
permission to enter upon land, at reasonable times, on which the
proposed work is to be done without liability of any kind for the
purpose of performing any duties in connection with this Bylaw. If
the applicant is not the owner of said land, the applicant shall
obtain and furnish to the Commission such permission in writing
from the owner(s) of said land.
Such Notice of Intent or Request for Determination of Applicability
or other appropriate application may be submitted before any or
all permits, variances and approvals required by the Zoning Bylaw
or by the Board of Survey or by the Regulations of the Arlington
Redevelopment Board thereunder have been obtained.
The Commission may combine the permit or determination of
applicability or other action on an application issued under this
Bylaw with an Order of Conditions or Determination of
Applicability or other action issued by the Commission under the
Wetlands Protection Act.
A.ADMINISTRATIVE REVIEW
Projects that are simple, small in scale, minor, or routine, or
involve very little activity or alteration of Resource Areas protected
by the Bylaw, and are not likely to have a significant or cumulative
effect on the interests and values protected by the Bylaw may be
reviewed and approved by the Conservation Agent rather than the
full Commission. If a project meets the criteria for Administrative
Review as specified in the Arlington Regulations for Wetlands
Protection, the Applicant may apply for Administrative Review.
The Administrative Review process is defined in the Arlington
Regulations for Wetlands Protection, and work may be approved
or denied under this process by the Conservation Agent. If the
Conservation Agent has any doubt that a project meets the
criteria, the Applicant shall be required to file a Request for
Determination of Applicability or a Notice of Intent.
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A.B. DETERMINATION OF APPLICABILITY
Upon written request of any person (known as a "Request for
Determination of Applicability"), the Conservation
Commission shall hold a public hearing within 21 days to
make a determination as to whether this Bylaw is applicable
to any land or work thereon which is the subject of such
request, and within 21 days of the close of said hearing
shall issue a written determination (known as a
"Determination of Applicability").
Where such person making a request for determination of
applicability is other than the owner of the subject land,
notice of any such request for determination shall be sent to
the owner(s) of said land by the person making such
request; such person shall certify in writing to the
Commission that the landowner(s) has received such
notification.
A Determination of Applicability shall be valid for three years
from date of issuance and may not be extended or renewed.
B.C. NOTICE OF INTENT & PERMIT
No person shall remove, fill dredge, build upon, degrade or
otherwise alter any of the resource areas protected by this
Bylaw without first filing, by certified mail a written Notice of
Intent to do so, and, without receiving and complying with a
Permit issued by the Commission, unless the Commission
has determined that this Bylaw does not apply to such work.
The Notice of Intent shall include such information and site
plans and location plans as may be necessary in the full
discretion of the Commission to fully describe and ascertain
such proposed activity and its affect effect on the resource
areas and resource area interests and values protected by
this Bylaw.
Within 21 days of receiving a Notice of Intent, the Commission
shall hold a public hearing on said application.
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If the Commission after a public hearing determines that the
area(s) on which the proposed work which is subject of the
application is likely to individually significantly harm or
cumulatively effect the resource area interests and values
protected by this Bylaw, the Commission shall, within 21
days of the close of the hearing, issue or deny a permit for
such work. If it issues a permit, the Commission shall
impose conditions which the Commission deems necessary
or desirable to protect those interests and values, and all
activities shall be done in accordance with those conditions.
The conditions may include a condition that certain land or
portions thereof not be built upon or altered, filled or
dredged, and that streams not be diverted, dammed or
otherwise disturbed. The Commission may 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 or other requirements in regulations
or policies of the Commission; for failure to avoid or prevent
unacceptable significant or cumulative effects upon the
resource area interests and values of this Bylaw; or where
no conditions are adequate to protect said interests and
values.
To prevent resource area loss, the Commission shall require
applicants to avoid resource area alteration wherever
feasible; shall minimize resource area alteration; and, where
alteration is unavoidable, shall require full mitigation.
The Commission may authorize or require replication of
resource area 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.
Riverfront area as defined herein and land bordering on any
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marsh, freshwater wetland, vernal pool, wet meadow, bog,
swamp, river, stream, creek, pond, reservoir, or lake
(hereinafter "bordering land") are presumed to be important
to the protection of these resources because activities
undertaken in close proximity to these resource areas have
a high likelihood of adverse impact upon the resources,
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, without limitation, erosion, siltation,
loss of groundwater recharge, poor water quality, and loss
of wildlife habitat.
The Commission therefore may require that the applicant
maintain a strip of continuous, undisturbed vegetative cover
within the 200-foot riverfront area or bordering land.
In the review of activities proposed in riverfront area or
bordering land, no permit issued hereunder shall permit any
activities unless the applicant, in addition to meeting the
otherwise applicable requirements of this Bylaw or
regulations hereunder, has proven by a preponderance of
the evidence that (1) there is no practicable alternative to
the proposed work or project with less adverse effects, and
that (2) such activity, including proposed mitigation
measures, will have no significant adverse impact on the
resource areas or resource area interests and 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.
A permit shall expire three (3) years from the date of
issuance. A permit may be renewed The Conservation
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Commission may extend a permit no more than once for
a period of up to an additional three years provided that a
from the date of issuance. a The request for a renewal an
extension shall be made is received in writing by to the
Commission not less than 30 days prior to expiration of the
permit. Permits may be extended only by vote of the
Commission at a public hearing. Should said public
hearing be continued past the date of the expiration of
the permit, the expiration date shall be stayed to the
date on which the Commission votes whether to extend
the permit. The Commission may deny the request for an
extension and require a new Notice of Intent the filing of a
new application for permit for the remaining work in the
following circumstances:
1. where no work has begun on the project, except where
such failure is due to an unavoidable delay, such as
appeals and or in the obtaining of other necessary
permits;
2. where new information, not available at the time the
permit was issued, has become available and indicates
that the permit is not adequate to protect the resource
area interests and values protected by identified in this
Bylaw;
3. where incomplete work is causing damage to the
resource area interests and values protected by
identified in the Bylaw; or,
4. where work has been done in violation of the permit, this
Bylaw, or its regulations; or
5. where resource areas have changed.
If issued by the Conservation Commission, the extension
permit shall be signed by a majority of the Conservation
Commission.
The extension permit shall be recorded in the Land Court or
Registry of Deeds, whichever is appropriate. If work is
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undertaken without the applicant recording the extension
permit, the Conservation Commission may issue an
enforcement order.
The Commission may impose additional or more stringent
conditions as a result of a hearing conducted by it pursuant to the
provisions of this Bylaw than it may impose pursuant to the
General Laws, Chapter 131, Section 40 (known as the Wetlands
Protection Act).
The Commission may require from an applicant filing a Notice of
Intent an application pursuant to this Bylaw additional materials
or data than is required pursuant to an application filed under
General Laws, Chapter 131, Section 40.
For good cause the Commission may revoke or modify a permit
issued under this chapter after public notice and public hearing
and notice to the permit holder. Good cause shall include, but not
be limited to, failure of an applicant to comply with the conditions
of a permit.
SECTION 5 6. PUBLIC HEARING
(ART. 57, ATM – 06/19/02)
Notice of the time and place of a public hearing on any
appropriate application specified in this Bylaw shall be given by
and at the expense of the applicant, not less than five days prior
to such hearing, by publication in a newspaper of general
circulation in Arlington, and by delivering or mailing a notice
thereof to the applicant property owner if different from the
applicant, to the Town Manager, Select Board, Town Clerk,
Planning Department, Town Counsel, Department of Public
Works, Town Engineer, Zoning Board of Appeals, Board of
Health, Building Inspector, Redevelopment Board abutters, and
to such other persons as the Conservation Commission may
determine specify in its regulations (i.e. abutters).
The Conservation Commission may hold concurrent hearings
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under this Bylaw and the Wetlands Protection Act (M.G.L. c. 131,
s.40).
SECTION 6 7. APPLICANT’S OBLIGATION
The applicant shall have the burden of proving by a
preponderance of the credible evidence from a competent source
that the work proposed in the Request for Determination of
Applicability or Notice of Intent application will not have a
significant or cumulative effect upon the resource area interests
and values protected by this Bylaw.
Failure to provide to the Commission adequate evidence or
information for it to determine that the proposed work does not
cause harm to the interests and values sought to be protected by
this Bylaw shall be sufficient cause for the Conservation
Commission to deny such permit or to grant such permit with such
conditions as it deems reasonably necessary or desirable to carry
out the purposes of this Bylaw, 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.
Due consideration may be given to any hardship demonstrated at
the hearing, other than financial, on the part of the applicant by
reason of denial or continuance of the hearing.
The Conservation Commission may require that plans,
calculations, or other information prepared as part of a Request
for Determination of Applicability or Notice of Intent be prepared
by a qualified professional when, in the Commissions judgment,
the complexity of the proposed activity so warrants.
SECTION 7 8. REQUIREMENTS RUN WITH LAND
Any person who purchases, inherits or otherwise acquires real
estate upon which work has been done in violation of the
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provisions of this Bylaw or in violation of any order issued under
this Bylaw shall forthwith comply with any such order to restore
such land to its condition prior to any such violation; provided,
however, that no action, civil or criminal, shall be brought against
such 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. The Town
Manager and the Select Board shall, upon request of the
Conservation Commission, instruct Town Counsel to take such
legal action as may be necessary to restrain a violation of this
Bylaw, and enforce the orders of the Conservation Commission
hereunder, and the Town Counsel shall forthwith comply with
such instructions.
SECTION 8 9. RULES AND REGULATIONS OF THE
COMMISSION
The Conservation Commission shall promulgate after due notice
and public hearing Rules and Regulations to effectuate the
purposes of this Bylaw. These Rules and Regulations shall be
referred to as the Arlington Regulations for Wetlands
Protection. However, failure by the Commission to promulgate
such rules and regulations or a legal declaration of their full or
partial invalidity by a court of law shall not act to suspend or
invalidate the effect of this Bylaw.
SECTION 9. DEDINITIONS
The following definitions shall apply in the interpretation and
implementation of this Bylaw:
A.“Abutter” shall mean the owner of any land within 100 feet if
the property line of the land where the activity is proposed, as
determined by the most recent assessors’ records including
any land located directly across a street, river, stream or pond,
or municipal boundary
B.“Alter” shall mean to change the conditions of any area subject
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to protection by this Bylaw and shall include but not be limited to
one or more of the following actions upon the resource areas
protected by this Bylaw:
1. fill, removal, excavation or dredging of soil, sand, gravel
or aggregate material of any kind;
2. changing of pre-existing drainage characteristics,
flushing characteristics, salinity distribution,
sedimentation patterns, flow patterns and flood storage
retention areas;
3. drainage, disturbance or lowering of the water level or
water table; the dumping, discharging or filling with any
material which could degrade the water quality;
4. driving of pilings, erection of buildings or structures of
any kind;
5. placing of any object or obstruction whether or not it
interferes with the flow of water;
6. destruction, extensive trimming, or removal of natural or
planted plant life, vegetation, or trees; changing of water
temperature, biochemical oxygen demand and other
natural characteristics of the receiving water;
7. any activities, changes or work which pollutes any
stream or body of water, whether located in or out of the
Town of Arlington;
8. application of pesticides and herbicides; or
9. any activity, change or work with adversely effects
groundwater or drinking water supply.
C.“Applicant”: shall mean a person filing a Request for
Determination of Applicability or Notice of Intent. “Banks” shall
be defined as the portion of the land surface which normally
abuts and confines a water body, often between the mean
annual low flow level and the first observable break in the
slope or the mean annual flood level, whichever is lower;
D.“Bordering” shall be defined to include any land within either
of the following or the greater thereof:
1. 100 feet horizontally lateral from the edge of any marsh,
freshwater wetland, vernal pool, wet meadow, bog,
swamp, river, stream, creek, pond, reservoir, or lake; or
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pond, reservoir, or lake; or
2. within the maximum lateral extent of the water elevation
of the statistical 100 year frequency storm.
E.“Cumulative Effect” shall mean an effect that is significant
when considered in combination with other activities that have
occurred, are going on simultaneously, or that are likely to
occur, whether such other activities have occurred or are
contemplated as a separate phase of the same project, such
as the build-out of a subdivision or an industrial park, or
unrelated but reasonably foreseeable actions, including other
development projects that are currently under construction,
under review or that may be expected to come forward.
F. “Groundwater” shall mean all subsurface water contained in
natural geologic formations or artificial fill including soil water
in the zone of aeration. Activities within 100 feet of resource
areas shall not significantly alter the existing quality or
elevation of naturally occurring groundwater.
G.“Land subject to flooding or inundation” shall mean the land
within the estimated maximum lateral extent of flood water
which will theoretically result from the statistical 100-year
frequency storm; said boundary shall bet that determined by
reference to the most recently available flood profile data
prepared for Arlington within which the work is proposed
under the Natural Flood Insurance Program (“NFIP”). Where
NFIP data are unavailable or outdated, the boundary of said
land and shall be based on the maximum lateral extent of
flood water which has been observed or recorded, or other
evidence presented and considered by the Commission. Said
land shall also include isolated areas which frequently or
seasonably hold standing water; such areas may or may not
be characterized by wetland vegetation or soil characteristics.
H.“Marsh”, “freshwater wetland”, “swamp”, “wet meadow”, “bog”
shall mean that as defined in General Laws Chapter 131,
Section 40 or Regulations thereunder (310 CMR 10.00).
I. “Permit” shall mean the document issued by the Conservation
Commission pursuant to this Bylaw which allows work in
accordance with conditions set by the Commission in the
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resource areas protected by this Bylaw.
J. “Person” shall include any individual, group of individuals,
associations, partnerships, corporations, business
organizations, trust, estate, Commonwealth of Massachusetts
when subject to Town Bylaws, any public or quasi-public
corporation or body when subject to Town Bylaws or any other
legal entity, including the Town of Arlington or its legal
representative, agents or assigns.
K.“River” shall mean any natural flowing body of water that
empties to any ocean, lake, pond, reservoir, or other river.
L. "Riverfront Area” shall mean the area of land between a river’s
mean annual high water line and a parallel line measured 200
feet horizontally landward of the mean annual high water line.
M.“Wildlife Habitat” shall mean the area necessary to provide
breeding or nesting habitat, shelter, food and water for any
animal species.
Additional Definitions: The Conservation Commission may in its
rules and regulations provide such other definitions, or terms used
in this Bylaw, as it deems useful in order to administer or carry out
its obligations under this Bylaw. Except as otherwise provided in
this Bylaw or in regulations of the Commission, the definitions of
terms in this Bylaw shall be set forth in the Wetlands Protection
Act (G.L. c. 131, §40) and Regulations (3.10 CMR 10.00).
SECTION 10. BONDS AND COVENANTS
The Conservation Commission may, as part of a permit allowing
work, require, in addition to any security required by any other
town or state Board, Commission, agency or officer, that the
performance and observance of the conditions imposed
hereunder be secured by one, or in part by one and in part by the
other of the methods described in the following clauses A and B:
A.By a proper bond or deposit of money or negotiable securities,
sufficient in the opinion of the Conservation Commission to
secure performance of the conditions and observance of the
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safeguards of such permit.
B.By a covenant, executed and duly recorded by the owner of
record, running with the land, whereby the conditions and
safeguards included in such permit shall be performed before
any lot may be conveyed other than by mortgage deed.
SECTION 11. BOND TO SECURE CORRECTIONS OF
FLOODING CONDITIONS
(ART. 16, ATM – 04/24/02)
The Conservation Commission shall may require that any
developer proposing to build a structure exceeding 6,000 sq. ft. in
area, which structure lies within 200 yards feet of an existing
stream and/or 100 feet of an existing wetland be required to
post a proper bond, deposit of money or negotiable securities in
lieu thereof, sufficient in the opinion of the Commission to secure
performance of such measures determined by the Commission as
necessary to correct any flooding condition on the site of the
proposed development that existed prior to the construction of
same or is likely to result as a consequence of the construction.
The Commission shall insure ensure that the bond shall be in
effect for a minimum of five years.
SECTION 12 ENFORCEMENT AND PENALTIES FOR
VIOLATIONS/ENFORCEMENT
Whoever violates any provision of this Bylaw, its regulations,
or permits or orders issued thereunder may be penalized,
with fines recoverable, by indictment in superior court or on
complaint before a district court. The District Court may
impose fines for any violation of these provisions which shall
be $300 for each offense. Each day on which any violation
exists shall be deemed to be a separate offense.
The provisions of this Bylaw, its regulations, and permits or
orders issued thereunder, may also be enforced by the
Conservation Agent, Conservation Administrator, or any
Police Officer of the Town, through the noncriminal
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disposition provisions of M.G.L. c. 40, §21D.
Whoever violates any provision of this Bylaw shall be punished by
a fine of not more than $300.00. Each day or portion thereof of
continuing violation shall constitute a separate offense. This
Bylaw may be enforced by any Town Police Officer or other office
having police powers.
The Commission shall have the authority to enforce this Bylaw, its
regulations, and permits issued thereunder by violation notices,
administrative orders, and criminal court actions.
In the alternative to criminal prosecution, the Commission may
elect to utilize the non-criminal disposition procedure set forth in
MGL C. 40, Sec. 21D.
SECTION 13. JUDICIAL REVIEW
A decision of the Conservation Commission shall be
reviewable in the superior court in accordance with G.L. Ch.
249, § 4. Any request for judicial review of the Commission’s
decision on any Permit or Request for Determination of
Applicability pursuant to this Bylaw must be filed within sixty days
from the issuance of or decision to not issue the Permit or
Determination. Failure to do so shall constitute a waiver of such
judicial review.
SECTION 14. 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 which has previously become final.
SECTION 15. RELATION TO WETLANDS PROTECTION ACT
This Bylaw is adopted under the Home Rule Amendment of the
Massachusetts Constitution and the Home Rule Statutes,
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independent of the Wetlands Protection Act, General Laws c. 131
Section 40, and regulations thereunder.
SECTION 16. FEES SCHEDULE
Any applicant shall pay the Application fee specified in the
Arlington Regulations for Wetlands Protection.
A.Rules:
1. Permit fees are payable at the time of
application and are nonrefundable.
2. Permit fees shall be calculated by this
department per the Conservation
Commission according to the schedule
below in the Regulations.
3. Town, County, State, and Federal projects
are exempt from fees.
4. All permit fees are tripled if work is started
without permit. Failure to comply with the
law after official notification shall result in fees
twice those normally assessed.
5. These fees are in addition to any required
under the Wetlands Protection Act, M.G.L. c.
131, s. 40, or its regulations.
6. An application may be rejected or denied
for failure to pay the application fee.
B.Fees: (ART. 57, ATM – 06/19/02) (ART. 57, ATM
– 06/19/02)
1. Minor project (house addition, tennis court,
swimming pool, utility work, etc.) $100.
2. Maintenance activity; work in, on or affecting
any body of water, wetland or floodplain $100.
3. Single-family dwelling $400.
4. Subdivisions (road and utilities only) $400 +
$2/ft. of roadway sideline within 100' of
resource areas or within land subject to
flooding.
5. Multiple dwelling structures $400 + $100 per
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unit all or part of which lies within 100 ft. of wetlands or within land
subject to flooding.
6. Commercial and Industrial Projects $500. +
$.50/sq. ft. wetland disturbed $.02/sq. ft. land
subject to flooding or 100 ft. buffer disturbed.
7. Extensions of Permits
a. Single family dwelling or minor project
$100.
b. Other. $150.
8. Refiling of previously denied projects within 3
years original fee or $1,000, whichever is
less.
9. Request for Determination $75.
10. Fees for Request for Amendments a fee
of $300 or 50% of the original filing fee,
whichever is less, will be submitted at the
same time as a request for
amendment/Changes is presented to the
Conservation Commission.
A.Consultant Fees
1. Consultant Fee Upon receipt of an application/Notice of
Intent, Abbreviated Notice of Resource Area.
Delineation, or Request for Determination of
Applicability, or any point during the hearing process, the
Commission is authorized pursuant to M.G.L. c. 44, §
53G to require an applicant to pay a reasonable fee to
the Conservation Commission for the reasonable costs
and expenses borne by the Commission for
employment of an outside consultant for consultant
services deemed necessary by the Commission to come
to a final decision on the application. The fee is called
the "consultant fee."
The specific consultant services may include, but are
not limited to, performing or verifying the accuracy of a
resource area survey and delineation, stormwater
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management, Aanalysis of resource area interests
and values, wildlife habitat evaluations, hydrogeologic
and drainage analysis, and environmental or land use
law.
The Commission may require the payment of the
consultant fee at any point in its deliberations prior to a
final decision. Failure by the applicant to pay the
Consultant Fee specified by the Commission within five
(5) business days of the request for payment shall be
cause for the Commission to deny issuance of a permit
or other requested action.
The applicant shall pay the fee to be put into a revolving
fund, which may be drawn upon by the Commission for
specific consultant services approved by the
Commission at one of its public meetings. The
consultant shall be chosen by, and report only to, the
Commission or its designee.
The exercise of discretion by the Commission in making
its determination to require payment of a consultant fee
shall be based upon its reasonable finding that
additional information acquirable only through outside
consultants would be necessary for the making of an
objective decision.
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.
Any applicant aggrieved by the imposition of, or size of,
the consultant fee, or any act related thereto, may
appeal according to the provision of the Massachusetts
General Laws.
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The maximum consultant fee charged to reimburse the
Commission for reasonable costs and expenses shall
be according to one of the following schedules
whichever is greater:
Project Cost Maximum Fee
UP TO $100,000 $ 3,000
$100,001 -- $500,000 $ 4,500
$500,001 -- $1,000,000 $10,000
$1,000,001 -- $1,500,000 $15,000
$1,500,001 -- $2,000,000 $20,000
Each additional $500,000 project cost increment over
$2,000,000 may be charged at an additional $4,500
maximum fee per increment.
The project cost means the estimated, entire cost of the
project, including, but not limited to, project design,
building construction, site preparation, landscaping, and
all site improvements.
Project Site Size Maximum Fee
Up to 1 acre $3,000
1 to 2 acres $4,500
2 to 10 acres $10,000
10 acres and above $10,000 plus $2,000 per acre for
each acre above 10 acres
The project shall not be segmented to avoid being
subject to 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 avoid the payment of the consultant fee.
SECTION 17. VARIANCE WAIVER
(ART. 5, STM – 05/14/03) (ART. 31, ATM – 05/05/04)
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Upon written request by an applicant, the Commission may waive
specifically identified procedures, design specifications,
performance standards, or other requirements set forth in this
Bylaw or its regulations, provided that: the Commission finds in
writing after said public hearing that there are no reasonable
conditions or alternatives that would allow the proposed activity to
proceed in compliance with the Bylaw or said regulations; that
avoidance, minimization and mitigation have been employed to
the maximum extent feasible; and that the relief is necessary to
accommodate an overriding public interest or to avoid a decision
that so restricts the use of the property as to constitute an
unconstitutional taking without compensation. Due consideration
shall be given to any demonstrated hardship on the applicant in
having to comply with the Bylaw or Regulations, as presented at
the public hearing, provided such hardship is not self-imposed.
The Commission may vary any provisions of this bylaw or
regulations promulgated thereunder relating to providing
compensatory storage for flood storage volume that will be lost as
a result of a proposed project within a flood plain when strict
adherence thereto would constitute a substantial hardship on the
applicant. The Commission may not issue a variance when to do
so would derogate in a substantial way from the overall purpose
of this bylaw. Notwithstanding the foregoing, the Commission may
not issue any variance the effect of which would be to advance or
in any way facilitate the building of any above-ground structures,
except for minor recreational improvements (such as bleachers,
lighting, and scoreboards). The effective date of this section shall
be as provided in Section 32 of Chapter 40 of the General Laws.
Select Board Report
