Wetlands Ordinance, June, 2010, with proposed
Wetlands Protection
Northampton Ordinance, Chapter 337
[HISTORY: Adopted by the City Council of the City of Northampton 8-17-1989 (Ch. 24 of the 1977
Code). Amendments noted where applicable.]
§ 337-1 Purpose.
[Amended 10-4-2007]
A.
The purpose of this chapter is protect the wetlands and to maintain the quality of surface water,
the quality and level of the groundwater table and water recharge areas for existing or potential
water supplies; to protect the public health and safety; to protect persons and property against the
hazards of floodwater inundation; to protect the community against the costs which may be
incurred when unsuitable development occurs in or adjacent to resource areas; and to provide for
the reasonable protection and conservation of certain irreplaceable natural features, resources and
amenities for the benefit and welfare of the present and future inhabitants of the City of
Northampton.
B.
Accordingly, this chapter protects the resource areas and adjoining areas in the City of
Northampton by prior review and control of activities likely to have a significant or cumulative
effect upon resource area values, including but not limited to the following: public water supply,
private water supply, groundwater, fisheries, wildlife, wildlife habitat, rare species habitat,
including rare plant species, recreation, agriculture, aesthetic values, flood control, erosion and
sedimentation control, storm damage prevention, water quality, and prevention of water
pollution; these values are to be known collectively as the "resource area values protected by this
chapter." This chapter supplements the Wetlands Protection Act and is intended to utilize the
Home Rule authority of this municipality to protect additional resource areas, for additional
values, with additional standards and procedures stricter than those of the Wetlands Protection
Act (MGL c. 131, § 40) and regulations 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 of Massachusetts.
§ 337-2 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:
A.
Any bordering vegetated wetland, freshwater wetland, riverine wetland, marsh, wet meadow,
bog or swamp, or within 100 feet of said areas.
B.
Any bank or beach, or within 100 feet of said areas.
C.
Any lake, river, pond, or stream, whether intermittent or continuous, natural or man-made, or
within 100 feet of said areas.
D.
Any land under aforesaid waters.
E.
1
Any land subject to flooding or inundation by groundwater, surface water, storm flowage, except
artificially built detention areas and drainage channels including streets and gutters which would
not otherwise be subject to jurisdiction under this chapter or 310 CMR, or within 40 feet of said
Comment [SIL1]:
The Commission’s bylaw
subcommittee recommended deleting this wording
areas subject to flooding or inundation.
in 2009.
F.
Seasonal wetlands, isolated wetlands, including kettle holes, or within 100 feet of said areas.
Comment [SIL2]:
Not applicable to
Northampton.
G.
Vernal Pool Resource Area shown in the table below. (See also definition.)
[Added 10-4-2007]
Zoning District and/or Area of City Vernal Pool
Resource Area
Size
Central Business, General Business, Neighborhood Business, Vernal pool and
Highway Business, General Industrial, Special Industrial, Planned areas within 100
Village, Medical, Urban Residential-B and Urban Residential-C and feet of the vernal
municipal landfill properties pool
Nonresidential uses only in the Business Park District Vernal pool and
areas within 100
feet of the vernal
pool
All areas in the Water Supply Protection overlay which were zoned Vernal pool and
residential as of January 1, 2006 areas within 200
feet of the vernal
pool
All other areas not shown above (residential uses in the Business Vernal pool and
Park District, Rural Residential, Suburban Residential, Special areas within 200
Conservancy, Urban Residential A) feet of the vernal
pool
Notes: * There is no additional buffer zone around a Vernal Pool Resource Area.
§ 337-3 Definitions.
The following definitions shall apply in the interpretation of this chapter:
AGENT
Any agent or Conservation Commission staff who is appointed agent by a majority vote
of the Conservation Commission at a regularly scheduled meeting of the Commission.
ALTER
Includes, without limitations, 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, clay, minerals, or aggregate
materials of any kind.
B.
2
Changing of preexisting drainage characteristics, flushing characteristics, 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.
Placing of fill, or removal of material, which would alter elevation.
F.
Driving of piles, erection or repair of buildings, or structures of any kind.
G.
Placing of obstructions or objects in water.
H.
Destruction of plant life including cutting of trees.
I.
Changing water temperature, biochemical oxygen demand, or other physical, chemical or
biological characteristics of surface and ground water.
J.
Any activities, changes or work which may cause or tend to contribute to pollution of any
body of water or groundwater.
BUFFER ZONE
That area of land extending 100 feet horizontally (40 feet for lands subject to flooding)
Comment [SIL3]:
The Commission’s bylaw
subcommittee recommended deleting this wording
from the boundary of the resource areas defined in § 337-2.
in 2009.
[Amended 10-4-2007]
CERTIFIED VERNAL POOL
All certified vernal pools plotted by the Massachusetts Division of Fisheries and Wildlife
Natural Heritage and Endangered Species Program's "Estimated Habitats of Rare
Wetlands Wildlife and Certified Vernal Pools Map." The Natural Heritage and
Endangered Species Program plots the geographic location of certified vernal pools;
however, applicants are required to delineate the boundary of the certified vernal pool,
which shall be reviewed by the Northampton Conservation Commission.
[Added 10-4-2007]
COMMISSION
The duly appointed Conservation Commission of the City of Northampton.
FRESHWATER WETLANDS
As defined by 310 CMR 10.
[Amended 2-1-2007]
ISOLATED WETLANDS and SEASONAL WETLANDS
Freshwater wetlands that do not border on creeks, rivers, streams, ponds, and lakes;
isolated depressions which hold standing water for extended periods of time, such as
kettle holes which are too small to be called ponds; and isolated depressions or closed
basins which are subject to flooding during periods of high-water table and high input
from spring runoff or snowmelt or heavy precipitation, and support populations of
nontransient macroorganisms (wetland plants defined in MGL c. 131, § 40, or 310 CMR
10.00 or animals visible to the naked eye) or serve as breeding habitat for select species
3
of amphibians which depend on wetlands for breeding habitat. Isolated and seasonal
wetlands include temporary ponds and pools and vernal ponds and pools.
LANDS SUBJECT TO FLOODING
Depressions or closed basins which serve as ponding areas for runoff, snowmelt, heavy
precipitation, or high groundwater which has risen above the ground surface, and areas
which flood from a rise in a bordering waterway or water body.
PERSON
Includes any individual, group of individuals, association, partnership, corporation,
company, business organization, trust, estate, the commonwealth or political subdivisions
thereof to the extent subject to City ordinance, administrative agency, public or quasi-
public corporation or body, this municipality, and any other legal entity, its legal
representatives, agents or assigns.
[Amended 2-1-2007]
PRESUMED VERNAL POOL
All confined basin depressions which, at least in most years, hold water for a minimum of
two continuous months during the spring and/or summer, and are free of adult fish
populations, and are at least 1,000 square feet in area. A presumed vernal pool shall no
longer be considered as a presumed vernal pool if rebutted under § 337-10.
[Added 10-4-2007]
RESOURCE AREA
The primary resource being protected by this chapter, which is the areas of jurisdiction
defined in § 337-2 excluding the one-hundred-foot buffer (40 feet for lands subject to
flooding).
SEASONAL WETLANDS
Includes all confined basin depressions which, at least in most years, hold water for a
minimum of two continuous months during the spring and/or summer, and are free of
adult fish populations, and are less than 1,000 square feet in area, but larger than 30
square feet in area. Except as permitted by the Conservation Commission or as provided
in this chapter, no person shall remove, fill, dredge, build upon, or alter seasonal wetlands
or within 100 feet of seasonal wetlands.
[Added 10-4-2007]
VERNAL POOL RESOURCE AREA
Includes the certified vernal pool, presumed vernal pool and an area, as described in the
table in § 337-2, extending laterally from the mean annual high water line defining the
depression, but shall not include existing lawns, gardens, and landscaped or developed
Comment [SIL4]:
The Commission’s bylaw
subcommittee recommended deleting this wording
areas. There is no additional buffer zone around a vernal pool resource area. Presumed
in 2009.
vernal pools shall be protected as a vernal pool resource area until and unless the
presumption is rebutted under § 337-10.
[Added 10-4-2007]
§ 337-4 Exceptions.
A.
The Commission may exempt the one-hundred-foot buffer area around a seasonal or isolated
wetlands and/or the seasonal or isolated wetland resource area itself if the area of the wetland is
less than 400 square feet and it does not appear likely that area is a vernal poolnd or otherwise
critical to the wetland values protected by this chapter. Seasonal wetlands and isolated wetlands
4
which are less than 30 square feet are not within the jurisdiction of this chapter, unless they
contain a certified vernal pool, as defined under the Wetlands Protection Act, MGL c. 131, § 40.
B.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this
chapter shall not be required for detention basins, catch basins, manholes, and dropped inlets that
discharge into an existing pipe nor for maintaining, repairing, or replacing, but not changing or
enlarging, an existing or lawfully located structure or facility used in the service of the public to
provide electric, gas, water, telephone, telegraph or other telecommunications services, sanitary
sewers and storm sewers, provided that the structure or facility is not changed or enlarged,
provided that written notice has been given to the Commission at least 48 hours prior to
commencement of work, and provided that the work conforms to performance standards in or
cited by this chapter.
[Amended 10-4-2007]
C.
The application and permit 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, 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 in this chapter. If no member of the
Commission or the Commission's agent can be reached before emergency work begins, the
required notice must be given to the Commission within 24 hours after commencement of the
project. 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.
D.
Notwithstanding the definition of "alter" (§ 337-3), the application and permit required by this
chapter shall not be required for the harvesting of forestry products under the provisions of MGL
c. 132, §§ 40 to 46 when an approved forest cutting plan has been properly filed with the
Conservation Commission nor shall they be required for the normal maintenance or
improvement of lands in agricultural use (as defined in 310 CMR 10.04), provided that the work
conforms to performance standards in or cited by this chapter.
E.
Other than as stated in this section, the exceptions provided in the Wetlands Protection Act shall
not apply under this chapter.
F.
Those jurisdiction (§ 337-2), performance standards (§ 337-10) and definition (§ 337-3)
requirements that are over and above state law shall not apply to City of Northampton municipal
landfills.
[Added 10-4-2007]
§ 337-5 Requests for determinations and permit applications.
[Amended 9-20-1990]
5
Any person desiring to know whether or not a proposed activity or an area is subject to this
chapter must request in writing a determination from the Commission. Such a request shall
contain at least two copies of all data, forms, and plans specified by this chapter and the
Commission and must include permission for the Commission and its agents to enter the
property for the purpose of evaluating the request.
A.
The Commission in an appropriate case may accept as the request under this chapter the request
for determination of applicability filed under the Wetlands Protection Act, MGL c. 131, § 40.
B.
Written permit 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 at
Comment [SIL5]:
Some applications that are
smaller in scope can be distributed by email, on a
least two copies of all plans, forms, and such information as is deemed necessary by the
case-by-case basis.
Commission to describe proposed activities and their effects on the environment and must
include permission for the Commission and its agents to enter the property for the purpose of
evaluating the request and monitoring the project. When applications include drainage
calculations or the design of any facility that will be dedicated to the City of Northampton, one
copy of the application shall be delivered to the City Engineer. No activities shall commence
without receiving and complying with a permit issued pursuant to this chapter.
C.
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.
D.
At the time of an application or request, the applicant shall pay a filing fee in addition to the fee
paid under the Wetlands Protection Act and 310 CMR, unless the applicant is a public agency or
board of the City of Northampton. Fees shall be placed in the Wetlands Fees Account established
as required under state law to hold fees from the Wetlands Protection Act. The required permit
fees are as set forth in Chapter 174, Fees.
[Amended 6-1-2000; 6-7-2001
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
]
E.
In addition, the Commission is authorized to require the applicant to pay all the costs and
expenses of any expert consultant deemed necessary by the Commission to review the
application or resource area, in accordance with the Bylaws and Rules of Procedure of the
Conservation Commission.
§ 337-6 Public notice and hearings.
[Amended 9-20-1990; 10-4-2007]
A.
An application for any wetland permit (notice of intent, request for determination of
applicability, or abbreviated notice of resource area delineation) shall be hand delivered or sent
by certified mail, return receipt, or certificate of mailing to the Conservation Commission, care
of the Northampton Office of Planning and Development. shall be made on, and in accordance
Comment [SIL6]:
Update to reflect online
application process
with, the official application form published on-line by the Office of Planning and Development,
Said aApplicants shall give written notice to the owner if other than the applicant and, with the
exception of a request for determination of applicability, to all abutters at their mailing addresses
6
shown on the most recent applicable tax list of the assessors, including owners of land directly
opposite on any public or private street or way, and other property owners within 100 feet of the
property line of the applicant, including any in another municipality or across a body of water.
The notice to abutters shall state where copies of the application or request may be examined and
obtained by abutters and shall state where information on the date and time of the public hearing
may be obtained. An affidavit of the person providing such notice, with a copy of the notice
mailed or delivered, shall be filed with the Commission as part of the application.
B.
After the application/request is received, the applicant shall place an eleven-inch by seventeen-
inch canary yellow laminated sign, with one-inch black lettering “Public Notice” sign, provided
by the Commission, facing a public right-of-way and visible from the right-of-way at the edge of
the property upon which the permit or request is being made.
(1)
Said sign shall notify the public that an application or request is pending on the property.
(2)
Said sign shall be posted at least five working days before the first public hearing on the
application or request.
(3)
A signed statement of the person posting said sign stating that the required sign was provided
shall be filed with the Commission prior to the public hearing.
C.
The Commission shall conduct a public hearing on any application, notice of intent, abbreviated
notice of resource area delineation (ANRAD), or request for determination of applicability.
Notice of said hearing shall be published in a newspaper of general circulation in the City at least
five working days prior to said hearing, at the expense of the applicant. The published notice,
Comment [SIL7]:
Clarification to reflect actual
procedure.
which shall be prepared by the Commission, shall contain the following information: the date,
time, and place of the hearing; the location of the property affected; the name of the applicant;
and the action requested from the Commission. The Commission shall deliver the notice to the
newspaper.
(1)
The Commission shall commence the public hearing within 28 days from receipt of a completed
application (one which shows all the information, based on a staff determination, necessary to
make a decision), unless the applicant extends the time period by a written waiver.
(2)
The Commission shall have authority to continue the hearing to a date and time announced at the
hearing for reasons stated at the hearing, which may include the receipt of additional information
offered by the applicant or others, information and plans required of the applicant, deemed
necessary by the Commission, or comments and recommendations of other boards and officials
of the City of Northampton. In the event the applicant objects to a continuance or postponement,
the hearing shall be closed and the Commission shall take action on such information as is
available.
(3)
In addition, when there is snow on the ground and/or the ground is frozen, the Commission may
continue a hearing until the snow melts and/or the ground thaws if it determines that an accurate
wetland delineation is not possible otherwise.
D.
7
The Commission shall issue its permit, permit denial, or determination in writing within 21 days
of the close of the public hearing, unless an extension is authorized in writing or at the public
hearing by the applicant.
E.
The Commission shall combine its hearing under this chapter with the hearing conducted under
the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00, in instances of
concurrent jurisdiction.
§ 337-7 Coordination with other boards.
[Amended 9-20-1990]
The Commission shall provide copies of its agenda to the Planning Department, City Engineer
and Building Inspector. The Commission shall not take final action until five working days after
such officials have received their notice of the application. The Commission shall consider
recommendations from those officials and any other city boards and officials but they shall not
be binding on the Commission.
§ 337-8 Determinations, permits and conditions.
[Amended 9-20-1990]
A.
The Commission shall have the authority, after a public hearing, to determine whether a specific
parcel of land contains or does not contain resource areas protected under this chapter. If the
Commission finds that no such resource areas are present, it shall issue a negative determination.
B.
If the Commission, after a public hearing on the permit application, determines that the activities
which are the subject of the application are likely to have a significant or cumulative detrimental
effect upon the wetland values protected by this chapter, the Commission, within 21 days of the
close of the hearing, shall issue or deny a permit for the activities requested.
C.
The Commission shall have the right to refuse to issue a permit if a previous permit on the same
property or on contiguous properties under the same or affiliated ownership has not been
complied with or has not received a certificate of compliance.
D.
If it issues a permit (order of conditions), 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 can, at its discretion, require that
construction of erosion control features and other features that protect the resource areas be
completed before other work on the project proceeds. The Commission shall record the order of
conditions in the Registry of Deeds or the Land Court for the district in which the land is located,
within the chain of title of the affected property, provided that the applicant has provided
adequate information on the ownership of the parcel. Following recording, the Commission shall
provide the original signed Order to the applicant by hand delivery or certified mail. The
Comment [SIL8]:
Required by state wetlands
regulations
applicant, however, and not the Commission is responsible for insuring that the order is properly
recorded and that future buyers are advised of permit conditions. In addition, the permittee or
landowner shall notify the Commission when work is due to begin on the project not less than
three or more than 14 days before work begins on the project. If work is suspended on a project
for more than 60 days, the permittee or landowner shall again notify the Commission when work
8
is due to begin. A copy of the permit (order of conditions) shall be on site at all times during
construction activities related to the resource area or buffer zone.
E.
The Commission is empowered to deny a permit for failure to meet the requirements, design
specifications and performance standards of this chapter; for failure to submit necessary
information and plans requested by the Commission; for failure to avoid or prevent significant or
cumulative detrimental effects upon the wetland values protected by this chapter; and where no
conditions are adequate to protect those values.
F.
A permit shall expire three years from the date of issuance. Notwithstanding the above, the
Commission in its discretion may issue a permit expiring five years from the date of issuance for
recurring or continuous maintenance work, provided that annual notification of time and location
of work is given to the Commission. Any permit may be renewed for an additional period of up
to three years, provided that a request for renewal is received in writing by the Commission prior
to expiration, in accordance with 310 CMR 10.00, and that financial guarantees and other
securities required by the Commission are also renewed.
G.
For good cause, the Commission may revoke or amend a permit issued under this chapter after
public notice and public hearing, and notice to the holder of the permit.
H.
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 or other action issued or taken
under the Wetlands Protection Act, MGL c. 131, § 40.
I.
After all work is done in accordance with a permit (order of conditions) issued under this
chapter, the landowner or the landowner's successors in interest shall apply for a certificate of
compliance. This application shall be accompanied by an as-built plan if different from the
original plan and by the project engineer's statement of the project's compliance with the permit,
unless the requirement for the statement has been waived by the Commission.
J.
When it has been adequately demonstrated to the Commission that the order of conditions was
adhered to, the Commission shall issue a certificate of compliance. The order of conditions and
the certificate of compliance may include conditions, such as maintenance requirements, that are
perpetual and do not expire with the issuance of the certificate of compliance. The permittee or
landowner shall record the certificate of compliance in the Registry of Deeds or the Land Court
for the district in which the land is located, within the chain of title of the affected property.
§ 337-9 Forms and submittal requirements.
After public notice and public hearing, the Commission shall promulgate required forms and
submittal requirements to accomplish the purposes of this chapter. The Commission may amend
its required forms and submittal requirements as needed.after public notice and public hearing.
Comment [SIL9]:
Clarification to reflect actual
procedure
Failure by the Commission to promulgate such forms and submittal requirements or aA legal
declaration of the their invalidity of requirements by a court of law shall not act to suspend or
invalidate the effect of this chapter.
§ 337-10 Performance standards.
9
[Amended 10-4-2007]
A.
All work shall be subject to inspection and require the approval of the Conservation
Commission.
B.
To encourage infill development, which is considered more sustainable under the principles of
smart growth and generally has a smaller environmental footprint than development in outlying
areas, in the Central Business, General Business, Highway Business, Neighborhood Business,
General Industrial, Special Industrial, Planned Village, Medical, Urban Residential-B and Urban
Residential-C Zoning Districts, within those portions of the Water Supply Protection Overlay
District which was zoned industrial as of January 1, 2006, the Conservation Commission hereby
waives any of the § 337-10 performance standards that are over and above state law with the
exception of the setback requirements in Table (1). The reduced setback requirements in Table
(1) shall apply.
C. Work within upland areas adjacent to wetlands.
Comment [SIL10]:
This section was moved for
easier reading, but the text has not changed.
A growing body of research evidence suggests that even "no disturbance" areas reaching 100 feet
from wetlands may be insufficient to protect many important wetland resource characteristics
and values. Problems with nutrient runoff, erosion, siltation, loss of groundwater recharge, poor
water quality, vegetation change and harm to wildlife habitat are greatly exacerbated by activities
within 100 feet of wetlands. These impacts may happen either immediately, or over time, as a
consequence of construction, or as a consequence of daily operation. Thus, in general, work and
activity within 100 feet of wetlands should be avoided and discouraged and reasonable
alternatives pursued.
(1)
Certain areas 50 feet to 100 feet from wetlands may be suitable for temporary, limited or
permanent disturbance as appropriate when the applicant can demonstrate to the Commission's
satisfaction that the proposed work, activity or use will not affect wetland values singularly or
cumulatively and, by means of a written and plan view assessment, that reasonable alternatives
to the proposed work or activity do not exist.
(a)
The Commission may allow the alteration of up to 20% of the area within the fifty-foot to one-
hundred-foot buffer zone on a lot, or up to 2,000 square feet on a lot within a cluster subdivision.
This is a total, cumulative allowance for all projects on a lot developed since the City first
adopted a wetlands protection ordinance (August 17, 1989). The proposed work must have no
significant adverse impact on the resource area, and the applicant must provide evidence deemed
sufficient by the Commission that the area being disturbed will not harm the resource area values
protected by the law.
(2)
The City's general policy is no encroachment within 50 feet of wetlands. The Commission may
allow work within the fifty-foot nonencroachment zone in response to a written request for a
waiver, which shall include a written and plan view assessment as part of the application process
as follows:
(a)
Projects in areas downgradient of wetlands and projects in areas already degraded by impervious
surfaces from existing structures or pavement.
10
(b)
Projects in certain infill areas, in accordance with Table (1) in § 337-10, where development
includes mitigation measures that will improve the existing condition of the wetlands or adjacent
upland area and is otherwise permissible under the Massachusetts Wetlands Protection Act.
(c)
Limited development projects, as defined in the Massachusetts Wetlands Protection Act
regulations.
(d)
Trails, including bog bridges and wetland crossings, in City-owned conservation areas and other
publicly accessible open space areas.
(e)
Removal of plant species listed on the Massachusetts Department of Agriculture’s Prohibited
Plant List
(f)
Projects that will improve existing conditions. Applicants must demonstrate ecological benefits
if work is proposed in accordance with this section
Comment [SIL11]:
These additions would
clarify that invasive species removal, improvements
(such as conversion of lawns to rain gardens), trails,
D.
and limited development projects, can be allowed in
Work within wetland areas.
no-disturb areas. Appropriate review is still
required for all of these items.
The City's general policy is no encroachment within wetland nareas. The Commission may allow
Comment [SIL12]:
Specifies that some types of
work within wetland areas in response to a written request for a waiver, which shall include a
work are appropriate in wetlands areas.
written and plan view assessment as part of the application process as follows:
(a)
Limited development projects, as defined in the Massachusetts Wetlands Protection Act
regulations, and deemed appropriate by the Commission.
(d)
Trails, including bog bridges and wetland crossings, in City-owned conservation areas and other
publicly accessible open space areas.
(e)
Removal of plant species listed on the Massachusetts Department of Agriculture’s Prohibited
Plant List
(f)
Projects that will improve existing conditions. Applicants must demonstrate ecological benefits
if work is proposed in accordance with this section
EC. Artificial or replacement wetlands.
Comment [SIL13]:
Heading and numbering
change only.
To encourage infill development, which generally has a smaller environmental footprint than
development in outlying areas, in the Business Park Zoning District for nonresidential uses only,
the Conservation Commission hereby waives any of the § 337-10 performance standards that are
over and above state law, except as provided in this subsection. All removal, filling, dredging, or
altering of any wetland shall be mitigated by the creation of artificial or replacement wetlands,
with the replacement wetland built at 115% of the size of the area which was disturbed.
D.
(1)Artificial or replacement wetlands. If the applicant demonstrates to the Commission that the
replacement wetland is a restoration and will provide wetland values equal or greater than the
11
wetland values being lost, the Commission may allow replacement wetlands to be the same size
as the disturbed area. If the applicant is attempting to replace a wetland through replication, the
area of replication must be up to twice as large as the area of the original wetland that will be
destroyed. In those instances where replication is approved by the Commission the following
conditions must be met:
(21)
At minimum, the replicated wetland must reproduce the values and functions of the original
wetland as determined by the Conservation Commission. Site conditions permitting, the
Commission may require that additional values and functions be incorporated into the replication
design. In particular, in circumstances where replacement of specific functions and values would
require substantial amounts of time before being completely replicated (for example, those
provided by large mature trees), the Commission may require additional compensation of area,
functions, values, etc. beyond those required in other sections of this chapter.
(32)
In most instances, the replication of wetlands will result in the destruction of adjacent buffer
zone areas. In such instances, replication or additional permanent preservation of new buffer
zone areas may be required.
(43)
The top 12 inches of soil from the original wetland must be transplanted with soil structure,
especially lamination and density profile, intact to the replication area. This is intended to
preserve plant, invertebrate, and planktonic communities of the wetland and inhibit the
blossoming of invasive species.
(54)
Any replication or restoration work that creates a resource on abutting properties shall require an
easement from the abutting property owner covering the full extension of the resource on that
property prior to commencement of the work.
(65)
Standards for the replication shall be specified and verified in terms of functions, values, and
actual performance. Technical and engineering specifications used for design and construction
shall be considered approximate. Criteria for acceptance and approval shall be based solely on
function and performance as specified in the order of conditions. In other words, replications will
be evaluated on what they are expected to do, not how closely actual construction matched the
plan. For example, although elevations may be used for design and planning of a pond, the
standards shall be set in terms of volume and depth of water over the course of a year. In vernal
pool replication, the pool must be capable of sustaining full development of vernal pool species,
regardless of design elevations or siting.
(76)
Replications that do not properly perform the approved functions and values as specified in the
order of conditions will not be deemed acceptable no matter how closely they adhere to approved
engineered plans.
(8)
The Commission may set other conditions on a project-/site-specific basis.
(9)
For limited development projects, as defined in the Wetlands Protection Act regulations, where it
is not be practical to lay out an element of the project without a wetlands replication, the
Commission may waive some or all of the requirements of this section.
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(7)
Comment [SIL14]:
Not deleted, moved above
for easier reading.
The Commission may set other conditions on a project-/site-specific basis.
(8)
For limited development projects, as defined in the Wetlands Protection Act regulations, where it
is not be practical to lay out an element of the project without a wetlands replication, the
Commission may waive some or all of the requirements of this section.
E.
Work within upland areas adjacent to wetlands. A growing body of research evidence suggests
that even "no disturbance" areas reaching 100 feet from wetlands may be insufficient to protect
many important wetland resource characteristics and values. Problems with nutrient runoff,
erosion, siltation, loss of groundwater recharge, poor water quality, vegetation change and harm
to wildlife habitat are greatly exacerbated by activities within 100 feet of wetlands. These
impacts may happen either immediately, or over time, as a consequence of construction, or as a
consequence of daily operation. Thus, in general, work and activity within 100 feet of wetlands
should be avoided and discouraged and reasonable alternatives pursued.
(1)
Certain areas 50 feet to 100 feet from wetlands may be suitable for temporary, limited or
permanent disturbance as appropriate when the applicant can demonstrate to the Commission's
satisfaction that the proposed work, activity or use will not affect wetland values singularly or
cumulatively and, by means of a written and plan view assessment, that reasonable alternatives
to the proposed work or activity do not exist.
(a)
The Commission may allow the alteration of up to 20% of the area within the fifty-foot to one-
hundred-foot buffer zone on a lot, or up to 2,000 square feet on a lot within a cluster subdivision.
This is a total, cumulative allowance for all projects on a lot developed since the City first
adopted a wetlands protection ordinance (August 17, 1989). The proposed work must have no
significant adverse impact on the resource area, and the applicant must provide evidence deemed
sufficient by the Commission that the area being disturbed will not harm the resource area values
protected by the law.
(2)
The City's general policy is no encroachment within 50 feet of wetlands. The Commission may
allow work within the fifty-foot nonencroachment zone in response to a written request for a
waiver, which shall include a written and plan view assessment as part of the application process
as follows:
(a)
Projects in areas downgradient of wetlands and projects in areas already degraded by impervious
surfaces from existing structures or pavement.
(b)
Projects in certain infill areas, in accordance with Table (1) in § 337-10, where development
includes mitigation measures that will improve the existing condition of the wetlands or adjacent
upland area and is otherwise permissible under the Massachusetts Wetlands Protection Act.
(c)
Limited development projects, as defined in the Massachusetts Wetlands Protection Act
regulations.
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Zoning District No-Encroachment Zone
Central Business, General Business, 10 feet from wetlands
Neighborhood Business, General Industrial,
Special Industrial, Planned Village, Medical
Urban Residential-B and Urban Residential-C 35 feet from wetlands 10 feet from wetlands
may be allowed at the discretion of the
Conservation Commission if applicant
provides extraordinary mitigation,
replication, restoration or open space
preservation measures
All water supply protection overlay areas zoned Only in conformance with the performance
residential as of January 1, 2006, regardless of standards of this chapter
the underlying zoning, and all other areas
Business Park See § 337-10C
F.
Work within vernal pool resource area.
(1)
The City of Northampton Conservation Commission may issue an order of conditions for the
construction, rehabilitation and maintenance of linear systems within the vernal pool resource
area, but not within the vernal pool (although no such project may be permitted which will have
any adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Linear
systems include, but are not limited to: footpaths, bikepaths, pipelines, and conduits for the
transmission of utilities (water, fuel, sewage, and power). Evaluation of such projects shall be
based on the applicant's ability to avoid, minimize, and mitigate disturbance to the resource area.
With the exception of existing linear systems, the applicant shall avoid disturbance in the
resource area. The applicant must prove to the Conservation Commission, beyond a reasonable
doubt, that avoidance is not possible. If avoidance is not possible, the applicant must provide
documentation that any adverse impacts from the work will be minimized and that the design
specifications are commensurate with the projected use and are compatible with the character of
the vernal pool resource area. In the exercise of this discretion, the issuing authority shall
consider the magnitude of the alteration and the significance of the project site to the interests
identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of
reasonable alternatives to the proposed activity, the extent to which adverse impacts are
minimized, and the extent to which mitigation measures, such as resource area replication,
habitat restoration, and open space preservation, are provided to contribute to the protection of
the interests identified in § 337-1 of the City of Northampton Wetlands Ordinance.
(2)
The City of Northampton Conservation Commission may issue an order of conditions for the
construction of a driveway crossing within the one-hundred-foot to two-hundred-foot section of
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the vernal pool resource area (although no such project may be permitted which will have any
adverse effect on specified habitat sites of rare vertebrate or invertebrate species). Such projects
may be permitted if the applicant provides evidence that the work will not cause adverse impacts
to the vernal pool resource area. In the exercise of this discretion, the issuing authority shall
consider the magnitude of the alteration and the significance of the project site to the interests
identified in § 337-1 of the City of Northampton Wetlands Ordinance, the availability of
reasonable alternatives to the proposed activity and the extent to which mitigation measures,
including resource area replication, habitat restoration, and open space preservation, are provided
to contribute to the protection of the interests identified in § 337-1 of the City of Northampton
Wetlands Ordinance.
(3)
The City of Northampton Conservation Commission may issue an order of conditions for the
rehabilitation and maintenance of existing structures and disturbed areas (structures or disturbed
areas existing as of January 1, 2006) within the vernal pool resource area, but not within the
vernal pool (although no such project may be permitted which will have any adverse effect on
specified habitat sites of rare vertebrate or invertebrate species). Such projects may be permitted
if the applicant provides evidence that the work will not cause additional impacts to the vernal
pool resource area. In the exercise of this discretion, the issuing authority shall consider the
magnitude of the alteration and the significance of the project site to the interests identified in
§ 337-1 of the City of Northampton Wetlands Ordinance, the availability of reasonable
alternatives to the proposed activity and the extent to which mitigation measures, including
resource area replication, habitat restoration, and open space preservation, are provided to
contribute to the protection of the interests identified in § 337-1 of the City of Northampton
Wetlands Ordinance.
G.
Vernal pool habitat. The presumptive definition for vernal pools is based on systematic field
observations in the City of Northampton by the Northampton Conservation Commission and
shows that virtually all basins that possess the defined characteristics actually host breeding
vernal pool species. Undoubtedly, this is a particular consequence of Northampton's enduring
woodlands and wetlands.
(1)
Any ponded area located within a confined basin depression and containing more than 1,000
square feet of water during the growing season shall be presumed to be vernal pool habitat. This
presumption is rebuttable through any of the following means:
(a)
Demonstration that surface water was present for fewer than 60 consecutive days during the
growing season (March 15 through October 15) of any years, provided that rainfall during the
period of observation was at least 75% of the average over 20 years for that period in
Northampton.
(b)
Proof that the ponded area either supports a year-round population of fish or that the fish breed
within the confines of the ponded area.
(c)
Demonstration, through repeated observation by competent field observers made during the
spring months, that the ponded area did not meet the criteria for certification as vernal pool
habitat as described in the Guidelines for the Certification of Vernal Pool Habitat of the
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Massachusetts Division of Fisheries and Wildlife. For such evidence to be considered sufficient
and accurate, a vernal pool observation plan must be approved by the Northampton Conservation
Commission prior to February 15 of the spring in which the study will be conducted, and staff or
agents of the Commission must be granted access to the site as necessary.
(2)
If a presumed vernal pool is located entirely on an adjacent property not owned or controlled by
the applicant, the applicant and Conservation Commission must attempt to gain permission from
the adjacent property owner to access the property to inspect the presumed vernal pool. If said
permission is not granted, and the presumed vernal pool cannot be certified from observations
made at the property boundary line, the Northampton Conservation Commission will not assert
regulatory jurisdiction over the area of upland vernal pool resource area on the applicant's
property.
(3)
If a property owner grants permission by February 15 of any year, the Northampton Office of
Planning and Development or its agent will inspect and certify vernal pools (usually in the spring
of each year). The City or its agent will then either certify eligible vernal pools with the
Commonwealth of Massachusetts or provide a statement that an inspected presumed vernal pool
is not actually a certified vernal pool in accordance with the necessary credible evidence as
required. A statement that a site is not a vernal pool shall be presumptive under this chapter for
three years but does not indicate that it is not otherwise a resource area. The fee for this work
shall be made payable to the City or its agent, as applicable, and shall be the same fee as being
charged for the Massachusetts Department of Environmental Protection notice of resource area
delineation.
§ 337-11 Performance guarantees and security.
As part of a permit issued under this chapter, except for permits issued for work being performed
or contracted by any department or agency of the City of Northampton, and in addition to any
security required by any other municipal or state board or agency, the Commission may require
that the performance and observance of the conditions imposed hereunder be secured wholly or
in part by one or more of the methods described below:
A.
A financial guarantee, such as a proper bond or deposit of money or negotiable securities or
other undertaking of financial responsibility sufficient in the opinion of the Commission. Surety
performance bonds, cash escrows, and standby letters of credit are the usual forms of financial
guarantees that will be accepted. Property escrows will not be accepted. Permittees shall submit
their estimates of what the required improvements will cost, preferably with contractors' bids to
perform the work
(1)
The term of any financial guarantees must be at least nine months longer than the time a
permittee has to complete a project. The Commission, at its discretion, may allow partial or
complete release of guaranteed funds as sections of a project are completed. The Commission
has the right not to release part of the guaranteed funds until after the project is finished and a
certificate of compliance is issued.
(2)
The Commission has the right to reject the terms of a proposed financial guarantee, including the
financial institution holding guaranteed funds if it is not a local bank, and to determine the
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amount of funds that must be guaranteed. The Commission's only duty to secure release of
guaranteed funds is to certify that required improvements or conditions have not been completed
on time or to a satisfactory standard, as defined by the Commission.
(3)
At the discretion of the Commission, a joint financial guarantee may be used to comply with
Commission requirements and that of other agencies, boards, and commissions in the City of
Northampton; provided, however, that all relevant parties agree on the terms and the principal
and that the guarantee is structured so that all relevant parties agree before any funds are
released.
B.
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 this
municipality and observed before any lot may be conveyed other than by mortgage deed.
§ 337-12 Enforcement; violations and penalties.
A.
The Commission, its agents, officers, and employees shall have the 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. Any request for determination, application/notice of intent, or request for certificate of
compliance is evidence of the landowner's permission for said parties to enter private land, and
all forms shall include this as a condition.
B.
The Commission shall have the responsibility, duty, and authority to enforce this chapter, its
regulations, and permits issued thereunder by violation notices, administrative orders, and civil
and criminal court actions.
C.
Upon request of the Commission, the City Solicitor shall take legal action for enforcement under
civil law. Upon request of the Commission, the Chief of Police or other appropriate official 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 the authority to assist the Commission in enforcement.
E.
Any person who violates any provision of this chapter, including any causing, suffering, or
allowing of illegal work, any failure or refusal to comply with an enforcement order, violation
notice or administrative order, and any failure or refusal to remove illegal fill, restore property,
or obtain necessary Commission approval, or any person who violates the permits issued
hereunder, shall be punished as set forth in Chapter 1, § 1-17, General penalty. Each day, or
portion thereof during which a violation continues shall constitute a separate offense, and each
provision of the ordinance or permit violated shall constitute a separate offense.
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
F.
In the alternative to criminal prosecution, the Commission may utilize the noncriminal
disposition procedure set forth in MGL c. 40, § 21D, in accordance with City ordinance. Each
day or portion thereof during which a violation continues shall constitute a separate offense and
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each provision of the ordinance or permit violated shall constitute a separate offense. This fine
may be in addition to any levied under the Wetlands Protection Act, MGL c. 131, § 40.
§ 337-13 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, in the opinion of the
Conservation Commission, 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.
§ 337-14 Appeals
Comment [SIL15]:
Created appeal period
consisitent with WPA appeal period. Appeal period
A decision of the Commission shall be reviewable in the Superior Court in accordance with
is 60 days if not specified.
MGL Ch. 249, Sec. 4.
Appeals shall be made within ten (10) business days of the date of the decision by the
Commission, or the date of the signing and/or notarization of said decision, whichever is the
later. Notice of said appeal and a copy of the complaint shall be sent, certified mail, or hand
delivered, to the Conservation Commission so as to be received within said ten (10) days.
§ 337-154 Relation to Wetlands Protection Act.
A.
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. 131, § 40, and the
regulations thereunder.
B.
Unless otherwise stated in this chapter, the definitions, procedures, and performance standards of
the Wetlands Protection Act, MGL c. 131, § 40, and associated regulations, 310 CMR 10.00,
shall apply.
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