§ 196A-3. General Provisions
A. Burden of proof:
The applicant shall have the burden of proving by a preponderance of credible evidence:
(1) That the work proposed by the applicant is not significant to the protection of the interests identified in § 196A-1A above, or
(2) That the proposed work will contribute to the protection of the interests identified in § 196A-1A above by complying with the performance standards established for that particular resource area.
(3) That the activity proposed will not have a significant adverse impact either immediate or cumulative upon the wetland values protected by the Bylaw.
B. Burden of going forward:
The applicant shall have the burden of going forward with credible evidence from a competent source in support of all matters asserted by the applicant in accordance with his/her burden of proof pursuant to § 196A-3A above.
C. Title 5; State Sanitary Code.
(1) In all cases of Title 5 issues, all state and town regulations will be followed except that both bordering and nonbordering wetlands are protected.
(2) If a septic system is proposed on a lot that cannot meet the local Board of Health regulations without a variance, the applicant is not entitled to the presumption that all wetland interests are protected under 310 CMR 10.3
(3) Presumption concerning 310 CMR 15.00 Subsurface Disposal of Sanitary Sewage (Title 5). Even with the issuance of a variance, the applicant is not entitled to the presumption. The Commission notes that the presumption, were the applicant entitled, only applies to the impacts of the discharge from a sewage disposal system and not to the impacts from construction of that system, such as erosion and siltation from the excavation, placement of fill or removal of vegetation or other impacts from the construction of that system. Applicants must demonstrate that all wetland interests are protected and have an approved current Order of Conditions before any work can proceed on these projects.
D. Water Resource Protection Districts.
(1) Section 164-17 of the Orleans Zoning Bylaw provides that in certain water resource related districts, namely zones one and two, thirty percent (30%) of a lot where development is proposed must remain in its natural state and up to sixty percent (60%) must remain pervious. The main purpose of this section is to maintain water recharge capability. The section provides that the Building Commissioner must approve a plan showing delineation of such areas before any construction can proceed.
(2) The Conservation Commission will require proof of compliance with the above requirements before issuing an Order of Conditions for any project within its jurisdiction that is also within the regulated districts.
E. Continuing liability for compliance with MGL 131 s. 40 and the Bylaws. MGL 131 s. 40 provides as follows:
“Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this section or in violation of any order issued under this section shall forthwith comply with any such order or restore such real estate to its condition prior to 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.. .” No further work will be approved on a property with an outstanding violation, such as unapproved structures or clearing, until the violation has been remediated.
F. Incorporation.
(1) General provisions: The procedures, requirements and definitions set forth in the Act (MGL 131 s. 40) and 310 CMR 10.00 et seq. are hereby incorporated and made a part of these regulations subject to the following:
(a) Where they differ from or depart from these regulations or the Orleans Bylaw, the Orleans Bylaw or regulations shall apply.
(b) Where the language of the Orleans Bylaw or these regulations is more definitive or protective, the language of the Bylaw or these regulations shall prevail.
© Where the Act or State regulations are determined to apply, all references contained therein to the Act and said regulations shall be deemed to include a reference to the Orleans Bylaw and regulations.
(d) Unless otherwise defined in the Orleans Bylaw or these regulations, those definitions found in the Act or Regulations promulgated thereunder, in effect at the time of the adoption of these regulations shall be incorporated.
(2) Wetlands, bordering and nonbordering.
(a) Jurisdiction:
[1] MGL 131 s. 40 states as follows: “No person shall remove, fill, dredge or alter any bank, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow, or swamp bordering on the ocean or on any estuary, creek, river, stream, pond or lake or any land under said waters.” This requirement that any bank, freshwater wetland, etc., border on the ocean is reiterated in 310 CMR 10.02 “Statement of Jurisdiction.”
[2] The Orleans Wetlands Protection Bylaw, § 160-2, eliminates the requirement that in order to be subject to the Commission’s jurisdiction, the wetland resource areas must be “bordering.” It did so in order to provide broader protection to these resources than that found in the Act or State regulations as permitted by 310 CMR 10.01(2) which states, “Nothing contained herein should be construed as preempting or precluding more stringent protection of wetlands or other natural resources by local by-law, ordinance or regulation.” Thus under the Orleans Bylaw and regulations, these resource areas are subject to the Commission’s jurisdiction and regulation whether or not they are “bordering.”
[3] Therefore, if the inclusion of the word “bordering” anywhere in the Act or 310 CMR 10.00 should result in removing that resource from the Orleans Conservation Commission’s jurisdiction, it shall be deemed for the purpose of the Orleans Regulations that the word “bordering” in that instance, has not been incorporated in these regulations.
(b) Freshwater wetlands:
[1] The definition of “Bordering Vegetated Wetlands” (wet meadows, marshes, swamps and bogs) found in 310 CMR 10.55(2) is specifically not incorporated herein and the following definition is adopted instead: “Vegetated wetlands are freshwater wetlands which may or may not border on creeks, rivers, streams, ponds, and lakes. The types of freshwater wetlands are wet meadows, marshes, swamps and bogs. They are areas where the topography is low and flat and where the soils are annually saturated. The ground and surface water regime and the vegetational community which occur in each type of freshwater wetland are specified in MGL 131 s. 40 and in these regulations.
[2] All other references to “bordering vegetated wetlands” in 310 CMR10.55 and elsewhere throughout 310 CMR 10.00 et seq. shall be deemed to refer to both bordering and nonbordering vegetated wetlands.
[3] Wetland replication: The Orleans Wetlands Bylaw § 160-3 “Wetlands replication” prohibits wetlands replication as a form of mitigation. In accordance with this prohibition, these regulations do not incorporate any part of the performance standard found at 10.55(4)(b) permitting loss of up to 5,000 square feet of wetlands if replicated and © permitting loss of up to 500 square feet under other limited circumstances. Nor do these regulations incorporate any other section of the Act or 310 CMR 10.00 et seq. which permits loss of wetlands when mitigating by replication. Nothing in this section prohibits construction of new wetlands as long as such new wetland is not replacement of existing wetlands.
G. Savings. Should any portion of these regulations be declared invalid by a decision of court, the legislature or other body having jurisdiction, the remainder of these regulations shall remain in full force and effect.
H. Reservation. These regulations should not be construed to limit the authority under the Orleans Wetlands Protection Bylaw. The Commission reserves the right to act in a manner consistent with the Bylaw upon any matter within its jurisdiction.
I. Amendments. Amendments to these regulations shall be made in the same manner set forth in § 160-11 of the Orleans Wetlands Protection Bylaw.
J. Exceptions:
(1) MGL 131 s. 40 provides the following exceptions to the application of its provisions: maintenance and repair of lawfully located structures used to provide specific services to the public; certain emergency projects; mosquito control works, some maintenance dredging; normal maintenance and improvement of land in agriculture and aquaculture use; and those exceptions provided by any special act prior to January 1, 1973. The Orleans Wetland Bylaw, § 160-5A and B however, provides exceptions only for maintenance and repair of lawfully located structures used to provide certain services to the public and for limited emergency projects. Both exceptions are subject to notice and performance standard requirements. Section 160-5C provides that “Other than stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply.”
(2) The Orleans Conservation Commission has not in the past exercised its jurisdiction over the additional activities excepted by the state but not by the Orleans Bylaw. However, the Commission reserves its right to exercise such jurisdiction in the future.
K. Variances:
(1) The Conservation Commission may, in its discretion, grant variances from the specific stipulations of one or more of these regulations pursuant to this section. Such variances may be granted in specific instances where relief for the property owner may be warranted and said relief will not adversely affect the wetlands interests. Variances shall be granted only in accordance with the provisions of this section, and shall, in no way, set a precedent.
(2) A variance may be granted for the following reasons and upon the following conditions:
(a) The Conservation Commission may, in its discretion, grant a variance from these regulations upon a clear and convincing showing by the Applicant that the proposed work, or its natural and consequential impacts and effects, will not adversely affect the interests protected in the Bylaw. In exercising its discretion the Commission shall take cognizance of other reasonable alternatives which would permit the proposed work to be undertaken without deviating from the provisions of these regulations. It shall be the responsibility of the Applicant to provide the Conservation Commission with any or all information which the Commission may request, in writing. The failure of the Applicant to furnish any information which has been so requested may result in the denial of a request for a variance pursuant to this section.
(b) The Conservation Commission may grant a variance from these regulations when it is necessary to avoid so restricting the use of the property as to constitute an unconstitutional taking without compensation. If an application for a variance pursuant to this section is received by the Conservation Commission, the Commission may request an opinion from Town Counsel as to whether the application of these regulations to a particular case will result in such a taking without compensation.
L. Amended orders of conditions:
Where an applicant seeks permission to expand or change a use previously prohibited or limited by past Orders, either by an Amended Order of Conditions or a new Order of Conditions, the applicant must make a clear showing of changed circumstances and must present proof that such changed circumstances have rendered the past prohibition or limitation which the applicant seeks to change, unnecessary to the preservation and protection of the wetlands interests of the Act and this Bylaw.
M. Effective date. The effective date of these regulations shall be August 8, 1995. These regulations apply to all applications made on or after the effective date.
N. Site specificity and precedence. Because each parcel of land and proposed project thereon has its own unique characteristics and impacts, every project brought before the Commission for approval will be considered on a site specific basis. And, because of this site specificity each project will stand alone and shall not set a precedent in the decisions to be made on subsequent projects.
