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HomeMy WebLinkAboutCONSERVATION_03042015_201508061232Town of Mansfield Conservation Minutes March 4, 2015 Present: Michael Healey, Chairman; James Turnbull, Vice Chairman; Christopher Marcheselli; Matthew Rieth; Ryan Maxwell; David Hobaica; Katelyn Merrill, Conservation and Environmental Planner. The public meeting was opened at 7 pm in Room 2 A/B to discuss proposed recommended 2015 Annual Town Meeting warrant articles to transfer the care and control of a parcel of land (1.3 acres) on South Main Street identified on Assessors' Map 14 Parcel 20 from the Board of Selectmen to the Mansfield Conservation Commission; and to revise and /or amend the following sections of the Mansfield Wetland Protection Bylaw, Chapter 15 of the General Bylaws: • amend section 2.2.4 and to add a new paragraph, 2.2.5 • amend Section 2: Jurisdiction and Section 3: Activities within Resource Areas and Adjacent Buffer Zone • revise Section 2.6 Vernal Pools and Habitat of State - listed Species • add Section 8- Variance Process Ms. Merrill explained the difference between the Regulations and the By -Law; the By -Law stipulates the laws having to do with the local ordinances for the wetlands and the Regulations clarify procedures, intentions and standards set forth in the By -Law and cannot supersede the By -Law. Ms. Merrill said Town Counsel recommended the By -Law be clarified to strengthen the ability to defend the By- Law in case of an appeal. She said a town cannot legally "take" land and if a property owner felt there was a full financial take of the property, the owner could appeal the By -Law, which as written could not be defended. The changes would lessen the permitting responsibilities of potential applicants for projects that would have de minimis impacts, allow and promote maintenance and minor exempt activities such as procedural maintenance to roads and stormwater structures in accordance with Stormwater Standards without a filing and small residential activities that the Commission has already acknowledged as an exemption, paralleling the state's minor exemptions activities. The update to the By -Law would reflect the changes made in October 2014 to the Wetland Protection Act (WPA), including jurisdiction, procedures and minor exempt activities Ms. Merrill explained by incorporating different types of Waivers and Variances into the By -Law, it allows for relief in unusual circumstances and for certain activities to be permitted if the Commission finds there are no reasonable conditions or alternatives that would allow the project to proceed under the By -Law. Article 2 Conscom: Amend Wetland Protection By -Law Exemptions - Section 2.2. Ms. Merrill discussed and showed through Power Point, the changes to Section 2: Jurisdiction, 2.2 Exemptions Current: 2.2 This By -Law shall not apply to the following activities: 1. Emergency projects necessary for the protection of the health or safety of the residents of the Town of Mansfield. 2. Maintenance, repair, or replacement, without substantial enlargement, of existing structures and facilities used to provide public [electric, gas, water, sewage, rail transport, and telecommunication] services, and the existing public ways and associated drainage facilities, provided that the Commission is notified prior to the initiation of said work. 3. Normal maintenance or improvement of land in existing agricultural use. 4. Normal maintenance, repair, replacement, or improvement to any existing private residential property or components, including, but not limited to: fences, hedges, gardens, lawns, retaining or stone wall, patios, lamp posts, flag poles, or mailboxes. Project proponents must thoroughly check with the Commission or its agent for applicability. Proposed: 2.2 This Wetland Protection By -Law shall not apply to the following activities: 1. Emergency projects necessary for the protection of the health or safety of the residents of the Town of Mansfield. 2. Maintenance, repair, or replacement, without substantial enlargement, of existing structures and facilities used to provide public [electric, gas, water, sewage, rail transport, and telecommunication) services, and the existing public ways and associated drainage facilities, provided that the Commission is notified prior to the initiation of said work. 3. Normal maintenance or improvement of land in existing agricultural use 44. Normal maintenance, repair, replacement, or improvement to any existing private residential building or structure including, but not limited to: fences, hedges, gardens, lawns, retaining or stone walls, patios, lamp posts, flag poles, or mailboxes. Project proponents must check with the Commission or its agent for applicability pursuant to the Administrative Review Policy and Procedure (added). The following paragraphs were added. 5. All minor exempt activities listed in DEP Wetland Protection Act Regulations 310 CMR 10.01(b)(2). Project proponents must check with the Commission or its agent for applicability pursuant to the Administrative Review Policy and Procedure. 6. Pursuant to DEP Wetland Protection Act Regulations 310 CMR 10.02(3), all maintenance activities of a stormwater management system constructed or improved after November 18, 1996, in accordance with the MADEP Stormwater Management Standards. Said maintenance work shall utilize best practical measures and is limited to the footprint of the stormwater structure. Project proponents must check with the Commission or its agent for applicability pursuant to the Administrative Review Policy and Procedure. Ms. Merrill said this would allow for maintenance such as cleaning out stormwater structures as defined in the Wetland Protection Act without refiling if the project's Order of Conditions had lapsed. Mr. Turnbull said as part of the Notice of Intent process for larger projects where the Conservation Commission is permitting an applicant to build a drainage system within a protected area, the Commission has requested the submittal of an Operations and Maintenance Plan (0 &M Plan). Ms. Merrill said the requirement to submit an 0 &M Plan can be a Special Condition to the Order so when the Applicant applies for a Certificate of Compliance, the Plan will become an on -going condition in perpetuity. Mr. Hobaica asked Ms. Merrill to explain the Administrative Review (AR) process. She said last year the Commission reviewed and decided what minor activities could be exempt from filing procedures. She said an AR is a policy, not a regulation, and provides review of these minor activities by the Agent without having to go to a formal hearing. Public Comment Colin Cauldwell agreed with Mr. Turnbull regarding the requirement of an O &M Plan for major projects in town so maintenance can be done without a filing. Ms. Merrill noted that the town engineer reviews all stormwater management in town. Mr. Cauldwell said the Commission has oversight over the town's stormwater plan and if the town is altering their stormwater systems in a substantial way, they have to file under the Stormwater Act. He said the By -Law does not differentiate between a public or private stormwater system but treats them differently and this should be addressed in the By -Law. Instead of exempting the town from filing, Mr. Cauldwell suggested a "blanket" Notice of Intent be done as required in other towns. Ms. Merrill said she has discussed the "blanket" Notice of Intent with DEP and because abutters would have to be notified for every activity, this is not possible. She agreed that the stormwater regulations and land disturbances need to be clarified in the By -Law. Mr. John Southard, 15 Old Elm Street, said he was uncomfortable with the word "structure" because hedges, lawns, etc., are not structures; the word needs to cover man -made, non - natural features. He suggested appurtenance. Ms. Merrill said Town Counsel's advice was to use the word structure. Mr. Turnbull made the motion to submit the proposed Warrant Article #2 as drafted by the Conservation Commission, for the warrant for the annual 2015 Town Meeting. Mr. Rieth seconded the motion. Motion passed 6 -0 -0. Article 4 Conscom: Amend Town of Mansfield Wetland Protection Bylaw Section 2: JURISDICTION & Section 3: ACTIVITIES WITHIN RESOURCE AREAS AND ADJACENT BUFFER ZONES. SECTION 2: JURISDICTION 2.1 Except as permitted by the Conservation Commission, or as provided for in this bylaw, no person shall remove, fill, dredge, build upon, or alter in any other way, the following wetland resource areas: 1. any bordering(added) freshwater wetland, marsh, swamp, bog, or wet meadow [hereinafter "bordering vegetated wetland" or "bvw "); 2. any lake or pond, river or stream [hereinafter waterbody or waterway]; 3. any bank, beach, or other type of edge adjacent to, or land under, said waterbodies or waterways, any flood zone, as shown on the federal flood maps, or determined by other engineering methodology, associated with said waterbodies or waterways; 4. any vernal pools certified by the State; 5. any isolated wetland area larger than 5,000 sq. ft. and /or any area defined as Isolated Land Subject to Flooding [ISLE] under the Wetland Protection Act; 6. wetland which is identified by the State as the habitat site of a state - listed species [collectively, and hereinafter, the "resource areas "); 7. or any land within 100 feet from(removed) of(added) the edge of any of the above - referenced resource areas [hereinafter the "buffer zone "). ADDED — 2.2 Pursuant to MADEP Wetland Protection Act Regulations 310 CMR 10.02(2)(c), stormwater management systems designed, constructed, installed, operated, maintained, and /or improved in accordance with MADEP Stormwater Standards after November 2, 1996 do not, by themselves, constitute Areas Subject to Protection or have an associated buffer zone under this Bylaw. Ms. Merrill said as part of stormwater, certain types of design are allowed, some of which can be replicated as wetlands. Engineers in designing the plan can opt to not design in a replicated wetland because it would become jurisdictional. This is taken from the Wetland Protection Act that any stormwater maintenance system that was designed, constructed, installed and maintained after November 2, 1996, does not constitute areas subject to protection under the Wetland Protection Act and will not have an associated buffer zone. It will function as a stormwater system. Mr. Cauldwell asked how it would be verified that these drainage structures and detention basins were permitted after November 1996. Ms. Merrill said there will only be an associated buffer zone if they are replicated for the purpose of stormwater and the applicant would have to show the current standards at the time were met. 2.3 No changes proposed 2.4 No changes proposed 2.5. No changes proposed SECTION 3: ACTIVITIES WITHIN RESOURCE AREAS AND ADJACENT BUFFER ZONES Currently: It is presumed that work which is proposed to occur within any resource area or within the buffer zone of any resource area has the potential to create significant adverse impacts on the resource area. Therefore, any activity proposed to occur within the resource area or the buffer zone area will require the filing of a Notice of Intent application. The Commission may condition the proposed activity to protect the resource area(s), or if no condition exists to protect the area, then the Commission may deny the project. For activity proposed to occur between 50 -100 feet away from any resource area [except a Certified Vernal Pool], the applicant may file a Request for Determination of Applicability [RDA]. If an RDA is filed, the Commission may permit, with any necessary conditions, the work based on the plans submitted, or can require the filing of a Notice of Intent. Proposed: It is presumed that work which is proposed to occur within any resource area or within the buffer zone of any resource area has the potential to create significant adverse impacts on the resource area. Therefore, any activity proposed to occur within the resource area or the buffer zone area which may remove, fill, dredge, build upon, or alter the resource area within the jurisdiction of this By -Law will require a written application to be filed with the Conservation Commission by submitting a Notice of Intent [N01] application. Ms. Merrill said this was changed because it is the scope of the proposed work, not the distance to the resource area. So the language regarding "50 -100 feet from any resource area" will be removed. 3.1 Any person desiring to know whether or not proposed work or an area is subject to this By -Law may file a Request for Determination of Applicability [RDA). If an RDA is filed, the Commission may permit, with any necessary conditions, the work based on the plans submitted, or can require the filing of a Notice of Intent. 3.2 Any person desiring to certify, for the purpose of this By -Law, the limits of resource areas on a site, may file an Abbreviate Notice of Resource Area Delineation [ANRAD]. 3.3 All applications shall contain data and plans as specified by the regulations of the Conservation Commission promulgated pursuant to this By -Law. 3.4 The Commission may condition any proposed activity to protect the resource area(s), or if no condition exists to protect the area, then the Commission may deny the project. Ms. Merrill said this language is standard for a number of towns. Mr. Hobaica asked if an Applicant proposing work within a resource area, requiring a Notice of Intent (N01), a Request for Determination of Applicability (RDA) could be filed first. Ms. Merrill said any filing with these activities would require an N01 be filed; she noted the RDA process is not a permit, but a determination to review a proposed project to determine if the Wetland Protection Act applies to the work. It is not the proximity of the resource areas to the work but whether the proposed work falls under the jurisdiction of the Wetland Protection Act. Mr. Turnbull said anyone can file an RDA to determine if a Notice of Intent is necessary for the work proposed. Mr. Turnbull made the motion to submit Warrant Article #4 as drafted for the warrant for the annual 2015 Town Meeting. Mr. Marcheselli seconded the motion. Motion passed 6 -0 -0. Article 5: Transfer of Land. Ms. Merrill explained this is a 1.3 -acre parcel of undeveloped land the town has taken for tax title. She said the Rumford River runs along the western boundary and all the land is within Riverfront with most of the parcel within the Buffer Zone of Bordering Vegetated Wetlands. There is very limited access to South Main Street. The land is currently under the care and control of the Selectmen and the town is asking to transfer the land to the Commission. The land is surrounded by other parcels of land under the control of the Conservation Commission and would provide potential access to the Great Woods. Mr. Turnbull made the motion to submit the proposed Warrant Article 45 as drafted for the warrant for the annual 2015 Town Meeting. Mr. Marcheselli seconded the motion. Motion passed 6 -0 -0. Article 1 Conscom: Amend Town of Mansfield Wetland Protection Bylaw to Add New Section 8: Variance: To see if the Town will vote to amend Chapter 15 of the General By -Laws, Town of Mansfield Wetland Protection By -Law, to add a new Section 8: Variance. SECTION 8: VARIANCE Ms. Merrill said her intention for recommending a variance procedure is to strengthen the dependability of the By -Law. She explained a variance procedure is not a waiver for the standard private, industrial, or commercial projects, variances are specifically for rare and unusual circumstances and are not to be granted for the purposes of profit. She said there are specific criteria of which a variance can be granted and there is a very detailed, in- depth application, with the requirement that an Alternative Analysis be submitted. She said a variance allows for the Commission to review and give an applicant relief if a project cannot meet all performance standards set forth in the By -Law. 8.1 The Commission, at its discretion, may grant variance from strict compliance with this Wetland By -Law. Such variances shall be granted only in rare cases and only in accordance with the provisions of Section 8. 8.2 A variance may be granted only for the following reasons and upon the following conditions: 1. The Commission finds that there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the performance standards in these Regulations. Ms. Merrill said it is the responsibility of the applicant to prove all the reasons to grant the variance. 2. Mitigating measures are proposed that will allow the project to be conditioned so that it contributes to the protection of the resource values identified in this Wetland By -Law. Ms. Merrill said the mitigating measures would be a net environmental benefit. 3. The variance is necessary to avoid a decision that is so restrict the use of the property that is constitutes as unconstitutional taking without compensation. 4. The variance is necessary to accommodate an overriding community, regional, state, or national public interest. In the case of owner occupied single or two family residences, mitigation which improves the resource area quality may be considered to accommodate the public interest. Ms. Merrill said the By -Law is stricter than the Wetland Protection Act, which has a similar variance procedure. She said most people do not apply for a variance because the conditions under which a variance would be granted are very hard to prove. As part of the variance process, a very detailed application and an Alternative Analysis would be submitted to show alternatives for the project, the benefits, any type of impact, and mitigations; essentially the applicant would be submitting an Order of Conditions. Because there is no built -in relief within the By -Law, she said in rare cases where there would be a land taking, a variance would allow a case to be defended in court. ADD INFO ABOUT TAKING Mr. Healey said a variance process, from a legal standpoint, would give the Commission and the town protection from an Applicant because the town took the value of their land and they were no longer allowed to build. Mr. Turnbull commented a variance is allowed under the Wetland Protection Act, 310 CMR, which is currently not allowed under the By -Law. He said 8.2 would establish the reasons an applicant would file for a variance and provides a defense in case of litigation. Ms. Merrill said there would be a separate application and fee associated with a variance and the Alternative Analysis would have to be submitted. To safeguard against a variance being issued without a meeting, the applicant would have to meet the four standards are set forth in 8.2. She said she does not want anyone to feel the variance process will weaken the By -Law; in her professional experience, a variance is a legal tool to defend an appeal and back up the local By -Law and would give the town more control over an appeal. Ms. Merrill said there would be a separate application and fee and an Alternative Analysis would have to be submitted to safeguard against a variance being issued without meeting the four conditions set forth in 8.2. Ms. Merrill will have draft regulations regarding the variance and application procedure along with a fee schedule prior to Town Meeting. Mr. Marcheselli said he was concerned that once an Applicant has demonstrated that there are no other alternatives, but there will be no adverse impacts to the resource area, and the request is denied simply because the project will be within the 25 -foot No Disturb Zone, the applicant would appeal the decision. Ms. Merrill said the reason for a variance process is that upland and easement lots are now being developed. She said allowing a variance process would not weaken the By -Law and that in her professional experience, a variance is a legal tool to defend an appeal and back up the local By -Law. 8.3 Alternatives Analysis 1. Any project proponent seeking a variance must demonstrate that the project results in no adverse impacts to the interest defined under the Mansfield Wetlands Protection By -Law and that no feasible alternatives exist. To demonstrate there are no feasible alternatives and that the proposed project will result in no adverse impact to wetland resources, an Alternatives Analysis must be submitted as part of the variance request. The purpose of the Alternatives Analysis is to locate activities so that impacts to resource are minimized or avoided. Therefore, the Alternatives Analysis shall focus on the assessment of impacts from the alternatives considered. 2. Guidelines: The scope of alternatives to be considered will be commensurate with the type and size of the proposed project. 3. The Alternatives Analysis must include the following: a) a brief, clear description of the project including the type, size and proposed use of project(s) and project objective; b) a summary of alternatives to the proposed project; c) a summary of potential environmental benefits of the project; d) a summary of potential environmental impacts of the project; e) a list of any mitigation measures for the project; f) a timetable, approximate cost and the methods and timing of construction of the project. 4. Alternatives to the Project: Alternatives shall be considered in terms of the proposed use and objectives of the Project. The analysis of alternatives shall highlight the potential differences of environmental impacts. This includes both short-term and long -term impacts as well as cumulative impacts. 5. Examples —The following are examples of the scope of alternatives for various projects. a) Single family house project — The scope of alternatives shall be limited to the lot on which work is proposed. b) Residential Subdivisions — The scope of alternatives shall be limited to the original parcel and the subdivided parcels, adjacent parcels and adjacent parcels that can be reasonably obtained. c) Commercial Development — The scope of alternatives shall be lots that can accommodate the project purpose, appropriately zoned, available for sale, within the Town at the time of application or if no such lot exists, the lot located in the market area that meets all other specifications. Public Comment: Mr. Michael Trowbridge with Hutchins- Trowbridge Associates, Inc. noted he has worked in Mansfield as well as other towns for 37 years and has never applied for a variance from DEP regulations. He said he always tries to find an alternative way to present a project. He said he reviewed the MACC and Cape Cod Commission's model By -Laws and both these organizations are very strict and have some type of variance or waiver application in their model By -Law. He noted town boards and committees have a variance process. He said an applicant can appeal to DEP under their regulations but if a local By -Law does not have a waiver or variance process, this would put a town in a very difficult position because if a project meets the state's regulations but not the town's, it is not the state doing the taking, so the Town of Mansfield would be responsible. Mr. Cauldwell said a taking is misunderstood; it is not a taking unless you take the total value of the property. He said when the town doubled the zoning size of land from 30,000 to 60,000 square feet, there were lots that immediately became unbuildable; these lots were not takings according to the Supreme Court. Mr. Turnbull said in his job, he works in rights of way and they take partial takings for the highway, even if you take 100 square feet of land, you have the right to 100% compensation. Mr. Cauldwell said 100% compensation is given only if you take ownership of the land. Mr. Marcheselli said if there is no feasible alternative and the applicant has proven there is not impact to the resource areas, without a variance process in place, the landowner is forced to appeal to the Supreme Court. Mr. Cauldwell said though he understands and does not disagree with Mr. Marcheselli's concerns, he feels there are problems with the language, potential interpretation and the use of a variance process. Ms. Merrill said the language is from other towns that have a variance process in place that works very well. Mr. Cauldwell said the Town of Mansfield has twice passed the current By -Law, that calls for certain conditions and the variance process could potentially be a way to circumvent the By -Law. He said the dynamics of the board could change; the board could be politically motivated or completely dominated by development interests. He suggested adding an appeal process so a third party could appeal any approved variance; presently you can only appeal to DEP, not to the Commission. He said the Commission is adjudicating their own rules on the basis of the By -Law and then issuing variances to the rules. He said in 30 years the Commission has had to defend the By -Law in court once and attend an adjudication hearing at DEP. Ms. Merrill said the intentions of the Wetland Protection Act and the local By- Law are that there will be no adverse impacts to jurisdictional resource areas. She said the regulations should be made as specific as you can because you are going to have varying administrations, boards and staff. Mr. Cauldwell said the language in 8.2, Condition #1 can be misinterpreted that pre- supposes that the project should go forward. He said it clearly states that the project is more important than the By -Law. He said additional language should be added to Condition #1 that states the eventuality that the project should never go forward Mr. Lou Andrews said the language is not clear that an Applicant must meet all the conditions in 8.2, it is ambiguous; it should be made clear that you have to meet all the conditions. Mr. Andrews asked how the Commission would determine whether you are restricting the use of the property in such a way that it is a taking. Ms. Merrill said there would be an application process with the information necessary to go forward with a variance process. Mr. Trowbridge stated that the Mansfield Conservation model policy uses the same proposed wording in 8.2 Condition #1 as the Cape Cod Commission's policy and MACC. Mr. Marcheselli said an applicant has the opportunity to go before the Planning Board and the Zoning Board of Appeals for a variance, but the Conservation Commission does not have a variance process in place. He said any appeal would eventually end up in court. He feels, to protect the Commission and the town, it is wise to have a variance process. Jane Southard, 15 Old Elm Street, asked if a variance is granted, does a third party have the right to appeal the decision if it is detrimental to the environment. Ms. Merrill said any owner of land abutting the property or ten concerned citizens can appeal to the Supreme Court. Ms. Merrill said she understands the concerns but what is being proposed will make the By -Law a stronger document that is defendable in court. She said if anyone has any ideas or ways to safeguard against misuse of the variance process or any changes or additional language to the process, to please let her know. Mr. Cauldwell suggested putting a time frame (sunset provision), such as two years, for the Variance so if it is misused, becomes evident it is not needed or just needs to be amended, there will a "date certain ". The Commission agreed the Variance can be repealed at any Town Meeting. #2. Guidelines: The scope of alternatives to be considered will be commensurate with the type and size of the proposed project. Mr. Cauldwell asked that type of the proposed project be better defined. The word "and" shall be added to the 8.2 title. In 8.2, a variance may be granted only for the following reasons and upon the following conditions should be changed to the following. A) a, 1. The Commission finds that there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the performance standards in these Regulations. 2. Mitigating measures area proposed that will allow the Commission to set conditions on the project so that it contributes to the protection of the resource values identified in this Wetland By -Law. 3. The variance is necessary to avoid a decision that so restricts the use of the property that it constitutes as an unconstitutional taking without compensation. M 4. The variance is necessary to accommodate an overriding community, regional, state, or national public interest. In the case of owner occupied single or two family residences, mitigation which improves the resource area quality may be considered to accommodate the public interest. Mr. Turnbull made the motion to submit proposed Article 1 as drafted for the warrant for the annual 2015 Town Meeting. Mr. Rieth seconded the motion. Motion passed 6 -0 -0. 2.3 No changes proposed 2.4 No changes proposed 2.5 No changes proposed Article 3 Conscom: Amend Wetland Protection Bylaw, Section 2.6: To see if the Town will vote to amend Chapter 15 of the General By -laws, Town of Mansfield Wetland Protection Bylaw, Section 2.6. Ms. Merrill said Section 2.6 of the By -Law safeguards wildlife within the 0 -100 feet of a Certified Vernal Pool and wetlands identified by the state as a habitat of state - listed species. She suggested the wording "site visits by Natural Heritage" be removed from the By -Law because as a rule, Natural Heritage does not do site visits. She said there are jurisdictional issues with the definition of "significant habitat area ". She said MESA does not define significant habitat. There are two types of classification: Priority Habitat, upland area and Estimated Habitat, lowland (all Estimated is Priority but not all Priority is in Estimated Habitat). She said MESA mapping of NHESP is a reference that they have creditable evidence that the site is used by state - listed species and the applicant needs to be sure the project does not impact the area for habitat purposes. She said Vernal Pools are under the jurisdiction of DEP not Natural Heritage. Natural Heritage certifies Vernal Pools but there are no regulations on Vernal Pools but they have jurisdiction over state - listed species. She said because the MESA data could be 25+ years old, it should be written that you do a current review of the specific Estimated site, and if habitat is present, then the 0 -100 feet is warranted. Mr. Turnbull said you look at the overlay maps, send in a letter of request to NHESP who will determine if there is an impact; if so, you set the Vernal Pool boundary. Currently: 2.6 Notwithstanding the provision of Sections 2.4, 2.5 and 2.7, no activity, associated with the construction of new subdivisions (including roadways, drainage or utility systems, or individual homes] or commercial /industrial projects, shall be performed within 100 feet of any certified Vernal Pool, or any wetland which is identified by the State as the habitat site of a state - listed species. If an addition to an existing residential structure is proposed within 100 feet of a certified Vernal Pool, the Commission will review this activity on a case -by -case basis, and issue conditions necessary to provide for maximum protection to the pool in question, or deny the project if no conditions are satisfactory to protect the pool. Amended: July 2012 If the 100 -foot radius around such a Vernal Pool or wetland area intersects an existing public roadway, then work may be allowed, through an Order of Conditions, by the Commission to occur within the 100 -foot radius as long as the proposed work area is on the opposite side of the street from the pool or wetland area. If the State's Natural Heritage Program determines through a site visit that the Vernal Pool or wetland area is not a significant habitat area, or If the applicant demonstrates through a wildlife study performed by a qualified consultant approved by the Commission that the Vernal Pool or wetland area is not a significant habitat area, then the Commission may allow, through an Order of Conditions, activity to occur within 100 -feet of said Vernal Pool or wetland area. Proposed: 2.6 Notwithstanding the provision of Sections 2.4, 2.5 and 2.7, no activity, associated with the construction of new subdivisions [including roadways, drainage or utility systems, or individual homes] or commercial /industrial projects, shall be performed within 100 feet of any certified Vernal Pool, or any wetland which is identified by the State as the habitat site of a state - listed species. If an addition to an existing residential structure is proposed within 100 feet of a certified Vernal Pool, the Commission will review this activity on a case -by -case basis, and issue conditions necessary to provide for maximum protection to the Vernal Pool in question, or deny the project if no conditions are satisfactory to protect the Vernal Pool. nw..+.+ded; j i„ ,m,; If the 100 -foot radius around such a Vernal Pool or wetland area Intersects an existing public roadway, then work may be allowed, through an Order of Conditions, by the Commission to occur within the 100 -foot radius as long as the proposed work area is on the opposite side of the street from the Vernal Pool or wetland area. If t,.. StateLg Nat• Fal HeFotaoe P.,......... det,.Fmines through a site visit that the Vernal Poel eF wetland aFea is not a significant habitat aFea, eF NHESP will NOT do a site vis; ff the applicant demonstrates through a wildlife study performed by a qualified consultant approved by the Commission that the Vernal Pool or wetland area is not a significant habitat area, then the Commission may allow, through an Order of Conditions, activity to occur within 100 -feet of said Vernal Pool or wetland area. 2.7 No changes proposed Current: SECTION 3: ACTIVITIES WITHIN RESOURCE AREAS AND ADJACENT BUFFER ZONES It is presumed that work which is proposed to occur within any resource area or within the buffer zone of any resource area has the potential to create significant adverse impacts on the resource area. Therefore, any activity proposed to occur within the resource area or the buffer zone area will require the filing of a Notice of Intent application. The Commission may condition the proposed activity to protect the resource area(s), or if no condition exists to protect the area, then the Commission may deny the project. For activity proposed to occur between 50 -100 feet away from any resource area [except a Certified Vernal Pool), the applicant may file a Request for Determination of Applicability [RDA). If an RDA is filed, the Commission may permit, with any necessary conditions, the work based on the plans submitted, or can require the filing of a Notice of Intent. Proposed: It is presumed that work which is proposed to occur within any resource area or within the buffer zone of any resource area has the potential to create significant adverse impacts on the resource area. Therefore, any activity proposed to occur within the resource area or the buffer zone area which may remove, fill, dredge, build upon, or alter the resource area within the jurisdiction of this By -Law will require a written application to be filed with the Conservation Commission by submitting a Notice of Intent (NO1) application. 3.1 Any person desiring to know whether or not proposed work or an area is subject to this By -Law may file a Request for Determination of Applicability [RDA). If an RDA is filed, the Commission may permit, with any necessary conditions, the work based on the plans submitted, or can require the filing of a Notice Of Intent. 3.2 Any person desiring to certify, for the purpose of this By -Law, the limits of resource areas on a site, may file an Abbreviated Notice of Resource Area Delineation (ANRAD). 3.3 All applications shall contain data and plans as specified by the regulations of the Conservation Commission promulgated pursuant to this By -Law. 3.4 The Commission may place conditions on any proposed activity to protect the resource area(s), or if no condition exists to protect the area, then the Commission may deny the project. Mr. Turnbull made the motion to submit proposed Article 3 as draft for the warrant for the annual 2015 Town Meeting. Mr. Marcheselli seconded the motion. Motion passed 6 -0 -0. SECTION 4: (4.1 -4.4) ADMINISTRATION — No changes proposed SECTION 5: (5.1 -5.2) FEES AND BONDING — No changes proposed SECTION 6: BURDEN OF PROOF — No changes proposed SECTION 7: SEVERABILITY— No changes proposed Mr. Marcheselli made the motion to adjourn at 11:00 pm. Mr. Turnbull seconded the motion. Motion passed 6- 0-0. Michael Healey, Chai Date