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1995-1997-TOWN MEETING RECORDS
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1995-1997-TOWN MEETING RECORDS
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12/19/2023 4:03:42 PM
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Mashpee_Meeting Documents
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TOWN MEETING
Meeting Document Type
Minutes
Meeting Date
12/31/1997
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Commission. Said certification may include conditions and/or <br /> limitations deemed necessary to protect the wetlands values of <br /> Chapter 172. <br /> Failure to comply with the provisions of this section of Chapter 172 shall be due cause to <br /> enforcement as per section 11. <br /> a <br /> 1 Emergency repairs remain permissible pursuant to section 3.0 <br /> The Commonwealth, by statute,provides for wetlands protection in G.L. c. 131, § 40,the <br /> Wetlands Protection Act. "When a municipality adopts a by-law or ordinance that is consistent C <br /> with the Wetlands Protection Act, but that imposes more stringent controls than the standards <br /> set by the Legislature,the local requirements trumps what is required under G.L. c. 131, § 40." <br /> T.D.J. Development Corn v Conservation Commission of North Andover, 36 Mass. App. Ct. <br /> 124, 126 (1994) (emphasis added). For example, T.D.J. upheld a town's by-law that regulated <br /> all activity within the buffer zone,not just activity that would"alter"the wetlands area, as <br /> provided for in the Wetlands Protection Act. <br /> ' I <br /> The issue is whether or not the proposed by-law is inconsistent with the Wetlands <br /> Protection Act, or merely an imposition of more stringent controls. The very first paragraph of <br /> the Wetlands Protection Act states that: <br /> No person shall remove, fill, dredge or alter . . . other than in the course of <br /> maintaining,repairing or replacing, but not substantially changing or enlarging, an <br /> existing and lawfully located structure or facility used in the service of the public <br /> and used to provide electric, gas,water,telephone,telegraph and other <br /> telecommunications services, without filing written notice of his intention to so <br /> remove . . . and without receiving and complying with an order of conditions. . .' <br /> Thus,under the state law, a utility company may repair or replace an existing utility structure or <br /> facility without filing notice or obtaining an order of conditions. The intent of this exception is <br /> to further the state policy requiring uniform regulation of public utilities. A requirement that a <br /> utility give written notice, a month in advance, obtain"certification,"and comply with <br /> conditions, is inconsistent with expressed state policy to regulate such utilities uniformly. <br /> The state policy requiring uniform treatment of utilities has recently been upheld in two <br /> slightly different contexts in Boston Gas Company v. Somerville, 420 Mass. 702, 704 (1995), <br /> and Planning Board of Braintree v Department of Public Utilities,420 Mass. 22,27 (1995). <br /> Last summer the Supreme Judicial Court held that a Somerville ordinance--requiring utilities to <br /> comply with various local requirements before opening streets to make repairs --was preempted <br /> ' The original wetlands act was enacted in 1965;the Legislature added the exemption <br /> for utility repairs in Acts 1974, c. 818, § 1. <br /> 2 <br />
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