1986-1999-ZONING BY-LAWS (2) - Laserfiche WebLink

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i i I 1. Written notice, including a complete description of the work to be done, has been provided to the Commission at least one month prior to commencement of the work. 2. The Commission has issued written certification that the work conforms to performance standards in regulations adopted by the Commission. Said certification may include conditions and/or limitations deemed necessary to protect the wetlands values of Chapter 172. Failure to comply with the provisions of this section of Chapter 172 shall be due cause to enforcement as per section 11. 1 Emergency repairs remain permissible pursuant to section 3.0 The Commonwealth, by statute,provides for wetlands protection in G.L. c. 131, § 40,the f Wetlands Protection Act. "When a municipality adopts a by-law or ordinance that is consistent with the Wetlands Protection Act, but that imposes more stringent controls than the standards set by the.Legislature, the local requirements trumps what is required under G.L. c. 131, § 40." T.D.J. Development Corp. v.Conservation Commission of North Andover, 36 Mass. App..Ct. 124,126 (1994) (emphasis added). For example, T.D.J. upheld a town's by-law;that regulated all activity within the buffer zone,not just activity that would"alter"the wetlands area, as j provided for in the Wetlands Protection Act. I The issue is whether.or not the proposed by-law is inconsistent with the Wetlands j Protection Act, or merely an imposition of more stringent controls. The very first paragraph of the Wetlands Protection Act states that: No person shall remove, fill,dredge or alter . . . other than in the course of maintaining,repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas,water, telephone,telegraph and other !. telecommunications services, without filing written notice of his intention to so ! remove. . . and without receiving and complying with an order of conditions. . .' h ii I Thus,under the state law, a utility company.may repair or replace an existing utility structure or facility without filing notice or obtaining an order of conditions. The intent of this exception is to further the state policy requiring uniform regulation of public utilities. A requirement that a ' The original wetlands act was enacted in 1965; the Legislature added the exemption for utility repairs in Acts 1974, c. 818, § 1. 2 r j