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

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jl §40,provides for a similar state purpose: uniform and efficient public utility service.' A review of some of the individual cases that have discussed local wetlands by-laws provisions in contrast to the requirements of the Wetlands Protection Act helps distinguish . instances when a local by-law is merely more stringent than state law from situations, such as this,in-which the local by-law is inconsistent with the principal purpose of a uniform state law. In Southern New England Conference of Seventh-DU Adventists v Burlington, 21 Mass. App. Ct. 701 (1986),the court upheld the local by-law's establishment of a wetlands district that included within it land that would not be "wet"under the definitions in the Wetlands Protection Act and the regulations adopted by the then specified state agency. Southern New England Conference also rejected a church's claim that,because it was exempt from localzoning under G.L. c. 40A, § 3, it was exempt from local wetlands regulation. However;the court contrasted the treatment of agricultural and religious uses in G.L. c. 40A. § 3. and c. 131, § 40: [These sections of both acts] dealing with the preservation of agricultural uses . . . appear to reflect a desire on the Legislature's part to strike a balance between competing preservation policies (i.e.,those of conserving agricultural lands while preserving wetlands). These laws appear to insure minimum regulation of agricultural lands but render encroachment of these lands onto wetlands subject to j ;Stalle scrutiny. There is no similar exemption [in c. 131, § 40] for religious uses. { Southern New England Conference, 21 Mass. App. Ct. at 707 n. 7. Utility repairs, like agriculture, but unlike religious uses, are exempted in both G.L. c. 40A, § 3, and in c. 131, § 40. In Lovequist v. Conservation Commission of Dennis, 379 Mass. 7 (1979), a local wetlands by-law was argued to be inconsistent with the Wetlands Protection Act because the Act in the Wetlands Protection Act reinforces the conclusion that public utilities are totally exempt from local wetlands regulation, albeit only for maintenance, repair or replacing existing facilities or structures. ' The new Rivers Act, enacted by the Legislature as Acts 1996, c. 258, amends the I Wetlands Protection Act provides new protection for"riverfront area,"which terms includes land within 200 feet from a river. G.L. c. 131, § 40,¶ 15. "Nothing in the act shall be construed to compromise or in any way diminish the protections and exemptions provided for in [G.L. c. 131, §40] and the regulations promulgated thereunder; and provided further,that such protections and exemptions shall extend to the riverfront area as defined in this act." This language extends the Public utilities exemption to the riverfront area. 4 l