4.13 Waivers
The Commission shall have the power to issue a waiver to an applicant requesting to perform activities as described in section 1.1 of this Town of Sturbridge Wetland Bylaw Regulation, after said applicant files a Notice of Intent with The Commission and The Commission conducts a public hearing. Such waiver shall be set forth by the issuance of an Order of Conditions by the Commission. In order for the Commission to issue a waiver with respect to a particular project, the Commission must find, based on clear and convincing evidence set forth by the applicant, that owing to circumstances relating to soil conditions, hydrological conditions, topography of such land and especially affecting such land but not generally affecting wetlands within the town, a literal enforcement of the provisions of this bylaw would
involve substantial hardship, financial or otherwise, to the applicant, and that desirable relief may be granted without detriment to the values protected by the town wetland bylaw and these regulations and without substantially derogating from the extent or purpose of the town wetland bylaw and these regulations.
A waiver (as stated above) to the 50-foot no build and the 25-foot no disturb buffer, may also be granted to applicants under the following circumstances: the area is previously disturbed and the proposed project will improve the protection to the resource area; or, the applicant can prove with documented evidence that there are no other substantially equivalent alternatives available. Said applicant must show that measures will be incorporated into the project to ensure that there will be no negative impact to the resource area and must provide additional layers of protection equivalent to the value of the resource buffer being altered.
Single family homes, existing prior to the adoption of these regulations, on small, lake-front, lots, may, on a case-by-case basis be granted a partial waiver from the 25-foot and 50-foot buffer requirements. Granting of a waiver will be based on the minimum criteria noted in Chapter 1, Section 1.
4.14 EMERGENCIES
The permit and application required by this bylaw regulation shall not apply to emergency projects necessary for the protection of the health and safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the Commonwealth or the Town of Sturbridge, provided that notice, oral or written, is provided to the Conservation Commission prior to commencement of work or within 24 hours after commencement, provided that the Conservation Commission certifies the work as an emergency project, and provided that the work is performed only for the time and place certified by the Conservation Commission for the limited purposes necessary to abate the emergency, and provided that protective measures required by the Conservation Commission are complied with, and provided that
within 21 days of the commencement of an emergency project, a permit application shall be filed with the Commission for review as provided by this bylaw. (See section 1.3 of these regulations). Such notice shall state the name of the person performing the work, the name of the property owner (if different), the property and the location on the property where the work is to be performed, the exact nature of the emergency and of the work which is to be performed, and when the work was begun and when it is expected to be completed. The Commission may, at its discretion, conduct a site visit to view the work being performed under such notice and to confirm that the information in the notice is correct.
Other than stated in this section the exceptions provided in the Massachusetts Wetlands Protection Act shall not apply.
Any person requesting permission to do an emergency project shall specify why the project is necessary
for the protection of the health or safety of the citizens of the Town of Sturbridge and what agency of the
town is to perform the project or has ordered the project to be performed.
A single Commissioner can act on a request for emergency certification, with the verbal approval of at least two other Commissioners. The full Commission will review the emergency certification within 21 days of issuance and ratify the certificate and take such other action as it deems appropriate.
Any work undertaken as an emergency activity shall be completed within 30 days from the commencement of such work unless written approval for a later completion date is given by the Commission.
No work shall be allowed within estimated habitat which is indicated on the most recent Estimated Habitat Maps of State-Listed Rare Wetlands Wildlife published by the Natural Heritage and Endangered Species Program of the Massachusetts DEP of Fisheries, Wildlife, and Environmental Law Enforcement without express consent of both NHESP and the Commission, unless in the best professional judgment of the Commission or it’s agent that significant and irreparable damage will occur to said habitat without immediate intervention and correction of the emergency situation.
4.15 APPEALS TO THE DEP AND MASSACHUSETTS SUPERIOR COURT
Those aggrieved of the Commission’s actions (decision to issue a positive or negative Determination of Applicability, an Order of Conditions, or other permit positive or negative, identification of the Scope of Alternatives for work within the riverfront area, or the failure of a Conservation Commission to either obtain an extension or take action on an application requiring a posted public hearing within 21 days of submittal) based on the State Wetlands Protection Act or the State Riverfront Protection Act, may, within ten days, request the DEP to issue a Superceding Determination of Applicability or Order of Conditions. A Superceding Order from DEP does not negate the local bylaw aspect of the Conservation Commission’s permit.
Those aggrieved of the Commission’s actions (decision to issue a positive or negative Determination of Applicability, an Order of Conditions, or other permit positive or negative, identification of the Scope of Alternatives for work within the riverfront area, or the failure of a Conservation Commission to either obtain an extension or take action on an application requiring a posted public hearing within 21 days of submittal) based on local bylaw requirements, may, within sixty days, contest the Commissions decision with Massachusetts Superior Court.
The following persons may request an appeal from the DEP or Superior Court:
1. the applicant;
2. the owner, if not the applicant;
3. any person aggrieved by an Order;
4. any owner of land abutting the land on which the work is to be done;
5. any ten residents of the city or town where the land is located;
6. the Conservation Commission;
7. the Department of Environmental Protection.
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