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FLOOD INSURANCE
F E MA-F I&HM-1 1979 American Red Cross Federal Insurance& Hazard Mitigation, Federal Emergency Management Administration (Printed by the U.S. Department of Housing and Urban Development) You live ina flood prone area... American Red Cross b � S y a public service message from your Red Cross Chapter in cooperation with The Federal Emergency Management Administration You live in a flood prone area... Because you live in a flood prone com- It is available from your local property munity, you should have Federal flood in- insurance agent or broker at a reasonable surance coverage. cost—as low as 25C per $100 for residen- In the event of a flood, you would be tial coverage and 350 per $100 for con- covered for flood-related damage to your tents. home or business. Besides offering low cost flood in- If you don't have flood insurance you surance, the National Flood Insurance would have to buy it before receiving any Program also requires participating com- munities to limit development in areas Federal disaster assistance. where flooding could occur. The best time to buy flood insurance is As a matter of fact, you cannot buy now. If you have insurance before a flood flood insurance unless your community is you don't have to worry about repaying taking corrective and preventive steps to Federal disaster loans. Your losses could reduce future flood losses. be covered by the insurance. Of course, during the emergency Support your community in this effort. .period, the Red Cross will help flood vic- tims with temporary shelter, food, FOR FURTHER INFORMATION ON clothing and medical services. FLOOD INSURANCE CALL TOLL Whether you are a homeowner, a renter FREE (800) 424-8872 or 8873 or business owner, you should buy flood insurance to protect your property and your life's investment. NATIONAL FLOOD INSURANCE PROGRAM FLOOD INSURANCE RATE MAPS TOWN OF "013rry WEST EST AGAWAM, ST sOUTr+ ST MASSACHUSETTS P Lilt $r�k250 33 0001 Hole HAMPDEN COUNTY I/yS 5 SOUTHWicK 3T ST SS W�ST�SE'° INDEX TO MAP PAGES SOUT+i Bro° 1 THROUGH 2 Phl10 PAGES PRINTED: 1, 2 Robinson Silver State Park Lake AREA NOT Bivzl SUFFrELp INCLUDED ST COMMUNITY-PANEL NUMBERS Worthington 250133 0001-0002 roo Threemi e Connecticut 250133 0002 b EFFECTIVE Riyeie F1=BRUARY 1, 1978 gµexr pq 0 COMMUNITY-PANEL NUMBER w*IIIIIIII a �3n30 pya U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION : KEY TO MAP 500-Year Flood BoundaryT 100-Year Flood Boundary- -- - Zone Designations'*With Date of Identification e.g.,12/2174 100-Year Flood Boundary- —� 500-Year Flood Boundary Base Flood Elevation Line 513 ELEVATION REFERENCE MARKS With Elevation In Feet** Base Flood Elevation in Feet (EL 987) REFERENCE ELEVATION Where Uniform Within Zone** MARK (FT.NGVD) DESCRIPTION OF LOCATION Elevation Reference Mark RM7x RM12 178.78 Center of Southwest concrete post at Pine Street Bridge. (TBM no. 10) River Mile •M1.5 RM13 214.60 Rim of small hole in center of top of state-line monument,located **Referenced to the National Geodetic Vertical Datum of 1929 at the intersect-Ion of Barry and South Westfield Streets on the northeast side. (BM 214.60) *EXPLANATION OF ZONE DESIGNATIONS ZONE EXPLANATION A Areas of 100-year flood; base flood elevations and flood hazard factors not determined. �-----f� ��� AO Areas of 100-year shallow flooding with depth from 1 it (feet t per product second)of flood depth (feet) and Al -A30 Areas of 100-year flood; base flood elevations and __,CORPORATE LIMITSflood hazard factors determined. � �� """ — — r A99 Areas of 100-year flood to be protected by a flood HARTS POND _ �� protection system under construction; base flood elevations and flood hazard factors not determined. 4 8 Areas between limits of ]00-year flood and 500-year l flood; or areas of 100-year shallow flooding with depth less than 1 foot.(Medium shading) C Areas of minimal flooding. (No shading) D Areas of undetermined, but possible, flood hazards. — V Areas of 100-year coastal flood with velocity (wave l action); base flood elevations and flood hazard factors not determined. Q d Vo Areas of 100-year shallow flooding with velocity; depth from 1 to 3 feet; product of depth (feet) f _ and velocity (feet per second) more than 15. \ V1 -V30 Areas of 100-year coastal flood with velocity (wave \\ � action); base flood elevations and flood hazard factors determined- 1 O Q NOTES TO USER Certain areas not in the special flood hazard areas(zones A and V) may be protected by flood control structures. T� LLEONARDPOND N �� �y� SJfk 'cT This map is for flood insurance purposes only; it does not neces- J7 0 \ sarily show all areas subject to flooding in the community or 4r all planimetric features outside special flood hazard areas. F n , For adjoining map panels, see separately printed index To Map w m 7- N i Panels. cc O NO�C F N STREET O F INITIAL IDENTIFICATION x X 0 w FEBRUARY 8, 1974 LIMIT OF G v O G STUDY ED m 1 CONVERSION TO REGULAR PROGRAM O P a O FEBRUARY 1, 111711 o >> y z 171 p G r m o 1s7 zID O m m rrl a: E„ r O w u C ��4ril � �7E I- c� m d Tributary to Still Brook o m C: Q p r m� x m sn r' x � O 6 7 O � ' AR ECG er� f ST + O ➢ 57 Z II O �� G O r Z I r6y m x m o ZONE C I NICKOR�' 7� O sT RM12 33 187 Consult NFIA servicing company or local insurance agent or broker to determine if properties in this community are eligible for flood insurance. ZONE A2 211178 r SOUTH Robin AO oTScat©ED Park �\� APPROXIMATE SCALE \� I 800 0 800 FEET :........ . QO 0 �. NATIONAL FLOOD INSURANCE PROGRAM f RM 13 TAYLOR PONDO CD / Brook O 11 FLOOD INSURANCE RATE MAP TOWN OF I a AGAWAM, aac Q�tilcD 13001r. MASSACHUSETTS OO vahtle — HAMPDEN COUNTY COMMUNITY-PANEL NUMBER I iZ O 250133 0001 A Io�r _J Q z 0 0`` y� �o P PAGE I OF 2 T- y \ (SEE MAP INDEX FOR PAGES NOT PRINTED) r SAR/�C� O iu O Q \ EFFECTIVE ir 14r FEBRUARY 1, 1978 O Sn S � �jy,ExT OF BOWLES-AGAWAM AIRPORT l SW, IIIIIIII '�3�3a yea U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION - - - - .i - - O \ KEY TO MAP 500-Year Flood Boundary I Robinson State Park 100-Year Flood Boundary I AREA NOT INCLUDED Zone Designations'*With Date of Identification e.g:,12f2/74 oPal- S 100-Year Flood Boundary —� A9'Nc ! 500-Year Flood Boundary - r �0 Base Flood Elevation Line 593- With Elevation In Feet** r- Base Flood Elevation in Feet (EL 987) m �u St Where Uniform Within Zone** fi �00 �' �gpCF ti'C+y -10O Elevation Reference Mark RM7X 9 IIETNAM VETERANS River Mile •M 1.5 MEMORIAL BRIDGE S� **Referenced to the National Geodetic Vertical Datum of 1929 *EXPLANATION OF ZONE DESIGNATIONS $� 00 � 57 c00 M FFT �4� ZONE EXPLANATION tu O ��{ AIR T A Areas of 100-year flood; base flood elevations and co / flood hazard factors not determined. AG Areas of 100-year shallow flooding with depth from <1 1 to 3 feet; product of flood depth (feet) and ZONE A16 S� velocity (feet per second) less than 15. O v 211178 \ I CD Al -A30 Areas of 100-year flood; base flood elevations and WINTHROP flood hazard factors determined. O STREET RM9 Q 65 I ' 4 A99 Areas of 100-year flood to be protected by a flood protection system under construction; base flood elevations and flood hazard factors not determined. rS gyp, B Areas between limits of 100-year flood and 500-year SUFFIELD 75 Q flood; or areas of 100-year shallow flooding with STREETL depth less than 1 foot. (Medium shading) � 64 G C Areas of minimal flooding. (No shading) I 6,3 D Areas of undetermined, but possible, flood hazards. o 1 9FF ZONE C V Areas of 100-year coastal flood with velocity (wave Su action); base flood elevations and flood hazard A RFFO 82 factors not determined. VO Areas of 100-year shallow flooding with velocity; depth from 1 to 3 feet; product of depth (feet) 9Q S�yFF and velocity(feet per second) more than IS. V1 -V30 Areas of 1 00-year coastal flood with velocity (wave m \ action); base flood elevations and flood hazal-d RM8 factors determined. c� y Z V1i`" ti NOTES TO USER 2' D � M10 0 :r Certain areas not in the special flood hazard areas(zones A and V) n may be protected by flood control structures. -m1 o This map is for flood insurance purposes only; it does not neces- sarily show all areas subject to flooding in the community or all planimetric features outside special flood hazard areas. 61 For adjoining map panels, see separately printed Index To Map Panels. ZONE B S�y�F �Z� T 57 -= INITIALFEBRUDARY18,119 410N ZONE A11 2;1/78 ZONE A11 1 nn 2/1178 RM5 LIMIT OF DETAILED STUDY U s� ZONE B ZONE B V 159 UU I � � CONVERSION TO REGULAR PROGRAM v SqR FEBRUARY 1, 1978 ZONE B N ZONE A MA{N - I' ZONE B ZONE B ZONE B { h� TFtEET o Q RM1 RM6 c ZONE MAIN s ZONE B B Q W a m - ZONE C z 1' D 71 z m � r I tail > r < ZONE C p t: I RM4 w t > �.. ICC '_ t 1 w s y > O „ O C1 T 20 f Consult NFIA servicing company or local insurance agent or " broker to determine if properties in this community are eligible ruol�c for flood Insurance p ZONE C m APPROXIMATE SCALE Boo 0 800 FEET RpOR ,< 'q 1� RM 11 �A ZONE B NATIONAL FLOOD INSURANCE PROGRAM C ELEVATION REFERENCE RRARk9 1 SEYMOUR REFERENCE ELEVATION MARK (FT.NGVD) DESCRIPTION OF LOCATION AGAWAM-WEST � FLOOD INSURANCE RATE MAP AVE SPRINGFIELD BRIDGE RM1 87.82 Massachusetts Department of Public Works traverse disk stamped d ZONE C TOWN OF "9DE," set in a concrete monument located 33.8 feet east of center of Main Street, approximately 209 feet north of the center of AGAWAM School Street. (BM 9DE) i RM2 59.60 Nail approximately 1 foot up from bottom of telephone pole MASSACHUSETTS no. 161 on east side of Main Street at River Road. (TBM no, 1) ZONE B RM3 64.21 Nail approximately 1 foot up from bottom of telephone pole .-„Q � o HAMPDEN COUNTY no. 129 on east side of River Road, 200 feet south of Southend _ ZO E B Bridge. (TBM no.2) RM4 $4.89 Nail approximately 1 foot up from bottom of telephone pole � COMMUNITY-PANEL NUMBER no. 1473 on north side of School Street at Monroe Street. (TBM . . .. 250133 0002 no.3) RM5 89.42 Top of hydrant spindle on South Street, approximately 1200 feet west of Main Street. (TBM no-4) RM6 93.19 Concrete bound at Main and Meadow Streets. (TBM no.5) RM7 * 61.79 Chiseled square on bridge seat course of masonary at the north- west abutment of Suffield Street bridge, about 6 feet below the highway surface. BMZ 875 PAGE 2 OF 2 RM8 82.58 Nail approximately 1 foot up from bottom of telephone pole (SEE MAP INDEX FOR PAGES NOT PRINTED) no.12 on Main Street opposite Reed Street. (TBM no.6) RM9 103.38 Nail approximately 1 foot up from bottom of telephone pole no.26 at Winthrop and Walnut Streets. (TBM no.7) RM10 111.00 Concrete corner on west side of south wall of guard rail wall on Vietnam Veterans Memorial Bridge. (TBM no, 8) EFFECTIVE RM11 85.58 Nail approximately 1 foot up from bottom of telephone pole no. FEBRUARY 1, 1978 385 at Kirkland and Meadow Streets. (TBM no.9) *OUTSIDE CORPORATE LIMITS y¢xT Oe o�9nao wy0a U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION i. NATIONAL FLOOD INSURANCE PROGRAM FLOOD INSURANCE RATE MAPS TOWN OF NORTH WEST q4EST ST AGAWAM, ST SOUTH May Br�k250 33 0001 Hole MASSACHUSETTS Pl/V'�' LlSOUTHWICK HAMPDEN COUNTY ST ST Ss UVESTP��4p INDEX TO MAP PAGES SOUTH Br°°� 1 THROUGH 2 PAGES PRMTED: 1,2 Robinson Silver State Park Luke AREA NOT liyet SUFFiE�D INCLUDED ST COMMUNITY-PANEL NUMBERS Worthington N� Brook 250133 0001-0002 -{ $rook co A.CD Threemi e 250133 0002 A Connectacur EFFECTIVE FEBRUARY 1, 1978 a. N co 2i © rr� yENT Oe R COMMUNITY-PANEL NUMBER �6 IIII�II co d U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION KEY TO MAP 500-Year Flood Boundary . 1 100-Year Flood Boundary Zone Designations*With Date of Identification e.g.,1212/74 100-Year Flood Boundary— 500-Year Flood Boundary Base Flood Elevation Line 5i'3 ELEVATION REFERENCE MARKS With Elevation In Feet** - Base Flood Elevation in Feet (EL 987) REFERENCE ELEVATION Where Uniform Within Zone** MARK (FT.NGVD) DESCRIPTION OF LOCATION Elevation Reference Mark RM7X RM12 178.78 Center of Southwest concrete post at Pine Street Bridge. (TBM no. 10) River Mile •M1.5 RM13 214.60 Rim of small hole in center of top of state-line monument,located **Referenced to the National Geodetic Vertical Datum of 1929 at the intersection of Barry and South Westfield Streets on the northeast side. (BM 214.60) *EXPLANATION OF ZONE DESIGNATIONS ZONE EXPLANATION f - A Areas of 100-year flood; base flood elevations and — r� `� flood hazard factors not determined. AO Areas of 100-year shallow flooding with depth from 1 to 3 feet; product of flood depth (feet) and velocity (feet per second) less than 15. I Al -A30 Areas of 100-year flood; base flood elevations and .� CORPORATE L MIT _ flood hazard factors determined. HARTS POND �— — �� �/� __ A99 Areas of 100-year flood to be protected by a flood protection system under construction; base flood elevations and flood hazard factors not determined. IB Areas between limits of 100-year flood and 500-year 1 Flood; or areas of 100-year shallow flooding with ~ depth less than 1 foot.(Medium shading) C Areas of minimal flooding. (No shading) ` D Areas of undetermined, but possible, flood hazards. j V Areas of 100-year coastal flood with velocity (wave 1 action); base flood elevations and flood hazard { factors not determined. I O C:ID VO Areas of 100-year shallow flooding with velocity; depth from 1 to 3 feet; product of depth (feet) _ and velocity (feet per second)more than 15. V1 -V30 Areas of 100-year coastal flood with velocity (wave action); base flood elevations and flood hazard factors determined. NOTES TO USER ' Certain areas not in the special flood hazard areas(zones A and V) Ty O DNARD.POND may be protected by flood control structures. LE -� -� .SJES 5t8 This map is for flood insurance purposes only; it does not neces- sarily show all areas subject to flooding in the community or Wfigr M a all planimetric features outside special flood hazard areas. LU w m , For adjoining map panels, see separately printed Index To Map ac 0 NoRkINA Panels. W � u, STREET _n I X X INITIAL IDENTIFICATION 0 w FEBRUARY 8,1974 LIMIT OF G G O 0 DETAILED Z r ,0 STUDY 1 CONVERSION TO REGULAR PROGRAM OO >J Z Q O FEBRUARY 1, 19711 37 G S p C1 887 old r m V` x m n O O w I }k I mLLIL�JI_ I a F m ed Tributary to Still Brook � � � C � j 1I--i 0 0 7, MAR 4 LA f SY x Z I ,90 x T n ZONE C Y-l1 G YG O RY 71 - RM12 sT 18l - n 1 / Consult NFIA servicing company or local insurance agent or v broker to determine if properties in this community are eligible I ZONE A2 for flood insurance.sT� �� / 2/1178 W�SYF ti6to souTH Robinson State Park APPROXIMATE SCALE AREA NOT INCLUDED �� 800 0 800 FEET -C V RED �o 0 GO�QO it I �S� NATIONAL FLOOD INSURANCE PROGRAM UTH I J R M 13 TAYLOR POND I o \ 1 ( / FLOOD INSURANCE RATE MAP TOWN OF cc o a I U_ o Q a AGA AM, c 1300k — MASSACHUSETTS HAMPDEN COUNTY ` COMMUNITY-PANEL NUMBER I � 250133 0001 A I 5 oX 0 �O O PAGE i OF 2 S \ (SEE MAP INDEX FOR PAGES NOT PRINTED) I a C:3 / 0 EFFECTIVE cQ, 47 FEBRUARY 1, 1978 O I Q BOW LES-AGAWAM AIRPORT � �, IILIl011 a� U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION F . KEY TO MAP J. 0 0 500-Year Flood Boundary �t 100-Year Flood Boundary- Robinson State Park AREA NOT INCLUDED 1 Zone Designations*With Date of Identification e4.,12 f 2/74 100-Year Flood O Boundary sp 500-Year Flood Boundary- Base Flood Elevation Line 513 I With Elevation In Feet** I Base Flood Elevation in Feet (EL 987) O gf Where Uniform Within Zone** MAPLF y�c �00 Elevation Reference Mark RM7x River Mile •M1.5 VIETNAM VETERANS i St MEMORIAL BRIDGE **Referenced to the National Geodetic Vertical Datum of 1929 RMI a // � s �e�° s 69 6S *EXPLANATION OF ZONE DESIGNATIONS r C� Y00� 57 00 m4 I� TRFFT 9F�T ZONE EXPLANATION �J B �✓ tu OA A Areas of 100-year flood; base flood elevations and Fq flood hazard factors not determined. I AO Areas of 100-year shallow flooding with depth from 1 to 3 feet; product of flood depth (feet) and ZONE A16 S� velocity (feet per second) less than 15. ��{ a 2/1178 Al -A30 Areas of 100-year flood; base flood elevations and WINTHROP flood hazard factors determined. O STREET RM9 � 65 A99 Areas of 100-year flood to be protected by a flood D protection system under construction; base flood Iwt ��pJ11�5 elevations and flood hazard factors not determined. �Qy P(� B Areas between limits of 100-year flood and SOD-year SUFFIELD 75 QO� flood; or areas of 100-year shallow flooding with STREET Q� depth less than 1 foot. (Medium shading) �64 G C Areas of minimal flooding.(No shading) � 63 b Areas of undetermined, but possible, flood hazards. 2 VT9F V Areas of 100-year coastal flood Mth velocity (wave O C - 1 Fr action); base flood elevations and flood hazard ZONE O RF factors not determined. s� Fo 62 V0 Areas of depth from O y tor sha llow flooding product of d pth velocity;(feet) I STR� and ve[ocity.(feet per second) more than 15. F 9p T V1 -V30 Areas of 100-year coastal flood with velocity (wave action); base flood elevations and flood hazard T RM$ factors determined. NOTES TO USER O � ti Z CA y Certain areas not in the special flood hazard areas(zones A and V) m in Ify may be protected by flood control structures. CThis map is for flood insurance purposes only; it does not neces- {� Cn sdrily show all areas subject Lo flooding in the community or --I 3 all planimetric features outside special flood hazard areas. --i For adjoining map panels, see separately printed Index To Map t� 61 Panels. ZONE B s�RFF r INITIAL IDENTIFICATION 57 ZONE All FEBRUARY 8,1974 2;Ins ZONE A11 r, s� LIMIT OF DETAILED STUDY 211l78 9� RM5 v T � CONVERSION TO REGULAR PROGRAM ZONE B ZONE B 159 S � FEBRUARY 1, 1978 ZONE B , ZO N E A � MAIN - 6>, 5 s� ZONE B RM1 ZONE B ZONE B STREET ZONE B Z ZONE MAIN rn ZONE C w � z - F- w r /1 k ZONE C M4 to O w �I O �L I > i>FIE w O .,r Consult NF1A servicing company or local insurance agent or broker to determine if properties in this community are eligible for flood insurance. ...Z eves - ZONE C "'i"""""' APPROXIMATE SCALE IMP [ 57 Leve 800 0 800 FEET .................. q RM11 A T / J tsp Ml Ts � in NATIONAL FLOOD INSURANCE PROGRAM ZONE B I ELEVATION REFERENCE MARKS �— f FLOOD INSURANCE RATE MAP REFERENCE ELEVATION SEYMOUR AGAWAM-WEST MARK (FT.NGVD) DESCRIPTION OF LOCATION AVE SPRINGFIELD BRIDGE RM11 87.82 Massachusetts Department of Public Works traverse disk stamped ZONE C "9DE," set in a concrete monument located 33.8 feet cast of center TOWN F I of Main Street, approximately 209 feet north of the center of AGA YV A 9 School Street. (BM 9DE) MASSACHUSETTS RM2 59.160 Nail approximately 1 foot up from bottom of telephone pole no. 161 on east side of Main Street at River Road. (TBM no. 1) ZONE B o � HAMPDEN COUNTY RM3 64.21 Nail approximately 1 foot up from bottom of telephone pole ZO E B no. 129 on east side of River Road, 200 feet south of Southend Bridge. (TBM no.2) I' '" COMMUNITY-PANEL NUMBER RM4 84.89 Nail approximately 1 foot up from bottom of telephone pole q no. 1413 on north side of School Street at Monroe Street. (TBM 250133 DOO L no.3) -' RM5 89.42 Top of hydrant spindle on South Street, approximately 1200 feet west of Main Street. (TBM no-4) RM6 93.19 Concrete bound at Main and Meadow Streets. (TBM no.5) RM7* 61.79 Chiseled square on bridge seat course of masonary at the north- west abutment of Suffield Street bridge, about 6 feet below the highway surface. (BMZ 815) PAGE 2 OF 2 (SEE MAP INDEX FOR PAGES NOT PRINTED) RM8 82.58 Nail approximately 1 foot up from bottom of telephone pole no,12 on Main Street opposite Reed Street- (TBM no.6) RM9 103.38 Nail approximately 1 foot up from bottom of telephone pole no.26 at Winthrop and Walnut Streets. (TBM no.7) RM10 111.00 Concrete corner on west side of south wall of guard rail wall on EFFECTIVE Vietnam Veterans Memorial Bridge. (TBM no. 8) FEBRUARY 1, 1978 RM11 85.58 Nail approximately 1 foot up from bottom of telephone pole no. 385 at Kirkland and Meadow Streets. (TBM no.9) *OUTSIDE CORPORATE LIMITS ♦�xII Oa ywd II�II�II �� U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FEDERAL INSURANCE ADMINISTRATION Haw To Read A Flood Insurance Rate Map A guide for interested citizens, community officials, lending institutions, and insurance agents. 1 Department of Housing and Urban Development Federal Insurance Administration '°°�•p"•'F Washington, D.C. 20410 This brochure has been prepared to help you read a Flood Insurance Rate Map(FIRM). The FIRM is the final product of a Flood Insurance Study undertaken for flood-prone communities throughout the United States. The flood insurance study report is a technical document and therefore is not widely distributed, but may be reviewed at local community offices. Introduction ` The Flood Insurance Rate Map property and corresponding r (FIRM) is published for use by actuarial flood insurance citizens, community officials, premium rates. insurance agents, banks, Federal agencies,and lending institutions to • Federal agencies and lending determine the degree of flood institutions,when making loans hazard in different areas of the or grants relating to the community so that actuarial acquisition or construction of premium rates can be used to obtain buildings, to determine a full flood insurance coverage. property's location and whether flood insurance is required. The FIRM provides information— . The community, to administer • To identify areas subject to flood plain management flooding. regulations. • To locate a specific property • The Federal Insurance site Administration (FIA), to convert the community to the Regular • To determine elevation of base Flood Insurance Program. flood. • To locate reference marks The guide will help you identify and necessary for determining understand key features of the elevation of property. FIRM. It contains illustrations and a step-by-step example of how to The FIRM is used by— read the map.The FIRM illustrates areas within a community that are • Insurance agents and brokers, subject to flooding of different to determine location of magnitudes. f I Flood Insurance Rate Map Formats 1 To help locate flood boundaries,the FIRM includes common features like roads, streets, streams, lakes, railroads and waterways. Only those community areas which have been determined to be subject to flooding will have a map panel actually printed for them. The FIRM for a given community B. Flat Map Format—which can be in one of two forms: includes a map index, with a legend on the cover sheet,,and A. Multiple-Fold Map Format 11" x 17" map panels covering (Z-FOLDj—which includes a the community. map legend on each map panel and may come in varying sizes depending upon the size and ;:�+:;•.. shape of the community and the area covered. Eventually, all FIRMs will be published in this -� format. Where there is more a �� than one Z-FOLD panel for a �! community,a map index for the panels will be printed separately. ,.. Key Elements of a Muftiple-Fold (Z-FOLD) Flood Insurance Rate Map (FIRM) 8 2 KEY TO SYMBOLS ELEVATION REFERENCE MARKS 3 ENE REFERENCE ELEVATION �a /1 OGRRpnA:E uM1TS l A , MARK IN FT{MSLI RM 1 44605 RM 2 456.54 1ttnlffl�7 � / , '.i ZONE DESIGNATIONS' �'��•�, ` y/ f 3 ,2+ RM 3 453.51 y r;y t6f ..;}r. Il rr r :.. ZONE c \'r �� WITH GATE OF :: r' a+ IDENTIFICATION { e a.�' RM 4 467,77 j -ZONE Ad Q� 1 ,,. .- RM 5 464.50 a {1 RM 6 462.49 RM 7 470.20 f'jl +ky' 11 '•.• S / s-1 ZONES ?r �'j;j 2 ` rerERENce r.wl oEscRlrrloNaFtourgN 513 10 6.»cam Err.lun Ln. — --••�` aa.eu"�I v'I"..r.a.or r..n wM d• �•�..... le.r s»a�.r.a.mr..a.r ZONE .. �...Ir ^.n vgOEl�...I..r.l �'� '•f ? ' f - 1 9a�.cmd Er.w.' IEL wr MSLI laeer ODIr111r►wd.ew � r . �• ee+' IW A+11 wlo"".aln rea. RN s Sew.eJ n rrep.4e a er.Kr d .r. Mi, Ml E—R —V- FM7X W r . cor.=NM111M.O.t3 q• 1 I 1 I e '� �� .(: a.r M,r MI.S lu'.�r nMnnoe maww.l l�s+l 1 C�71 Oh O i rL _ are m OD S— il .na>'.oln.e.iw u.w.l yf O sn..lr,aM.:,I..I A floodsign insurance map unit displays coi zone RM r soww.umaoda.:nm Sanw e,a �• ' �\\\\ �--- � designations for a community acco?ding to reMse,l �J areas of designated flood hazards.The Zone designati used by FIA are; Z— E.AV^,W i wrnw.06 tiw Kad w»�n FLOOD HAZARD O ZONE O �•: •nr ani.^�wlumr nua'a ramp SOl1DAYWV 1401 FLOOD Ilq{l11A M 111 ZONE A2 b Safi; ► (POOL EL 471 Mi e«e doll I b 7 wr pr.— '� d moe dole Ile.lr a•v1 relafi ZONE ssyi>~x:;,>.y Ir41 w:gwrtll ree m.�l� a f!}.f�•�"':.F�;.��jtu Y�:ti AI.A,1Q a.gdIOPY..r Todd a»tk 1 1 }r� ., � MOQN1.dlwypn SAMPLETOWN, < `7 "° ".~d'°'."m b. (SAMPLE CO.) t44M Sao.".1W1.wYdleoY..r Ins,I 11 odoq wMn dwgle rae RIVER MILE 26 rad ?i •� :y:L roNEc � c Ar.g souY—mal PANEL H81-01 _:�•...;:.. /I O Anq d rero.lr'.w.d Out ooww y:%(•;:4; r .�,l...am 1.d.. PAGE 1 OF 1 PRINTED -ri:. ft::�• Y:.: � •� i^ � land.r..nv,...a Ilnnn r.q.'a '^ " �'' _ bnary wen wAoceY.eana dVn ll—t And EFFECTIVE DATE: i •i+�1r '''iff^ :,::'litf}i eft' Pr»mM1 rtnn INn 1� ff• is;i;:'?i; '":err I MAY 2,1977 Mgof D4Yur mglN rlorM Co' 1 1 +•�}�.-fnei:.'?: :fjif�fl�jf�1$ lectw4 OM.r-wrd MIUMAI re FA ENT on NO(`.OYIAN>I OR LOCaI •:'1.$1:},:,,�.„ ir;'�k4 -`; ersuRaNe[AGENT OII[BONER TO D[TERN[eE■ COMMUNITY NUMBER: !1'M1•7..••'•4�31;',~�v'•.f4 NIORIII't3 M 1'le 00lIeRMTY ARE EIIOIiLE FOR 420714A a,T( is"ANCE. +`I ',,Y.>•,, ti INITIAL IOENTIFICAl N1N DATE MARCH I.10r4 3 CONVERSION TO REGuuR PgOGAAM MAY 7,ISCALE r A/►Ig1g1AT[EC/IALL!IN fE[T: 4 I U.A DEPARTMENT OF HONMG em 254 a Sw 1000 AND~N DEVELOPMENT FEDERAL INSURANCE ADMINISTRADON ZQ � 6 9 10 9 i 5 1. Title Block date with possible subsequent Includes community name, county revision dates following. name, state name and the community number. Eventually all 4. Map Scale (Z-FOLD)panels will have a 10-digit U5ed to indicate distances on the number plus a suffix. The first six FIRM.The scale shows the number digits of the number identify the of feet represented by an community number. The last four equivalent measure on the FIRM. digits of the number will identify the map panel—the suffix indicates the revision sequence,'e.g., suffix A 5. Map Index usually means that map has been Included with Z-FOLD FIRMS if revised once; suffix B-twice; etc. more than one Z-FOLD map panel is needed to show flood hazard areas of the community. The map 2. Key to Symbols index shows corporate boundaries, A legend which contains a major needs and drainage patterns description of the lines and of the community and includes a markings on the FIRM,the meaning north arrow for orientation. of flood hazard zone designations, and "effective" date information. A reference number appears on each map panel shown on the map index. This number identifies the 3. Map Dates map panel on which specific Included on each map may be three information for a certain section of different types of dates: the community can be found. • Initial Identification Date—the 6. River Mile date when flood prone areas Indicates distance in miles from within the community were first specific points on the river to the identified and shown on a map river mouth. published by FIA. • Effective Date of Map—date the 7. North Arrow map with its flood elevations Used to properly orient the map and other accompanying allowing readers to determine the information became effective, property locations. As of that date, the FIRM superceeds all previous 6, Corporate Boundary versions of flood maps published by FIX The Indicates the jurisdictional limits community's eligibility status is within which the community has converted to that of the Regular development ulatory authority over Program as of that date. • Revised Date—the date when a 9. Flood Hazard Zones change or addition to the map Flood risk areas within the became effective. The first community shown on the FIRM that revision date would appear in are subject to flooding.The specific the title block after the zone designations are based on the conversion to Regular Program magnitude of floods that could possibly occur. These zones are usually under the zone designation. tinted to show different degrees of A base flood is described as that flood hazard. For example, a dark event which has one chance in 100 tint represents zones with the of being equalled or exceeded in greatest flood hazard (Zone A), any one-year period.The risk of while a light tint represents zones exceeding this one-percent chance with less hazard (Zone B). Zones flood increases with time periods with no tint represent areas of least longer than one year. During any flood hazard (Zone C) or an area 50-year period,there are about four where the flood hazard has not been chances in ten(40-percent)and for determined (Zone D). any 90-year period,there are about six chances in ten(60-percent),of Zones B, C and D do not require one or more floods exceeding the flood plain management measures, one-percent chance floodmagnitude. They have no requirements relating to information and assistance in community planning and the rating 11. Elevation Reference Marks of flood insurance premiums. (RM) Indicate elevation for specific points In Zones,A,A0,Al—A30,A99,V0, within the community which are V1—V30, M and E, flood plain described in detail on the Z-FOLD or management measures are on the last map panel of Flat FIRMs. required by the community. In these These elevations are primarily to cases, flood insurance may be assist in determining the elevation required when certain types of of an individual property. For Federal or.federally-related example, an RM of 490.0 elevation assistance is being obtained. means the elevation at the specific point described is 490.0 feet above National Geodetic Vertical Datum of 10. Base Flood Elevation (BFE) 1929 (NGVD), formerly known as Indicates(in feet)the water surface mean sea level. The RM would be elevation of the base flood at a used as a reference point to specific point along the stream, determine the elevation of a specific river,or coast. In riverine areas,the property. After the property elevation is indicated by a number elevation is determined, it could be inserted in a wavey line. (See compared to the base flood figure.)In areaswhere the elevation elevation of that property area is uniform (coastal, lakes, ponds, according to the map, to determine etc.), it is indicated by statement depth of flooding. Key Elements of a Flat Flood lnsumm Rate Map (FIRM) The Z-FOLD and Flat FIRMS are The following map index and map essentially the same except that a panel are samples of a Fiat FIRM Flat FIRM has a cover sheet called and illustrate similarities and the map index panel as shown in the differences between the Flat and F illustration below. The main Z-FOLD FIRMS. purposes of the map index panels are to: An asterisk (•) appearing beside a reference number means the panel • Show the location and position has not been printed. A legend of each map panel by means of providing the flood hazard zone an identification grid. designation for the unprinted panel appears as a footnote in the lower • Carry the map legend. left comer of the map index. r Key to Symbols C Map Index Identification -& -U I Grid River Mile e , - y i Q r w u u sAAaiEiowM Title BIOCIC SAMPLE COUNTY,U 9 A 'Not Printed;all in Zone C Flat FIRM Index Map _ /North Arrow ��! y► __ I, Corporate - Boundary --1�44 Map Scale M. -�� `• aM. Flat FIRM Map Panel Illustrative Example The following example is a 1. Identify the Community step-by-step procedure for locating The map index sheet (Figure 1) a property on a FIRM and shows shows the community for which how to determine: flood hazard information is being • The flood hazard zone presented. In this case, the community name in the title block designation, should read Sampletown. • The elevation of the base flood. 2 Identify the Correct Map Panel These items are needed by the The person must decide which FIRM map panel contains the Insurance agent to determine the property site he is interested in.The flood insurance rate and annual Sampletown map index includes 23 insurance premium for a given panels, of which only 20 were property. panels, By using water bodies, roads, railroads and streets Community Example: appearing on the index map, the Sampletown U.S.A. person can locate the general area The FIRM for Sampletown is in a flat of the property site. From general map format. The map index and knowledge of Sampletown, the map panel are shown in Figures 1 person knows that Hickory Lane lies and 2. west of the lower part of Valley View Reservoir.This allows the individual Someone may wish to purchase a to identify the proper map panel property along Hickory Lane in (and its reference number), which Sampletown.That person may wish covers the area where the property to know if the property site is in a is located.The map panel reference flood hazard area. Therefore, that numbers are in the lower right person should use the FIRM comer of each sheet;therefore,the covering the property following this person leafs through the panels until suggested procedure: the proper panel is found. 7 Q nwrr�Y4y+1_ 1lIN YIIII INrin Ill� tl iiit utl�u i ■ ■ �l/■111 SAMPLETOWN •Not Printed:all in Zane C (SAMPLE COUNTY) omun u. Flat FIRM Zone Index Map Title Block Figure 1 Key to Symbols General Area of the Property Site Scale 10,4 mac �9 1 owl a I B . 1011E A ➢ LONF a9 -1� RU u LP PNS� sty S 4 NO IONS B r IOIf• }i IONFC � �\ 1ar�tllt YIaJ Y jr, ZONE B x I/ IONF 4 - Flat FIRM Zone Map Figure 2 3. Determine the General Property Location of the Map Panel ;�►�° �' Each map panel contains more detail on roads and physical (,'~� ONE 8 landmarks than the map index sheet.These details make it easier to locate specific property sites. Fe 9 The person knows the property is �" i located near the intersection of ' Hickory Lane and Ridge Road.With �� RM � ,. this information,the map panel is searched until Hickory Lane is oP,J located. Figure.3 PROPERTY SITE 4.Determine the Specific Property Location on the Map Panel To locate the specific property,the '� ��,` ► person will have to use the map scale. It is known that the property F lies on the western side of Hickory yL �h a Lane, 1,600 feet northeast of the Ridge Road--Hickory Lane intersection as shown in Figure3. ?A." Rid 3 Knowing this,the person can take a A� ruler,convert feet to inches on the P map scale, and determine which flood hazard zone the specific property is located in. Figure 4 Scale In feet 2500 0 2500 5000 ONE B 5. Determine the Flood Hazard Zone for the Property Next the person can determine theF�` flood zone the property is in by F locating the letter symbol for that 1� RM 3 area, i.e. Zone A, Al, B, C, etc. A The tint of that area should help 0 in determining the proper flood zone. In this case, Hickory Lane oQ� lies in a dark-tinted area, which is Zone A11. Figure 5 6. Determine the Base Flood Elevation for the Property Site The Base Flood Elevation can be z't determined by merely locating the lq ahA closest Base Flood Elevation Lines F . (wavey lines)on the Map Panel and interpolating to the nearest foot.In E this case,the property is located about one-eighth the distance OPJ between BFE 459 and 460; \G� �,� therefore,the SFE at the property ;�. site is 459. aQ� Figure 6 G~ This guide has been prepared to serve all those who wish to use Flood Insurance Rate Maps. It was designed and written to communicate the basic elements of these maps. Any further questions should be directed to local officials; the National Flood Insurance Program of the Federal Insurance Administration (Department of Housing and Urban Development, Washington, D.C. 20410), or the appropriate Regional FIA Office. U.S. Department of Housing and Urban Development Federal Insurance Administration Regional Offices REGION I— REGION VI- 15 New Chardon Street Earle Cabell Building Boston,Massachusetts 02114 1100 Commerce Street Commercial no.(617)223-2616 Dallas,Texas 75242 FTS-223-6324 Commercial no.(214)749-7412 (For CT,ME,MA,NH,RI,VT) FTS-749-7412 (For AR, LA,NM,OK,TX) REGION ll- 90 Church Street, Rm.801 REGION VII— New York,New York 10007 Federal Office Building k Commercial no.(212)264-4756 911 Walnut Street FTS-264-4734,264-4735 Kansas City,Missouri 64106 (For NJ,NY,PR,VI) Commercial no.(816)374-2161 FTS-758-2161 REGION III— (For IA,KS, MO, NB) Curtis Building Sixth and Walnut Streets REGION VIII— k Philadelphia, Pennsylvania 19106 Rm.311 Commercial no.(215)597-9581 • 90917th St. FTS-597-9581 Denver,Colorado 80202 (For DE,DC, MD,PA,VA,WV) Commercial no.(303)837-5041 FTS-327-5041 REGION IV— (For CO, MT,ND,SD,UT,WY) 1371 Peachtree Street,N.E. Atlanta,Georgia 30309 REGION IX— Commercial no.(404)881-2391 450 Golden Gate Avenue FTS-257-2391 Post Office Box 36003 (For AL, FL,GA,KY, MS,NC,SC, San Francisco,California 94102 TN) Commercial no.(415)556-3543 FTS-556-3543 REGION V— (For AZ,CA,HI,NV) 300 South Wacker Drive Chicago,Illinois 60606 REGION X— Commercial no.(312)353-0757 Room 3068, FTS-353-0757 Arcade Plaza Building (For IL,IN,MI, NIN,OH,WI) 1321 Second Avenue Seattle,Washington 98101 Commercial no.(206)442-1026 FTS-399-1026 September 1977 (For AK,ID,OR,WA) HUD-FIA-252 TOWN OF AGAWAM INTER - OFFICE MEMORANQUM. Sal t. FROM: Louis D. Draghetti DATE: November'.?, 798077. T Q: Richard Bowen, Town Manager S t1,B't1 C T h t f *Cabje, TV' ••'- .y{ ,?f'_+ 1..�r .+ ' � 5,1/�1� ' ,� pyj`-* ;,� yr� ��!• l1et�, ' Please be informed: : Rol�nd'Pr®ea'03sy, Pl�pctgr n uc q�V aual"Departlm�e� t ► for �our School Department;- cams into, our'o Tice this ornin �t d'J Rod HacLeod of Commonwealth Cab dvisidh a e�dlr ery educational channel to broadcast• a' Prop. 2r`Qg�ra► ,�sQns ',e ::tr, ouax+''�..4 Elena Bonavita on Monday, November• �' iy1- Roland Pressey 'informed W 'Mac he,; hdii tP gbtgn$�p�x�miasi ~ from Su r tendent of Schools Lo i Hebert"t f' .-, pe iu , u s•, o� 9 Hebert. refused permission for the studio to,'Ye tad. , Hr,.rPr sa di } , at tliat,time,' }gave student staff availably Y'uW tom! ec�upme t +r r d y ( ►� X r+,..s,.y; y' y V ,~r" tt •<�L I h t'} k1', y T-4 -Vlhereupon''C, ncilor. Bo ziavitr ' ,;with l,,t.tb t ta7 �� :A m p"roduced`a '.videotape and then broadoae � r'ti�' r )141 'f 'thr ate' t Fna V c io 1 i ' arinel t the oS' A e 7 f ,- y'. 01 '3. a .Town w$m and' tq�r"t'y':.�" bee 3rd• "A bee ' r '''- S.i • '� • •fe:•r� � 't,�•l,<9"'f�„�nsaA,q ���+� ;J ��*$'�..�.f ,�rr k�� i 1k+�^,.t1. � 1 Coj rmoi*ealth by-passed. Aga,� 'owr to ids p3; =rt dQ �.;''' '' �`"� "f `z W�.Studio, was'supplied with equipme f u. r/.. +g� • �' ri �. i r 4,r guidelines• of Spectrumio Cabl'e•.p_ • jiz�o �V " f 't k� �,-{ •" Ir"` ��'• �'/, a, }�i lf¢ µyS.._ � • •' F ,f ty. �S� ,4 �I� +�rT )• 'L � 4' .='r rd j '�,,, +, ,��a.i j r• ,f �:, �,+ind,'l�erewi t a' 'of tkielop studio: The 'contend 'o bj4d•accep-;pp"_q&: °' '^ +' . , o`t,� ,'t©, , ,!r'. cgnt�rol: BCe Reps tons ,(:$e hi t� Aro Si ' �4}r:` �i' f� fp: IFIn R0,,'. ,"' ,''�' C ablb ��bmpanle s',S�e�r++�= a p��T'�Q',L"'C, '� g •i p�l�;�•+Cr�' �', �Y�r '�t�'••�:+•�`. x� 1, ^. ''�. 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L ;�. i�: r I',• `�'. f,,+�i�iy � 813$$'e&"fj'• . , !Used; far' pullli'a;;:acce.�s.�' i .e''Prf3p �.ment Wi.F r -thc'tha School'I}epai�tmsnts ti .t q ,{, .. ; '.:yi ,1}P,1'" , sv G- Y�,. .•,r} fy :� �.; j' d`�'.L i� �r, ' 1 r r .S .fr '.. tr.,�. • '11�11 � I'� ll �, �,� 'F4j4Mr��� �rrr�+,.f .�,�r5 l�t+���i, ,A -'d�:�y7-q,. i :!• ;r. .s ' {l .A' •.'+r:.l F ' J`'r 1% � '�i `� h' �� � ' +,%+ r :*7F,_� f +r r+Z ,•el'/ 'f- '�,j�•�}�- Y' �S r��•'4b . �+);3��,�.3�t�4:,V'i �t' � `.I A �!i r sip. +' •� i• •" ,;,) : _i�r- !• �, � f- + , �'t�1T R3,�''1�! � •'3 7 ', 'r � ,� "- � yyF� ry �1�,i +'1, 1 t ,�• ,+_ ', . •' , •{+'' '+ `' i >• ~ a� it' 4h its 'ra+�\, ry .•y, yt- - 'y! f fie,. ,j* 'Fti'•{ +1' r �+ ' +r��,�' °.l: � f �' '.Y r r tt i� �.e� 1 r, � � .� �f •�� ,� � Y� i ��' '�,yf M,y tM�yi t�r+�� I..'lS q ' r 1' s 1. `rt '• ► a {;p,• {r� •- �M"2'h ti f �-'•i eX ,� , 1+ s +i■■■r r'� �`1'�' Y i�+ a'�1 + �' 4 •,' .ti 1 'yf' S ' 4 Y4S•d �5( 1j�7�jk /�'J► M/�l'S�II i'�.f; /y��r1N ��.1I p)"• yi' ��.''�+�.r,'•/T,N,r 1;..i'3'•�r.�'�Ti.7ni�!�,rh/r.�e+. r,`'1..iry'�k�i'�'I•k'y,•.J�r+`..��ay,,: .r,l...°+`♦r , •.•f.•+✓M 1--•-'f.{,i'+`b i1i,:f,l J..�7'!!!' it�1r 9 yRA r:f�+�?, '''• i r,r''',r,{��'„;A,q.s1�r.,(t.'t,f!Y 7FS5•14:t.3 ,f,r'+t,t..4,fL'f.,./�r c+!#i lr�s,'A;,tft'1�V�li•f y�.l%>•♦ i„•ii}j'•,�l+•-,rt,7I+MS,*1P;1�1i.{•Yt- +,�=�{+Rl�•.1+ItR.4!+ g �.J.�' ' �. {.I ",4'''i1r3�"�;y��:1}."1,:Jr++•':+({(i�r�tAR�,�1+�•;"�'•,1��°4�'57�13'lC.y"J ilt;+ J' .rs ��''y.,,�• `ikiY;'�` •E=iosure8 {.; �d k -i ''1r`I r 1+'er 7Ft7 r;�•ii� if`' ji, }dty"t'iv „N+�" �orrtmconiveaitfj Cabitbigion of ACa0arbutett0, ant. June 4 , 1980 Ms., Jane Barker Colony Communications, Inc. 75 Fountain Street Providence, R. I. 02902 Dear Jane: .We were recently informed by the Town of Agawam (see attached letter) , that certain fees for pole locations/attachments, etc. were not paid. We have. looked back in our files to try and locate that payment was ' made on these fees, however, were unsuccessful in our attempt. Could you please check your past records and see if payment was ever made on this or if perhaps it was sent to the wrong depart- ment in Agawam, and they were unsuccessful in locating it. I would appreciate it if you could get back to me on this matter as ,soon as possible ,so that it could be straightened out with the Town of •Agawam. Thanks in advance for your help on this. Sincerely yours, QQ C Denise Fleury Rod MacLeod'. Sec tary `- �� Cnrn s - o , Ln ram/df / cc: Mr. Louis Draghetti Cable TV Liaison Office Town of Agawam Agawam, MA 01001 6-540: cc: Town Clerk' s Office OF 40 N UN.� so. a • N ' 9 7rM111\' J 7.1Q ,ILLY-ilftl iv,rri1rO.?MT rr,lf 1rlA •r,tr�S . N, rfir, � - TOWN OF AGAWAM J . INTER -OFFICE MEMORANDUM FROM: Louis D. Draghetti DATE: J Peter Caputo, Town Manager SUBJECT. Progress Report-CATV MEETING WITH RODERICK YACLEOD AND LOUIS DRAGHETTI, JULY 19. 1979, 10:00 a.m. Due to recent inquiries by councilmen and complaints referred to us from subscribers of cable television, I requested to most with Mr. Roderick MacLeod at his convenience to discuss cable operations since he purchased the company six weeks ago. BILLING Recently, we received several billing complaints where subscribers had paid their monthly bills on time. but did not receive credit for their payments. Mr. MacLeod explained that there was an error in key-punching which produced over-billings to 2,000 of their subscribers. He also explained a new billing procedure which will result in payment of both HBO and regular cable systems monthly. This will place • their billings on an updated computerised process which will give instantaneous review of subscriber's accounts. Bills will also be re-scheduled so that 3,500 subscribers will be billed in a billing cycle instead of their present system of billing 10,000 subscribers at one time. Mr. MacLeod informed that they experience about a one percent inquiry on bills the day they are received by their subscribers. Consequently, phones get jammed when subscribers call for information about their bills. He feels that where they now receive over a hundred calls. it will be re- duced to an average of thirty-five calls on billing dates. Mr. MacLeod showed me their office operation. Spectrum office and .staff has been completely revised and brought up to an apparently efficient operation. COMPLAINT HANDLING We discussed employee attitudes due to complaints we received on Spectrum' s opera- tions. One complaint was tape-recorded and Mr. MacLeod received a transcription of the recording. He feels some of the facts of the complaint may have been distorted due to lack of understanding by the subscriber or by the approach his staff used in • responding to the complaint. Based upon our experience in handling consumer complaints. I made some suggestions in the psychology we use to cool complainant' s on their grievances. CONTINUED TOWN OF AGAWAM • INTER -OFFICE MEMORANDUM FROM: Louis D. Draghetti DATE: July 23, 1979 TO: Peter Caputo, Town Manager S U B J E C T: Prquess Report-CATV PAGE 2 SPECTRUM IN-COMING TELEPHONE CALLS Currently, Spectrum has only one in-coming line from the phone book number that comes into their office via Agawam exchange area. This is obviously a poor situation be- cause when something goes wrong on the cable, more than one party tries to call. Mr. MacLeod is having the phone company hook their in-coming calls in series because they have eight available lines and he feels this will help alleviate the subscribers always receiving busy signals when they call. UNDERGROUND CONSTRUCTION It is Mr. MacLeod's intention to fulfill his commitment on the underground streets as he outlined before the transfer. The main reason for not building underground areas is because there is a ten week delay before they will receive the cable which they have ordered to wire the streets. However, they will be installing conduit on Tom and Elizabeth Streets this next week. Their plan currently is to install the conduits on streets to be serviced and install the main feeder cable when they re- ceive their cable supply. Spectrum plans to bore under streets, driveways, and sidewalks to provide asrvioe for each side of the street. They have hired Witch Ditch of Agawam to install conduits under streets, driveways, and sidewalks and plow in cable in the tree belts. Mr. Edwin Damon, owner of Witch Ditch, has been in contact with our Engineering Department regarding the method to be used in installing conduits. Spectrum has a vibrating machine that pulls cable under lawns and leaves only a half inch cut in the lawn while pulling the cable up to each home to be serviced. SCHOOLS They presently have enough cable to underground wire the Agawam Junior High School and Mr. H acLeod feels he will have the schools wired for cable service at the start of the school year in September. �C ouis D. Draghetti Inspector of Weights & Measures . F 11 I �►� FA �Q 93 TOWN OF AGAWAM 36 MAIN STREET AGAWAM, MASSACHUSETTS 01001 ti q' Tel. 413-786-0400 1 o9��RA�EO MPy` CABLE TV January 26, 1981 Commonwealth Cablevision of Mass., Inc. P.O. Box 457 Westfield, Mass. 01085 ATTENTIONt Mr. Roderick A. MacLeod Dear Mr. MacLeod: Enclosed you will find--a copy of a petition we have received from the residents of Sioemaker Lane regarding cable TV services. Sincerely yours, Louis D. Draghetti Inspector of Weights and measures Liaison Officer on Cable TV LDD/bg Enc osures cc: Town Manager 2)wn Clerk (buncil Subcommittee . V')'Y= W ry) CrJ M WE THE UNDERSIGNED PETITION TO GRANT CABLE T.V. ON SHOEMAKER LANE •W � Q"'N�rYni �l�Y`� ZANEell Ct7 C-7 C /4', of ,L 1 WE THE UNDERSIGNED PETITION TO GRANT CABLE T.V. ON SHOEMAKER LANE t ell, 2 c--k--,, V�2 ItV a'o1 �� Cam- a y C �-L su CLL6 .......... ,OF WE THE UNDERSIGNED PETITION TO GRANT CABLE T.V. ON SHOEMAKER LANE 6kf,/ Vf 60 /ellu OF cr) ftvhlft4' 'Y 7 W NANO, c ftft.% 91 q 1, t?t Environmental Handbook for Massachusetts Conservation Commissioners 1978 Edition 0 MACC Massachusetts Association of Conservation Commissions Founded Lincoln Filene Center 1961 Tufts University, Medford, Ma 02155 TABLE OF CONTENTS Sec. Page 1. INTRODUCTION Purpose of the Handbook................................................................. 1.01 1 Finding Things in the Handbook............................. 1.02 1 The Style of the Handbook .... ........................................................... 1.03 1 Obtaining Copies of the Handbook ........................................................ 1.04 1 Definitions............................................................................... 1.05 1 2. HISTORY AND FUNCTIONS OF MASSACHUSETTS CONSERVATION COMMISSIONS History of Conservation in Massachusetts ................................................. 2.01 3 What is Meant by"Conservation of Natural Resources....................................... 2.02 3 under Chapter 40,Section 8C The Association.......................................................................... 2.03 4 By-Laws ................................................................................. 2.04 5 3. HOW AN EFFECTIVE MASSACHUSETTS CONSERVATION COMMISSION OPERATES Why Have a Commission?................................................................. 3.01 8 Adopting the Conservation Commission Act ............................................... 3.02 8 Appointment and Removal ................................................................ 3.03 8 Conflictof Interest ....................................................................... 3.04 8 Associate Members ...................................................................... 3.05 9 Meetings..................... ........................................................... 3.06 9 Hearings................................................................................. 3.07 9 Records and Plans........................................................................ 3.08 9 Finances................................................................................. 3.09 10 Relations with the Appointing Authority.................................................... 3.10 10 Relations with the Planning Board or Department........................................... 3.11 11 Relations with the Finance Committee..................................................... 3.12 11 Relations with the Board of Health and Sewer Board ........................................ 3.13 11 Relations with the Building Inspector or Zoning Administrator............................... 3.14 11 Relations with the Zoning Board of Appeals ................................................ 3.15 11 Relations with the Town Forest Committee................................................. 3.16 12 Relations with Other Offices and Bodies ................................................... 3.17 12 4. ACQUIRING LAND Introduction.............................................................................. 4.01 13 Legal Title to Conservation Land........................................................... 4.02 13 Assuming Control of Other Town Land..................................................... 4.03. 13 Transferand Disposal of Conservation Commission Land................................... 4.04 13 Getting Good Title........................................................................ 4.05 13 Gifts of Land............................................................................. 4.06 13 Gifts of Land in Trust ..................................................................... 4.07 14 "Conditional"Gifts and Leases............................................................ 4.08 14 The Formalities of Purchase............................................................... 4.09 14 Taking by Eminent Domain................................................................ 4.10 15 "Second Chance"Eminent Domain.................................I...................... 4.11 16 Betterments.............................................................................. 4.12 16 Borrowing to Buy Conservation Land ...................................................... 4.13 16 Agreements and Options...... ........................................................... 4.14 16 Tax Title Land............................................................................ 4.15 16 "Strict Foreclosure"Tax Title Proceedings................................................. 4.16 16 "Low Value"Tax Title Proceedings ........................................................ 4.17 17 Transfer of Tax Title Land ................................................................. 4.18 17 Purchase of Tax Title Land ................................... ........................... 4.19 17 Registration of Tax Title Land ..............................................:.............. 4.20 17 Taking Tax Title Land by Eminent Domain.................................................. 4.21 18 Legal Assistance. ............................................... ................... 4.22 18 5. STATE AND FEDERAL AID PROGRAMS Massachusetts Self-Help Act-Introduction ................................................ 5.01 19 Self-Help:Use Requirements.............................................................. 5.02 19 Self-Help:Planning Requirements......................................................... 5.03 19 Self-Help:Funding........................................................................ 5.04 19 Self-Help:Procedures......... ........................................................... 5.05 20 Self-Help:Appraisals ......... ........................................................... 5.06 20 Urban Self-Help Program.................................................................. 5.07 20 Land and Water Conservation Fund........................................................ 5.08 20 The"A-95"Review Program............................................................... 5.09 21 Federal AppraisalRequirements........................................................... 5.10 21 Community Development Block Grant Program...............I....I...I.................... 5.11 21 Federal Surplus Property Program......................................................... 5.12 21 Federal and State Water Pollution Grants .................................................. 5.13 21 Programs,of the Army Corps of Engineers.................................................. 5.14 21 Highway Beautification................................................................... 5.15 22 Bikeways ................................................................................ 5.16 22 Airport Development Aid Program ......................................................... 5.17 22 6. MANAGING AND PROTECTING CONSERVATION COMMISSION LAND Setting Municipal Policy .................................................................. 6.01 23 Conservation Commission Control ........................................................ 6.02 23 Maintenance of Land ..................................................................... 6.03 23 "Passive"Recreation..................................................................... 6.04 23 Fishing,Hunting and Recreational Vehicles................................................ 6.05 24 Intensive Recreation...................................................................... 6.06 24 Agricultural Use of Conservation Land..................................................... 6.07 24 Forestry Operations on Conservation Land................................................. 6.08 25 Managing for Watershed Protection ....................................................... 6.09 25 Managing for Wildlife..................................................................... 6.10 25 Conservation Land and Wetlands Laws .................................................... 6.11 25 Putting Utilities on Conservation Land ..................................................... 6.12 26 Highway Encroachment on Conservation Lands............................................ 6.13 26 Transferor Sale of Conservation Commission Land......................................... 6.14 26 Liability for Accidents .................................................................... 6.15 27 Possibilities.............................................................................. 6.16 27 7. CONSERVATION AND PRESERVATION RESTRICTIONS Introduction.............................................................................. 7.01 28 Creating a Conservation or Historical Preservation Restriction .............................. 7.02 28 What Landis Suitable for Restrictions? .................................................... 7.03 28 Activities Permitted on Restricted Land.................................................... 7.04 29 PublicAccess............................................................................ 7.05 29 Enforcing and Releasing Restrictions...................................................... 7.06 29 Short-Term Restrictions................................................................... 7.07 29 Duration of Other Types of Restrictions.................................................... 7.08 29 Restrictions Held by Charities............................................................. 7.09 29 The Public Restriction Tract Index.......................................................... 7.10 30 Tax Advantages to the Landowner......................................................... 7.11 30 Agricultural Preservation Restrictions ..................................................... 7.12 30 8. TAXATION AND CONSERVATION WhatTaxes Apply? ....................................................................... 8.01 32 Income Tax Deduction.................................................................... 8.02 32 Saving on Capital Gains Tax............................................................... 8.03 32 TheBargain Sale ......................................................................... 8.04 32 Estate Tax Considerations ................................................................ 8.05 32 Federal Taxation of Reserved Life Estate................................................... 8.06 33 Real Estate Taxes ........................................................................ 8.07 33 Real Estate Taxes on Land Subject to Conservation Restrictions............................. 8.08 33 Tax Deferral on Forest and Farm Land...................................................... 8.09 33 Taxation and Historic Structures .......................................................... 8.10 33 9. STATE AND FEDERAL LAWS THAT PROTECT WETLANDS Introduction............................................................................... 9.01 35 Wetlands Protection Act(G.L.Ch.131,§40):Jurisdiction.................................... 9.02 35 Wetlands Protection Act:Orders of Conditions............................................. 9.03 36 Wetlands Protection Act:Appeals ......................................................... 9.04 36 Denials .................................................................................. 9.05 36 Enforcement............................................................................. 9.06 37 Forms ................................................................................... 9.07 37 Army Corps Fill Permits................................................................... 9.08 38 The Inland Wetlands Restriction Act(G.L.Ch.131,§40A).................................... 9.09 38 The Coastal Wetlands Restriction Act(G.L.Ch.130,§105)................................... 9.10 39 Scenic Rivers Act(G.L.Ch.21,§17B)....................................................... 9.11 39 Public Access to Coastal Marshes and Beaches ............................................ 9.12 39 ii Coastal Zone Management..........:..................................................... 9.13 39 Private Rights to Sue for Damages......................................................... 9.14 40 10. MUNICIPAL LAWS PROTECTING WETLANDS Introduction.............................................................................. 10.01 41 Flood plainlWetlands Protection Zoning:Legal Basis........................................ 10.02 41 FloodptainlWetlands Protection Zoning Procedures ........................................ 10.03 41 Howls the Zoning Bounded?......................... .................................. 10.04 42 Nonzoning Bylaws for Protecting WetlandslFloodplains .................................... 10.05 42 National Flood Insurance Program......................................................... 10.06 42 ClusterZoning ........................................................................... 10.07 43 "Conservancy"and Aquifer Protection Zoning.....................I......................... 10.08 43 LargeLot Zoning ......................................................................... 10.09 43 Phased Growth and"Moratoria............................................................. 10.10 43 11, OTHER USEFUL LAWS ADMINISTERED LOCALLY Introduction.............................................................................. 11.01 45 Conservation Aspects of Subdivision Control............................................... 11.02 45 Health Board Regulations................................................................. 11.03 45 "Sand and Gravel"Laws .................................................................. 11.04 46 Scenic Roads(and Other Ways)............................................................ 11.05 46 The Public Shade Tree Act ................................................................ 11.06 46 Snowmobiles and Motorboats............................................................. 11.07 46 Historical Protection...................................................................... 11.08 47 Scenic Mountains ........................................................................ 11.09 47 Billboard and Sign Control ................................................................ 11.10 47 Insect Control............................................................................ 11.11 47 Defacing Natural Scenery................................................................. 11.12 48 JunkCars.................................:.............................................. 11.13 48 Nuisance ................................................................................ 11.14 48 12. OTHER USEFUL STATE AND FEDERAL LAWS Introduction.................................................................. ........... 12.01 49 Citizens Right of Action Law .............................................................. 12.02 49 Environmental Impact Statement Laws..................................................... 12.03 49 ,.A-95"Review............................................................................ 12.04 49 Programs Combatting Airand Water Pollution.............................................. 12.05 50 Pesticide Controls........................................................................ 12.06 50 Solid Waste.............................................................................. 12.07 50 Forest Practices.......................................................................... 12.08 50 13. PRIVATE CONSERVATION ORGANIZATIONS Introduction.................................. ......................................... 13.01 51 Selecting a Legal Entity-the"Unincorporated Association"................................. 13.02 51 Selecting a Legal Entity-The Nonprofit Trust............................................... 13.03 51 Selecting a Legal Entity-The Nonprofit Corporation ........................................ 13.04 51 Common Powers and Purposes of Nonprofit Trust and Corporations......................... 13.05 51 Powers Compared to Conservation Commissions........................................... 13.06 52 Creating a Nonprofit Trust or Corporation.................................................. 13.07 52 Real Estate Taxation of Nonprofit Landowners ............................................. 13.08 52 Some Well Known Nonprofit Organizations................................................. 13.09 52 14. PUBLIC CONSERVATION ORGANIZATIONS Introduction.............................................................................. 14.01 54 Massachusetts Executive Of lice of Environmental Affairs(EOEA)............................ 14.02 54 Attorney General's Environmental Protection Division .:.................................... 14.03 54 Regional Planning Agencies............................................................... 14,04 54 Department of Community Affairs......................................................... 14.05 54 The Environmental Protection Agency ..................................................... 14.06 54 The Cooperative Extension Service ........................................................ 14,07 54 Conservation Districts.................................................................... 14.08 55 The Soil Conservation Service............................................................. 14,09 55 15. STATUTES Conservation Commission Act-G.L.Ch.40,§8C ........................................... 15.01 57 Open Meeting Law-G.L.Ch,39,§23A-23C ................................................. 15.02 57 Conservation Fund Act-G.L.Ch.40,§5(51)...................................I............. 15.03 58 iii Self-Help Act-G.L.CH.132A,§11,and§213 ................................................ 15.04 58 Urban Self Help Act-Acts of 1977,Ch.933.................................................. 15.05 59 Debt for Land Acquisition-Ch.44,§8C..................................................... 15.06 59 Massachusetts Constitution,Article 49,amended by Article 97.............................. 15.07 60 Opinion of Attorney General 616173-(interpreting Article 49) ................................. 15.08 60 Private Landowner's Liability-G.L.CH.21,§17C............................................ 15.09 63 Motorized Trespass Law-G.L.CH-266,§121A.............................................. 15.10 63 Wetlands Protection Act-G.L.Ch.131,§40 ................................................ 15.11 63 Coastal Wetlands Restriction Act-G.L.CH.130,§105....................................... 15.12 66 Inland Wetlands Restriction Act-G.L.Ch.131,§40A........................................ 15.13 66 Scenic Rivers Act-G.L.CH.21,§17B ...................................................... 15.14 67 Forest Assessment Act-G.L.CH.61 ....................................................... 15.15 67 Farm Assessment Act-G.L.CH.61A....................................................... 15.16 69 Conservation Restriction Act-G.L.Ch.184,§31.33 ......................................... 15.17(a) 73 and Acts of 1977,Ch.232,§1 &2........................................................... 15,17(b) 76 Scenic Roads Act-G.L.CH.40,§15C ...................................................... 15.18 76 Massachusetts Environmental Policy Act-G.L.Ch.30,§61.62............................... 15.19 76 Citizens'Right of Action Laws-G.L.CH,214,§7A;Ch.30A,§10A.......................I.... 15.20 78 Timber Slash Law-G.L.CH.48,§16........................................................ 15.21 79 16. FORMS AND MODELS Warrant Article to Establish Conservation Commission ..................................... 16.01 81 Conservation Commission Bylaws:Operations and Meetings................................ 16.02 81 Conflict of Interest Disclosure Farm ....................................................... 16.03 83 Warrant Article for Land Purchase......................................................... 16.04 83 Deed of Land............................................................................. 16.05 84 Deed of Gift in Trust ...................................................................... 16.06 84 Regulations for Use of Conservation Commission Land..................................... 16.07 85 License of Conservation Commission Land ................................................ 16.08 85 Self-Help Step Procedures ................................................................ 16.09 85 HCRS Step Procedures ................................................................... 16.10 87 Conservation Restriction over Parcel....................................................... 16.11 88 Conservation Restriction over a Strip ....................................................... 16.12 89 Guidelines to taxing Conservation Restriction Land ........................................ 16.13 89 Flood-plainNVetlands Protection Zoning By-law ............................................ 16.14 91 HUD Flood Insurance Flood Plain District Regulations...................................... 16.15 93 WPA:Notice of Intent..................................................................... 16.16 95 WPA:Order,of Conditions-Approval....................................................... 16.17 100 WPA:Order of Conditions-Denial ......................................................... 16.18 102 WPA:Request to Determine Applicability .................................................. 16.19 103 WPA:Determination of Applicability....................................................... 16.20 104 WPA:Extension Permit ................................................................... 16.21 105 WPA:Certificate of Compliance ........................................................... 16.22 106 WPA:Certification of Emergency.......................................................... 16.23 107 WPA:Request for Compliance............................................................. 16.24 108 WPA:Cease and Desist Order ............................................................. 16.25 109 WPA:Recommended Procedures for Enforcement.......................................... 16.26 110 WPA:Enforcement by Criminal Complaint.................................................. 16.27 111 WPA:Attorney General Memo re MacGibbon Case.......................................... 16.28 111 Scenic Roads By-Law..................................................................... 16.29 112 Earth Removal By-Law.................................................................... 16.30 112 Transferof municipally-owned land to Conservation Commission jurisdiction ................ 16.31 113 17. INDEX r iv ENVIRONMENTAL HANDBOOK FOR MASSACHUSETTS CONSERVATION COMMISSIONERS FOURTH EDITION BY ALEXANDRA D. DAWSON,J. D. COUNSEL, METROPOLITAN AREA PLANNING COUNCIL, INC. BOARD MEMBER, MASS.ASSOCIATION OF CONSERVATION COMMISSIONS MEMBER,WESTON CONSERVATION COMMISSION FORMERLY COUNSEL FOR CONSERVATION LAW FOUNDATION OF NEW ENGLAND AND NORTON H. NICKERSON, PH. D. ASSOC. PROFESSOR, DEPARTMENT OF BIOLOGY,TUFTS UNIV., MEDFORD, MASS. BOARD MEMBER, MASS.ASSOCIATION OF CONSERVATION COMMISSIONS MEMBER, DENNIS CONSERVATION COMMISSION PAST PRESIDENT, MASSACHUSETTS ASSOCIATION OF CONSERVATION COMMISSIONS THE FIRST EDITION,a series of articles distributed by Mass. Dept.of Natural Resources; THE SECOND EDITION by Stuart DeBard, Esq.; and THE THIRD(1973)EDITION by Robert J. Ellis and A. D. Dawson,J.D. MASSACHUSETTS ASSOCIATION OF CONSERVATION COMMISSIONS Lincoln Riene Center Tufts University Medford,Massachusetts 02155 Publication of the Handbook has been made possible by two anonymous gifts to the Environmental Education Fund of Tufts Un- viersity, a gift from the Cape Cod Conservation District, a gift from the Kendall Foundation, a gift from the Mass. Department of Environmental Management, a gift from the Society for the Promotion of Massachusetts Agriculture, and a gift from John Hit- chcock,Princeton,Me.Each is gratefully acknowledged. v Officers And Directors, 1978 . 1979 PRESIDENT George S.Wislocki,169 Pomeroy Avenue,Pittsfield 01201 Berkshire Natural Resources Council,8 Bank Row,Pittsfield 01201 FIRST VICE PRESIDENT Nancy Wilson Anderson,46 Wakefield Street,Reading 01867 The Lincoln Filene Center,Tufts University,Medford 02155 SECOND VICE PRESIDENT Meriel N.Hardin,312 Orchard Street,Millis 02054 Department of Environmental Management ,100 Cambridge St.,Boston 02202 THIRD VICE PRESIDENT Gregor I.McGregor,Esquire,43 Lehigh Road,Wellesley02181 33 Mt.Vernon Street,Beacon Hill,Boston 02108 SECRETARY B.Ann Whittaker,44 Norfolk Street,Holliston 01746 Dept.of Community Affairs, 100 Cambridge St.,Boston 02202 TREASURER Robert J.Ellis,10 Country Club Road,Acton 01720 The Mitre Corp.,Route 62,.Bedford 01730 DIRECTORSTO SERVE UNTIL ANNUAL MEETING 1979 Leon Bunk,16 Chester Street,Taunton 02780 27 Fifth Avenue,Taunton 02780 Hermann H.Field, Shirley L.Griffin,South Street,Shirley 01464 Oakmont Regional High School,South Ashburnham 01466 John Lewis,97 Newbury Street,Boston 02116 DIRECTORS TO SERVE UNTIL ANNUAL MEETING 1980 John Loupos,88 Bay Shore Drive,Plymouth 02360 Robert W.Vose,Windy Ridge,West Springfield 01089 Alexandra D.Dawson,11 Hilltop Road,Weston 02193 Metropolitan Area Planning Council,44 School Street,Boston 02108 DIRECTORS TO SERVE UNTIL ANNUAL MEETING 1981 Dr.Norton H.Nickerson,123 Prescott Street,Reading 01867 Tufts University,Department of Biology Medford 02155 John Balco,17 Reid Road,Chelmsford 01824 Water Resources Commission,100 Cambridge St.,Boston 02202 Garrett G.Hollands,9 Scar Hill Road,Boylston 01505 I.E.P.,Inc.,Wayland 01778 Massachusetts Association of Conservation Commissions Lincoln Filene Center Tufts University Medford, Massachusetts 02155 vi Chapter 1 • Introduction 1.01 PURPOSE OF THE HANDBOOK 1.05 DEFINITIONS The purpose of this Handbook Is'to assemble in one place As used In this Handbook,the following apply: enough information to allow members of conservation com- The Act-The Conservation Commission Act.,G. L.Ch.40,§80 missions to accomplish their duties as authorized under the (§15.01) Commonwealth's enabling statute, General Laws Ch..40,§8C, Association - The Massachusetts Association of Con- the Wetlands Protection Act, G. L. Ch. 131, §40, and other servation Commissions. relevant laws.This information is the result of over 15 years of Bylaw-A town law. assembly and refinement by the Massachusetts Association of Cases - Decisions of the Massachusetts Supreme Judicial Conservation Commissions. 11 reflects information which is Court and Appeals Court.They are usually referenced(cited)as current at the time of revision, but since this Information is they appear in the bound volumes of the Massachusetts constantly changing,statutes in particular should be checked Reports. A citation to"362 Mass.221" means the decision is for accuracy.Individuals who have contributed substantially to found In volume 362 of the Massachusetts Reports at page the Handbook over the years are: Stuart DeBard,-Executive 221. Occasionally, a less authoritative set of the same cases, Secretaty of MACC from 1961 - 1971; Stephen Ells, then called"Northeastern Reporter Second Series"(N.E.2d)may be Deputy Commissioner of DNR; Arthur W. Brownell, then cited Instead. Most towns possess a set of reports. Before the Commissioner, Department of Natural Resources; Robert J. decisions are bound, they appear in looseleal series called Ellis, President, MACC, 1971 - 1974; Alexandra D. Dawson, "Advance Sheets"-e.g.,"1976 Mass.Adv.Sh.p.143." Attorney;and Norton Nickerson,President,MACC,1974-1977, Commission - A municipal conservation commission established in Massachusetts under the Enabling Act., G. L. 1.02 FINDING THINGS IN THE HANDBOOK Ch.40,§8C. Commonwealth-Massachusetts The paragraph identification system used in this handbook District - A conservation district established In consists of a two-part number. The whole number section, or Massachusetts under the enabling Act.,G.L.Ch.21,§18.25. first part, is the chapter number.This is followed by a decimal Division - The Division of Conservation Services in the section, or second part, which designates sections of chap- - Executive Office of Environmental Affairs. ters, For example, this is paragraph.§1.02. This system Is Environmental Protection Agency-The chief Federal agency designed to assist the reader in locating cross-references enforcing environmental law. The office for Region I (New which are listed as(§1.02). England)Is located in Boston. Executive Office of Environmental Affairs-The chief cabinet 1.03 THE STYLE OF THE HANDBOOK level office for state environmental protection,containing live departments:Environmental Quality Engineering(DEQE);Food The technical information In this handbook is presented in and Agriculture (DFA); Environmental Management (DEM); as non-technical terms as possible.The text addresses a wide Fisheries,Wildlife and Recreational Vehicles(DFWRV);and the range of problems faced by commissions. It contains Metropolitan District Commission (MDC); plus several suggestions on organization, operation and relations with Divisions and programs in the Executive Office of En- other municipal agencies(Ch.3), forms,votes and bylaws(Ch. vironmental Affairs itself. 16) as wail as applicable statutes and judicial decisions. Municipality - Includes both towns and cities of However,the treatment of legal points is not exhaustive and is Massachusetts. City financial procedures and special powers not designed to replace the services of an attorney. granted in city charters and under certain chapters of the General Laws to some cities are not included In discussions of 1.04OBTAINING COPIES OF THE HANDBOOK municipal powers. Provisions of G. L. Ch. 40, §8C, apply to cities and towns unless otherwise staled; but in G. L. Ch. 45 Each conservation commission member should have a copy (Parks),the term"town"does not Include"cities".G.L.Ch.40, of the Handbook for personal use. A complimentary copy is §8C applies to Boston, but G. L. Ch. 40A(zoning)and Ch. 41, being provided to each member of a conservation commission §81A(subdivision control)do not apply to Boston.To be safe, and Individual members of the Association whose names were counsel should be consulted if applicability of a specific listed in the Association's records at time of publication.The statute is in question. Association attempts to maintain an up-to-date membership Ordinance•A city law. list slnce newsletters and other mailings are sent to Individual Regulation - A rule formally adopted by an administrative commissioners,but commission membership changes rapidly agency by procedures set out in the state or federal Ad- In some municipalities and the Association must rely on the ministrative Procedures Acts. Regulations are binding upon commissions for notification of all name and address changes. the agency unless found unreasonable by a court. Con- As commissioners are replaced, they should turn Handbooks servation commissions do not have the power to adopt formal over to their replacements.Additional copies of the Handbook regulations with the force of law except concerning the use of may be obtained through the Association's office, or through conservation commission land (116.07, 16.08); they may the Division of Conservation Services, 100 Cambridge Street, however vote bylaws(§16.02)or guidelines to help them in their Boston,Ma.02202. other functions. 1 Section (§) - A section of this Handbook (as §1.02) or a subdivision of a statute(as G.L Ch.40,§8C). ' Statute or Ch. - A section of the General Laws of the Com- monwealth of Massachusetts, current as of October 1978. Statutes have two sets of numbers, one in the year they are passed and another when and ii they are codified.For example, the 1975 Zoning Act was Ch. 808 of the Acts (or Statutes) of 1975;when codified, it became G. L.Ch.40A.Special acts are never codified Into the "General Laws. By law, every Massachusetts municipality is supplied with a set of the current General Laws. 2 Chapter 2 History and Functions of Massachusetts Conservation Commissions 2.01 HISTORY OF CONSERVATION IN MASSACHUSETTS and forest operations going (§7.12); encouragement of the townspeople so involved is, an important aspect of con. Massachusetts invented the municipal conservation servation. Protection of salt marsh areas and contiguous fresh commission.The need for conservation of natural resources at water meadow,stream and bog areas essential to a substantial the local governmental level had been recognized by many for segment of the fishing industry, is clearly a direct concern to several years. This need led to the formation of town forest the commissions of our 81 coastal communities.Wise use of committees,park commissions,playground commissions,and rivers for water supply, power generation and recreation recreation commissions. Sportsmen's clubs, garden clubs, enhance the economic base of nearly every community, nature associations and charitable foundations had done Judiciously located muncipally-owned open space con- much to conserve our vanishing natural resources, but a tinuously enhances the value of contiguous lands, thus specific municipal conservation agency and authorization of stabilizing the tax rate in every community. Houses on lots conservation as a valid municipal purpose was needed before next to or close to guaranteed open space constantly increase communities could acquire areas for passive use, rather than in value as our living areas become more and more crowded. active recreational deveiopment. In 1957, Representative John Lost revenues from lands purchased for conservation are thus Dolan of Ipswich tiled a bill in the General Court which became compensated for In a reasonably short time.The hidden costa the Conservation Commission Act,G. L. Chapter 40, §8C(see of development of these same areas often make It more §15.01). During 1958, 12 towns accepted Its provisions and profitable taxwise for a community to acquire as much of Its established conservation commissions. By mid-1978, 334 of open space as it possibly can.It is the duty of a Commission to the 351 cities and towns in the Commonwealth had established research the facts for its own town and to publicize these their commissions. Although some commissions have ex- facts, which almost invariably show that new sch000l, fire, perienced difficulties In developing viable programs and police, road maintenance, water, sewer, and traffic demands gaining local support, many have succeeded beyond their outweigh the tax benefits derived from further development of most optimistic expectations.Since the pressures seem to be year-round occupancy dwellings. Because the state expects more in balance with the prospects in the suburban areas, low-income housing commitments from each community, the accomplishments tend to be greatest there, but both use of clustering, with concomitant lot space kept open, metropolitan areas and rural communities boast their exam- should be encouraged by the Commission.Conservation lands ples of outstanding success. Over 50 commissions have may not themselves be used for low-income housing. permanent full time employees. 2. The Water Management Function, a serious concern to many commissions, since demands upon potable water 2.02 WHAT IS MEANT BY "CONSERVATION OF NATURAL supplies and the dangers from flooding are constantly in. RESOURCES"UNDER CHAPTER 40,SECTION 8C. creasing. Water supply Itself is a specifically designated commission function under Ch. 131, §40; the protection of The Conservation Act (§15.01) includes specifically ". watertable-recharge areas may comprise a substantial portion promotion and development of natural resources and . . . the of an open space master plan. Protection from the hazards of protection of the watershed resources. . ." Open areas, in- floods by preservation of flood plains(§10.02) should also be cluding marsh land, swamps,and other wetlands and passive included. The extent to which this protection may go is outdoor recreation areas(§8.04) are mentioned. Conservation illustrated in Turnpike Realty Company, Inc. v. Town of of natural resources therefore Includes at least seven specific Dedham discussed in Chapter 10. functions of commissions. The commission's responsibility toward water has been To accomplish these functions,the Conservation Act further increased since 1972.Natural water in tidelands,ponds,rivers, grants to the commission the right to". . . receive gifts. . . or lakes, streams, and in wetlands as they are recognized under interests in real property... It may purchase Interests in such Ch. 131, §40 (§15.11), which the Conservation Commission land...and acquire...by option,purchase,lease or otherwise administers at the local level, Is a public amenity, and the In- the fee in such land or water rights,conservation restrictions, terference with its flow, the expediting of its flow, or Its easements or other contractual rights...as may be necessary pollution are all to be taken Into account under the Wetlands to acquire,maintain,improve,protect,limit the future use of or Protection Act. Thus the destruction of any wetland otherwise conserve and properly utilize open spaces in land ecosystem or part thereof which does not serve the public and water areas...and it shall manage and control the same". Interest derogates that same interest and is clearly The Seven functions are: regulatable. Because these wetlands serve as the major 1. The Productive or Economic Function, represented by cleansing agents of the ecosystems, removing nitrates, agriculture, forestry and fishing.These activities deal with the phosphates, heavy metals, (lead In particular) and pesticides utilization of the land's renewable resources to develop as well as de-methylating poisonous methyl mercury, and products of economic value. Farm and forest lands provide serve as a major link in the sulfur cycle, every acre has a open land, use diversity and scenic beauty to the community measure of Importance locally, regionally, nationally and as well as meaningful employment to the farmer or lumberman world-wide.Size alone Is not a criterion of importance,hence a and his supporting supply organizations. Conservation at the commission should be very careful about allowing destruction municipal level is just now becoming involved in keeping farm of any of these functioning renewable resources. Prejudice 3 against "worthless" wetlands runs high, but is based more types of residential area,green belts,river banks or ridge tops, upon ignorance than on scientific fact. will all add to the natural resource enrichment of your com- 3.The Recreation Function, inherent in the"promotion and munity. development of natural resources."The most understood use 6.The Regulatory Function,a relatively new responsibility of of open spaces, whether they are wooded, open fields, land the commission. Under the 1972 amended combined "Hatch- bordering streams and ponds,or the sea,is recreational,either Jones" Wetlands Protection Act (see Chapter 9), the com- active of passive.Although the organization and management mission is responsible for regulating the alteration of of a recreational program may be administered by a separate wetlands. The issuance of regulatory orders has a direct im- recreation commission, close attention to such functions can pact upon the development of the community. This respon- assure maximum benefit to the municipality from commission slbility should help commissions play a stronger part in the acquisition. This is especially significant where federal or planning of municipal development through assitance in the state funding is sought,as discussed In Chapter 5.The policy drafting and enforcing of local flood plain and wetland laws at of the federal Heritage Conservation & Recreation Service(fo- the local level(see Chapter 10). merly the Bureau of Outdoor Recreation), is to support active, Further,-the Act which establishes commissions (§15.01) rather than passive,recreational opportunities.The past focus clearly states that the commission,regarding any land or less- of the state Self-Help Program has been and remains the than-fee Interests acquired for the purposes set forth, "shall acquisition of lands"primarily in their natural or undisturbed manage and control the same". It is thus Incumbent upon a condition." These two purposes are not at variance with one commission to establish wise use policies for its acquisitions. another on large acquisitions, but clearly can collide on small These policies should both strengthen the commission as a urban parcels, where active recreational use is often much community service organization and preserve the resource. It more important than passive use. Again, It is HCRS policy, is not an easy line to follow,and requires considerable thought echoed by the Office of State Planning, to provide funds first as to both present and future land uses. for urban acquisitions. The dilemma is apparent. few if any 7. The Coordination Function, essential to assure that all major natural areas occur within our urban centers,yet that is bodies of the municipality, both official and unofficial,whose where the major population (recreation users)live. A separate activities affect the environment,are acting toward a common Urban Self-Help fund for park and recreation lands, with goal.The Conservation Act(§15.01)charges the commission to reimbursement running up to 80% of municipal costs,has just , . . seek to organize the activities of unofficial bodies been created by the legislature through strong Interest on the organized for similar purposes. . ." as well as with ". . . the part of the Massachusetts Association of Conservation promotion and development of the natural resources. . . Commissions and many others(see§15.05).It is probably less Relations of the commission with other municipal bodies are desirable in the long run for a commission to become the addressed in Chapters 3,10,and 11. recreational operator in a municipality, but its considerable Increased cooperation between the Executive Office of land acquisition powers can certainly be focused on sup- Environmental Affairs (EOEA), the Environmental Protection porting a variety of recreational opportunities. Conduct of Agency (EPA) and local governments must clearly be im- actual recreational programs can best be arranged through plemented through Conservation Commissions, because letters of understanding with park and/or recreation com- mandates for all three levels of government are closely parallel missions,school committees,beach committees and the like. on certain features. Clean air and clean water, natural 4. The Preservation Function, involving the protection of resources upon which our very lives depend, are no less natural features of the local environment which nature has important locally than nationally. EPA is already funding arranged beyond man's ability to improve. A commission educational courses through MACC in an attempt to help should consider the acquisition of land for visw,such as ledge, commission members understand the ecoogical basis for our hilltops, waterfront, or even the view of the town itself. If this survival and the laws generated to enhance that basis. The purpose is paramount, right to access may not be necessary, commission is truly a substantial force in municipal govern- and easements or restrictions (see Chapter 7) may be con- ment. sidered. The Massachusetts Supreme Court has held that aesthetics Is a sound basis for the expenditure of public funds. 2.03 THE ASSOCIATION In a more recent case(Boston Edison v. Town of Sudbury, 356 Mass. 406), the court held that preserving aesthetics is a It became clear very early in the game that commissions valid reason for the town to compel the utility to expend funds would benefit greatly from educational pamphlets describing above the"least expensive option",especially when involving their duties and outlining methods of attaining their goals. permanent erections of non-aesthetic items (in this case, Many of these early pamphlets were written by a major founder utility transmission lines)on public lands dedicated in part to of this organization, Attorney Stuart DeBard. The need to natural beauty, whether these lands are held by federal, state explain the Information in these pamphlets, to explain state or local governmental bodies. government and to discuss ways of improving the citizen's lot 5.The Design Function, major concern to the commission. with regard to his environment led to the formation in 1961 of The development patterns of even the most densely developed the Massachusetts Association of Conservation Com- city are constantly changing. In less dense areas, these pat- missions, a non-profit, unincorporated, voluntary association terns are still being formed.The open-space conservation plan of the conservation commissions of Massachusetts,dedicated should strive to shape the residential, business and industrial to the education of commission members. It automatically development patterns of the municipality so that the greatest admits as members all commissions duly established under G. benefit is derived from the natural resources of the land. L. Ch 40, §8C (§15.01). The Association is supported by the Zoning of flood plain areas, acquisition of strips of woods, annual dues paid by the member commissions. It Is a ravines or marshes separating various zoning uses or separate charitable organization with tax-deductible, tax-exempt status 4 under section 501-C(3)of. the Internal Revenue Code. chairmen of the Joint Committee on Natural Resources & Its educational activities (meetings, courses and some Agriculture of the General Court shall be Honorary Members. publications)have been supported by small grants from public Other individuals recommended by the board may be elected and private sources. It has received very strong moral support by the Association as Honorary Members, In Its work from the Conservation Law Foundation. The Sec.4 Does. The board shall propose a schedule of dues for Massachusetts Audubon Society has contributed to all con- member commissions, individual members,and associates to servation commissions, earlier through its Conservation be adopted by vote of the association.Honorary Members shall Services Center and more recently through its Wetlands be exempt from dues. The fiscal year shall be the calendar Project. year. Bills shall be malled in January, and the treasurer shall The Association holds two meetings each year at which notify members whose dues are nine months in arrears.If dues current problems of commissions are discussed by panels and are not paid by the following January 1, a commission shall question-and-answer sessions provide specific opportunity to lose Its voting privileges. Under the same circumstances, an discuss individual cases.Attendance at each meeting is about individual member or associate shall be dropped tram the 400 people, and well over 80% of the 334 Individual com- membership rolls. missions are represented each year. The Association is governed by the following bylaws,as amended through 1977. Article IV.Officers and Directors. 2.04 BYLAWS ADOPTED 1972 AMENDED 1977 Sec. 1. Officers. The officers of the association shall be a president, first VP, second VP, third VP, a secretary and a Article I.Name. treasurer elected at the annual meeting for one-year terms.The term commences at the conclusion of the annual meeting and The name of this Association shall be "Massachusetts continues until such time as a successor Is qualified. No of- Association of Conservation Commissions." ficer shall serve more than three successive terms in the same capacity. Article II.Purpose Sec.2 Directors. There shall be as many directors as there are designated divisions(10). Each director may be elected by The purpose of the Association shall be to foster en- and from the division at the Division Conference. In the event vironmental quality and the conservation and wise use of that no such election takes place the association shall elect natural resources, by providing service to conservation the director from candidates proposed by the Nominating commissions and related agencies whether public or private, Committee at the annual meeting. The committee will be by public education, by publicity and publication, by advice guided by,but not restricted to,division boundaries. and appropriate action on legislation and governmental affairs, In addition the Immediate past president of the association and by promoting the formation of conservation commissions shall,with his consent, be ex officio a member of the Board of and related groups and agencies. Directors forone year. Directors shall be elected for three-year terms at the Division Article III.Membership Conference or Association Annual Meeting as the case may be. The term commences at the conclusion of the annual Sec. 1.Members.Any conservation commission established meeting and continues until such time as a successor Is under Chapter 40, Sec. 8C of the General Laws of the Com- qualified. No Director shall serve more than two successive monwealth, upon application to the Secretary of the terms. Association,shall become a Member.However, in the event of In the event that, a Division elects a Director while that non-payment of dues such commission shall retain all rights position is filled by a Director elected by the Association,the and privileges of membership,except that of voting. former becomes an additional member of the Board until the Members of commissions In good standing are eligible to conclusion of term of office, or other reason, vacates the serve on any committee or on the board, in which latter case latte►'s position. they become individual voting members. Sec. 3 Duties of Officers and Directors. The duties shall be Section 2 Individual Members. Past members of com- those prescribed by these bylaws and by the parliamentary missions may become Individual Members on application to authority adopted by the Association.All officers and directors the secretary,election by the board and payment of dues.Such shall have the right to vote as Individual members. members are eligible to serve on any committee or on the a. The President shall preside at all meetings of the board, In which latter case they become individual voting Association, Board, and Executive Committee. He shall be a members. member ex officio of all.committees except the Nominating Section 2A Associates. Other Interested individuals, in- Committee. Unless otherwise directed, he shall appoint all ciuding associates, consultants and employees of member special committees and designate their chairman. commissions may become Associates upon application to the b. The First Vice-President shall assume the duties of the secretary, election by the board and payment of dues. President in his absence or disability, and in the event of his Associates are eligible to participate in the affairs of the death or resignation shall become the President for the Association, to serve and vote on its special committees and remainder of the term. to receive Its publications but are not eligible to hold elective c.The three Vice-Presidents shall perform such duties as the office or to vote at Association meetings. Board may determine. Section 3 Honorary Members. The Secretary of En- d.The Secretary shall be responsible for the minutes of the vironmental Affairs, the Commissioners of the several meetings of the Association and the Board; shall keep the Departments comprising the Secretariat, the Director of the records of the Association, and a roster of the membership; Division of Conservation Services,and the Senate and House shall send out the notices of meetings, Inform members of 5 their election or appointment to office, and conduct of President. 11 shall acquire, hold and manage the fiscal and correspondence not otherwise provided for.He shall assist the real property of the Association,engage any employee and fix President in the preparation of the agenda for meetings and the compensation thereof. It shall appoint an Auditing Com- shall present a brief annual report. mittee of two from outside of Its membership, and perform e. The Treasurer shall be the custodian of the Association such other duties as the Association may direct. It may funds, except as otherwise directed by the Board. He shall execute contracts for the Association. deposit the same in such banking institution as shall be Sec. 3 Executive Committee of the Board. The Executive authorized by the Board in an account under the Association Committee of the Board shall consist of the officers of the name. He shall pay the bills of the Association under Association. The President shall be its chairman. Its duties provisions determined by the Board. At the annual meeting, shall be to carry on the work of the Board in the Interim be- and at such other times as requested by the Board, he shall tween Board meetings. It shall report Its actions at the present a financial statement. following Board meeting. I. The Directors shall participate in the total work of the Association, and serve on whatever standing or special Article VII.Committees. committees to which they may be appointed. Sec. 4 Vacancies. Any vacancy, except that of President, Sec. 1 Committee on Governmental Affairs. There shall be a however occurring shall be filled by the Board of Directors until committee of three, appointed by the President, under the the next annual meeting. Failure of any officer or director to chairmanship of a Vice-President which shall consider attend two consecutive meetings of the Board, without governmental issues, both legislative and administrative, and notification, will create a vacancy in that position. Failure of provide recommendations to the Executive Committee or the any elected member of the board or of the nominating com- Board for appropriate action. mittee, who at the time of his election was a member of a All proposals on governmental Issues from the membership commission and who therefore ceased to be a member of a or from the divisions shall be submitted to this committee for commission to apply to Individual Membership within 60 days its recommendation prior to action. of such cessation will create a vacancy in that position. Sec. 2 Committee on Divisions. There shall be a committee of five appointed by the President under the chairmanship of a Article V.Meetings Vice-President which shall keep a record of the member Sec. 1 Annual Meeting. The annual meeting of the commissions, recommend to the Board the boundaries of the Association shall be held between March 1 and April 15 for the Divisions,facilitate the arrangement of Division Conferences if purpose of election of Officers, Directors and members of the desired, and report to the Secretary the election of a division Nominating Committee; to hear the reports of the Secretary, Director,or Its absence to the Nominating Committee. Treasurer and Auditing Committee and to transact such other Sec. 3 Program Committee. There shall be a committee of business as may properly be brought before the members.The three members appointed by the President,who shall name Its call of the meeting shall be no less than 30 days,written notice chairman, which shall recommend programs for Association to all members. meetings for adoption by the Board of Directors, and make Sec.2 Special Meetings,The President,the Board or any ten arrangements for these meetings. member Commissions may call a special meeting on 30 days Sec.4 Nominating Committee. There shall be a Nominating written notice from the Secretary to ail members. Committee of seven members, four of whom shall be elected Sec. 3 Voting. Each member commission in good standing by the Association at the annual meeting from the members shall be entitled to one vote to be cast by Its ranking officer or not presently serving on the Board, and three elected by and authorized delegate. The casting of a vote by any com- from the Board,all to serve one-year terms.The duties of this missioner, without objection from the floor by a fellow committee shall be to present to the annual meeting a slate of delegate from the same commission, shall be presumed to nominees for the position of Officers, Directors and Members represent authorized action, of the Nominating Committee according to the vacancies to be A- majority of these votes, together with those of the filled by election. The Nominating Committee shall select its members of the Board, shall transact the business of the nominees without regard to race,creed,color, sex,or national meeting, unless otherwise indicated in these bylaws, or the origin. adopted parliamentary authority. Sec. 5 Other Committees. Such other committees are as Sec.4 Quorum.Thirty member commissions shall constitute authorized by the Association or the Board shall be appointed a quorum for the conduct of business at any Association by the President, who shall be a member ex officio of all meeting, A majority of the membership of the Board of committees,except the Nominating Committee,and who shall Directors or of any committee shall be the quorum for those name the chairman unless otherwise specified in these meetings. bylaws. Sec. 6 Procedure. In situations in which debate is not Article VI.Board of Directors necessary to considered action the business of committees, Including the Executive Committee,may be transacted by mail Sec. 1 Composition. The Board of Directors shall consist of or telephone, the resulting action to be reported at the next the Officers and Directors. It shall meet at least quarterly on meeting. call of the President or any five Directors with 30 days written notice. Special meetings may be called on 7 days written Article Vill.Divisions notice. Sec.2 Duties. It shall have general supervision of the affairs Sec. t Composition and Purpose.The member commissions of the Association, fix the time, place, and program of the shall be grouped into 10 Divisions for the purpose of division membership meetings. It shall fill all vacancies,other than that cooperation and representation on the Board. The boundaries 6 shall be established from time to time by the Board in regard to the interests of the commissions,the number of commissions and their geographical distribution. Sac. 2 The Division Conference. In each Division there may be held a conference prior to March 1 for the election of a Director from that Division, the encouragement of new com- missions and other matters of particular concern to that Division.The Chairman of the Committee on Divisions, or his designee,shall be an ex officlo member of the Division. Sec 3 Quorum. Thirty percent o1 the member commissions within the Division shall constitute a quorum for transaction of business at any Division meeting or Conference. Sec. 4 Regufatfons. The Committee on Divisions shall provide guidelines and recommend regulations for the organization and program of the Division to coordinate Its activities to the Association as a whole and to those of the other Divisions. Sec. 5 Funding. The Association shall provide funding, as approved by the Board of Directors, for organizational pur- poses. The Division shall be empowered to raise additional funding as is required to support Its program. Article IX.Parl lame ntary Authority The rules contained in Robert's Rules of Order shall govern the Association and its Divisions In all cases in which they are applicable and in which they are not In conflict with these bylaws. Article X.Amendment to Bylaws These bylaws may be amended at any meeting by a two- thirds vote of the Members present and voting, provided written notice of the intended amendment be submitted to the members at least 30 days prior to the date of the meeting. Article XI.Dissolution The Association may be dissolved by a two-third vote of the Members present and voting at an annual meeting, provided prior notice shall have been given in writing 30 days in advance. On an affirmative action,those members which constitute the Executive Committee of the Board at the time of the vote shall continue in office until the affairs of the Association are ter- minated. Thereafter all assets shall be conveyed to the Commonwealth of Massachusetts, to be administered by the Executive Office of Environmental Affairs. 7 Chapter 3 How an Effective Massachusetts Conservation Commission Operates 3.01 WHY HAVE A COMMISSION? Until a municipality adopts the Conservation Commission Since this accomplishment requires continual, firm, gentle Act(§15.01)and establishes a conservation commission,it has selling of conservation, persons who have no conflict of in- no official agency specifically charged with the protection of terest and who relate well to others should be selected. The Its natural resources. Without such a commission, planning commission should represent a variety of interests, skills and activities associated with this protection must be ac- backgrounds. An engineer and a lawyer may prove especially complished by other boards, which, of necessity, have other helpful. For purposes of coordination of efforts,well-qualified matters of primary concern. Beyond the planning stage, a Individuals who are members of other boards may be ap. commission serves as an advisor to other municipal officials pointed to serve a term. The tasks of a commission require a and boards on the conservation aspects of these other boards' great deal of study, learning and thought by its members,who areas of responsibility.Futhermore,a commission may accept become expert only by patience and work. Appointments gifts of money or land with only the approval of the city council should not be made or taken lightly. or selectmen. Such action does not Involve the delays It is the prerogative of the appointing authority to name associated with obtaining town meeting approval. Moreover, It whomever it wishes to a conservation commission. However, Is only through a commission's actions that a municipality may Ch. 268A, §21A and Ch.41, §4A forbid an appointing board to qualify for state Self-Help funds(see Chapter 5). appoint any of its own members to any office or position under As the municipal focal point for environmental protection, its"supervision"without vote at annual town meeting. the commission is now empowered to enforce the Wetlands Under the Conservation Commission Act(G.L.Ch.40,§8C)as Protection Act. Thus the commission now serves the com- amended in 1975, the appointment of conservation com- munity in a regulatory as well as advisory capacity to focus missioners is now entirely in the hands of the selectmen, municipal concern on environmental matters. The duties and mayor or manager.The Act limits the number to between three responsibilities of a commission are Included in the Act(9.02 and seven. Most towns have seven commissioners, a number and 15.11). which is highly recommended because of the work load. The town meeting or city council in establishing a conservation 3.02 ADOPTING THE CONSERVATION COMMISSION ACT commission sets the number, and a change in the number of commissioners requires a town meeting or council vote, to be All but a handful (15 towns and 2 cities) of Massachusetts phased in over three years under G.L.Ch.41,§2.A resignation municipalities now have conservation commissions. The is effective only when filed with the town clerk(Ch.41,§109).A stimulus for adoption of the Conservation Commission Act commissioner can be removed only for good cause, after a and formation of a commission can come from many sources. public hearing if she/he requests one(Ch.40,§8C).An Opinion Members of clubs and societies(Audubon,Sierra Club,Garden of the Attorney General (7 Op. Attorney General 1924, p. 47). Clubs, Sportmen's Clubs), other municipal agencies, or the indicates a commissioner continues in office after her/his term appointing authority Itself may initiate the action.The Division expires until she/he resigns (or moves away) or her/his suc- (§1.05) or the Association (§2.03) will provide speakers or ad- cessor is sworn In(this is required by G.L.Ch.41,§2 and§107 visors to attend public meetings and assist in taking the Initial for elected officers). Unless a town bylaw so requires, con- steps. They will also provide other assistance or Information servation commissioners need not be town residents unless upon request. appointed to fill a vacancy (Ch. 41, §11); but leaving town is Many municipalities have found it advisable to proceed deemed a resignation from office(Ch.41,§109). cautiously and deliberately at the outset to ensure the establishment of a sound base in the community. A small 3.04 CONFLICT OF INTEREST appropriation, for expenses only, may be sufficient initially until the commission has studied the needs of the municipality Confusion often arises as to what transactions may con- and has a definite plan of action to submit to the community. stitute conflict of interest. Basically, G.L. Ch. 268A, §17-23 When everything is In order and the legislative body (town forbid a municipal employee to receive financial com- meeting or council)has been adequately prepared so that the pensation, directly or through family members or business Act will be accepted, a request should be submitted to the ties, in relation to a particular matter before the town board on appointing authority to establish a commission. Although which she/he serves. For"special municipal employees," the some town meeting articles have been sponsored by non- rule Is less stringent; and most municipalities classify com- governmental groups, It is usually helpful to have the ap- missioners as "special." If so classed, a commissioner or pointing authority sponsor the article. A form for a town Immediate family member must file a disclosure of financial meeting warrant article to accept the Act is found in §16.01. contracts with other municipal bodies. A form appears in Once a conservation commission is established, the §16.03. To do business with the commission Itself, the com- municipality may not abolish it. missioner or family member needs the written permission of the selectmen or city council.A commissioner should abstain 3.03 APPOINTMENT AND REMOVAL from voting on any issue where possible benefit or interest could be inferred. However, the mere presence on a com• The overriding factor governing appointments should be mission of a realtor or large landowner(to name two common interest in doing the conservation job needed by the town. situations)does not in itself constitute a legal conflict. 8 In particular cases,town counsel must upon request issue a as for a vote on the Order of Conditions..Ch.39§23A and§23B confidential ruling to the commissioner in question (G.L. Ch. are contained in§15.02. 268A§22). Actions taken in violation of the Open Meeting Law are not in themselves unlawful,although a court may Invalidate them If 3.05 ASSOCIATE MEMBERS a suit Is brought within 14 days after the action Is made public. A commission may, but is not required, adopt regulations Since the Act makes no mention of associate members, no governing use of its land(§16.07)and bylaws or guidelines for such category officially exists. However,the Act does allow a its meetings and operations(§16.02). commission to "appoint a director, clerks, consultants and other employees."It does not forbid voluntary participation by 3.07 HEARINGS interested citizens, but this participation may not include official action such as voting on commission business. Since Under the Wetlands Protection Act,G.L.Ch.131,§40(§15.11) an active commission will have more work to do than can be discussed In Ch.9,commissions are required to hold hearings, accomplished by seven members, unofficial "associate impose conditions and Issue Orders of Conditions (§9.03). members" should be encouraged.Such individuals will take a Commissions should prepare guidelines for holding these share of the work load,provide a pool of future members,and hearings;these are not formal regulations,but should contain allow more people to participate.They should be appointed by a system for taking notes to support and record their findings the commission as"consultants"to avoid possible problems and orders.Similarly,they should prepare form letters to send with the appointing authority of the commission. The law to developers to request that they file applications or to ask for permits the commission - not the appointing authority - to further Information (see §19.02). Wetlands maps and Indexes choose its own consultants and pay their expenses from should be brought up-to-date and consideration must be given available funds. to the question'of how to bring to beat the necessary expertise to evaluate developers' plans. Is there an engineer on the 3.06MEETINGS commission? WIII the municipal engineer help? Should the commission request funds to hire a consultant,as is permitted The first meeting of a commission should take place as soon by the Act (§15.01)? Answers to these questions should be as the members have been appointed and sworn by the town developed in advance to prepare the commission for such clerk or city clerk. If a majority Is present, officers, at least a hearings. chairperson and clerk or secretary (some commissions also designate vice-chairperson, treasurer, etc.) should be elected. 3.08 RECORDS AND PLANS Their terms should expire annually, so that new elections will be held after the appointing authority has made appointments Keeping records is Considered by many as a thankless task, to fill the expired terms. (See §15.01 for terms of com- but clear,concise records are invaluable.The Act and the Open missioners).While rotation of officers is not mandatory,many Meeting Law require a commission to keep accurate records of commissions have found this an advisable practice. Officers Its meetings and actions and file an annual report.Since the are not required under the Act, and the chairperson has no commission will be handling topics of considerable Im- special disabilities or powers, portance to the municipality's development, minutes should Subsequent meetings are held at the pleasure of the com- record each vote and at least sketch other discussion.Minutes missioners. The more active commissions meet weekly'or of the previous meetings should be read and approved.A copy biweekly, mostly to hold hearings, report Individual actions of the minutes should be sent to the appointing authority. and plan future activities. In addition to their own meetings, Sending an additional copy to the planning board, board of commissioners will need to attend meetings with the city health, recreation commission, or other agency when council, selectmen, planning board or other departments on problems of mutual interest are discussed is also advisable.It mailers of mutual concern. is a good Idea to have one member keep track of the finances Confusion surrounds the new Open Meeting Law(15.02).The (appropriations, expenditures, status of conservation fund purpose of Ch.303 of the Acts of 1975 is to Insure that public (05.03), etc.), but this is not mandatory since the town or city decisions are made in the open and to limit abuse of the closed treasurer and/or accountant can provide this Information. A "executive"session.Ch.39,§2313 now states that"no quorum conservation commission's records are public records as (majority)of a governmental body shall meet in private for the defined in G.L.Ch.4,§7(26)and therefore open to inspection at purpose of deciding on or deliberating toward a decision on reasonable times.Under G.L.Ch.66,§10 any person can obtain any matter except as provided by this section." Also, "all one copy of any public record by paying a reasonable fee. meetings of the governmental body shall be open to the The Conservation Commission Act (§15.01) directs com- public." A "meeting" is defined as a convening for which a missions to conduct research Into local land areas and quorum is required to make a decision, but it does not include coordinate citizen conservation organizations. Commissions an onsite inspection or social gathering• may advertise,prepare,print and distribute books,maps,plans Every meeting must be properly posted 48 hours in advance, and pamphlets. The Act also recommends that the com- except in emergencies; every commission must maintain mission keep a conservation and passive outdoor recreation "accurate records" of Its meetings,available to the public;all plan, consistent with the local master plan, showing open votes must be by a quorum. Visitors may not speak without areas Including marshland, swamps and other wetlands. The permission. If a meeting Is held and a quorum does not show plan may comprise written policies together with a map. up, the members present may still take action short of Commission lands and conservation restrictions(Ch. 7)are to deliberating or voting. Legal decisions indicate that a quorum be shown on this map,together with areas which ought to be is required for a public hearing under the Wetlands Act,as well acquired for conservation purposes. A municipality may 9 purchase conservation land outside its boundaries as well as of land. The Attorney General has ruled (December 12, 1969) Inside (§4.10). This plan is invaluable in educating the voters that the provisions of Ch. 40, §14 do not apply to land and appointing authority of the Commission's goals and ob• acquisition through the Conservation Fund, and that neither jectives and in seeking their support. It should be developed further action nor a two-thirds vote is needed for Self-Help carefully, calling upon interested citizens, other municipal funding of purchases made with money from the conservation agencies, regional planning agencies, conservation districts, fund (unless the land is to be taken by eminent domain and the Soil Conservation Service for advice and assistance. processes),provided the original appropriation vote named the Planning requirements of the Division of Conservation Ser- land to be purchased. The Fund is handled by the municipal vices should be followed,so that the community may seek aid treasurer and may earn interest. under the state Self-Help Program (§5.03). After the plan is Money may also be appropriated for a specific capital ex- developed, It should be publicized. Holding open meetings or penditure (i.e., purchasing a specific parcel, landscaping a publishing it as a part of the annual report can be effective. park). This should be done by an article on the warrant Background Information which has proven effective in the establishing a special account for the purpose. Such an ac- development of a conservation plan include: count is distinct from the conservation fund established under 1.municipal master plans statutory authority, but like the fund, it will survive the end of 2.assessors'records and atlas the fiscal year. The money remains available to the com- 3.zoning bylaws mission until expended for that purpose or released by it for 4.soil surveys reversion to the "excess and deficiency"account, or is re- 5.natural resources Inventories appropriated to the conservation fund by town vote. If a land- 6. photogrammetric maps obtainable from the state DEM or owner does not wish to receive the entire purchase price In DPW the year of sale, the commission may appropriate the entire price into such a special account and pay it out over a period of 3.09 FINANCES years. This avoids the problem of trying to obligate future revenues. When the project is accomplished, any balance Money may be voted to the conservation commission for remaining should be released to the"excess and deficiency" several purposes: operating expenses, capital expenditures, account by letter from the commission to the accountant or and the conservation fund. It is important to the commission treasurer. The distinction between such specific ap- that appropriations be made in the proper manner to ac- propriations(which continue available until spent or released) complish their purposes. Coordination with the finance and general appropriations (which lapse at the fiscal year's committee is necessary so that they will recognize the nature end)should be clarified with the municipal treasurer or counsel of the request and recommend the method,as well as amount, to avoid misunderstanding. that fits In best with their long-range financial planning. Gifts of money to the commission may be made for un- Expense money for such Items as attendance at meetings, specified or specific purposes. Such gifts may be received dues, salaries, publications, surveys, typing, subscriptions, with the approval of the city council or selectmen (§15.01). and maintenance of land administered by the commission will They will be held by the treasurer until expended by the normally appear in the budget as a line item identified as commission under the conditions of the gift. If the gift is "conservation commission" or "conservation commission - without conditions,the chairman should request the treasurer expenses." Money not spent or encumbered by the end of the to add the gift to the conservation fund. fiscal year in which It was appropriated will revert to the G.L. Ch. 44, §53 requires that fees received by the con- "excess and deficiency"account. servation commission be deposited in the municipal treasury. A conservation fund (§15.03) may be established by a Ch. 44, §33B says that any previous appropriations (even municipality to insure that the commission will have cash money voted Into the conservation fund)may be transferred to which can be spent without further authorization fany other use by a majority vote of town meeting or a two-thirds purpose stated In G.L. Ch. 40§8C. The fund may be aced for vote of the city council if the funds have not been legally any purpose authorized under the Conservation Commission obligated.This override would not apply to gifts In the fund. Act, but will usually be spent principally on the purchase of land,capital improvements to such land,and expenses directly 3.10 RELATIONS WITH THE APPOINTING AUTHORITY related to such purchases(i.e.,surveying,title searches, legal expenses of deed preparation and title passing).Even though a Since the effectiveness of a commission is dependent upon commission has a well thought-out and developed con- the interest and determination of its members, good working servation master plan with a time-phased program for relations with the appointing authority are essential to insure acquisition,it cannot foresee circumstances which will require against losing key members and being handicapped by deviation from that plan and disrupt its well conceived capital political appointees who may be uninterested in conservation expenditure program, These circumstances require available or, even worse, placed on the commission to limit its ef- funds so that negotiations for a land purchase can commence fectiveness. Special efforts should be taken to gain support Immediately rather than await the unpredictable actions of a from the appointing authority(mayor,selectman, or manager). special town meeting. Money has to be specifically ap- Since the commission Is responsible to them (although propriated or transferred by a majority vote to the "con- commission members must exercise Independent judgment in servation fund" in order to go into this fund(except for private carrying out their duties) It should learn their views,tell them gifts which require only the selectmen's approval). Money of Its plans and major projects,seek their advice and support, voted'to the fund remains there until expended or until trans- and recommend to them appropriate appointees. Send them ferred out by town meeting vote. No further authorization Is copies of minutes. They like being consulted and kept in- needed to spend money from the fund, even for the purchase formed. They are responsible to the electorate, and when all else fails,remember they too can be replaced. 10 3.11 RELATIONS WITH THE PLANNING BOARD OR (§15.11),the developer may also apply for a subdivision permit DEPARTMENT before seeking a permit from the commission. The responsibility for over-all municipal planning rests with 3.12 RELATIONS WITH THE FINANCE COMMITTEE the planning board. It is required (G.L. Ch. 41, §81C) to make "careful studies and when necessary prepare plans of the Since the finance committee in a town or the appropriations resources, possibilities and needs of the city or town and subcommittee of a city council carry great weight In deter- submit to the city council or selectmen a report thereon with mining the size of appropriations to a commission, both Its recommendations." Under §81 D the planning board may operating budget and conservation fund,its support should be make a master or study plan of one or more parts of the town carefully and continually pursued. When preliminary plans and "designate in such plan conservation, rehabilitation and involving the expenditure of substantial funds are being for- development areas for the purpose of guarding residential mutated, the finance committee should be briefed on the protection, neighborhood improvement, and urban renewal proposed projects and its benefits to the community. Finance programs. Such plans shall be made, and may be added to or committees respect details and exactness, so requests for' changed from time to time,by a majority vote of such planning appropriations should be accompanied by adequate detailed board and shall be a public record." justification.Finance committee members should be Invited to There is a need for close coordination between the planning participate in public meetings or conservation projects so they board and the commission to insure that the conservation, will be able to assess public support for the project. Their preservation and development of the municipality's natural failure to support a project,however,should not be considered resources are receiving adequate attention in the over-all the death knell for a sound proposition, since theirs Is not the planning process. If a municipality already has a master plan, final word. Materials available from the Conservation Law the commission should seek planning board advice in drawing Foundation and the MACC office on the economic costs of up the conservation plan. If both plans are in existence, development may help to counter arguments that open space continued coordination and mutual understanding will be acquisition decreases the local tax base. necessary so that each board understands the other's problems and works toward a compatible solution best for the 3.13 RELATIONS WITH THE BOARD OF HEALTH AND SEWER municipality. The commission should be sure that planners BOARD give full attention to natural resource problems. The commission should review planning board rules and The municipal health board controls such vital aspects of regulations, zoning bylaws, and filed development plans. In land use planning as disposal of sanitary wastes In non- some municipalities, planning boards require that certain lots severed areas. The provisions of the state minimum health or roads receive Conservation Commission approval or an code are discussed fully in §11.03. The commission should Order of Conditions before they are acceptable. Constructive discuss with the health board how septic systems may be sited suggestions In the best interest of the municipality will so as not to damage streams, lakes and wetlands,and should probably be gratefully received. urge the board to adopt stiffer local regulations if topography, Developers may be required to show on their plans contours, soil conditions,or presence of a local source of drinking water streams, swamps, and large trees,both before and after their merit them. In sewered areas, the commission should check proposed projects, thus revealing their plans for protecting with the sewer commissioners to assure that the system Is environmental values. It is required of any petitioner electing properly maintained and not discharging contaminants Into to file simultaneous applications with all municipal boards wetlands or surface waters. which affect a particular project under the Wetlands Protection Act that identical sets of all available Information be filed with 3.14 RELATIONS WITH THE BUILDING INSPECTOR OR each board.(See§9.02) ZONING ADMINISTRATOR The commission should propose joint discussions with the planning board on such matters as flood plain zoning(Ch. 10) These officiate are responsible to the selectmen of mayor, cluster zoning (§10.07), and Scenic Roads (§11.05). Il should and have the primary job of assuring that all local projects are also seek the cooperation of the planning board In carrying out in conformity with the zoning ordinance or bylaw, Including responsibilities under the Wetlands Protection Act(Ch.9). municipal floodplain or wetlands protection zoning, Under The subdivision control law is also administered by the §108.1 of the state building code, the building Inspector may planning board under G.L. Ch. 41 §81K - 81GG. There are a enforce any state statutes, rules, regulations, ordinances and number of ways in which municipal subdivision control bylaws and act on any question relative to the location of regulations can lead to more ecologically sound, as well as buildings and structures. Good relations with the building sightly, developments. These include: cluster zoning by per- inspector can therefore assure that building permits will not be mit; regulating roads and drainage into or out of wetlands; handed out for construction in possible wetland areas without reservation of park areas for three years pending purchase by noticeto the commission. the municipality; burying utilities at the developers' expense. They are all discussed in Ch. 11. Of course a commission 3.15 RELATIONS WITH THE ZONING BOARD OF APPEALS should request the planning board to advise It if proposed subdivisions have land suitable for acquisition or a con- This board acts more like a court than an administrative servation restriction (Ch. 7). Where there are extensive body. It guards the zoning ordinance or bylaw by hearing ap- wetlands involved in a proposed subdivision, the commission peals from orders of the building inspector and others and should arrange for consultation in advance of the planning gives flexibility by granting special permits and variances board's decision; for under the Wetlands Protection Act where a zoning bylaw authorizes them, and by granting 11 variances in hardship cases. A commission member should attend hearings by the board relating to variances and special permits in floodplain or wetlands protection zoning districts and state whether the commission agrees with or objects to the proposed action. Again, the conservation commission exerts independent judgment where work is in or near wetlands. 3.16 RELATIONS WITH THE TOWN FOREST COMMITTEE One hundred and thirty towns and cities own forests totaling over 50,000 acres.These forests are under the jurisdiction of a forest committee appointed by the selectmen.G.L.Ch.45,§21 states that if the town meeting so votes, the conservation commission may appoint the town forest committee. Municipal forests were originally established for the cultivation of timber, and to protect the watersheds (see G.L. Ch. 45, §19 and Ch. 132, §35), but their other conservation values have long been recognized.Revenue from sale of forest products from municipal forests must be devoted to main- tenance of the forest,if necessary. 3.17 RELATIONS WITH OTHER OFFICES AND BODIES Since the treasurer holds and invests the conservation fund, goodwill should be fostered with that official.The tax collector and assessors are valuable sources of information about land takings for tax titles(§4.15). Lands controlled by the water department or district and the school department are public lands and should be fitted into the overall open-space plan. Joint regulations of such areas should be encouraged.The tree department, park commission or public works department can be of valuable assistance in maintenance of conservation lands. Cemeteries form valuable open space. Conservation commissions should be aware that burial grounds are specially protected under G.L. Ch. 114.A municipality may not dispose of, or transfer to other use, land which has been used as a burial place for more than 100 years;and no part of such burial ground may be taken for public use without special state legislation. Moreover, no public way may be laid out through any burial ground (of any age), except by special act of the legislature after the vote of the municipality or consent of the private owners. The police department can be of great assistance in en. forcement of the Wetlands Protection Act(§15.11)since it has local enforcement powers and the commission does not,even though the commission has standing before the local District Court (§15.24). The commission should take special care to Inform the police department about this Act. A commission may seek the opinion of the town counsel or city solicitor as to statutory interpretation or possible conflicts of Interest. It may not hire outside counsel without the per- mission of the municipal attorney or the selectmen(or mayor). 12 Chapter 4- Acquiring Land 4.01 INTRODUCTION 4.04TRANSFER AND DISPOSAL OF This Handbook so far has shown how a conservation CONSERVATION COMMISSION LAND commission is set up and operated, how it gets money, and Strong legal protection for public open spaces makes what land it ought to acquire for the municipality.This chapter transfer or disposal of commission land very difficult. See shows how a commission gets title to the land for the town or §614 city. State and federal aid, conservation restrictions, and zoning are covered later. 4.05 GETTING GOOD TITLE The three possibilities are a gift, a purchase, or a taking by eminent domain.In all three,success Is a deed or order filed in A commission may acquire the fee or any lesser interest in the appropriate Registry of Deeds(or registered In the section land or waters. It may not be as Interested as other buyers In of the Land Court for registered land). Tax title lands are obtaining a perfectly clear title to the land since it probably will covered at§4.15.A sample warrant article to buy land appears not build on the land which It controls In the name of the In §16.04. Forms of deeds are shown at §16.05 and §16.06. municipality. Wetlands given to the municipality may not Although a lawyer should draw up and attend the execution of warrant a commission paying for a title examination or a plan. deeds, a commission should know something about land If, however, a commission spends the town's money on a acquisition since it will negotiate the agreement and make purchase, it should have the title examined at least to the municipal policy decisions. extent that the right people will sign the deed and the right bank will give a discharge of its mortgage, if any. The deed 4.02 LEGAL TITLE TO CONSERVATION LAND should be drawn by the town counsel and executed by the owner. Since a commission is only a branch of municipal govern- if the owner will convey the whole parcel,or the portion to be ment and not itself a legal entity,it cannot hold land In Its own conveyed appears on a recorded plan,no new plan Is needed.If name. Therefore deeds of interests in lands, (either the full the portion of the parcel to be conveyed to the town was not interest or lesser Interest)should be in the name of the city or previously described by recorded deed or plan, the com- town as set forth In the Conservation Commission Act(§15.01). mission will have to have a new plan drawn up, to record the However, the deed should dedicate the land to"conservation deed A plan of conservation land may be part of a developers' purposes in accordance with the purposes set forth In G.L.Ch. subdivision plan. If the municipality has adopted subdivision 40, §8C," and state that "the commission shall have ad- control,such a plan must be stamped by the planning board In ministrative control over the land" (§16.05 and§16.06).See Ch. order to be recorded In the Registry of Deeds. This standard 6 fora discussion of how to manage the land. procedure does not imply any power of review by the planning board. If all lots on such a plan have enough frontage on a 4.03 ASSUMING CONTROL OF OTHER TOWN LAND public way,or on one shown on an approved subdivision plan, Other provisions of the General Laws which allow a city or to qualify as building lots,the plan will be approved under the informal procedure where the plan is stamped "subdivision town to buy and hold real estate are:A city or town may hold approval not required."If a plan shows that not all lots quallfy, real estate for the public use of the inhabitants" (G.L.Ch.40, the planning board may by agreement with the owner write on §3)and may buy"for any municipal purpose"(G.L.Ch.40,§14). the plan that lots X and Y are not buildable lots and are to be (It is important to check statutes for their applicability since conveyed to the city or town for conservation purposes, and certain cities are not covered. For example, G.L. Ch. 40, §14 then approve the plan under the Informal procedure. does not apply to Boston.)Other municipal departments such If a commission intends to acquire a large area by agreement as water commissioners may own wild land available for from several owners,a perimeter survey may be used.The plan conservation or recreation use. The "care, custody, will show the outside boundaries, and the other boundaries management and control" of such land may be transferred to can be shown by dotted lines.When all of the tract has been the conservation commission by a two-thirds vote of town purchased,the city or town will have solved any title problems. meeting or city council under G.L.Ch.40,§15A,providing the See§4.10 for use of eminent domain to clear titles. department assents to the transfer. A form of transfer vote appears in§16.31. Land held for"general municipal purposes" 4.06 GIFTS OF LAND is in the custody of the selectmen(Ch.40,§3). If a department having custody of open space land will not approve formal When a donor is found, title has been examined (if transfer of the land, an informal working arrangement should necessary), and the city council or selectmen have given In- be negotiated.The commission cannot bind its members years formal approval,then a commission may vote to accept the gilt hence to return the land to the other department if it wants it of land for conservation purposes In the name of the city or back."Control" is not a very active matter as to woodlands or town. It may be advisable also to touch base with the abutters wetlands. Commissions are authorized to establish rules and and with the planning board.After the vote,a deed Is executed regulations for land under their control (§6.02). The com- by the donor(s),acknowledged by at least one of them before a mission and the other department should arrange, by an ex- notary public, and presented to the selectmen by the com- change of letters, that the commission shall have control of mission for their signed approval. Then it is sent by the the wild land, terminable at the will of the other department. commission or municipal counsel to the Registry of Deeds. Perhaps control of a parcel should be informally divided After recording,it goes to the municipal clerk,although a copy between the commission and the park or recreation depart- should be kept by the commission. ment. 13 If the owner has the land appraised to ascertain the value of are rare,and are construed harshly by courts because they may the gift for tax reduction purposes, the cost of appraisal may give a windfall to the donor or the heirs.Such provisions have also be deductible under Rev.Ruling 67.461,(1967 2CB 125). been held Inconsistent with creation of a public Charitable trust (Opinion of the Justices, 1975 Mass. Adv. Sh. 3324). 4.07 GIFTS OF LAND IN TRUST Moreover, the condition cannot be enforced after 30 years unless rerecorded.(G.L.Ch.184,§27.) If the donor of the land wishes most especially that it always Conservation restrictions (Ch. 7) are not so restricted and remain In its natural state and the commission is positive it may be enforced in perpetuity because they are created to should be so preserved, the donor can use a device well benefit the public and not just the donor.A municipality should recognized In Massachusetts and other states,a charitable gift not hesitate to accept a deed of land subject to a well drafted In trust. A trust will prevent diversion for other municipal conservation restriction. The existence of the conservation purposes(a)even with the vote of the whole commission and restriction will help the conservation commission resist any (b)even with the vote of 100% of the council or town meeting plans to divert the land to other use. and (c) even after a special act of the legislature, provided Other than a conservation restriction (see Ch. 7), the sim- always that (a) a probate court does not rule that the public plest,most trouble•froe way for a donor to continue controlling charitable trust is no longer enforceable in its original terms in land is, according to Russell L. Brenneman ("Private Ap- llght of changed circumstances or(b)that there is no taking by proaches to the Preservation of Open Land,"Conservation and eminent domain by a higher government, with express Research Foundation, 12 Woodsea Place, Waterford, Con- legislative approval. Seldom would a court rule that the pur- necticut), a lease to a municipality or charity for one dollar a pose of the trust could no longer be served. A donor should year for99 years with a covenant that the lease shall terminate feel as secure in such a gift to the municipality as a gift to any if(for example)the trees are ever cut.The donor could assign private land trust.See for example the recent case of Dunphy v. the reversion to a land trust,or to a charitable institution such Commonwealth,331 N.E.2d 883(Mass. 1975)where the town as Massachusetts Audubon Society or Trustees of Reser- and the state legislature tried in vain to put a covered skating vations, rink onto land given In trust as a park. If a trust is Intended, it must be explicitly set forth. The 4.09THE FORMALITIES OF PURCHASE owner should not rely on general language such as a "wish" that the land be maintained in a particular fashion. (See form If it does not plan to apply for state self-help funds or federal §16.06). The word "forever" should be used. No "reverter" funds, a commission which has enough cash in a specific clause may be Included, as language to the effect that it will appropriation or in the conservation fund (not in its expense revert to the donor 11 not maintained as a park,will destroy the money) may make a purchase without further approval from trust (Opion of the Juslces 1975 Mass. Adv. Sh. 3324). G.L. the town meeting, the selectmen, or city officials. The com- Ch. 40§15 and §15A prohibit any sale or transfer of land be- mission votes to buy the land. The title is searched, to Insure tween municipal departments which would violate "a term or that the land is free from encumbrances. A deed is prepared condition in the title." A trust clause Is such a term or con- (§16.05), executed and acknowledged by the seller. Unless dition. The municipality will be trustee of such a trust. Each otherwise agreed,the seller pays for the documentary stamps parcel of land will be a separate trust. (G.L. Ch. 40§3; Ch. 45, required to record the deed.The seller's bill to the town for the §3,Ch.214,§3,clause 11.)If the terms of the trust are violated, purchase price is submitted in care of the commission and the trust can be enforced by the Attorney General. Any ten approved by the signatures of a majority of the whole com- taxable inhabitants can request enforcement and/or per- mission. A purchase order prepared by the chairperson Is mission to join the suit. (G.L. Ch. 214, §3, clause 11.) The in- submitted with the approved bill to the town accountant, who strument of gift may create a board or committee with en- issues a check. When the check is mailed to the seller, the forcemeni responsibility.(See Trustees of Andover Seminary v. deed is recorded by the commission or its counsel. Visitors, 253 Mass. 256, 148 N.E. 900; Adams v. Plunkett, 274 The city council or town meeting may vote to purchase land Mass.453,175 N.E.60;Briggs v.Merchants National Bank,323 for conservation purposes pursuant to G.L.Ch.40,§8C,and to Mass.261,81 N.E.2d 827.)In§16.06 the commission has been fund the purchase by transferring the money from the con- narned a visiting committee to enforce the trust. servation fund,by"raising and appropriating"money from that year's tax levy, or by borrowing. Borrowing money requires a 4.08"CONDITIONAL"GIFTS AND LEASES two-thirds vote. However, if borrowing is not the method chosen, only a majority vote is required. It is true that Ch. 40, A commission may be offered a gift of land with either a §14 speaks of a Iwo-thirds vote for buying land, but that sec- "possibility of reverter," or "subject to a condition." An tion does not apply where the city or town is acting under the example of the first Is a deed which says that the land shall be Conservation Commission Act, which contains no such owned by the municipality "so long as" It is used for con- limitation. servation purposes. ("During" or "until" are alternates.) It is also possible for the municipality to vote part of the Thereafter the land reverts automatically to the donor or purchase price and for the commission to collect gifts to make his/her heirs. If the donor attempts to convey the"possibility up the balance. This method is particularly useful where the of reverter"to someone else, it is forfeited.An example of the land will be of particular benefit to a certain section of the city second is a deed containing the "condition" that if the or town. municipality ever permits non-conservation use, the donor or The article to purchase land,as it appears in the warrant for her/his heirs may elect to enter and reclaim the land. Most the town meeting, may describe the land in general terms municipalities would not accept a reverter or condition clause rather than by meets and bounds, providing the area is In a transfer for which cash is paid.Reversions and conditions reasonably identified. The article need not name any definite 14 sum of money, provided it makes clear that an appropriation control of the land,the unpaid taxes on the land for the part of will be voted upon.A sample warrant article appears in§16.04. the year in which the town owns it shall be forgiven.Otherwise, The vote taken at the town meeting under the warrant article the full year's taxes must be paid on any property which was must precisely describe the land and the source and amount of taxable as of January 1. the funds. After the vote, the commission proceeds as described above. 4.10 TAKINGS BY EMINENT DOMAIN A vote to raise and appropriate the money from the annual tax levy can only be taken at the annual town meeting, since A commission may request In writing a taking by eminent the tax rate for the year is set at that meeting and cannot be domain under the Conservation Commission Act(§15.01),but It altered at a special town meeting later in the year. Reserve must be(a)voted by a two-thirds vote of the town meeting or funds or other monies on hand or accumulated (i.e., Federal city council and(b)executed by the Selectmen or Aldermen(or Revenue Sharing Accounts) can be utilized, but should have whatever city body has aldermanic powers).If the conservation Finance Committee approval. If the purchase is to be partially fund is to be used,that too must be voted(§15.01). In addition reimbursed by a state or federal grant, there must be explicit to takings of the fee(total ownership),a city or town may take approval by city council or town meeting prior to the purchase. "any lesser Interests In any land or water located in such city Here the commission requests the city council to purchase the or town." This would Include taking of a conservation parcel, or inserts an article in the town meeting warrant restriction. Except for watershed lands acquired under Ch.40, requesting a town vote.The town meeting or city council vote §41, municipalities cannot take land outside their limits by should also authorize the conservation commission, select- eminent domain, unless empowered by special state men or mayor to enter into contracts with state and federal legislation. They may, however, purchase land in another grant agencies for any reimbursements it deems advantageous municipality for municipal purposes, which would Include to the town or city. conservation, (Somerville v. Waltham, (1898), 170 Mass. 160; Reimbursement normally goes to the excess and deficiency Cerel v.Framingham,(1961)342 Mass.17.)Upon the taking,the account, or to pay off a short-term loan unless the town land and water thereupon will be under the Jurisdiction and meeting or city council votes that it shall revert to the con- control of the commision. Excepted from this eminent domain servation fund. 11 may not otherwise be returned to the con- power are state reclamation board projects, mosquito control servation fund since this would be construed as an ex- projects and lands used for farming as described In Ch. 128, penditu►e prior to the availability of funds.The town meeting or §1A. There must be a reasonable appropriation to accompany city council may reserve these funds for future commission the taking. use by voting to place them into a special account established Counsel should examine the following chapters of the in anticipation of future appropriation. The amounts in this General Laws as may be applicable before a taking is made: account may not be used to set the tax rate.The town meeting Ch.40,§40-Emergency Water Supply,Conditions or city council may subsequently vote to appropriate from this Ch.40,§41-Protection of Water Supply,Conditions account either to the conservation fund or for a specific Ch.45,§3-Park Statute purchase. Ch.45,§14-Playground Statute Another method to insure the application of these reim- Ch.45,§19-Public Domain Statute bursed funds to the purchase of land is to vote to borrow that Ch.79,§9-Water Flowage Rights amount of anticipated reimbursement for each purchase rather Ch.79,§13-Removal of Trees and Buildings than to appropriate it, as required by G.L. Ch. 132A (§15.04). After the taking is made and the price estimated in the vote These reimbursements must then be applied to the payment of (the"pro tanto"award)Is tendered,the owner has two years In the indebtedness. which to claim damages in court. The owner's acceptance of A two-thirds vote is required for borrowing.G.L.Ch.44,§8C the pro tanto award in no way prejudices any claim for a higher allows borrowing over the debt limit, if the municipality has a price. It the court does award a higher price than the written agreement for reimbursement by the state or federal municipality offered,the entire balance and costs becomes a government. No contract may be made and no taking of land debt of the municipality, whether or not appropriated, and may be filed before the receipt by the town of written approval must be added to the next tax levy. By an amendment to the from the proper department. If a municipality fails on either Conservation Act,some or all of the conservation fund may be account, no grant will be forthcoming from the federal used for an award if voted by the town or city council.Because government. Where slate funds are being requested, the of the prohibition in the Conservation Fund Act (§15.03) the purchase should be cleared with the Division of Conservation commission cannot by its own vote authorize use of the fund Services prior to any final action.(§5.05.) for an eminent domain award. A person, corporation or trust selling or leasing land to a A commission should seek a"friendly"taking,by agreement community may not be paid, nor is an agreement to sell or with the landowner or to confirm any prior acquisition It may lease valid, until the seller or lessor files a statement with the have made which is in the slightest way questionable(§4.05). Commissioner of Administration,State House, Boston,giving The Commission adopts a vote requesting action by the town "the true names and addresses of all persons who have a meeting or city council on a taking by eminent domain for title- direct or indirect beneficial interest in said property"(G.L.Ch. clearing purposes only. This request is submitted to the 7,§36). Ch. 59,§72A permits a town to abate the taxes for the selectmen or mayor for Insertion of an article in the warrant of portion of the year after it has acquired land by purchase or the next town meeting or on the agenda of a city council. A gill.The landowner will be responsible for taxes owing for the two-thirds vote of either body Is required to authorize the earlier part of the year. taking.The selectmen or the mayor will execute and record the If a municipality purchases or accepts a gift of land,G.L.Ch. proper documents. The former owner is paid a nominal sum 59, §72A provides that, upon request of the board taking (generally one dollar)to formalize the acquisition. 15 4.11"SECOND CHANCE"EMINENT DOMAIN G.L.Ch.44,§7(3)was amended(by Ch.232,Acts of 1977;see 15.22) to permit municipalities to borrow money for the pur- G.L. Ch. 79,the usual method of eminent domain, gives the chase of conservation or preservation restrictions. town or city complete title upon the recording of a"notice of taking" in the Registry of Deeds. Extent of damage is litigated 4.14 AGREEMENTS AND OPTIONS later if the owner is not satisfied with the price offered. A different method,established In 1929 by Ch.80A,was held Since a commission may purchase land with money subject constitutional in 1960(Swampscott v.Remis,350 Mass.523).It to its control, it may execute an agreement to buy land. It authorizes the selectmen or mayor to proceed after a town or notifies the municipal accountant who "encumbers" the council vote, by adopting an order of Intention to take, rather conservation fund or land purchase appropriation. It an ap- than an order of taking. The order contains an estimate of propriation will be needed, a commission cannot sign an damages. After recording the order, a plan and the estimate, agreement to buy land unless the agreement is made con- the mayor or selectmen file a petition in court to determine the ditional on the appropriation of the money. If state or federal damages to be paid. Once the court has determined the funds are desired in reimbursement,no binding agreement can damages as in an eminent domain proceeding under Ch. 79, be executed before written approval is received.To be on the the municipality has the option either to make a final taking or safe side,the city council or selectmen should countersign an to abandon the matter.Where easements or marginal land are agreement.The Conservation Commission Act(§15.01)says in to be taken, damages are hard to predict, and a commission part: "Said commission may acquire...any...other contractual may well wish to look at the damages as awarded by a court right as may be necessary to acquire...open spaces..."While it before recommending a final taking. However, if the was once believed that options were not valid,Inasmuch as the municipality backs out, the landowner is entitled to In- town did not receive any interest in land for the expenditure of demnification for any damages suffered and for the expense of its money, the above language in the statute permits options the proceedings. until final approval of the funds is obtained. If an option is executed, only the landowner is bound. If the owner will not 4.12 BETTERMENTS accept one dollar and demands something substantial for tying up the land until the community votes,anything over 5% Betterments are costs specially assessed to landowners in a to 10% of the purchase price, to be applied to the sale if ap- limited and determinable area which is receiving special proved,would seem excessive. benefits from public improvements such as sidewalks or sewers.The owner of open space which is taken or purchased 4.16 TAX TITLE LAND for conservation will obviously have to be compensated for any betterments previously taxed to the land, as a part of the A commission should have a master plan for conservation purchase price. land and acquire or control land in a meaningful pattern. If Technically,betterments may be charged to a neighborhood marsh or stream lands are tax delinquent, the commission specially benefited by a park(Ch.45,§6);but this is seldom or should acquire them.Any other parcels of tax title land should never done. be seriously considered for their value as open spaces or protection of natural resource value. 4.13 BORROWING TO BUY CONSERVATION LAND Municipalities vary widely in the attention paid to tax titles, If important pieces can be obtained best through the tax-title The phrasing of articles and votes to borrow money is an route, the next few sections will show a commission what esoteric art, not to be engaged in by neophytes.The following action to request from whom.For details see G.L.Ch.60, may help a commission communicate with counsel.See§16.04 for a sample warrant article. 4.116"STRICT FORECLOSURE"TAX TITLE PROCEEDINGS A city or town may borrow under G.L.Ch.44,§7(3) for up to 20 years in order to acquire land for conservation purposes. Although the commonwealth's fiscal year now begins July 1, Under G.L. Ch.44,§7(2), the municipality can borrow for up to taxes are still assessed as of January 1 of the calendar year, thirty years to acquire "Chapter 45" parks, playgrounds and They are paid semi-annually, drawing interest from October 1 "Public domain" (watershed and forest lands). Some bond and April 1. Within three years from April 1 of the year when counsels reject borrowing for purposes of acquiring restric- taxes become delinquent, the collector of taxes may Issue a tions,other than conservation restrictions under G.L.Ch. 184, "demand" and make a"taking" for unpaid taxes and any ad- because of the possibility that changed conditions will ter- ditional assessments, water charges, etc. 11 the landowner is minate the restriction. Borrowing is complicated by possible unknown,the town may take the land from owners unknown by reimbursements by state or federal grant. The vote should issuing a "John Doe" notice. (Hardy v. Jaeckle, 1976 Mass. state that state or federal funds will be used to repay part of Adv. Sh. 2886.)The"tax title" account and collection problem the loan. However certain the reimbursement, the vote must then is passed to the town treasurer and,unless paid off,each authorize borrowing the entire amount needed for the subsequent year's taxes are added to this account.Six months acquisition. The vole may be conditioned upon receipt of the after the"taking" the treasurer may, particularly if requested, grant. Actual borrowing, however, cannot take place until the begin foreclosure proceedings by a Land Court petition (G.L. grant is approved in writing. Ch. 60, §65)or by the optional "low value" procedure for par- The treasurer may borrow for two years on a short-term loan cels assessed under$2,500(§4.17). (even if it exceeds the debt limit)the amount to be reimbursed Under strict foreclosure proceedings, the Land Court ap- by the state or federal government, so that only the share points an examiner who reports the names of all persons which the municipality must pay will be covered by a long-term appearing to have title or interests in the real estate and loan(see 15.06). notifies them by registered mail.If they are unknown or cannot 16 be found, notice is given by publication. Unless the interested city or town should adopt a vote like this: parties appear,they are defaulted. If they do appear and either fail to redeem by paying off the amount due plus costs,or are "VOTED:That the following parcel of land(give description unable to challenge successfully the validity of the"tax title," and area) is hereby transferred to the care, custody, the court decree bars right of redemption, and the town takes management and control of the conservation commission over the title of the taxpayer (Ch. 60, §69). At this stage, the for all purposes included in G.L. Ch. 40, §8C as it now town meeting can transfer control to the commission under reads or may hereafter be amended." G.L.Ch.40,§15A(§4.18).This method gives the municipality a good title to the land, but it takes many months and is ex- No deed is given and nothing needs to be recorded In the pensive unless many parcels are processed at the same time. Registry of Deeds.A record of the vote must be kept to Insure Money may be appropriated for the Land Court proceedings that the land is dedicated to conservation use.It is desirable to (G.L.Ch.60,§50B). record the vote if the Registry will accept it for recording. 4.17"LOW VALUE"TAX TITLE PROCEEDINGS 4.19 PURCHASE OF TAX TITLE LAND Ninety days after a tax taking, the treasurer may, instead of Although the transfer method has the advantage of being going through strict foreclosure, ask the Commissioner of free, the commission with a conservation fund may save time Corporations and Taxation to determine that the parcel is(a)of and trouble by: (1) purchasing tax title land after strict Insufficient value to pay the total tax bill plus the cost of strict foreclosure from the treasurer out of its funds by paying the foreclosure,as described above;(b) is worth less than$2,500; accrued taxes and costs,obtaining a deed to the city or town and(c)the collector's tax taking was regular,An affidavit as to for conservation purposes, or(2)attending an auction sale of these three facts Is recorded, and the treasurer offers the low-value parcels;stating that it is bidding for the commission parcels at public auction. (G.L. Ch. 60, §79.) Shelhe notifies (since the town is potentially both the seller and the buyer) known owners by registered mail and owners unknown by and,if it is the high bidder,then obtaining a treasurer's deed to publication. Shelhe may reject inadequate bids. After an the town for conservation purposes. auction where no adequate bid is made, the treasurer may declare shelhe purchases for the town(G.L.Ch.60,§80).After 4.20 REGISTRATION OF TAX TITLE LAND ten days'grace,the treasurer gives a deed to the municipality,- which may thereafter transfer control to the commission.The The Land Court has functions other than foreclosing tax cost of low value sales is less than Land Court proceedings; titles. Under G.L. Ch. 185, any landowner(including a city or but the title may be shaky,and there is a risk of others bidding town) may petition to have the title"registered." Registration and buying at auction.Regardless of some towns'practice,the is a lengthy procedure, involving notice to everyone who may auction cannot legally be omitted. However,at least one town have an Interest in the land, detailed engineering plans, and bypasses the auction by voting a taking in eminent domain of sometimes a trial; but the Certificate of Title received by the each parcel for conservation purposes as soon as the collector landowner at the end is good against almost any claim. makes the"tax taking." Assume that a commission has (1) a vote transferring tax title land to it or(2)a deed from the treasurer as In§4.17. How 4.18TRANSFER OF TAX TITLE LAND good is It? Few persons would build a house on private land bought through tax-title proceedings without legal After the municipality acquires title,management of the land proceedings in the Land Court to register the title. could be assigned to a"custodian," but usually it is managed Although Ch.60,§37 implies that technical errors in the low- by the selectmen or city council. Money may be appropriated value process will not Invalidate the title, recent Supreme for maintenance(G.L.Ch.40,§5(38).A local bylaw or standing Judicial Court decisions have voided tax takings for failure to vote may authorize one or more officials to set a price and to give owners proper notice(Bartevlan v.Cullen,1976 Mass.Adv. sell.Such land Is"held and disposed of like any land belonging Sh, 593, 343 N.E. 2d 851; Pass v. Seekonk, 351 WE, 2d 219). to it and held for municipal purposes" (G.L. Ch. 60, §77). These cases may actually benefit conservation commissions. Section 77B provides procedures for sale by a custodian of Private buyers will hesitate to buy and build on low-value tax- foreclosed property. A city or town may also dispose of such title lands.Commissions can hold them with less financial risk. property under Ch.40,§3,or In any other manner authorized by It is even possible that, unless the town procedures were law.Land held"for the public use of the inhabitants"(G.L.Ch. excessively sloppy, the municipality will gain good title by 40, §3) and "any municipal purposes" (G.L. Ch. 40, §14) is prescription after 20 years of public use. controlled by the city council or selectmen.A city or town may In deciding whether to register the land, a commission transfer land held for general municipal purposes,such as tax should consider its title:Was the land assessed to(a)"owners title land, to the commission "for another specific municipal unknown" or(b) to a person who moved from these parts 50 purpose"(i.e.,for conservation)upon(a)a determination by the years ago? If(b),the commission might take a chance and not officers having charge of it that it is"no longer needed for that register;if(a),it should register. purpose" and (b) a two-thirds vote to transfer "the care, A commission should consider the description of the land custody, management and control" to the commission (G.L. acquired, whether tax title or not:(a) Is it bounded by streets, Ch.40,§15A). by rivers, walls, town lines or stone bounds? Or, (b) is it To sum up,once the municipality has foreclosed a tax title or bounded on four sides by "land now or formerly of receives a treasurer's deed after a low-value auction with no McGillicudy" and land of three others or by trees and fences adequate bids, the council, selectmen, or custodian should long gone? If(a), it might not register;if(b), it should register, recommend transfer to the control of the commission and the since It may find that the heirs or assigns of McGillicudy start 17 building on what the commission thought was its land. If the title has been acquired through low-value sale and the description is poor, the commission should have a full registration in the Land Court. A more thorough title examination is made and the"owners unknown"might now be found and might contest. If not, their rights are gone, and the town's title is perfect forever. If the description is good,a commission will save money by going to the Land Court under yet another, simpler title clearing procedure(Ch.60,§80B)since no plan is required. 4.21 TAKING TAX TITLE LAND BY EMINENT DOMAIN If a number of tax titles are acquired in the same marsh or river valley, the commission can clear the title by having the whole area shown on a plan, not necessarily up to Land Court standards, (§4.05) and taking the marsh or valley by eminent domain (§4.10). If there is land which is shown as "owners unknown," an award of some damages (not too much!) is made. The check is payable to the city or town treasurer and deposited in a savings bank. (G.L. Ch. 79,§70). If not claimed within 14 years, it "escheats" to the state (not the municipality). Eminent domain works well to clear titles even though land has been given or purchased.The award is only$1.00 and the former owner cannot claim more,having already signed a deed to the land. 4.22 LEGAL ASSISTANCE. A commission is entitled to the services of municipal counsel, if available. A town counsel or city solicitor who cannot assist the commission should permit hiring of outside counsel, if money is available. No other attorney can be paid unless the selectmen or council authorize employment in advance.The Conservation Law Foundation,Boston,may be of assistance. A commission should seek advice from counsel before negotiating with a landowner, and should not sign anything before counsel has reviewed it. 18 Chapter 5 State And Federal Aid Programs 5.01 MASSACHUSETTS SELF-HELP ACT•INTRODUCTION 5.03SELF-HELP:PLANNINQREQUIREMENTS Since the adoption of G.L. Ch. 132A, §11, (§15.04), which One of the primary concerns of the Division Is that local established the Massachusetts Self-Help Program, the communities devise a natural-resource, open-space and Commonwealth has pioneered In sharing with municipalities recreation plan and that this plan of action be orderly,soundly the cost of acquiring conservation land.Through the Self-Help based and consistent with the needs and demands of the Program, municipal conservation commissions can obtain up citizens for whom the plan was formulated. No application to 50% of the cost of acquiring land for conservation and under the Self-Help Program is approved unless the con- passive outdoor recreation purposes.The rationale behind the servation commission has flied such a plan with the Division.A Program is that local participation In acquisition of open space recreation plan is also required for federal Land S Water assures intelligent choice of lands as well as popular support Conservation Fund applicatlons(§5.08). In the form of local appropriations. Land acquired with Self- Some commissions are unaware of these requirements,and Help assistance must be open to the public, and the par- many more are confused as to what a natural resource open ticipating municipality has responsibility for maintenance. space and recreation plan should include. Detailed Guidelines Through fiscal 1978,29,100 acres of land have been acquired are available from the Division.The MACC office will also offer with state financial assistance, and approximately $17.3 advice.Comprehensive municipal master plans are acceptable million has been disbursed to 172 cities and towns. Lands under both HCRS and Self-Help Programs If they treat con- acquired include floodplains,inland and coastal wetlands,lake servation and recreation issues. However, a city or town may and ocean beaches,forest lands and unique natural areas. file a separately prepared natural resource, open space and The state, like the federal government, has a policy that recreation plan it it so chooses. This plan must be more than lands acquired for conservation purposes should remain just an inventory of open space and recreation area.What the devoted to that use.If there is need to change a use,the state Department Is looking for Is a sound plan of action containing will either give such permission when equivalent land is a five-year program for acquisition and development, Including acquired or will expect to have Its money refunded should the protective measures and sound land-use management prac- land acquired be sold or used for other than conservation tices. Soil surveys and natural resource Inventories are ex- purposes.For details,see Ch.5. cellent tools for formulating such a plan and should be used if possible. An analysis of needs, goals, objectives and action 5.02 SELF-HELP:USE REQUIREMENTS programs must be presented. They should be based on physical, social and economic factors, population trends,and The Self-Help Act (§15.04) provides that the Secretary of needs of the community. The plan must be a comprehensive Environmental Affairs may assist cities and towns which have investigation of factors affecting conservation and outdoor established conservation commissions to acquire land for recreation lands and programs. The relationship of natural conservation purposes. The program is administered by the resources and recreation goals to housing, employment, Division of Conservation Services in the Executive Office of transportation and community goals for location of future Environmental Affairs. Ch. 132A, §2B states that the land growth should be made explicit in the plan. A map of con- acquired must be, so far as is practicable, preserved in its servation lands must be included. Comments from the plan- natural state. State policy dictates that these lands be used ning board and regional planning agency must be Included. only for conservation or "passive" recreation, that is, for ac- Plans must be updated every five years. tivities which can be performed with minimum disturbance of the area's natural condition. Examples Include hiking, pic- 5.04 SELF-HELP:FUNDING nicking, canoeing, ice skating, cross-country skiing, casual swimming in a natural water body, or informal sports in open Under the regular Self-Help program, the Commonwealth areas. Development of facilities on Self-Help land is therefore may grant up to 50% of the approved cost of a project, and limited to such minor changes as traits, small parking areas, most projects have been funded at this level. (See §5.07 for boardwalks, small shelters, and the like. The Division has, possible funding under the new urban self-help program.) If however, permitted maintenance of facilities already on the federal funds are available as well,the community may receive land. It has also approved agricultural use. The federal aid as much as 75% combined state and federal reimbursement. program, discussed later in this chapter, may fund more ex- The Division bases Its reimbursement only on the highest tensive recreational development. appraised value, even It the municipality decides to pay the A sign must be erected with an optional logo designed by owner more.Appraisal requirements are discussed in 65.06. In the Division, indicating a cooperative conservation project eminent domain takings, reimbursement may be based upon between the conservation commission and the Com- the court award. monwealth. The land must be open to the general public, The program is one of reimbursment of funds actually ex- subject to conservation commission regulations applicable to pended by a city or town for land or interests in land.Thus the all. With Division approval, nonresidents may be charged a municipality must first come up with the total cost of the higher fee for parking or use,If justified by excess cost. project.This requirement may be met in a variety of ways: the municipality may appropriate funds from the year's tax revenues; it may borrow money and issue municipal bonds; it may transfer money from available funds; It may spend money 19 from the local conservation fund (§3.09). Reimbursement will The purpose of acquisition under urban self-help are broader not be made until the project has been completed to the than the passive recreation standards which apply under the satisfaction of the Division, in accordance with the plan and regular state program; grants would be available to qualifying preliminary approval. Reimbursement must be applied first to municipalities which have established either conservation the payment of any indebtedness incurred in acquiring the commissions or park or recreation commissions.The Director land. of Conservation Services has established regulations for the Although a commission may use money in its conservation management of the program. fund without further authorization, It cannot obtain a self-help grant unless the town meeting/city council has passed a vote 5.08 LAND AND WATER CONSERVATION FUND authorizing the purchase of a particular parcel of land(or of an (HERITAGE CONSERVATION&RECREATION SERVICE) Interest in that land). The town meetinglcity council vote requires only a majority,and maybe conditioned upon federal The Heritage Conservation & Recreation Service (formerly or state reimbursement, according to an Opinion of the At- BOR)is a part of the U.S.Department of the Interior.The Land torney General dated October31,1975. and Water Conservation Fund, administered by HCRS, reim- burses local,state and federal agencies up to 50% of the cost 5.05 SELF-HELP:PROCEDURES of acquisition and/or development of outdoor recreation area and facilities. HCRS is interested in meeting public The Division's procedures,as of 1977, are set out In§15.09. recreational needs as well as preserving open space. It may Commissions should contact the Division for further, up-to- therefore fund Intensive uses,such as swimming pools, rinks, date information before taking any official action. The im- and campgrounds,which are not eligible under Self-Help. portance of early contact with the state cannot be over-em- Massachusetts received $4,500,0D0 for fiscal 1977 and phasized, since it will save much trouble and disappointment $9,000,000 for fiscal year 1978, and expects to$12,000,000 by later on. A completed application must be on file before fiscal year 1980.The Regional Office of the HCRS Is located in property is acquired. The Division will investigate the project Philadelphia, Pa. The program is administered in and give preliminary approval before the municipality votes to Massachusetts through the office of the Division of Con- acquire the land, provided some self-help funds are available servation Services. and all other requirements have been met.While reserving its Since requirements are subject to change, the first step in rights to react to changed situations, the Division has never applying for assistance should be to make inquiry of the gone back on a preliminary approval if the municipality has Division of Conservation Services in the Executive Office of taken action based on such approval. Environmental Affairs. A summary of procedures appears in §16.10. Commissions should know that authority to request a 5.06 SELF-HELP:APPRAISALS grant must be obtained by city council or town meeting vote Self-Help project application must be accompanied by: prior to application and that no binding local action may be II the total project cost is: taken until the HCRS has given written approval. The funding $1.00-$10,000 2 opinions of value decision is made In September prior to the start of the federal $10,001-$25,000 1 full appraisal and 1 opinion of value fiscal year, Preliminary steps to determine eligibility should be $25,001-and above 2 f ull appraisals taken no later than the spring or early summer. The HCRS program provides that if the land acquired with An opinion of value is a brief statement from a qualified federal funds is diverted from its specific use,other land of at appraiser that a property is,worth a given amount; an opinion least equal current market value, and serving the same area, can be based upon the appraiser's knowledge of land values, must be substituted. This is accomplished by placing a and need not be substantiated by documented data.Opinions covenant into the reimbursement contract with the of value submitted with Self-Help applications should Include municipality and preferably by recording a convenant signed a short statement of the appraiser's experience and by the municipality. If the land should be taken by an agency qualifications,a brief description of the factors considered in which was not a party to the contract (such as the state valuing the property and the means by which the appraiser highway department),the effect of the clause would be that the concluded the value of the parcel,The Division of Conservation federal government can insist that the proceeds of the taking Services reserves the right to request additional information if be earmarked for replacement of the land. it deems the opinion of value inadequate. Acceptance of assistance from the Land and Water Con- A full appraisal is a comprehensive analysis, substantiated servation Fund requires that the land be open to use by the by documented data,of the value of a properly. general public. Signs must be erected, showing the Fund's logo and indicating a "cooperative project for outdoor 5.07 URBAN SELF-HELP PROGRAM recreation" between the municipality,the Commonwealth and the HCRS. The HCRS may permit the community to charge Ch. 933 of the Acts of 1977 authorized the secretary of en- non-residents a higher use fee. Although there is no vironmenial affairs to establish a new program of land Massachusetts decision or statute on the point, such a fee acquisition for cities and towns with a population in excess of should be legally permissible provided it is nondiscriminatory 35,000 inhabitants whereby the state would pay up to 80% of and reasonably related to the extra costs incurred by non- resident use.In an the cost of land acquisition. If combined with federal funding (§5.08), the grant could total 90%. Such grants would help to Y case it appears that public parks and open deal with the Inability of the poorer and densely populated space areas in any Massachusetts municipality are open to all municipalities to come up with the matching funds required the public as a matter of law(if not practice). under the existing laws. The program has been funded for fiscal 1979, but will expire, unless extended, on June 30, 1980 (end of fiscal year 1981). 20 5.09 THE"A•95"REVIEW PROGRAM 5.11 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM A series of federal acts aimed at improving in- The CDBG program replaced a variety of separate tergovernmental coordination has resulted in a program im- categorical grants and is available to larger communities. plemented by Circular A-95 from the Office of Management and Smaller municipalities may compete for discretionary funding. Budget. The purpose of A-95 review is to examine proposed Communities may use the grant for specific projects from a projects for state or regional Impact and consistency with range of eligible activities. The program is primarily designed state or areawide comprehensive plans or policies.The office to meet the needs of low and moderate income people.CDBG of State Planning, in Boston,is the clearinghouse responsible monies may be used as the local share In apply for HORS or for coordinating state review. Circular A-95 established a Self-Help assistance in open space acquisitlori.Information on Project Notification and Review System (PNRS) for review of CDBG money may be obtained from the Department of certain federally funded projects by state and regional Housing and Urban Development, 15 New Chardon Street, clearinghouses.State reviews are conducted by OSP;regional Boston. reviews are conducted separately by the regional planning This program replaced the former HUD Open Space Grants. agency for the area where the proposed project will be located, However,HUD is still enforcing the terms of funding contracts with input from local officials. It Is now a requirement for under the program, which barred any diversion of the land to obtaining a grant under a great number of federally funded other use. programs, Including the Federal Water Pollution Control, Community Development Block Grants,and HCRS grants,that 5.12 FEDERAL SURPLUS PROPERTY PROGRAM the local applicant first file for review by both the state and regional clearinghouses. If these agencies require further The Department of the Interior has been authorized to turn information, conferences are arranged. After 30 days, the over federal surplus real estate to localities for park purposes, applicant may proceed to file with the federal agency. either at very low prices or free of charge, subject to G.S.A. Although the recommendations of the state and RPAs are not approval (40 U.S.C. 484, 50 App. U.S.C. 1622), The deed must binding, they have great weight where requests exceed fund- stipulate that the property be used and maintained forever for ing,as in the HCRS program(See§5.08). park purposes,and that if It ceases to be so used,ownership of A-95 review applies to practically all federally funded the land may revert to the Department at its option. projects. For projects other than land acquisition, the com- mission should urge the community's representative on its 6.13 FEDERAL AND STATE WATER POLLUTION GRANTS regional planning agency to comment on projects which are particularly desirable, objectionable, or ought to involve an The DEQE Division of Water Pollution Control and the . Environmental Impact Statement(See§12.03). federal Environmental Protection Agency jointly administer state and federal grants for water pollution abatement under 5.10 FEDERAL APPRAISAL REOUIREMENTS the Federal Water Pollution Control Act of 1972(PL 92-500),33 U.S.C. §1251-et seq. Funds for municipal sewage treatment The Uniform Relocation Assistance and Real Property facilities under§201 of the Act had risen to$17 billion In fiscal Acquisition Policies Act of 1970(Pub. L.91.646,84 Stat. 1894) 1977-1978.The program provides grants for up to 90% of the places certain restrictions upon land acquisition projects costs of construction, but not maintenance, of sewage where federal funds are Involved.Basically,the law is Intended treatment facilities.Of this percentage,.75% Is available from to Insure fair treatment of persons displaced as a result of the federal government and up to 15% from the state. The programs designed for the benefit of the public.It requires that state, through a bond Issue, has authorized the spending of moving, replacement, closing, and litigation expenses be $15,000,00 of state money annually on this program over a ien- reimbursed to persons losing dwellings or businesses due to year period. Several Issues continue to be controversial, In- such projects. The act further requires that real property be cluding: Who funds the collection systems? Should local appraised before the initiation of negotiations; and that the facilities be built with excess capacity which may encourage owner or the owner's representative must be given an op- growth?What kinds of systems are eligible other than sewage portunity to accompany the appraiser during inspection of the treatment plants?Amendments to the Act passed in 1977(P.L. property and to have access to the appraisals before 95-217) set aside funds for "Innovative" small systems. An negotiations are concluded. Two full appraisals are required Environmental Impact Statement(see§12.03)may be required for property which is(1)valued at$25,000 or more,or(2)to be for controversial treatment facilities. Under Step One of the purchased from another public agency,or(3)to be acquired by grant program, facilities planning, a professional study of all exchange.See§5.06 for a definition of"full appraisal." Further alternative means (including nonstructural) for solving the Information is available from the Division of Conservation pollution problem is absolutely required,and the governments Services.The federal agency cannot offer the owner less than can fund only the solution shown to be most cost effective and . the value approved by the Division (42 U.S.C.A. 4651). This least environmentally disruptive. The commission should contrasts with the time-honored bargaining procedure under contribute to the study if local improvements are proposed. which the value determined by the municipality's appraiser was not available to the owner. Under this law,an owner who 5.14 PROGRAMS OF THE ARMY CORPS OF ENGINEERS accepts less money than the appraised value must sign a waiver indicating that shelhe was fully informed of all rights Federal assistance for work for shore protection,navigation, and benefits.As soon as a commission decides to seek federal and dams Is handled through the district offices of the Corps. assistance,It should ask the Division of Conservation Services The district office for this area Is located In Waltham, for information on procedures under this law. It is difficult to Massachusetts.Funds are also available through this office for "cure"procedural defects later on in the process. 21 small or emergency river, shore, navigation, or flood-control aid highway route. These funds, however, are not set aside, projects. These"local protection projects" are maintained by and applicants must compete with other highway projects. the local authorities with periodic inspection by the Corps of G.L.Ch.82,§35 provides that bicycle paths shall be laid out Engineers.The federal government,through the Corps,usually by the same procedures as municipal roads. Bikeways and shares in the funding of projects for shore protection on a pedestrian ways may also be required in subdivisions by ap- matching basis,but the federal share could go as high as 70% propriate planning board regulations. on projects involving certain publicly owned parks and con- Abandoned railroad rights of way may also be suitable for servation areas.Such projects are authorized under the Rivers bikeways. The Railroad Revitalization and Regulatory Reform and Harbors Act. Recreation and prevention of shore erosion Act of 1976, P.L. 94-210, §809 (b), contains modest HCRS are major objectives.: funding for municipal acquisition of these rights of way for The Corps is also in charge of projects to improve or protect recreational use. navigation, with the federal share of costs about 50%. In ad- dition, the Corps assists municipalities in preventing flood 5.17 AIRPORT DEVELOPMENT AID PROGRAM damage. Projects benefiting an entire river basin are eligible for 100% federal funding. If the project benefits only one In 1976,P.L.94.353 added a section to ADAP which provides locality, the Corps will pay construction costs only. The for federal grants of up to 90% of the cost of local or state enabling legislation is P.L. 87-874, P.L. 84.685, and the 1962 acquisition of land or interests in land in airport areas Flood Control Act,§205.Channelization or water impoundment "necessary to ensure that such land is used only for purposes are the principal types of project.Major flood control works are which are compatible with the noise level of the operation of a built and maintained by the Corps. Under Natural Valley public airport." This presents new possibilities for con- storage plan, an Innovative program to protect floodplains by servation commission acquisition of land near airports for nonstructural means, the Corps Is buying Interests in land wildlife or recreational purposes at a mere 10%of the cost. along the upper Charles River.Under all of these programs,the Corps studies proposals to establish that they meet the needs of the people, have their support, and are economically feasible.Write to the Corps for its booklet,"Water Resources Development in Massachusetts." See §9.08 for the Corps' permit programs for fill and structures in United States waters and wetlands. 5.15.HIGHWAY BEAUTIFICATION The Highway Beautification Program is run by the Bureau of Public Roads, Department of Commerce, Washington, D.C. and is administered through the Department of Public Works in Boston,Massachusetts. 6.16 BfKEWAYS Massachusetts communities are showing an increasing Interest In establishing bikeways. G.L. Ch. 90E, added by Ch. 356 of the Acts of 1977,authorizes the Commissioner of Public Works to provide plans, regulations and state funds for the construction and maintenance of bikeways and bicycle parking facilities. Bikeways Include "bike lanes" on streets, "bike routes" shared with other forms of transportation, and "bike paths" for the exclusive use of bicycles. Bike paths are to be separated"by grade or other physical barrier"f rom motor traffic. An Opinion of the Jusices(1976 Mass..Adv. Sh. 2010) upheld the constitutionality of using state highway trust funds on blkeways, because of their intimate relationship to traditional highway uses, even if the bike paths are separated from the paved ways. G.L. Ch.90E, §3 authorizes DPW to pay 75% of the cost of bikeways constructed by municipalities for "commuter or recreational use"and 50% of the cost of parking facilities.Ch. 356 of the Acts of 1977 authorizes DPW to spend up to two million dollars.for these facilities. Federal funding may also be available.Section 217 of 23 U.S.C.(as amended by Section 134 of the Federal-Aid Highway Act of 1976)allows federal funding for bicycle facilities Incidental to highway construction or Independently constructed outside of the existing right of way If they will serve traffic which would normally use the federal- 22 Chapter 6 Managing And Protecting Conservation Land 6.01 SETTING MUNICIPAL POLICY Many people and many departments cooperate in the effort of one hundred dollars,for any violation thereof." to acquire open space, whether by purchase, gift,or eminent Thus, the commission has a good deal of discretion In domain, and with or without state or federal aid. When a deciding what are appropriate uses for its land.This discretion significant amount of land has been assembled, communities is, of course, subject to the regulations and policies of the begin to ask themselves, how shall we manage this resource federal and state funding agencies. For example,the Self-Help for the maximum benefit to the land and to the people?At this Fund, (§5.01), has a policy of funding land acquisition for point, differences of philosophy begin to emerge. These dif- conservation and/or "passive" recreation. That Is, land ferences may be distressing to people who have thus far been acquired with Self-Help aid may not be used for intensive working together amicably on acquisition plans. recreation and highly developed facilities such as covered For example, some people will wish to keep conservation skating rinks or bleachers. This policy toward passive land entirely in its natural state with a minimum of human recreational use basically reflects the state's interpretation of interference, for its own sake, for a buffer area, or to protect the Self-Help Act(§15.04).If no outside aid was given,then the municipal wells or watershed areas. Others will press for local conservation commission may determine for itself what recreational development, ranging from horse, ski and hiking uses do and do not constitute "proper utilization" of com- trails to clearing land for playing fields. Others will want the mission land. This handbook will suggest legal and en- land used productively, in agriculture, orchards, Christmas vironmental guidelines for such a determination, tree farms,etc. Such uses may be desired because they enhance the land,sharpen citizen skills,or raise money for the 6.03 MAINTENANCE OF LAND town. It will also be discovered that some people incorrectly view conservation land as a kind of land bank for other Subject to available funds, a commission may execute municipal purposes. contracts with tree surgeons, contractors and others to do This chapter will discuss the legal implications of these necessary maintenance work on land It controls and may hire differences in policy. Some kinds of development are clearly "clerks and other employees" such as consultants, con- legally consistent with the purposes of the Conservation servation directors, assistants and secretaries (§15.01). Many Commission Act. Some will clearly require transfer to another commissions find it desirable to work with the park depart- municipal board. A great many are borderline in this respect, ment or the public works department to maintain conservation and,in the absence of court decisions,this handbook can only lands, especially during the winter, which Is generally a slack point out the legal issues that should be addressed. However, season for these departments. before engaging in any Intensive use of conservation land, Very Intensive use of commission land may require funds for such as harvesting timber or clearing land, the conservation litter control and patrolling against vandalism. These funds commission would be well advised to consult with members, may be obtained by vote of city councilftown meeting or by other town boards, and the citizens of the town as to their agreement with other departments. needs and desires. 6.04"PASSIVE"RECREATION 6.02 CONSERVATION COMMISSION CONTROL The town or city may desire to leave the conservation Under the terms of the Conservation Commission Act commission land generally in its natural condition but to cut (§15.01),conservation land is received and held"in the name of trails or perhaps create a beach or picnic area or an earth ramp the city or town."This is because the commission is a branch for getting Canoes into water. As previously stated, the Con- of municipal government,not a separate legal entity.However, servation Commission Act makes it clear that the commission the Conservation Commission Act also makes clear that the may establish regulations for its land. This means that the land is controlled by the commission and not by other town conservation commission can have the trails cut or the ramp bodies. built without further authorization, provided it can find the The Act states that: money in its budget. Many commissions get significant aid ....the commission may acquire in the name of the city or from the local DPW and CETA personnel as well as citizen town by option,purchase,lease or otherwise the fee in such groups like the Scouts. (Warning: All trail signs should be land or water rights, conservation restrictions, easements, Installed by stepladder well above the reach of the public, or or other contractural rights including conveyances on they will immediately be removed as souvenirs!) conditions or with limitation or reversions, as may be A small parking lot seems a congruent, and sometimes necessary to acquire, maintain, improve, protect, limit the necessary, accessory use for conservation lands. Some future use or otherwise conserve and properly utilize open commissions prefer to avoid paving by using permeable spaces in land and water areas within Its city or town,and It covering, firewood or chips. Many will limit the size of the lot. shall manage and control the same. Land purchased with Self-Help or federal funds must be open Further, the Act states that the "commission may adopt 10 all persons in the Commonwealth.However,state policy has rules and regulations governing the-use'of land-and wafers been that the commission may limit use by limiting access on under its control,and prescribe penalties,not exceeding a fine a first-Come, first-served basis, so long as the town does not 23 try to discriminate by requiring a town sticker or similar means. holds the land are summed up in the phrase "maintain, im- Some municipalities wish to charge a fee for parking or use prove, protect, limit the future use of or otherwise conserve of open space. Again, the commission may presumably and properly utilize open spaces in land and water areas." establish a fee schedule without violating state or federal Many commissions feel that properly conducted agriculture is policy, so long as it is not discriminatory. Most commissions a proper and beneficial use of public open space, because it would not wish to establish a fee system without a town preserves the wildlife habitat, the historical New England meeting or city council vote establishing the fee and, landscape,and the dwindling stock of local farmlands. preferably,funneling the proceeds Into a special fund such as Few problems arise where conservation land is used by the the conservation fund.Charging fees may increase municipal public for small gardens or communal herds, hives, sugaring liability(see§6.15). operations, blueberry patches or the like.These activities may May the community charge a higher tee to outsiders? This be supervised by the commission or one of its subcommittees. action is not absolutely banned;but the fee differential should The commission will,of course,want to control hours,types of be modest, and the community must be prepared to demon- machinery used, types, amount and application of pesticides, strate that the differential is related to the extra cost of herbicides and fertilizer and the kinds of accessory structures, maintenance attributable to outside use. such as sheds and barns,which may be built upon the land. The state law appears to be that all municipal open space The local Conservation District may advise on the land, whether or not purchased with state or federal funds, is capabilities of the land and authorize the Soil Conservation open to all persons lawfully within the commonwealth. In Service to prepare an agricultural plan. The Cooperative Ex- effect,the state has special interest in all these"public trust" tension Service can recommend suitable crops or varieties of lands.For example,It has been held that the Boston Common, vegetables and flowers.(See Ch.14) although originally given solely for the common use of certain Agricultural plots may be made available to persons outside Boston residents,is now open to everyone.in Massachusetts. ti,.e community. Suburban and rural commissions should Some suggested regulations for passive recreation use of consider the needs of inner-city residents.A regional program conservation commission land are found in§16.07. of this sort is one way in which the richer communities can make a real contribution. 6.05 FISHING,HUNTING AND RECREATIONAL VEHICLES More serious legal problems arise where commission land is leased to a farmer.Although this action may be desirable from The commission has the final say under the Conservation the point of view of maintaining the quality of the farm land, it Commission Act on whether to allow recreational uses such as does involve excluding the public from use of public land to a hunting,fishing,or camping on conservation land,provided,of significant degree. Also, a broadly written Attorney General's course, that the municipality has not prohibited these uses Opinion (§15.08) implies thai a two-thirds vote of the state throughout the city or town. In addition to the powers legislature is required for such a lease.The Opinion states that specifically given to cities and towns under G.L. 90B, §33, to Amendment Article 97 applies to public "agricultural regulate the use of motorized recreational vehicles on any resources,open spaces, natural areas,and parks." It states in municipal land, the commission may regulate their use on part: conservation land.It is possible,therefore,for a town meeting I therefore conclude that the "disposition for which a two- to authorize snowmobiles or trail bikes on other town lands, thirds roll-call vote of each branch of the General Court is while the commission may forbid them on conservation land. required" includes...long-term and short-term leases of whatever length and all means of transfer or change of legal 6.06INTENSIVE RECREATION or physical control...without limitation and without regard to whether the transfer be for the same or different uses or Use of commission land for local recreation programs consistent or inconsistent purposes. presents both legal and management problems. Legally, the Quite aside from Article 97, it is questionable whether the Attorney General's Opinion discussed in§6.07 would seem to conservation commission has legal authority to enter into a require that, If permanent structures such as bleachers or new lease of public land. Both G.L. Ch. 40 and legal decisions in- tennis courts are to be constructed, the land should be trans- dicate that the town meeting or city council should authorize ferred to the recreation commission. Obtaining a two-thirds any such lease and that the selectmen or city authorities vote of the legislature for this kind of routine transfer should should execute it. not Cause problems if the transfer is first voted by the con- Because of this sort of legal question, some commissions servation commission and the town meeting. If, however, the prefer to enter into a"license" agreement rather than a lease recreation commission merely wants to manage ball games on with a farmer.The difference is in fact not great, but a license a conservation commission field, then such transfer is not (a)gives the licensee less of a legal interest in the property;(b) required. Many commissions simply arrange by letter for the gives permission only to a particular person or persons to use recreation commission to run its programs on conservation the land;(c)generally runs only from year to year;(d) is easier commission land on an annual basis.Similar rules apply to use to terminate;and(e)can provide for more municipal control.A of Self-Help land(see Ch.5). sample license agreement appears in §16.08. Presumably the commission as well as selectmen may enter into a license 6.07 AGRICULTURAL USE OF CONSERVATION LAND agreement for use of conservation land. G.L. Ch. 59, §3A provides that public land "used in con- The Conservation Commission Act does not require that nection with a business conducted for profit or leased or land be kept entirely in its natural condition.Although the Act occupied for other than public purposes"shall be taxed to the makes Indirect references to "conservation and passive user, lessee or occupant as if that person were the owner in recreation," the basic standards under which the commission fee. The provision exempts use, lease or occupancy, 24 "reasonably necessary to the public purpose" of a "park, or management thereof." This means that the profits from the similar property which is available to the use of the general sale of municipal timber will go directly to the town or city public." Therefore no tax should be due on a license to farm forest committee and not into the municipal treasury. Thus, conservation land. If the produce from the land is not sold, Ch.45 differs from the conservation commission act both with then the farming probably would not in any case constitute use regard to the purposes for which the land is acquired and the In connection with a business conducted for profit. If It Is use to be made of profits.This distinction becomes Important deemed necessary that the use be taxed, the license in municipalities where the public forests are contiguous to or agreement should state which party shall pay the tax.Although intermingled with conservation commission land. the statute is not clear,the Implication is that the tax should be Forest management should be performed under the based upon the value of the leasehold or license,not upon the direction of a professional forester, public or private. The full value of the land,because the farmer does not own the land forester will prepare a management plan to Insure continuity and cannot sell it for development. and review the plan periodically. A good plan for commission Another issue Is whether the municipality may make a profit forest will emphasize aesthetics, wildlife, watershed from the lease or license of commission land. In Ballantine v. protection,and recreation. Falmouth, 363 Mass. 760 (1973), the Supreme Judicial Court Conservation districts can be of real assistance in forest cited cases which establish that municipalities have the un- management. doubted right to lease for a profit land acquired for public purposes which is not presently needed for such purposes. 6.09 MANAGING FOR WATERSHED PROTECTION However, where land Is needed for conservation purposes, it would obviously be inappropriate to prefer profit making to the Management of the forest is usually synonymous with public use for which the land is held. In other words, money preserving water quality and yields. Yet recent watershed making should be an incidental, not a dominant, purpose In research has indicated that some forests are betterthan others managing conservation land.If the land was bought with state in this purpose.The native forest with its natural distribution of aid, it should be noted that G.L. Ch. 132A, § 2B bars all free species does a much better job than the red pine and "commercial activities except those essential to the quiet spruce forest established on many watershed lands. These enjoyment of the facilities by the people." plantations not only yield lesser amounts of water but are more G.L. Ch. 44, §53 states that all monies received by a city or susceptible to various storms, fires, insects, and disease town department shall be paid Into the municipal treasury and problems. may not be used by any department without a specific ap- To avoid these problems, the management plan for water- propriation. In the absence of anything to the contrary in the shed lands should call for the eventual restoration of the native Conservation Commission Act, it appears that revenues from forest. Although nature Is then capable of maintaining the conservation commission land must go to the municipal native forest, benefits in terms of water, wood, wildlife, and treasury and not the conservation commission. Some com- aesthetics can sometimes be realized by applying various munities have a bylaw stating that any money received be silvicultural treatments.These treatments should tend toward automatically deposited Into the conservation fund. However, the creation of the uneven-aged forest,for the more diverse the It is questionable whether such a bylaw Is effective against the forest, the more durable it will be and the more diverse the specific state law. An annual appropriation of an equivalent wildlife which it will support. sum for the commission is preferable. A final issue in lease or license of conservation land Is 6.10 MANAGING FOR WILDLIFE liability. The agreement should require the farmer to Insure against damage done to the public or the town by herlhim or Wildlife is more than game species. An amazing number of herlhis agents and should require that shelhe waive any claims birds, small mammals, Insects, reptiles and fish can flourish for damage to person or property occasioned by the town or even on suburban conservation land.Management information the citizens. Municipal insurance coverage should also be may be found in R. D. Forbes' "Forestry Handbook" (Ronald checked,(see§6.15) Press Co., N.Y., 1961) or obtained from a private forestry consultant or the Massachusetts Audubon Society in Lincoln, 6.08 FORESTRY OPERATIONS ON CONSERVATION LAND Mass., the state division of fisheries and wildlife, or the con- servation districts.The Handbook emphasizes such practices As part of the control of Its land, the commission may ob- as small cuts, to produce "edge" and varied patterns of age viously engage in removal of vegetation, planting and other classes and densities; the importance of conifers for winter operations to Improve the health, aesthetics, and wildlife cover; removal of overstory to stimulate food production; potential of commission land, maintaining old fields and openings; planting such species as The question of harvesting timber for municipal use or for clover or buckwheat; and leaving some brush plies and dead profit raises many of the same issues discussed above with trees for habitat. Management for nongame species is a respect to farming. Money making should not be a dominant relatively new area. Local schools and nature groups may management purpose. Commissions should also be aware of come up with valuable Ideas. the legal differences between timber operations on town forests and conservation land.A town or city forest Is acquired 6.11 CONSERVATION LAND AND WETLANDS LAWS under G.L. Ch.45, §19 for preservation of the water supply or the"culture of forest trees,"with the clear implication that the G.L.Ch.48§16 prohibits deposit of slash within 25 feet of a town may use or sell the timber.Further,§22 states that sums brook, 100 feet from the center of a highway, or 40 feet from derived from the sale of forest products from municipal forests other's woodlands. It work is to be done on riverbanks or shall be applied "s❑ far as may be necessary, to the wetlands, the commission Is in.no way exempt from the 25 Wetlands Protection Act(see§9.02), and must hold a hearing the U.S. Supreme Court put teeth into this federal law which before itself. Some commissions feel this is silly; but any states that the Secretary of Transportation shall not permit use attempt by a commission to exempt itself will certainly have a of federal highway funds for projects using public park, bad legal and political effect. Public participation and op- recreation,or wildlife land or historical areas of national,state, portunity to appeal to DEOE are assured by a hearing. or local significance, unless there is "no feasible or prudent alternative." (49 U.S.C. s. 1653, 23 U.S.C. s 138). These pious 6.12 PUTTING UTILITIES ON CONSERVATION LAND words had previously been interpreted to relate only to cost and convenience. In Citizens to Preserve Overton Park v.Volpe The community may wish to make uses of commission land (1971) 401 U.S. 402, the court, in a burst of common sense, which are arguably consistent with conservation purposes but pointed out that since building through an open area is always are traditionally carried on by other municipal departments,for cheaper and less disruptive to a community,the phrase in the example, digging a municipal well. More often, the issue is statutes must mean something stronger.The court concluded simply putting a town water or sewer pipe underground that the laws prohibited highway building in"4(f)"lands unless through commission land. Legal authorities are divided as to the cost or inconvenience of alternate routes reached "ex- whether such uses constitute"diversion"in terms of Article 97 traordinary magnitudes"or presented"unique problems."The of the Constitution, discussed above in §6.07. Certainly, the phrase "park or recreation,..areas of...local significance" Attorney General's Opinion set out in §15.08 appears to state should certainly include conservation commission land. that such use requires a two-thirds vote of the legislature, Preliminary designation of 4(f)areas is made by local or state either as a transfer to the water/sewer department or as a officials having "jurisdiction" over the land, including com- change of use without a transfer (see the "conclusions" missions,or by the Secretary of the Interior, subject to review section of the Opinion).The Opinions of the Attorney General by the Secretary of DOT.It is wise to start early since DOT may are not binding law but are influential with most town counsels resist 4(f) designation for commission land unless wildlife and city solicitors. Therefore, most counsels will advise a andlor recreational use is demonstrated. legislative vote for major changes of use,even though the use Section 4(f) also applies to federal funding of bridges, Is consistent. However, many would consider the small pipe causeways,airports,mass transit,and railroads. too Insignificant a transfer to require such a vote. Permission of the aldermen or selectmen is required before 6.14 TRANSFER OR SALE OF CONSERVATION COMMISSION a utility company may place transmission lines across LAND municipal ways (G.L. Ch. 166, §22). Local refusal may be ap- pealed to the stale department of public utilities, if a majority It is very difficult for a municipality to sell conservation land of the communities on the route,or two adjacent communities, or transfer it to other uses. have approved. In spite of its broad powers, the state Energy According to the Massachusetts Constitution and G.L. Ch. Facilities Siling Council may not take an easement over public 40, land acquired by a municipality and under the control of a land by eminent domain(G.L.Ch.164,§69R), commission may not be sold or transferred from such control except under the following circumstances: (a)a majority vote 6.13 HIGHWAY ENCROACHMENT ON CONSERVATION of the commission that such land "is no longer needed for LANDS such purpose," plus(b)a two-thirds vote of the city council or the town meeting authorizing sale or transferring control to Open space attracts highway builders.A commission should another board for"specific municipal purpose,"(but if the land not Immediately assume that all is lost should conservation was purchased, sale requires only a majority vote), plus(c)a land be threatened. Town meeting or city council action is two-thirds recorded vote of each house of the state legislature required under G.L.Ch.82,to lay out a town or city way,even if under Massachusetts Constitution Amendment Article 97. In no land has to be taken. Municipal power to buy, take, or addition, such transfer may not violate any"term or condition transfer land already in public use (including conservation of the title of the city or town to such land."(G.L.Ch.40,§15A: commission land) Is severely limited, as discussed below. This phrase includes a trust provision in the deed discussed In Laying out a county or slate road over conservation land also §4.07.) If land acquired under the HCRS program is diverted to requires local consent (G.L. Ch. 79, §5 and G.L. Ch. 40, §14- other use, other land of at least equal value and serving the 15A),and a two-thirds vote of the legislature. same area must be substituted.(See§5.08) If Self-Help Funds The Highway Act did not originally provide for payment of were used, the Commonwealth may either require equivalent damages when the state or county highway departments took land or expect that Its monetary value will be returned(§5.01). public park or recreation land.Two special acts(Acts 1955,Ch. A municipality cannot use eminent domain procedures to 693, as amended by Acts 1957, Ch. 657) changed the law to divert municipal land to another public purpose (G.L. Ch. 40, provide that the Real Estate Board, established by the DPW, §15A). Thus if four people out of seven on a commission shall determine the amount to be paid and such determination believe that a tract under its control should not be transferred, Is final. Funds so obtained by the MDC must be placed in its the vote of the other three members and every other voter in trust fund"for the purchase of other land to replace the areas town cannot take the land from conservation use and put it to so taken,transferred,or used."In We manner,money received other use. However, the state or the federal government may by a municipality from this source should be appropriated by take land by eminent domain for any public purpose.Taking of town meeting or city council vote to the conservation fund.Ch. public land by the state requires a special act of the 81,§7M permits, but does not require,the DPW to take land to legislature. If the state takes land originally purchased with a replace parkland used for federally aided highways, federal grant, proceeds must be used for replacement land of Local open space may qualify for "4(f)" protection, under comparable value. §4(f)of the Department of Transportation Act of 1966. In 1971, 26 Amendment Article 97, amending Article 49, was added to naturally found there. Any increase in liability will therefore the Massachusetts Constitution in 1972. (see §15.07). Article largely arise from recreational or similar development of 97 declares that the conservation of our natural resources is a conservation land. public purpose and states: G.L. Ch, 231, §85Q now imposes on landowners a special "Lands and easements taken or acquired for such purposes duty of care toward children,even If they are trespassers, but shall not be used for other purposes or otherwise disposed only if the owner maintains an "artificial condition" on the of except by laws enacted by a two-thirds vote, taken by land. yeas and nays,of each branch of the general court." By contrast,a private landowner who opens herlhis land for This article thus establishes that natural resource lands public recreational use without charging a fee Is protected cannot be disposed of, transferred or sold without a special, from liability for Injuries to persons or property unless herlhis two-thirds vote of the state legislature. An Opinion of the conduct is willful, wanton or reckless. G.L. Ch. 21, §17C ap- Attorney General dated June 6, 1973, interprets this Article pears in§15.09. very broadly, to cover many kinds of land and all kinds of transfer,even leases.This Opinion is reproduced in§15.08.It is 6.10 POSSIBILITIES written in essay form and worth the concentrated attention of every commission faced with a transfer problem. In the The many thousands of acres of conservation lands offer Opinion, the Attorney General also discusses the many legal tremendous possibilities for a range of management practices. decisions which applied this version•of the "public trust" These precious areas are like laboratories where a variety of doctrine to parks, reservations and Great Ponds many years techniques and policies may be tried out. Every commission is before the Amendment Article was added to the state Con- urged to form a subcommittee to Investigate management stitution. policy on a long-term basis, and seek public and private According to Robbins v. Department of Public Works,(1969) assistance for such planning. 355 Mass.328,any such special act authorizing conveyance or taking of conservation land must explicitly Identify the parcel of land to be sold or transferred, Its present use and the proposed use. This precaution prevents authorizations from being slipped through the legislature without anyone being aware that the land to be disposed of is valuable open space. 6.15 LIABILITY FOR ACCIDENTS With so much land controlled by commissions, it is necessary to summarize Massachusetts law as to negligence liability for municipal open space. In August, 1977, the Supreme Judicial Court of Massachusetts announced in Whitney v. City of Worcester (Mass., 366 N.E. 2d 1210; 1977 Mass. Adv. Sh. 1713)that it in- tends to abolish the ancient doctrine of governmental im- munity. This doctrine had barred most legal action for negligent behavior of city, town, county and state agencies, and of their governmental officials.Generally,the municipality was Immune unless It was charging admission,and the official was liable only for corrupt and malicious behavior. In future, however,this Immunity will be replaced with a limited liability. The legislature will almost certainly act in 1979 to regulate such liability by passing a new statute. In the absence of such action,the court suggested Its own guidelines: "When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment Involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities(and officials)should remain Immune from liability...On the other hand, when the particular conduct claimed to be tortious involves rather the carrying out of previously established policies or plans, such acts should be governed by the established standards of tort liability applicable to private individuals or entities..." The effect of this new law Is to make it essential that every municipality,and municipal official,is properly Insured against liability.However,so long as the land is maintained in a natural condition, the new rule should not substantially Increase the liability of commissions,since anyone entering a field or forest would be held to expect the kind of holes,debris,etc.that are 27 Chapter 7 • Conservation and Preservation Restrictions 7.01INTRODUCTION 7.02 CREATING A CONSERVATION OR HISTORICAL PRESERVATION RESTRICTION In addition to acquiring lands in "fee", the Conservation Commission Act (§15.01) authorizes commissions to acquire In its simplest form,a CR is an agreement in writing between "Interests in such land. . . .or water rights, conservation an owner of real property and a governmental agency(usually a restrictions, easements, conveyances on conditions or with conservation commission) or private charity, by which the limitations or reversions, as may be necessary. . . ." Con- owner agrees to keep the land predominantly in a natural,open servation easements, negative easements or restrictions (all or scenic condition,or in farming or forestry.A new kind of CR, called "restrictions" here for simplicity's sake), are designed especially created in 1977 for agricultural land, is discussed in to restrict the use on private land by a voluntary agreement. §7.12. A restriction involving the expenditure of municipal Such lesser interests should have the following advantages to money must be approved by a vote of the city council or town a commission: meeting as any other capital expenditure, unless the ex- 1. A restriction should cost less money than the fee("fee" penditure is from the conservation fund. Most CRs held by means the maximum interest in real property which can be municipalities are gifts. A gift to a conservation commission owned by an individual); in fact, most restrictions are freely requires the approval of the selectmen under the Conservation given,because of the tax advantages to the owner. Commission Act. The selectmen must also approve a con- 2.The owner of the land will still pay some real estate taxes, servation restriction held by a charity. Every CR must also be although the amount will probably be reduced since the land is approved by the Secretary of Environmental Affairs.Approvals encumbered; are evidenced by certificates which are recorded with the 3. The land will be available to the owner for recreation, restriction agreement in a public restriction tract index in the farming,orother use as specified in the restriction; Registry of Deeds (see §15.17(a)), Unless a lime period is 4. The owner will maintain the land without cost to the named,the CR is enforceable forever. community. Although the law Is written as though the land would remain There used to be some rather discouraging factors about in private ownership and the municipality would hold the these restrictions; they had to be re-recorded every 30 years, restrictions, it is possible for the municipality to be the land- and if poorly drafted,they might not be eligible for re-recording owner and a private organization to be the holder.This could (G.L.Ch. 184,and 184A).The court also had the right to refuse occur if the private organization wished to relinquish owner- to enforce the restriction if it would impede the use of the land ship of land but wished to retain a certain degree of control,or for suitable purposes or would impair the growth of the to Insure that the land could not be released by action of the neighborhood(G.L.Ch.184,§30). commission. Chapter 666 of,the Acts of 1969 overcame some of those The same statute also allows for historical preservation inhibitions to the use of restrictions by amending G.L.Ch. 184, restrictions, to be approved by the Massachusetts Historical §23-33 (see §15.17(a)). This law made possible a system of Commission.A preservation restriction is defined In the law as restrictions which run with the land on a single recording and a right appropriate to preservation of a structure or site provide for the perpetual protection of conservation features. historically significant for its architecture, archeology or Sample"CRs"appear in§1611 and§16.12.If the restriction is associations. A preservation restriction agreement may limit permanent, the land must be reassessed the following year alterations to exterior or interior features, changes in ap- (G.L.Ch.59,§11).The term"restriction"is very broadly defined pearance or condition of the site, or uses not historically ap- (see §15.17 for definition of "conservation restriction") to propriate. Because the agreement is voluntary, it can go much Include any enforceable agreement designed to preserve further than an historic district established under G.L.Ch.40C. privately owned open space. However, failure to observe the The city or town may also vote to take a restriction by eminent technical requirements of the statute may mean that the in. domain using funds appropriated by municipal vote or taken strument is not enforceable as a CR under the statute. The from the conservation fund. older restrictions are still usable, but there are advantages of State Self-Help funds may be used to purchase CRs. permanence to be gained by using the official CRs. For However, the Division has preferred to use the money for detailed information, ask the Conservation Law Foundation, acquisition of the fee.If state aid is desired on the purchase of Three Joy Street, Boston, MA 02180. The Conservation a CR, there must be a vote authorizing the purchase. Release Restriction Act,Ch.666 of the Acts of 1969,is principally found of such a CR would require repayment of the then-current value in G.L.Ch.184,§31.33 which appears in§15.17(a). of the CR. Chapter 780 of the Acts of 1977 amended the Conservation Restriction Act to permit creation of"agricultural preservation 7.03 WHAT LAND IS SUITABLE FOR RESTRICTIONS? restrictions" especially tailored to preserve prime agricultural lands. This amendment is discussed in §7.12. Although the If the town needs to insist on a limited use of dry land which APR will be held by the commonwealth,the local conservation is otherwise buildable,the cost of a restriction may equal the commissions play a key part in nominating projects under the cost of the fee, and the town would do better to acquire the new law. APR's may also be held by municipalities (see land outright.However,a good way to obtain a green strip is to §15.17(b)). obtain CRs preventing building, filling, dredging or fences within a certain number of feet from the center line of a stream, natural feature, or a local boundary. The land still qualifies under the area requirement of the zoning regulations as part of 28 a building lot. This type of "strip restriction" amounts to an poses,no right of access would be needed to justify'spending agreed set-back line and Is also useful for floodplain work. It municipal money or reducing taxes for restriction of reduces the value of the lot very little if at all and should be development rights.(See Ch.8 for tax treatment). freely given or cheaply purchased. Under Ch.21,§17C, a private landowner who opens land to If a view over a marsh or ledge next to a home is of real value public recreational use without a fee Is not liable for Injuries to to the owner even though no building is possible, shethe may persons or property due to public use unless the owner's be interested in paying reduced taxes on the land in Its wild conduct is willful or reckless. Landowners, Including state and selling or giving the development right to the charitable owners such as land trusts,are otherwise liable for municipality. tort actions.(G.L.Ch.231,§85K). Restrictions may also be obtained from owners, who can continue to earn money from the land In Its open condition and 7.06 ENFORCING AND RELEASING RESTRICTIONS are willing to guarantee its continuance in natural use in return for tax benefits,possibly cash,and assistance in maintenance. By statute,representatives of the"holder"of the restriction See Ch. 8 for tax treatment. Persons owning golf courses, (that is, the municipality or charity) may enter the land in a private hunting preserves, private campgrounds, private reasonable manner and at reasonable times to Insure com- fishing ponds, ski slopes and the like should be prime pliance with the terms of the restriction. Where the prospects for restrictions over buildable land. Their self- municipality is the holder, members of the commission may Interest coincides with that of the commission,or nearly so. act as representatives for inspection purposes. For example, the owner of a private golf course, who is suf- Restrictions may be released by the holder only after a ficiently confident of the future of the operation, may wish to public hearing and with the approval of the holder, the town surrender the right to develop it Into house lots to the meeting or city council, the state agency approving the municipality either without cost or for a small portion of its restrictions, and the Secretary of Environmental Affairs. value.A restriction will keep real estate tax assessment at the However,any restriction can be voided by an eminent domain level for undeveloped land.With lower taxes,the owner may be taking. If state funds were used to purchase the restriction, able to run the business profitably.The municipality may help release requires payment of the then-current market value of with fire trails or tree work. Different considerations are the restriction. present when more extensive use of the land is to be made by the owner.A private golf course Is an ornament even though it 7.07 SHORT-TERM RESTRICTIONS Is private property. In some seasons the public could be The statute was amended in 1976 to permit short-term welcome to walk on the land.While assessors may try to lean restrictions for a stated number of years. Even ten-to-fifteen over backwards to assess such acreage at prices below platted year restrictions on development, if acceptable to the development land, many golf courses have succumbed to the municipality, could prove valuable in controlling the orderly tax generated by mandatory 100% real estate valuation development of large tracts In the suburbs. Without such pressure. The land associated with the clubhouse and other restrictions, such tracts can come onto the market without major improvements should be excluded from a restriction. regard to effects upon municipal capital outlay or land-use 7.04 ACTIVITIES PERMITTED ON RESTRICTED LAND plans. 7.08 DURATION OF OTHER TYPES OF RESTRICTIONS The only limit on the nature of a CR Is that it must serve to keep the land "predominantly in an open, natural or scenic Restrictions,other than CRs approved under Ch.184,§31.33 condition or in agriculture, farming or forest use." (Ch. 184, (§15.17(a)), terminate In 30 years unless time limit is set out in §31). Express provisions are spelled out in the instrument the instrument of creation.Exceptions are provided for gifts or creating the restriction. The instrument may therefore permit devises for public, charitable or religious purposes (G.L. Ch. the landowner to carry on many activities. 184, §23). Except where a restriction is acquired by eminent Instead of creating floodpiain zones,a commission can use domain or is a non-CR held by a governmental body which has CRs to restrict filling and building along Its streams. Another been recorded in the Public Restrictions Tract Index(G.L.Ch. type of CR prevents development on particular ledge land, 184,§33),a notice of restriction must be re-recorded within 30 hilltops, Islands, etc., so as to preserve a view. The term years and every 20 years thereafter(G.L.Ch.184,§26.30).Such "development right" Is not a clear concept so that the common-law restrictions are also more difficult to enforce restriction should clearly state what the owner can and cannot than those established under the Conservation Restriction do. For example, the owner may grant a CR to a commission Act. However,since governmental restrictions recorded in the while retaining the right to farm the land, cut trees, harvest, Public Restriction Tract Index are not subject to the graze cattle, or build minor accessory buildings. See §16.11 weaknesses of other non-CRs, a municipality which does not and 16.12 for forms of restrictions. wish to involve Itself with state-level approval required for CRs 7.05 PUBLIC ACCESS may simply devise its own restriction form, obtain signatures and record the Instrument. The statute permits but does not require public access to 7.09 RESTRICTIONS HELD BY CHARITIES restricted land. Restrictions may be obtained in which public access is neither desired nor granted. if the restriction Is to According to the statute(§15.17(a)),a charitable corporation preserve an outlook from the top of a hill, the public has to or trust may also hold a CR, but only with the approval of the have a right of way to it unless it is on a public way. If a mayorimanager and oily council of a city or selectmen or town restriction over a marsh is acquired for water retention pur- meeting In a town. Release also requires municipal and state approval. 29 7.10 THE PUBLIC RESTRICTION TRACT INDEX although it does not have to be in the Ch. 61A program. This definition means that the property must conform to the Ch. 184, §33 allows any city or town to file with the (coal requirements of sections 1.5 of Ch. 61A regarding acreage, registry of deeds a set of maps, which may be assessors' gross income,etc.Agricultural and horticultural uses are very maps, on which conservation and historic or agricultural broadly defined under that law and include growing all kinds of restrictions are indexed. The aim is to provide an easily crops,including forest products,and raising animals for sale. available cross reference to people, such as title examiners, Projects for the purchase of APR's(also called development who want to know where conservation restricted land is rights)will be submitted to the committee after being reviewed located. All registers must establish tract indices by January by conservation commissions (or selectmentmayor where 1, 1980. Indices are important because if a conservation commissions do not exist). The committee will consider, restriction is not indexed in this way, it will be unenforceable among other things, the suitability of the land as to Boll after 30 years unless re-recorded by the holder. These maps classification,Its development value and its value for farm use, may also show other environmental information, including and the degree to which acquiring an APR would preserve the Orders Issued under the coastal and inland wetlands agricultural potential of the commonwealth. restrictions acts, historic districts and landmarks, and town- If the land qualifies, the commissioner may purchase the owned land. development rights.That means that the owner would sign an APR, naming the commonwealth as holder, "appropriate to 7.11 TAX ADVANTAGES TO THE LANDOWNER retaining land or water areas predominately in their agricultural farming or forest use," forbidding or limiting detrimental uses Restrictions can lessen forced development resulting from such as construction of buildings except for agricultural "100'/o valuation"of undeveloped land which is required by the purposes(or for dwellings for the owner, immediate family or Massachusetts Constitution and statutes.Tax assessors have employees) or earth removal that would adversely affect the not only the right but also the obligation to reassess lands land's overall future agricultural potential.This would give the subject to permanent CRs(G.L. Ch,59,§11). Presumably they owner more latitude in the continued use of the land than the will determine that a reduction in assessed value is in order typical CR allows. The statute specifically preserves the since the development rights in the land have been surren- "customary rights and privileges"of the landowner, including dered. Full and fair market value, which is the standard for "the right to privacy and to carry out all regular farming assessment, is generally greatly reduced as a result of a practices." Thus, public access is defin,i:teiy not required restriction. For a temporary CR, a reduction of value might except for enforcement of the APR. presumably be figured on a sliding scale, decreasing as the If the state purchases an APR, the price cannot exceed the end of the restriction period approaches. difference between the value of the land before it is restricted Although assessors may be wary of CRs, they also dislike and its value, for farming purposes,after restriction. The cost citizen complaints. The commission should encourage the will of course depend upon the location of the land and local assessors to send complaining taxpayers to them, because development pressures and will vary widely. although the assessors may not bargain with a taxpayer, they The statute permits the state to pay the whole cost of the can explain the advantages of restrictions and encourage this APR.It is also possible for a town or city to contribute some of approach to lowering taxes while at the same time acquiring a the cost.Chapter 232 of the Acts of 1977(§15.17(b))amended benefit to the community. This approach will enable the G.L. Ch. 40, §5 by adding a new subsection 70 which permits municipality to say to an irate taxpayer, "If you say you don't municipalities to appropriate funds for acquiring APRs. The want to sell but have to because of rising taxes, here is your same law amended G.L. Ch. 44, §7(3) to permit municipal opportunity to have your cake and eat it too. Enter into a borrowing, over 20 years, for acquiring interests In land such restriction agreement." The Assessors of the Town of Dennis as APRs. Local matching funds may be needed in areas where have an excellent working program embodying several of the development pressures have driven land costs so high that the above principles.Copies may be obtained from the Assessor's state could not otherwise afford to purchase APRs. Office,Town Hall,So.Dennis,Ma.02660. An APR purchased with state funds cannot be released .Taxation is discussed in detail in Chapter 8. Several towns unless the holder,the Commissioner of Food and Agriculture have adopted guldlines for assessing CR lands.See§16.13 for and the local selectmen or city council consent,after a public sample guidelines. hearing, or if two-thirds of the legislature so votes. Fur- thermore, the owner must repay a sum equal to the market 7.12 AGRICULTURAL PRESERVATION RESTRICTIONS value of the APR at the time of release.This could mean paying back much more than the original price of the APR, if inflation Disturbed by the steady loss of Massachusetts farmlands, and development pressure have increased the value of the the legislature devised chapter 780 of the Acts of 1977, to right to build. reduce development pressures on these areas. The new law So long as the land under the APR is actively farmed, It will amended the Conservation Restriction Act to permit creation be assessed for real-estate tax purposes at a rate not to exceed of "agricultural preservation restrictions'; amended the Self- the annual guidelines of the Mass. Department of Revenue for Help act to permit the state to purchase APRs; and provided land in the farm assessment program(Chapter 61A)discussed five million dollars for a pilot program. Chapter 780 will be in the next chapter. The owner of APR land, however, has administered by an agricultural lands preservation committee, additional tax advantages which do not apply to Ch. 61A. For chaired by the commissioner of food and agriculture, which example, state and federal estate taxes will be based on the will publish regulations in 1978. lower value of land resulting from the relinquishment of In order to be considered for the program,the land must be development rights. eligible for farmland assessment under G.L. Ch. 61A (§15.16) Additional protection is also supplied by a requirement of 30 the act that,if a utility company takes an easement across APR land,the company must pay the owner of the property as much for the easement as if the land were open and not subject to restriction. In addition, the easement must create the "minimum practical interference with farming operations with respect to width of easement, pole locations and other per- tinent matters." That last phrase would include maintenance techniques. Chapter 780 requires Registries of Deeds to establish"tract indices" described in §7.10 by January 1, 1980.These indices are needed so that the permanent APR can easily be found by a prospective purchaser searching the chain of title at the registry. Without the index, the APR will not be enforceable unless periodically rerecorded by the holder. Although this program is sometimes described as involving the sale of the farmer's "development rights", it is not to be confused with the concept of "transferring" development rights from one site to another. The right to develop the land for other than agricultural purposes is simply purchased and held by the state, not transferred to another place. In effect, the development rights are extinguished for that particular parcel. Since the land will remain in private ownership, the state cannot force the owner to continue to farm. However, because most other forms of development will not be permitted, the land will remain available for farming In future years. If transportation costs should become prohibitive, such a land bank could be crucial to the commonwealth.Of course,a great deal more than 5 million dollars would be required to secure a substantial base of farmland. The present ap- propriation represents a pilot program. For this reason, commissions,should begin soliciting and screening projects as soon as the regulations are published. Further Information will be disseminated as it becomes available through the Division of Conservation Services, the MACC and the Department of Food and Agriculture. 31 Chapter S - Taxation and Conservation 8.01 WHAT TAXES APPLY? Tax-title problems have been covered in§4.15.This chapter qualify for an income tax deducation of$1000 from gross in- considers the Federal income tax, the Federal capital gains come as discussed above but also avoid the capital gains tax tax, the Federal estate tax, the Massachusetts estate tax and on the $900. Savings on capital gains taxes would also be the Massachusetts real estate tax as they touch upon gifts of realized under Massachusetts income tax law, since property land, conservation restrictions, farmland, forest land, and would not have been sold.Real estate dealers and subdividers historical buildings. must pay ordinary income tax rates on profits from land sales. It is entirely possible that a wealthy person who has little When such dealers donate property, the value of their con- Interest In conservation or open space preservation will end up tribution is limited to the"adjusted basis" of the property. A making a gift or a donative sale principally for the tax benefits gift of a CR will also reduce capital gains tax when the land to be derived from such action. A full coverage of "land subject to the CR is later sold because much of the ap- philanthropy" is found in"Gifts of Land for Conservation;Tax preciated value will have been lost. However, there is some advantages to the Landowner," available from the Con- apportionment of basis. servation Law Foundation,3 Joy Street,Boston,MA 02108.The Tax Reform Act of 1976(P.L. 94-455) has effected many basic 8.04THE BARGAIN SALE changes In federal income, gift and estate taxation, as discussed below. A donor who cannot afford to give all of the value of the land 8.02INCOME TAX DEDUCTION may well sell part and give part. Using the above example,the owner who chooses to sell one-third of the land and donate Federal Income tax regulations allow for deductions from two-thirds, will receive$333 cash and be able to claim a$667 gross income for the value of gifts to charities. For this pu►- deduction against gross income. Since the owner is selling pose,a municipality is classified as a charity.In any one year,a only one-third, capital gains tax is computed on one-third of donor may deduct the value of gifts of land up to 30%of gross the appreciation (one-third of$900), or$300, less one-third of income. (Cash contributions may be deducted up to 50% of the original purchase price(one-third of$100, or$33; and the gross income.)An owner willing to pay the normally assessed taxable gain is only$267. capital gains tax(See§8.03)lspermittedto deduct the value of a In order to qualify for charitable deductions, the donor land gift up to 50% of gross Income. This alternative may be must have the land appraised by a qualified appraiser,and the worthwhile if the value of the property is high and the ap- charitable Intention must be declared in the sale contract(Reg, preciation is low. This deduction is permissible in the year 1;1001.1(e)). when the gift becomes final. However, if the value of the gift Because of the tax advantages, a charitable bargain sale exceeds the permissible maximum, the deduction may be may result In a larger net return to the owner than a sale on the extended over a six-year period. If the total value of the gift is open market at the same price. Since the commission will be greater than an amount which can be claimed In six years,the acquiring the land at less than market value, It should not owner may choose to give a percentage of, his/her interest object to the owner receiving partial compensation in tax each year for a given number of years; for example, a 10% benefits. Interest of 10%of the land each year for ten consecutive years. No charitable deduction is allowed under Massachusetts 8.05 ESTATE TAX CONSIDERATIONS Income tax law. IRC 170(f) (3) (B) (III), as amended by the 1976 Tax Reform If land is willed to a government or a qualified tax-deductible Act, permits an Income deduction for a permanent CR or other charity, the estate does not pay inheritance or estate tax on permanent "easement with respect to real property" granted that property(IRC 2055(a)(2),and G.L.Ch.65,§1). However,the "exclusively for conservation. . .purposes". These purposes Income tax deduction mentioned above is lost by waiting until are defined in§(c)as: the owner's death to make the gift. By giving land during "(1) the preservation of land areas for public outdoor her/his liftime, an owner also simplifies estate settlement and recreation or education,or scenic enjoyment; reduces probate costs. Should the land be the donor's only (ii)the preservation of historically important land areas or property in the Commonwealth, such a gift would also structures;or eliminate ancillary administrative expenses. (fit)the protection of natural environmental systems." The Tax Reform Act of 1976 contains a new provision The value of the gill equals the difference between the value designed to help "land poor" farmers whose lands are of land before and after the restriction is Imposed, as deter- threatened by high death taxes. Under IRC §2032A, active mined by an appraiser. Until July 1977,certain temporary CRs farmland left to family members may be taxed for federal also qualified for a deduction. estate tax purposes at farm(not market)value rates if the heirs agree to farm it for 15 years. Various restrictions in the Code 8.03 SAVING ON CAPITAL GAINS TAX prevent application of this section to rich "gentleman far- mers." Land purchased at$100 per acre and later sold at$1000 per Imposing a permanent CR on land(Chapter 7)will generally acre would normally lead to a capital gains tax on $900, the reduce its speculative value and thus the estate tax at death. appreciated value of the property.If,however,the land were to Thus a CR may make it possible for the family to continue to be given to a commission or a charity,the donor would not only farm land which would ordinarily have to be sold to pay death 32 taxes. Similar estate-tax benefits should be available for land through appropriately reduced assessments. Somewhere in subject to an agricultural preservation restriction. between is the loss of value to land restricted to use as a farm or a golf course. 0.06 FEDERAL TAXATION OF RESERVED LIFE ESTATE G.L. Ch, 59, §11 was amended in 1972 to provide that assessors shall In the year following Imposition of the Another tool that should be given consideration is a gift restriction, reassess as separate parcels any land subject to made during the donor's lifetime, reserving a life estate. This permanent restriction under the Coastal or Inland Wetlands tool enables the donor to deduct the value of the donated Restriction Acts, the Conservation Restriction Act, or the remainder interest for income tax purposes, if the remainder Scenic Rivers Act. In any case, the assessors are bound to Interest Is donated to a governmental agency or qualified lower the assessment on any land subject to a restriction charity exclusively for conservation purposes (IRC §170 brought to their attention which reduces the value of the land. (0(3)(B)(iv)). The value of the gift is determined by actuarial (Lodge v.Swampscott(1913),216 Mass.260) tables used by the Internal Revenue Service. This method Sample tax assessment guidelines appear In§16.13. maximizes the tax benefits but permits the donor to continue to use the land until death. 8.09 TAX DEFERRAL ON FOREST AND FARM LAND Property covered by such a reserved life estate gift will be Included in the value of the estate at the time of the owner's Great reductions of real-estate taxes are available for death. However, this Inclusion does not add to the estate tax "classified forest land"under G.L.Ch.61 (§15.15).The law now since the value of the gift will also be subtracted as a applies to parcels of 10 contiguous acres or more with a value charitable deduction.The deduction may Increase the amount not in excess of$400 per acre for land and growth in forest use of the non-taxable estate which will pass to the heirs. Federal (not for other purposes),aggregating front and back land.The estate taxes may be similarly reduced by a will donating the state forester, In the Department of Environmental remainder interest In the land for conservation purposes,while Management, must certify to the assessors that the land Is reserving a life estate in a spouse or child.The amount of the under an approved forest management plan. Such a tract Is deduction will depend upon the age of the spouse or child at assessed not at market value but at a nominal rate of$10 per the time of the owner's death. acre.A tax of 8% of stumpage value is paid to the municipality whenever trees are cut over the value of $100 annually. A 8.07 REAL ESTATE TAXES penalty tax of not over$200 per acre applies if the owner leaves the program.This is not strictly a preservation law,since it Is Real estate owned by a city or town for conservation pur• designed to promote timber production as well as watershed poses, or "owned and occupied" by a public charity in- protection,but it may be of use to communities in rural areas. corporated under G.L.Ch.180 in Massachusetts,is not subject A Constitutional Amendment in 1972 enabled the legislature to real estate taxes assessed by the city or town in which the to pass G.L. Ch. 61A (§15.16) providing for use-value land is located (Norwood v Norwood Civic Association, 340 assessment of agricultural and horticultural land of at least Mass.518(1960) interpreting Ch.59,§5 Clause 3rd.)the court five acres which has grossed a minimum of$500 annually for gave a liberal definition of"occupied"in Assessors of Quincy the last two years. Every year the state sends the assessors v.Cunningham Foundation,305 Mass.411 (1940),where open guidelines for valuing farmland In the program. The few space used only for hiking and riding by Foundation members provides for recapture of some lost taxes If the farmer who has qualifled for real estate tax exemption under Ch. 59. In Cum- joined the program develops or sells his land to a developer mington School of the Arts, Inc. v. Board of Assessors of within a certain number of years after qualifying for such Cummington (1977) Mass. Adv. Sh. 2283, the court repeated favored treatment. Application to join the program must be that the statutory exemption applies to property held for made by October 1 of the preceding year, except that if the charitable purposes even If it benefits only part of the general whole municipality has been revalued, retroactive application public. for that year may be made within 30 days after the tax bill is 8.08 REAL ESTATE TAXES ON LAND malted. Forest land under an approved management plan SUBJECT TO CONSERVATION RESTRICTIONS qualifies for this program, giving forest owners two options, Ch.61 and Ch.61A. See Chapter 7 for a general discussion of CRs and tax So long as it is actively devoted to agricultural or hor- assessment. Municipal tax assessors are sworn to assess all ticultural use, land subject to an "agricultural preservation property at its full and fair cash value. (Sudbury v. Com- restriction" (discussed In Chapter 7) will be assessed as missioner of Corporations and Taxation(1973)366 Mass. 558, though It were Included in the farm assessment program under 321 N.E. 2d 641). If a conservation restriction reduces the Chapter 61A. If the APR is released, the owner must pay the market value of the land,valuation for real estate tax purposes state the full value of the APR at the time of the release,that is, should also be reduced. Assessment of land subject to the difference between the market value of the land as restrictions is a worrisome topic since restrictions come in so restricted to farm use and what it would be worth if It were not many different forms. A scenic restriction over ledges or a so restricted. setback strip along a stream might affect the value of the Two proposed amendments to the state constitution, whole trace so little that an appraiser would not consider the enabling different tax treatment for various categories of land, land to have been diminished in value. A perpetual restriction will be voted upon at the November 1978 election. against construction on developable suburban land Is a horse of another (more valuable) color. The greater portion of the 8.10 TAXATION AND HISTORIC STRUCTURES value of such land Is probably represented by the development rights, and their relinquishment should be fully recognized Historical property owned by a Massachusetts charity 33 established for historical preservation purposes is exempt from real estate taxation under G.L.Ch.59,§5. Real-estate tax relief may also be obtained for rehabilitation of historic buildings and sites by limited dividend corporation operating under G.L. Ch. 121A. Department of Community Affairs 1977 Regulations permit extension of tax benefits to such cor- porations by communities outside Boston for many years if the corporation restores or rehabilitates structures or sites which are: listed in the National Register or the state inventory of historical assets; located in a local historic district;or subject to a historic preservation restriction under the Conservation Restriction Act.(§15.17(a)).A preservation restriction on other privately owned property may result in a lower real estate tax assessment if it reduces the fair market value of the property, as determined by the assessors under G.L. Ch. 59 §11. The value of commercial property may be seriously affected by a perpetual restriction against alteration; however, the market value of an historic home will not necessarily be reduced by such a restriction. The federal Tax Reform Act of 1976 contains several new provisions encouraging preservation of Income-producing structures listed In the National Register or located in an historic district. The law abolishes the tax deduction previously granted for demolition of such structures and bars the fast tax write-off of any new building constructed on the site. It also offers positive tax Inducements for rehabilitation, In the form of fast write-off of the cost of the work. Section 170 of the Internal Revenue Code now specifically allows an Income tax deduction for the value of a permanent preservation restriction donated to preserve historically Im- portant land areas or structures; §2055 permits an estate tax deduction of the value of a bequest of historic property to a governmental body or charity,even if the will makes it subject to a life estate in a spouse or child. 34 Chapter State And Federal Laws 9.01 INTRODUCTION That Protect Wetlands Earlier chapters discuss control of land by public DEQE.These were amended In 1977 and In 1978.The Wetland acquisition. Governments, Including cities and towns, may Regs. may be purchased from the state house bookstore, also attempt to control the use of private land without paying together with 1971 Regulations for appeals and hearings.The compensation,by use of the"police power."This power arises text of the statute(as of the date of this Handbook)Is found In from the right of the government to forbid or command people §15.11. Current forms and enforcement procedures recom- to do certain things which affect the public health, safety or mended by the Attorney General and by the Chief Justice of welfare.Familiar land-use controls such as zoning,subdivision the District Courts, are found in §16.16 through 16.28. control, building codes,health regulations and state wetlands Suggested reading:(1)the Regulations and(2)the 1977 Hand- protection laws are all exercises of the police power. book of the Massachusetts Audubon Society,"Understanding The basis for all regulations of private land Is the legal max- and Administering the Wetlands Protection Act" (Lincoln, im that the right to use one's own property as one wishes does Mass.01773). not include the right to use it so as to injure others. Court Lands subject to the law Include: "any bank, freshwater Interpretation of this principle varies from state to state. The wetland,coastal wetland,beach,dune,flat,marsh,meadow or rule in Massachusetts appears to be that the government may swamp bordering on the ocean or on any estuary,creek, river, regulate land use extensively for the public welfare. If stream,pond or lake or any land under said waters or any land authorized by statute,a governmental body may go further and subject to tidal action,coastal storm flowage or flooding."It is forbid a land use which creates a public hazard, even though difficult to imagine any land which Is periodically wet which the denial greatly reduces the market value of private property. escapes the provisions of this act.For sources of data on flood However, if the hazard Is not proved, a complete bar to elevations, see the Audubon Handbook. The HUD Flood In- developing private land may be attacked as an unconstitutional surance Rate maps (not the preliminary "Boundary" maps) "taking"of land,on the grounds that it deprives the owner of Indicate the elevation of the "100 year flood," referenced In substantially all the use of the land without compensation. Reg.2.41. Every"taking issue"case must be judged on its own merits, A procedure added in 1975 permits,but does not require,any because the facts In every case will differ. For its decisions to person to find out whether a specific area or a specific project prevail legally,a conservation commission which is exercising (or both) are subject to the law. The landowner or any other the police power under the wetlands laws must meet three person may request such a determination by filing the form In standards. First, it 'must be sure that it follows all the §16.19 and notifying the owner.The commission must respond procedures set out In the laws and regulations, so that the within 21 days with a decision(see form in §16.20). A site in- landowner cannot argue that there was not "due process of spection Is conducted, but no public hearing Is required. A law" Second, the commission must make sure that its "negative" determination Is appealable, but an owner cannot decision is based upon the values set out in the law: for appeal a decision that the law does apply without first going example, it may not deny a permit ,under the wetlands through the wetlands permit procedure. protection act because of traffic hazards. Third, the com- No person, including private parties and governmental mission must be prepared to show how its decisions will agencies and authorities, may fill, remove, dredge, or alter a mitigate dangers to health (such as water pollution from wetland or any area within 100 feet of a wetland covered by the sewage) or safety (such as threats of onsite, upstream or law without filing with the local conservation commission a downstream flooding) or general welfare (such as Increased notice of intent to do the proposed project. The word "alter" costs to the public for flood control structures which would was added In 1972.It covers activities such as site preparation. not be required if the project were forbidden).The law In this See the Regulations for definitions.The notices must be filed area is changing, so that if these requirements are met, the with the commission by certified mail. The notice must be commission should prevail in its decisions. accompanied by a filing fee of$25,payable to the city or town, which goes Into the municipal treasury. A copy of the notice 9.02 WETLANDS PROTECTION ACT (G.L. CH. 131, §40): must also be sent by the applicant to the regional office of the JURISDICTION Department of Environmental Quality Engineering, which assigns a file number. This law derives from two separate acts,Ch.426 of the Acts Before filing the Notice,the applicant must have applied for of 1963(Coastal Wetlands Protection Act or"Jones Act")and all permits,variances and approvals required by local law with Chapter 220 of the Acts of 1965 (Inland Wetlands Protection respect to the proposed activity. In the past, the applicant Act or "Hatch Act"). The two were combined and in 1972 could not file before receiving all such permits, etc. Chapter greatly revised to give front-line authority to the municipal B01 of the Acts of 1977 amended the law to state that an ap- conservation commissions (or selectmentmayor where no plicant may file a Notice of Intent any time after applying for all commission exists), with the state reserving the right to Issue permits, variances and approvals required by local bylaw, superseding permits on its own or on appeal.Since 1972 there provided that the applicant includes In the notice all In- have been annual changes to the law,so that it is always wise formation submitted with those other permit applications to check the latest"pocket parts" In the back of the volume of which is necessary to describe the effect of the proposed the Massachusetts General Laws containing Chapter 131,§40. activity on the environment. For example, an applicant may In 1974, DEOE adopted Wetlands Regulations for ad- choose to apply to the planning board for subdivision approval ministering the law which are binding for commissions and and then file with the commission the same day, using the 35 same plans.If the applicant wishes to file such an early notice all Important documents should be sent by certified mail or of Intent,the commission will have the opportunity to issue its hand delivery;the various appeal periods run from the date of decision before the decision of other boards, such as the mailing. planning board or board of appeals, which have a longer Within 10 days after the date of Issuance of local Order of statutory time to deliberate.Alternatively, by agreement or for Conditions(or the mailing date if that is later),the DEQE may good cause, the commission may continue the hearing until be required to Issue a Superseding Order if the local decision the other decisions have been made,or stipulate in its Order of is appealed by: Conditions that any changes required by any other board or 1.any person"aggrieved"(specially affected)by the Order, authority will require a new filing with the Conservation 2. an owner of land abutting the land where the proposed Commission. work is to be done; The Act does not apply to a number of activities in wetlands: 3. any 10 residents of the city or town where the land Is mosquito control work; maintenance of water, gas,electric or located;or telecommunication utilities; specific projects authorized by 4.the commissioner,DEQE. special acts passed prior to 1974; or normal maintenance or Anyone making such an appeal to the DEQE must at the improvement of land already actively devoted to agricultural same time notify by certified mail the local authority which use as defined in DEQE Reg. 2.2. Emergency work may be conducted the hearing.If the appeal is made by someone other exempted if ordered by a governmental agency (see form in than the applicant, a copy of the request must be sent to the §16.23). A 1977 amendment provided, not an exemption, but a applicant by certified mall.The DEQE regional office issues Its special procedure for certain maintenance dredging activities Superseding Order in draft within 70 days after receiving the (see the statute, §15.11). Under this procedure, the Com- appeal. A hearing before the DEQE central office may be mission must respond to an application within 20 days with demanded by any party to the appeal but only If demand is specific objections, or the work will go forward without a mailed to DEQE,(or better still, delivered)within 10 days from hearing and Order. mailing of the draft Order. Such a formal hearing generally requires the services of counsel and expert witnesses. 9.03 WETLANDS PROTECTION ACT: ORDERS OF CON- After an appeal is filed,other persons or groups may become DITIONS parties to the appeal by Intervening.When an important Order is appealed, the conservation commission which Issued it The conservation commission must hold a public hearing on should become an active party to the appeal, so as to explain the project within 21 days of the receipt of the notice.At least to DEQE why the conditions in Its Order should be made a part five days prior to the hearing, notice must be published in a of the Superseding Order. A commission Is an automatic In- local paper at the expense of the applicant. Within 21 days tervener under Paragraph 10 of the Order of Conditions and as after the close of this hearing, or of a continuation of the such, it Is to be notified of all site Inspections and prehearing hearing authorized by Reg. 6.1 (which requires both an an- conferences.The commission should request copies of all new nouncement at the hearing and republication),the commission materials. Only as a party can any person or the commission must Issue an Order of Conditions containing conditions take an active part in the hearing.Copies of all correspondence adequate for protection of public or private water supply and pertaining to an appeal should be preserved. ground water supply;flood control; storm damage prevention; In either case, whether the final order is from the local prevention of pollution;protection of land containing shellfish; authority or the DEQE no work may commence until the final and protection of fisheries. All work must be done in ac- order Is recorded in the Registry of Deeds.The Commission's cordance with these conditions.The original Order,signed by Order should contain a condition requiring that proof of a majority of the commissioners, is sent to the applicant,with recording be furnished to it prior to commencement of any copies to DEQE. work,and permitting the Commission to record if the applicant Commissions need not establish formal regulations for does not. conducting wetlands hearings. However, they should set up Anyone aggrieved by local action (or inaction) must written procedures to insure adequate minutes of the generally appeal to DEQE within the short appeal periods or be proceedings,determinations made,and a justification of those barred from later court action. The exclusive remedy for any determinations in the form of findings.Adequate and accurate person aggrieved by a final Superseding Order issued by the records are strongly recommended, especially when denials DEQE after a hearing is appeal to the Superior Court within 30 are Issued. Many towns swear in witnesses, to encourage days under the Administrative Procedures Act (G.L. Ch. 30A). responsible testimony. Tape recording of hearings is Since final action is the responsibility of the state, most suits recommended. brought by developers under the Wetlands Protection Act will be brought against the state and not the municipality. 9.04 WETLANDS PROTECTION ACT:APPEALS 9.05 DENIALS Appeals from the decisions of local conservation com- As stated in the introduction, several court decisions have missions(whether from an Order of Conditions,Determination discussed the issue of how far a regulation may go In refusing of Applicability, failure to hold a hearing, etc.) may be made to let development take place. In Commissioner of Natural only to the regional offices of the Department of En- Resources v. S.Volpe and Co.,Inc.,(1965), 349 Mass. 104,the vironmental Quality Engineering. DEQE sets the procedural court stated that denials were authorized by the Wetlands rules for such appeals. Commissions may obtain from the Protection Act in appropriate cases. However,In,MacGibbon v. state house bookstore the "Rules for the Conduct of Ad- Board of Appeals of Duxbury, 1976 Mass. Adv. Sh. 143, the judicatory Proceedings"promulgated by DNR in 1971. Further Supreme Judicial Court point out that if"substantially all" of advice may be obtained from the regional offices. In general, the development value of land is removed by a prohibition 36 which is not connected to a public hazard,this will be deemed 9.07 FORMS as an unconstitutional taking without compensation. In the 1972 case of Turnpike Realty Co.v.Town of Dedham,362 Mass. Ten forms are included In Chapter 16 which should be useful 221,where the town rejected a project to build apartments in a to the commissions in performing their required duties under floodplain district, the court indicated that restriction of use the Act. Their use is strongly recommended. Some are state could go very far indeed If the land was actually subject to forms which the DEQE Wetlands Regulations require com- hazard.The sort of flood hazard shown In the Turnpike Realty missions to use. The others have been approved for use by case Is easy for a court to comprehend. Dangers from DEQE attorneys. degrading wetlands, such as loss of water quantity or quality, 1. Notice of Intent (§16.16) - This DEQE form provides a are harder to prove, although recognized as hazards in out-of- standardized means by which an applicant applies for a state cases such as Just v. Marinette Co. (56 Wis. 2d 7) and hearing. At the same time, it assures that all prehearing Sibson v.N.H.(115 N.H. 124). In cases where outright denial is requirements of the Act have been met. The Environmental not justified, courts will uphold extensive conditions on Data form must be completed,or the notice may be rejected as development which are made in good faith and are sufficiently incomplete. justified in the public good, even if they are very costly to 2. Order of Conditions - Approval (§16.17) - This form is developers,Appropriate engineering requirements are likely to supplied by DEQE for use when the commission determines be upheld,even though very expensive,because they do not In that the work may proceed substantially as proposed or as themselves deny to the owner the use of the land. If the con. modified by conditions it imposes. stitutional limits are not exceeded,the court in the Volpe case 3. Order of Conditions - Denial (§16.18) - This form is specifically held that the power to impose "conditions" in- recommended by MACC when the commission decides,based cludes the power to reject the project in appropriate cases, upon the results of the hearing,to reject the project because of It should be clearly understood that no court decision under public hazard or because it has not received all of the the state wetlands laws can ever be interpreted to force a necessary Information which it requested the applicant community to buy or take land. All the court can do Is to because other local permits have not been applied for, or for release a particular parcel from an overly restrictive order. other good cause. 4. Request to Determine Applicability(§16.19)-This form Is 9.06 ENFORCEMENT supplied by DEQE for use when any person wishes to obtain from the conservation commission a formal and binding Enforcement procedures recommended by the Attorney, opinion as to whether the law applies to an area of land or to General appear In§16.26. The law gives specific enforcement work proposed in that area(or both).The person(who could be powers to state DEQE Enforcement officers. Police officers the landowner, a neighbor, or a conservation commissioner) are also empowered to enforce state law. The conservation must attach a map(sketch map is generally adequate)and give commission has a statutory right to trespass "in the per- noticeto the landowner if he has not made the original request. formance of its duties," which should permit it to enter upon 5.Determination of Applicability(§16.20)-This DEQE form is private property for inspection of proposed activities or where used to respond to a Request for a Determination. A majority It has reason to believe that activity Is going on in violation of vote must be taken and the form must be signed by a majority the law. Further enforcement by a conservation commission of the commissioners. takes the form of court action.To stop a violation and have the 6. Extension(§16.21)-This DEQE form supplies recordable land restored, the Commission should immediately seek in- evidence that an Order has been legally extended for a year. junction by having municipal counsel file a civil action in 7. Certificate of Compliance (§16.22) - This DEQE form is Superior Court, in the name of the municipality.The Assistant used to certify that the work has been properly completed. Attorney General for Environmental Protection can act if the DEQE Regulation 7.6 provides that where project plans were municipality refuses to(§16.26).Other persons who may bring prepared by a registered architect, engineer, landscape ar- civil action include the Commissioner of DEQE, an owner or chitect or land surveyor,such professional must first certify in occupant of property which may be specifically affected by writing to the conservation commission that the work was work in violation of the statute, or ten residents of the Com- done In compliance with the plans. monwealth under the provisions of G.L.Ch.214§7A.A criminal 8. Certification of Emergency (§16.23) - This form is fine of up to 310D0 per day may be sought by the conservation recommended by MACC for certification by a commission that commission through application to the criminal division of the emergency work may be done without a filing. The form In- municipal(district)court for a complaint against a violator.The cludes a statement by the applicant, required by the district court is receptive to such actions(see§16.27), which Regulations, as to precisely what work will be done,why It Is commissions may bring without counsel. necessary to the health and safety of the Commonwealth,and A new owner of land on which work has been done illegally which state or local governmental body has ordered It done. without an Order,or in violation of an Order,is liable to restore 9. Request for Compliance (§16.24) • This form is recom- the land if so advised within three years after acquisition. If mended by MACC for notifying a landowner that acts being forced to do such work,an Innocent buyer would be able to sue conducted upon the land may be in violation of the Act and the seller of the land for fraud under G.L. Ch. 93A, the Con- should be discontinued until the owner has complied with the sumer Protection Act. provisions of the statute. In Attorney General v. Baldwin (361 Mass. 199) the 10. Cease and Desist Order (§16.25) - This form is recom- Massachusetts court held that where work was done in mended by MACC for use by the Commission to command a violation of a State Waterways order, the violator had to landowner to discontinue acts being conducted upon the land remove twelve acres of fill,regardless of expense,even though which have been determined to constitute a violation of the the state had not proved that the fill did any damage. Act, until the owner has complied with the statute.This order 37 should generally be issued after the commission has issued a F.2d 199(5th Cir. 1970),a federal court of appeals stated flatly Request for Compliance (§16.24) and has given the violator that tidal lands are subject to a federal "servitude" which sufficient time to comply. The time allowed should be deter- relates not only to navigation but protection of environmental mined by the actions of the violator and the seriousness of the values as well.Other federal decisions have stated that anyone violation. Because of the serious nature of this order and its who acquires such land takes title subject to this servitude and possible use as evidence in further actions,a copy,signed by cannot claim compensation for being denied the right to the recipient,should be retained In the municipal files. develop the land. The Corps program could significantly The various forms recommended for use by commissions in reinforce protection of wetlands in New England. Unless the administering this Act (§16.16 through 16.25) may freely be state can act as powerfully,it should not request delegation of duplicated from this Handbook. power from the Corps.All Corps permits are reviewed by EPA To repeat, key reading materials include: the statute as (§14.06),which should be contacted in important cases. amended (§15.11), the DEGE Regulations and the Regulations for§404 published July 19, 1977, in the Federal Massachusetts Audubon Society Handbooks on "Un- Register explain the system of nationwide, general and in- derstanding and Administering the Wetlands Protection Act" dividual permits. Further proposed Regs were published in and"Inland Wetland Plants." April 1978. For specific information, commissions should contact the U.S. Army Corps office on Trapelo Road in 9.06 ARMY CORPS FILL PERMITS Waltham. The Army Corps has embarked upon a highly ambitious Other Army Corps programs date back to the Rivers and program under the Federal Water Pollution Control Amend- Harbors Act of 1899. Section 9 of the Rivers and Harbors Act ments of 1972(P.L.92-500, §404, as amended by P.L. 95.217), requires a Corps permit for construction of any dam or dike which in many respects parallels commissions' respon- across navigable waters. Section' 10 requires a permit for sibilities under the Wetlands Protection Act,Since July 1977,a obstruction or alteration of navigable waters, including filling, Corps permit has been required for deposit of fill In virtuall all dredging or any other work affecting their course, location, waters of the United States and their adjacent wetlands condition or capacity. Section 13 forbids discharge of refuse (defined vegetatively), excepting intermittent streams, head- into navigable waters without a permit (the so-called Refuse waters with an average flow of less than 5 cubic feet per Act). Permit functions with respect to bridges,causeways and second, Isolated wetlands and impoundments and natural overhead pipelines were delegated to the Coast Guard under lakes under 10 acres.The law does not cover dredging.Routine the Transportation Act of 1966(P.L.89.670).Jurisdiction under agricultural fill is exempt and so are maintenance of dams and these programs Isrlimited to tidal areas up to mean high tide dikes, and all federal projects for which an Environmental (including many coastal marshes)and to rivers and lakes(not Impact Statement(§12.03)is prepared.The Carps will process including adjacent wetlands) with a past or potential use for permit applications simultaneously with local filings, but no interstate commerce(rare in Mass.). Even so,the potential for permit will be Issued until and unless state and local officials added protection is obvious.The programs have not been fully approve the project. Corps review may take several weeks Implemented in the past, principally because many people because of NEPA processing and because all permit ap- (including commissions) were not aware of them, and also plications must be submitted to wildlife officials under the because the Corps was mostly Interested in protecting Fish and Wildlife Coordination Act under which any person navigation. The Corps' new attention to environmental may require a public hearing. Corps standards for review are protection will be valuable to conservation commissions. A broader than those of the state WPA,and range from balancing commission should check with the Corps if it feels that a economic and environmental effects, to wildlife, historical federal permit should be required. If so, it may place a con- protection, flooding, recharge area, and a favorable view dition in a wetlands Order, requiring that the applicant obtain toward small boat docks and property protection. The overall either a Corps permit or a waiver before beginning work. goal under the federal Clean Waters Act Is enhancement of water quality. On May 24, 1977, the President signed two 9.09 THE INLAND WETLANDS RESTRICTION ACT (G.L. CH. strong Executive Orders requiring special written justification 131,§40A) by any federal agency authorizing work on floodplains (EO #11988)and wetlands(EO#11990). This legislation was designed to supplement the regulative Amendments to the federal law passed in 1977 permit the approach of the Wetlands Protection Act with a planning Corps' program to be delegated to qualifying states, such as approach not dependent upon the landowner coming forward Massachusetts, which have state wetland laws. In the to apply for a permit. The Commissioner, Department of En- meantime, the Corps is attempting to cope with an enormous vironmental Management, in order to preserve and promote administrative burden by issuing general permits for minor public safety, private property, wildlife, fisheries, water activities such as road repair, logging roads,docks, etc.and a resources, flood plain areas and agriculture, Is directed to variety of discharges deemed minimally harmful.It is,however, issue orders restricting or prohibiting development of Inland difficult to fashion a general permit for the kind of filling for wetlands, defined as"freshwater wetlands"and"that portion development which is common in Massachusetts, of any bank which touches any inland waters, or any fresh- in spite of the obvious problems which the program will water wetland."The Commissioner is also directed to protect encounter, commissions should welcome this powerful ally. flood plains in areas subject to orders under this statute, by The Corps has a great capacity for technical assistance and is forbidding obstruction or encroachment along waterways or not dependent upon the state legislature for funding. Federal flood prone areas.No order can be issued until there has been constitutional law apparently permits a much larger degree of a public hearing, notice which is sent to the conservation protection of tidal marshes without paying the landowner than commission as well as every affected landowner. Although the Commonwealth courts have allowed. In Zabel v.Tabb,430 orders are issued by the Department, the selectmen or city 38 council must first review them. If the city or town officials Department Is the protection of all barrier beaches, salt disapprove an order, they must stale reasons for disapproval marshes, contiguous freshwater marshes and tidal flats. The within 30 days. The Commissioner may override local disap- enormous value of salt marshes to shellfish, fisheries, birds, proval after a period of six months has elapsed.The final order and to the prevention of tidal storm damage and erosion is is recorded in the Registry of Deeds.It thereafter runs with the beginning to be fully appreciated by the citizens and the en- land and is binding upon all present and future landowners. forcement authorities of the Commonwealth. This law is an Until 1972,any landowner who felt that an order so restricted important part of the stale's Coastal Zone Management the use of her/his property as to constitute a public taking program(see§9.13). without compensation (which would be unconstitutional) Commissions should note that these two restriction laws needed only'to write in and complain,and the department had allow for protection of wildlife, while the wetlands protection to release the land from the restriction or purchase it. The act does not. statute,like the Coastal Wetlands and Scenic Rivers laws,now requires the landowner instead to petition the Superior Court 9.11 SCENIC RIVERS ACT(G.L.CH.21,§178) within 90 days to release the land. If the court agrees that the restriction upon use Is unconstitutionally severe, It will in. The first implementation of this 1971 law is expected in validate the order for the parcel in question. Thereafter, the 1978. It empowers the DEM to restrict or prohibit dredging, Department has the right to purchase or take the land or the filling, or otherwise altering or polluting "scenic and development rights, with the approval of the Governor and the recreational" rivers,defined to Include any rivers and streams Council.There is a limited exemption for agricultural land.The in the Commonwealth so designated by DEM,plus contiguous order does not apply to work done by various state agencies. land up to 100 yards on each side of the natural bank (ap- The full text of the statute is included In§15.13. parently without regard to topography). DEM may also control Implementation of the Inland Wetlands Restriction Act has use of these waters and could thus limit motorboats, other- moved much less swiftly than was hoped at Its adoption in wise controlled only by the Marine and Recreational Vehicles 1968. It has been necessary to hold extensive hearings and Division. A landowner who feels unduly restricted may seek consultations with local landowners. The Department has relief In the Superior Court as discussed In§9.04. For text,see concentrated on the Charles River Watershed and Cape Cod. §15.14.Commissioners should urge designation of appropriate Nevertheless,the law, like the Coastal Wetlands Restrictions rivers, or portions of rivers, in their area. Designation under Act, has two advantages over zoning or the Wetlands state law may be a first step toward protection under the Protection Act:notice to prospective buyers,through recorded federal Wild and Scenic Rivers Act(P.L.90.542). maps, and finality, because of the go-day limitation period for landowner lawsuits. 9.12 PUBLIC ACCESS TO COASTAL MARSHES AND One of the difficulties has been the mechanical problem of BEACHES processing information about land nature and ownership since no central source of resource information exists. The Con- Under the ancient Colonial Ordinances of 1641 and 1647, servation Commission Act(§15.01)empowers the commission Massachusetts citizens have certain rights of access to to prepare aconservation plan showing open spaces,including privately owned tidal land between low and high water for wetlands.Such plans would be valuable to the implementation fishing, fowling and navigation. These beach rights are being of this act. Other sources of topographical information are: contested, increasing public interest in these areas In our U.S. Coast and Geodetic Survey Maps; Soil Conservation coastal communities. However, this limited access does not Service soil maps and analyses;U.S.Corps of Engineers flood extend to hiking, vehicular access, swimming,or sunbathing, plain studies; HUD Flood Insurance Maps; municipal and is no substitute for public acquisition. engineering records, and even old railroad records. DPW and DEM have aerial photomaps of large areas of the state. 9.13 COASTAL ZONE MANAGEMENT 9.10 THE COASTAL WETLANDS RESTRICTION ACT(G.L.CH. Under the Coastal Zone Management Act of 1972(16 U.S.C. 130,§105) §1451 at seq.) the state CZM Office has devised a plan for protecting coastal areas, accepted by the Federal Office of This statute (§15.12) is essentially similar to the Inland Coastal Zones Management In April of 1978. Maps of the Wetlands Restriction Act as amended in 1972. In order to Coastal Zone will be filed with municipal clerks.These maps promote public health, safety and welfare, and protect public will show three kinds of important coastal areas: "areas for and private property, wildlife and marine fisheries, the com- preservation and restoration,""special assistance areas,"and missioner issues an order to restrict or prohibit dredging, "significant resource areas." Preservation areas are of critical filling, removing or otherwise altering or polluting coastal Importance and fragility. The plan is to have the Secretary, wetlands. These Include "any bank, marsh, swamp, meadow, EOEA,designate them under her legislative authority as"areas flat or other low land subject to tidal action or coastal storm of critical environmental concern," thus suspending the flowage and such contiguous land as the Commissioner of categorical exemptions under the MEPA review process Environmental Management reasonably deems necessary to (§12.03) and requiring environmental impact reports for any affect by any such order."This law,together with the Wetlands alteration of their natural state.These areas will also be given Protection Act, has been responsible for the protection of priority for public acquisition or for restriction under the large areas of the Massachusetts coastline valuable for food Wetlands Restriction laws (§9.9 and 9.10). The special production and many other necessities of life. By 1978, assistance areas, on the other hand, are places such as har- protective orders had been Issued covering approximately bors where the state wishes to encourage restoration and 40,000 acres of salt marsh and barrier beaches.The goal of the marine related development. 39 The Significant Resource Areas are of particular concern to conservation commissions.These comprise important marine environments, hazardous areas, recreation sites, aesthetic or historically Important areas and certain developed areas such as designated ports. Commissions in coastal areas should obtain the Massachusetts Coastal Zone Management Program document from the Coastal Zone Management Office, 100 Cambridge Street in Boston.This program contains management policies for the coastal zone, (including all of Cape Cod and the Islands). In partial Implementation of these policies, DECIE published new wetlands regulations ("Wetlands Regulations: Part II") for use In coastal areas, effective August 10, 1978. These Regulations describe the significant ecological im- portance of land under the ocean, designated port areas, coastal beaches, banks and dunes, barrier beaches, rocky Intertidal shores, salt marshes, land under salt ponds, land containing shellfish, and land significant to fish runs. It is essential that commissions become familiar with the new, tough standards for Issuing wetlands Orders in these areas. DEOE Is preparing a handbook for adminisatering the new Regulations to be issued late In 1978. DEOE has also published (effective September 15) new regulations under Ch. 91, the waterways act, new Ocean Sanctuary and Dredging Regulations and several"memoranda of understanding"between EOEA and other state agencies,to Insure consistency of policy, Other new Regulations are in preparation.This use of existing legislation will only work with the cooperation of local conservation commissions. Further information is available from the CZM Office, 100 Cambridge St.,Boston 02202. 9.14 PRIVATE RIGHTS TO SUE FOR DAMAGES The state wetlands laws are designed to protect the public interest. However, Issuance of a wetlands Order or other permit is no defense against a private action for damages. In Bay State Lobster Co.v.Perini Corp.(355 Mass.794)Perini was forced to pay for asphyxiating plaintiff's lobsters even though the dredging work was done under a state license.Similarly,a private landowner, onto whose property a neighbor channels runoff or drainage through a pipe or ditch, may obtain a court injunction against the drainage, regardless of whether it was permitted by a wetlands Order. In essence, this utilization of another's land as a water-receiving area is a violation of the trespass laws. 40 Chapter 10 - Municipal Laws Protecting Wetlands 10.01 INTRODUCTION Many commissions have found that the burden of enforcing tendency to weight the petitioner's loss against the possible the wetlands protection act has been materially lightened by loss to the whole community. passage of alocal bylaw or ordinance which requires a municipal permit for work in a wetlands or flood plain. Such 10.03 FLOODPLAINIWETLANDS PROTECTION ZONING municipal laws are typically passed as an amendment to the PROCEDURES local zoning code. Other types of nonzoning bylaws or or- dinances for protecting these areas are also discussed below. The Turnpike case gave approval to three basic public policy Since the HUD Flood Insurance Program is administered objectives: (1) Protection of occupants of a flood plain, (2) through language inserted In such local bylaws or ordinances, protection of other landowners from damages resulting from that federal program is explained in this chapter. development of the flood plain;and(3)protection of the entire Other types of local zoning controls which may be used to community from Individual choices of land use which require protect such resources as aquifers and wetlands are subsequent public expenditures for public works or disaster suggested at the end of the chapter. relief. Additional purposes such as preserving open spaces and wildlife will not make the law Invalid If the other public 10.02. FLOODPLAINIWETLANDS PROTECTION ZONING: purposes are made primary. LEGAL BASIS It is essential to have a well drawn flood plain ordinance or bylaw, free from vagueness and Indefinite boundaries, and The old zoning Enabling Act(G.L. Ch.40A,§2(and the new containing some permitted uses and some sort of exemption Zoning Act Ch.808,of the Acts of 1975 which will replace the or permit procedure(see§16.4). old Ch. 40A in 1978) specifically empower municipalities to It is important that some uses be permitted in the district, prohibit or regulate use of wetlands,lands subject to seasonal such as agriculture, horticulture, recreation,wetland,or other or periodic flooding, and water bodies. The new statute also uses considered not destructive, possibly even parking where bars local zoning codes from exempting land or structures filling is not required. Permeable material for parking areas is from flood plain or wetlands regulations established pursuant now commercially available. to general law. However, the relationship of this language to A permit or appeal procedure should be included. The the overall zoning exemption for agriculture contained-in the Dedham bylaw discussed in the Turnpike case contained a new Zoning Act Is not yet clear, provision that,if it was proven to the satisfaction of the Board Several cases Interpreting the "old" Chapter 40A will also of Appeals that certain land was not in fact subject to flood or apply to the new law. Golden v.Selectmen of Falmouth, 358 not unsuitable because of drainage conditions for any use Mass.519(1970), held that the state regulatory wetlands acts otherwise permitted by the underlying zoning district,and that do not pre-empt local control: that is, regulation of wetlands such use would not Interfere with the general purposes of the through municipal ordinance or bylaw is not inconsistent with district, and would not be detrimental to the public health, statewide wetlands laws. safety or welfare,the Board could Issue a permit for such use. Turnpike Realty Company, Inc. v. Town of Dedham, 362 The court held that this permit provision provided suitable and Mass. 221 (1972), is a leading case among conservationists sufficient standards for Issuance of permits. interestud in wetlands or floodplain zoning(and in other types A recent case demonstrates that the local bylaw should of restrictions upon development of land),In that case,the court control the whole development of the wetland and not just held that the municipal power to protect floodplains and filling. MacGibbon v.Board of Appeals of Duxbury (1976 Mass. wetlands is not limited by the language of G.L. Ch.40A.The Adv. Sh, 143, Supplementary Opinion at p. 768), the town at- test governing the validity of a flood plain zoning bylaw or tempted to prevent MacGibbon from filling saltmarsh for ordinance is the same as that governing any other zoning law: houses,under a local bylaw which merely required a permit for that is, that it must protect the health, safety, convenience, filling wetlands.The court stated that the town could consider morals or welfare of the inhabitants of the municipality. The only the impact of the fill and could not consider the possible court said broadly that the adoption of flood plain districts is a hazards connected with buildings and septic systems because "necessity", and not only refused to find such zoning un- these were not mentioned in the bylaw. On such narrow constitutional,but also refused to rule that the very substantial grounds,the court was not able to find any hazard in filling and loss of property value suffered by the petitioner(estimated at therefore decided that denial of a permit was an unreasonable 88% of development value) was an unconstitutional limitation in the landowner's right to use the land. The court deprivation of private property without compensation. This also obviously felt the town had given MacGibbon the run- degree of loss was evidently not considered"substantially all" around in two earlier cases decided In 1964(347 Mass.690)and of the value of the land as had been found in the Volpe(Broad 1970 (356 Mass. 635). Whether building of septic-system Marsh) case (see §9.05), probably because of the hazard of permits should be Issued was left open for other town agen- development in the flood plain. cies to decide under later proceedings. In view of this case, In the face of all this encouragement, it would be downright local bylaws, like the Wetlands Protection Act(§15.11)should ungrateful for a community not to adopt a flood-plain zoning control any kind of alteration of a wetland. law. While it is true that the principle still stands that one cannot deprive a landowner of substantially all of the value of his land without compensation, the Turnpike case shows a 41 10.04 HOW IS THE ZONE BOUNDED protection of wildlife. It may describe areas to be protected in terms of vegetation, with or without a map. Generally, the Any"Conservation Zone"or flood plain zoning district must conservation commission administers the permit system be shown on an official zoning map, in a manner sufficient for along with its duties under the state law. Identification.This delineation can be important in waterfront Such a bylaw has several advantages over a zoning bylaw: It areas where building lots may be worth $50,000 or more. An may be passed by a simple majority vote and need not Include owner is entitled to know accurately what zone the land is in.If a map. The permit agency may be the conservation com- the contour line above mean sea level is used, it may be suf- mission, instead of the other boards required under a zoning ficiently exact so that my two surveyors will agree, within a bylaw.Decisions are not subject to the agricultural exemption few feet,as to the limits of the zone when a permit to build in subdivision plan protection found in the Zoning Act.As with a the zone or district is requested.Thus,designation by contour zoning bylaw,any appeal must be made directly to the superior line will only work in coastal areas and inland where a stream court; the DEQ€ has no appeal jurisdiction. Moreover, the enters and leaves a numicipality within a few feet of the same language of recent "Home Rule" cases is encouraging. The elevation and has banks rising near the stream. A five-foot legality of adopting such a bylaw outside the local zoning code contour interval will not suffice if extensive marshes are in- has been upheld by the Barnstable Superior Court(Lovequist volved where, for example, a two-foot rise of water will flood vs. Gardner, Case #35497) but the case Is currently under 100 to 200 acres. If the municipality Is In hilly country, appeal. reference to the contour elevation every few hundred feet The disadvantages of such a bylaw are correlative:it may be along the stream should be made. If adequate engineering amended by a majority vote. Lack of mapping may lead to records are available to verify these elevations, elevational difficulty in enforcement. The Conservation Law Foundation citation may be the best way to proceed. Actual surveying by (§13.09)can discuss this option and supply a model bylaw. the owner would not be required until a particular parcel Is 10.06 NATIONAL FLOOD INSURANCE PROGRAM questioned. In some places,a setback line from the thread of the stream will work. Combinations of two or more systems In 1968, the Federal Insurance Administration of the U.S. may be necessary.Exact markings of high water levels reached Department of Housing and Urban Development started a during recent floods may help to establish the zone. If some program to provide federally subsidized flood insurance to dry land Is restricted by the set-back line,this oversight can be property owners in coastal and inland communities faced with corrected when the permit Is requested.The temptation should uninsurable flood hazards. But Congress recognized that, If it be avoided, to set the flood line unreasonably higher than the were not to become merely a subsidy for irresponsible chosen elevation,which is usually the fifty or one hundred year development, the program should be based upon sound land flood mark. The court in the Turnpike case emphasized the use and unified plan for floodptain management.Therefore,the importance of actual hazard to the constitutionality of wetland Flood Disaster Protection Act of 1973 added the requirement regulation and distinguished Its ruling from an unfavorable that, In order to make insurance available to its residents a New Jersey decision on the grounds that in that case there community must adopt a flood plain management plan, in- was no showing of valid flood control purpose in the law. cluding flood control and land-use measures, satisfactory to Most flood plain laws are adopted by vote of the city or town the Administrator. accepting the textual aspect of the district, with reference The program works as follows: HUD has designated flood- made to a map available to the public.The new Zoning Act,G.L. prone areas in most Massachusetts communities and issued Ch. 40A, §4, specifically requires that all zoning districts be rough preliminary "boundary" maps. The communities then shown on a zoning map.This map only locates the district;the vote to join the program(almost all had joined by 1977), thus bounds of the district may also be defined in the text.The map making it possible for persons seeking federally connected Is usually overlayed upon exisiting zoning,so that if a section funding for financing structures in flood-prone areas to obtain of land is removed from the flood plain district for any reason, the required flood insurance. During this phase, known as the the underlying zoning governs.A flood plain zoning bylaw is an "emergency program", the city or town need only review amendment to existing zoning, and all the formalities of G.L. building permit applications to determine the new con- ch.40A should be followed.Since recorded subdivision plans struction or substantial Improvements in flood-prone areas are are protected for several years under both the old and new designed and located to miniminze flood damage. versions of Ch. 40A, it is worth considering the adoption of After HUD has prepared maps which more precisely locate pollution-prevention restrictions on construction of sewage the elevation of the 100-year flood, these maps are submitted disposal systems in a flood plain as part of the local health to the community, which may dispute with HUD the scientific regulations, which take effect immediately and are not af- accuracy of the boundary lines.On acceptance of these Flood fected by the"grandfather"clauses of Ch.40A. Insurance"Rate Maps", the city or town, in order to remain in A model bylaw is found in§16.14. the "regular program", must adopt more precise land use control measures, such as Flood Plain Protection District, to 10.05 NONZONING BYLAWS FOR PROTECTING insure that,at the very least,new residential structures within W ETLAN DSIFLOODP LAIN S the 100-year flood plain are elevated and nonresidential structures are floodproofed. In coastal high hazard areas,new Instead of adopting zoning bylaws, a number of our com- construction must be elevated on pilings or columns with the munities have chosen to pass general bylaws under G.L.Ch.40 lowest floor free of obstruction or built with "breakaway" §21,which permits towns to adopt bylaws"as they may judge walls.Alteration of sand dunes Is prohibited. most conducive to their welfare".This kind of bylaw generally Finally,the community,acting on HUD data,must designate resembles a local version of the Wetlands Protection Act but a"regulatory floodway", which is the area through which the may contain additional features such as runoff limitations or 100-year flood can pass without raising the surface elevation 42 more than a maximum of one foot at any point.The community servation restriction (see Ch. 7). Generally, the homeowners must thereafter bar any filling or development of the floodway should retain control of land which will be used for their which would cause any further increase in f lood levels. recreation, while the commission should accept land which is The program is not mandatory. A community may avoid suited to general public use(such as area bordering on town regulation by refusing to join. However, it is then impossible land)or sensitive natural areas. Provisions for access should to obtain a variety of federal funds for new construction in be included In deeds to the commission. floodprone areas. HUD is thus depending upon a"carrot and G.L. Ch.40A,§9 also permits a city or town zoning code to stick" approach to encourage communities to join and to allow the local board to grant "bonuses" to developers who adopt floodplain regulations. provide such amenities as especially desirable open space to Because HUD produces its own surveys of floodprone areas, the community. Such bonuses may include increases In It has been assumed by some that the federal government will density of population or Intensity of use within the proposed establish Its own land-use regulations in the community.This development. This gives legal sanction to the kind of is not the case. The program is based upon local regulation, bargaining which was formerly forbidden under G.L. Ch. 40A and It Is the responsiblity of the community to establish and Ch.41. regulations that reasonably restrict flood plain development A model cluster bylaw may be obtained from the Con- and Insure flood control. Minimum HUD requirements for the servation Law Foundation, 3 Joy Street, Boston, Mass. The regular program include: preservation of the safety and commission should discuss the possibilities with the planning property of the occupants of the flood plain; elevation of the board. lowest floor of residential structures above the 100-year flood level; prohibition of fill in a floodway; use of flood-resistant 1048 "CONSERVANCY" AND AQUIFER PROTECTION building materials; design requirements which prevent ZONING flotation, collapse, or lateral movement; and, location of utilities, water supply and sanitary systems safe from- Several towns have adopted "Conservancy" zones or contamination due to floods. However, HUD encourages districts with a similar name. The new Zoning Act (Ch. 40A) communities to go further and restrict or prohibit development specifically includes conservation of natural resources among of floodprone areas.The type of flooding covered by the act is the purposes of zoning. Most conservancy districts are prin- limited to "general and temporary conditions of partial or cipally designed to protect wetlands and flood plains.There is complete Inundation of normally dry land areas from overflow also increasing interest In conservancy districts to preserve of inland or tidal waters, unusual and rapid accumulation or areas of existing potential drinking water supply. The land runoff of surface waters, and mudslides." Assistance In around the local well or reservoir should,of course,be publicly Massachusetts is available through the HUD Federal Insurance owned. Water quality and quantity also depend, however, on Administrator's office in Boston, which has developed model protecting the larger recharge areas of the aquifer. Regulation language which communities may adopt in order to join the of these areas should come within the police power,especially regular program. After approval of the local program Is where other sources of water supply, such as MDC,are not or received from HUD, insurance is available from any insurance will not be readily available. Such areas may be protected agent at a rate kept low by federal subsidy. Flood insurance is without forbidding all forms of development, by creating available for walled and roofed structures except for storage districts under the zoning code, where construction, Im- tanks and bridges. It should be emphasized that the minimum permeable paving, road salting, septic systems, changes In building requirements which HUD requires under the regular drainage, and the like are strictly controlled through special program are not a substitute for local floodplain districting. permits with conditions. The American Society of Planning Some modification of existing floodplain bylaws may be Officials publications, "Performance Controls for Sensitive necessary as the community comes Into the regular program, Lands"contains useful ideas. especially if the local bylaw contains a broad permit provision. The model bylaw in§16.15 satisfies HUD requirements, as of 10.09 LARGE LOT ZONING 1977. However, HUD will work individually with each com- munity as the Rate Maps come out. Many towns have relied upon zoning which requires wide frontage and large lot areas to serve the purpose of con- 10.07 CLUSTER ZONING servation.Two-acre zoning was upheld in the case of Wilson v. Sherborn,(1975)Mass.Appeals Court Advance Sheets 643,on Clustering of dwellings may provide valuable open space grounds of protection of public health, because every lot had and protect wetlands and floodplains without raising the to accommodate a well and septic system, In contrast, the "taking"issue.A city or town may(but need not)adopt cluster court in Aronson v.Sharon,, 346 Mass. 598, had previously zoning as an amendment to the local zoning code under the rejected a 2.5 acre requirement because the town stated that new Zoning Act, G.L. Ch.40A§9. Cluster provisions allow the Its principal purpose was to keep the land in Its natural state. planning board, board zoning adminstrator, selectmen or city Although "aesthetics" are a permitted secondary aim of council to issue special permits for projects with smaller lot zoning, the primary reason must be related to health, safety, areas and frontage that otherwise required in that zoning and property values. district, provided the land saved Is preserved in Its natural condition. The developer cannot retain or sell the reserved 10.10 PHASED GROWTH AND"MORATORIA" areas for later development, because §9 expressly requires that the open space must either be given to the city or town for As part of reconsidering their zoning, many communities conservation purposes, or, if held by a private land trust or a have voted a temporary "building moratorlum" on certain homeonwers' association, must be protected by a con- types of development. 1n Collura v.Arlington, 1975 Mass. 43 Advance Sheets 1753, the Supreme Judicial Court upheld a two-year ban on construction of apartments and industrial uses during revision of the town's comprehensive plan. This type of"Interim zoning"should be adopted as part of the local zoning code and should be of reasonable duration and closely linked to a bonsfide planning study.A moratorium on all kinds of building(including homes)has never been legally tested in this state. However, some local health boards and sewer commissions have adopted temporary moratoria on all permits for septic systems and sewer hook-ups, based on ascertained health hazards.The state DEQE has the power to require such a moratorium. A related device is the "phased growth" plan, adopted in several Massachusetts communities, including Salem, to guide growth by keying the amount of development possible in any year into construction of capital improvements such as sewers and water works. The cities of Ramapo In N.Y. and Livermore and Petaluma in California won court approval for their plans based on careful research, reasonable limitations and provision for low-Income housing. 44 Chapter 11 Other Useful Laws Administered Locally 11.01 INTRODUCTION Conservation commissions may propose, administer, or Act).Changes In the local zoning code or the addition of flood help in the administration of a numberof other laws handled by plain zoning will not affect such plans for the specified period. local boards which may not now be aware of their implications Many planning boards submit preliminary subdivision plans for conservation. to commissions for their recommendations. 11.02 CONSERVATION ASPECTS OF SUBDIVISION CONTROL 11.03 HEALTH BOARD REGULATIONS Under G.L. Ch. 41, §81U, the planning board may, as a Written rules and regulations adopted by the local board of condition forapproving a subdivision, health relating to disposal of sanitary wastes can do much to "require the plan to show a park or parks suitably located further conservation of natural resources.The local code may for playground or recreation purposes or for providing light be identical to, or more restrictive than, the minimum En- and air,and not unreasonable in area in relation to the land vironmental Code adopted by the state Department of En- being subdivided and the prospective uses of the land,and vironmental Quality Engineering. A copy of each code should may by appropriate endorsements on the plan require that be in the commission's files and frequently referred to, no building be erected upon such park or parks for a period Significant provisions include restrictions on development of not more than three years without Its approval" within 400 feet of a reservoir and the requirement that sanitary The area labeled"park"on the approved subdivision plan must sewage,industrial wastes,sink wastes or waste water that has be acquired by gift, purchase or eminent domain within three been used for washing or cooking or the effluent from any years, or else the building inspector, if asked, must give sewage or waste treatment plant,or other polluting water shall building permits for the lots covered.The commission should not be discharged into or allowed to flow into or be put Into any determine whether the designated land is necessary for its lake, pond, stream, tidal water, water course, or open or master plan, and if it is, should take action to purchase the covered drain tributary,unless approved by the Massachusetts land rather than hope that the developer will allow the land to Department of Public Health. sit forever idle. Remember, the owner will continue to pay The most Important code section is Title 5, providing taxes upon it until it is sold,one way or the other.Many states minimum standards for subsurface sewage disposal In un- have passed laws which allow planning boards to require sewered areas. Title 5, Regulation 3.7 dictates that a septic developers permanently to set aside open space in reasonable system leaching facility must be at least 50 feet from open amounts for parks.Such laws were upheld in Connecticut and water or wetlands and 100 feet from wells and drinking sup- California. This Is now expressly forbidden by G.L. Ch. 41, §, plies.Other regulations ban installation In fill unless there are 810,unless the community has adopted a bylaw under G.L.Ch. four feet of naturally occurring permeable soil below it, and 40A, §9, permitting a builder to donate a park and obtain a require that disposal fields be at least four feet over maximum "density bonus" (§10.07). Proposed amendments to the ground water elevation.Observation pits to determine ground Massachusetts subdivision control law would give com- water elevation should be dug at the wettest time of the year munitles this option without any bonus. (normally March,April or May). The subdivision control law requires the planning board to It should be remembered that the state Environmental Code secure"adequate provision for water,sewerage,drainage and sets minimum standards. The municipal health board may other requirements." This does not mean that the board can adopt more restrictive regulations as it deems necessary to turn down a plan because of a general water shortage in the meet local conditions. Stiff health regulations on building In town, Daley Construction Co., Inc. v. Planning Board of Ran- floodplalns can supplement floodplain zoning(§10.4). dolph,340 Mass. 149). However, it may set stiff requirements The state Department of Environmental Quality Engineering for piping, filling, and bonding to correct drainage problems, has established regulations governing selection and operation upon the recommendation of the local Board of Health(United of solid waste disposal sites by health boards.A copy of these Reis Homes, Inc.v. Planning Board of Natick,359 Mass.621). regulations should be In the commission files since they may By a 1989 amendment to Ch. 41, §810, local subdivision serve as valuable protection to wetlands and local aesthetics. regulations may require that the developer provide,at his own The regulations bar use of wetlands for landfill unless; expense, underground distribution systems for all utilities, (a) the use of wetlands or floodplains Is insignificant in Including electricity and telephone. The Massachusetts importance; Supreme Judicial Court has upheld such a law as consistent (b) no other area In the municipality is suitable for with the purposes of subdivision control,even where services sanitary landfill; were to be provided by a private utility.(Sansoucy v.Planning (c) there is no significant effect on flood storage or Board of Worceatar(1969)355 Mass.647). pollution to subsurface waters, In the opinion of the Water The planning board may rescind approval of a plan or amend Resources Commission; such plan If the lots have not been mortgaged or sold to more (d)the lowest point of refuse will be maintained at least than one buyer. Otherwise such plans are valid under the old four feet above maximum water level. Ch.40A, §5A and TA for a period of three to seven years from A commission,as a body"in control of any public land,"may the time of approval(three to five years under the new Zoning appeal to the Department of Environmental Quality 45 Engineering for review of local assignment of an area as a under§33 and"bikeways"(§5.16)under§35. sanitary landfill(G.L.Ch.111, §150A). If the board of health approves construction of a septic 11.06 THE PUBLIC SHADE TREE ACT system or landfill within 100 feet of a wetland,a conservation commission has independent statutory authority under the All trees within or touching upon a local public way in cities Wetlands Protection Act to disapprove work which it can prove or towns are public property(G.L.Ch.87,§1). The tree warden will cause pollution. The board is principally concerned with maintains them, together with trees In public parks or"open disease-bearing contaminants whereas the commission must places under the jurisdiction of park commissioners," if the consider other pollution problems such as nutrients, heavy latter requests it. No such trees may be cut, trimmed or metals,PCBs,siltation,etc. removed without the permission of the tree warden by any In protecting water quality,health boards and commissions person"even if he be the ownerof fee in the land in which such should be aware of standards for contaminants of public tree is situated."The tree warden must hold a public hearing, drinking water Issued by EPA under the Safe Drinking Water notice of which is posted on the affected tree; and if there is Act of 1974(P.L.93-523).In 1977,DEQE issued state standards written objection,the work must be approved by the selectmen which are more stringent and Include road salt. or mayor. Removal of dangerous or diseased trees is exempt. A big 11.04"SAND AND GRAVEL"LAWS exemption also exists for road widening. See §15.18 for the Scenic Roads Act, which helps to fill this gap. Municipalities An earth removal ordinance or bylaw should be adopted in may appropriate money to plant shade trees in public ways or every municipality. A simple model appears in §16.30. The upon"adjoining land,at a distance not exceeding 20 feet from commission should urge the planning board to favor such said public ways, for the purpose of improving, protecting, regulations either under the Zoning Act(G.L. Ch. 40A) or as a shading or ornamenting the same; provided that the written general bylaw or ordinance (G.L. Ch. 40, §21(17). The com- consent of the owner shall be obtained." There are criminal mission may act as the permit agency undera Ch.40 bylaw. penalties for placing signs on trees ordefacing them. Commissioners should be particularly concerned with drainage, replacement of topsoil after conclusion of 11.07 SNOWMOBILES AND MOTORBOATS operations, effects upon the water table, and possible water pollution.A Ch.40A ordinance or bylaw is harder to amend(213 These and other "recreational vehicles" are under the vote required),but the Ch.40 ordinance or bylaw may give less control of the Division of Marine and Recreational Vehicles in protection to pre-existing uses. It may not be a bad idea to the Department of Fisheries, Wildlife and Recreational adopt both.An important point is that any new permit system, Vehicles. (G.L. Ch. 90B). However, any municipality can pass whether adopted under Ch.40 or Ch.40A, is applicable to the laws regulating or forbidding the operation of these vehicles remaining section of any ongoing earth removal activity on any municipal land. Kelleher v.Board of Selectmen of Pembroke, 1 Mass. App.Ct. At the very least, the commission should press for a law 174(1974). regulating vehicular use of public park, recreation or forest lands as well as conservation land. The commission. In ad- 11.05 SCENIC ROADS(AND OTHER WAYS) dition, has the separate authority to pass regulations govern- ing the use of lands under its control(G.L. Ch.40,§8C). If use Ch. 40, §15C, a copy of which appears in §15.18, offers in- regulations fail through abuse by the users, abolition of the creased protection to the environmental, aesthetic and use should be considered.(See§16.07 for a set of sample use historical values of local roads. The commission may regulations.) recommend that the town meeting or city council vote to Ch. 266, §121A makes it a crime for anyone to enter private designate a municipal way as"scenic."Thereafter"any repair, property with a motorized land vehicle,running or not,without maintenance,reconstruction or paving work done with respect permission of the owner, even if the land is not posted. It thereto shall not Involve or Include the cutting or removal of carries a fine of$250.00. This law reverses the usual rule for trees, or the tearing down or destruction of stone walls or pedestrian trespass which requires posting(§15.10). portions thereof, except with the prior written consent of the A municipality may exert some control over motorboats on planning board." A public hearing must be held. The law Great fonds. Great Ponds are those ponds which were 10 complements the Public Shade Tree Law(§11.06) which does acres or more in their natural state. Access points to great not protect trees from road widening. It applies to activities of ponds(and ocean and other inland waters)are being developed any agency, including local and state DPW's and all utility by the Public Access Board(G.L.Ch.213§17A).Although great companies, if actually working on the road. No public hearing ponds are the property of the state, under Ch. 131, §45, will be required if proposed road work does not involve trees or municipalities may now prohibit operation of some or any walls.Any road other than a state or numbered highway may be classes of internal-combustion engines on great ponds under designated. The vote should give direction to the planning 500 acres in their jurisdiction. However, local bylaws or or- board to take into account environmental, historical, scenic dinances regulating motorboat use(as opposed to forbidding and other values when deciding what work may be done on the it)must be approved by the Division of Marine and Recreational road.Although the state DPW has been hostile to this law,the Vehicles. Construction below high water requires permission Scenic Roads Act expressly,states that designation shall not of DEQE. Water levels cannot be lowered without permission affect eligibility for state aid.A sample vote is found in§16.29. of the Department of Environmental Management, except for Town ways are laid out by town meeting under G.L.Ch.82.A specified purposes such as agriculture.(G.L.Ch.91.§19A). town may discontinue a public way by a town meeting vote Mass. legal decisions Indicate that the zoning power of a under §21 of Ch. 82. The town may also lay out "footways" coastal municipality extends to the marine boundary of the 46 Commonwealth(G.L.Ch.42§1)which is three miles offshore. manner. In Donnelly v. Brookline, (1975 Mass.-Adv. Sh. 1057), Local zoning also applies to fill on the edges of great ponds the court upheld a ban on billboards throughout the whole (Rose v.Board of Appeals of Wrentham,(1967)352 Mass.301). town, which the OAB had respected. The court emphasized that aesthetics are a valid basis for regulation. Because all 11.08 HISTORICAL PROTECTION billboards must obtain a new OAB permit each year,a billboard can never obtain"grandfather clause" protection against new Many municipalities have adopted historic districts. The zoning past the end of the permit year.(Donnelly v.OAB,361 Historic District law, G.L. Ch. 40C, requires that the com- Mass.746). munity first vote a district study committee to investigate Federal law limits the type of outdoor advertising signs buildings, structures or sites of historical andlor architectural which may be erected within 600 feet of a right of way of an significance.The community then creates the district by a two- interstate or connecting main highway, Signs advertising on- thirds vote. Thereafter no building or structure within the site services and activities and signs located In commercial or district may undergo exterior alterations without a certificate Industrial areas are exempted, but are subject to local control from the historic district commission created under Ch.40C or (G.L. Ch. 93D). Signs illegally erected may be considered a a historical commission appointed under G.L. Ch. 40, §8D. public nuisance and abated by the state DPW. Repairs and landscaping are not affected. Accessory signs are usually regulated by the local zoning Land and buildings may also be protected by a historic code.Under the state constitutional provision for regulation of preservation restriction entered Into by a landowner under the advertising, and under the Zoning Enabling Act, the Conservation Restriction Act,which is discussed in Chapter 7 Massachusetts court has affirmed the power of the legislature of this Handbook, A preservation restriction is defined in Ch. to delegate regulatory power to municipalities.Local authority 184,§31 as a right,appropriate to preservation of a structure or to regulate thus applies not only to free-standing boards, but site historically significant for its architecture, archeology or to all signs on private property,Including professional signs.A associations, which forbids or limits altering exterior or In- strong decision upheld the stringent sign permit requirements terior features,changes In appearance or condition of a site,of of the Town of Wellesley.(Sirazzula v. Inspector of Wellesley, historically Inappropriate uses. Each preservation restriction 357 Mass.694). Every town or city should have a section In Its must be approved by the selectmen or mayor and council and zoning code which strictly controls signs,as well as billboards. by the Massachusetts Historical Commission. li may be held Under the old Ch.40A,pre-existing non-conforming signs(not by the local conservation commission or by either kind of billboards) were given "grandfather clause" protection. The historic commission. new Zoning Act does not contain this protection. An Increasing number of state and federal statutes protect Municipalities will therefore be able 10 phase out non- historical buildings and sites, especially where threatened by conforming signs over a period of years related to the owner's projects Involving federal funds. Provisions of the Tax Reform Investment in the sign. Act of 1976 which encourage rehabilitation and discourage 11.11 INSECT CONTROL destruction of historic buildings are discussed in Ch.8. The Mass. Historical Commission and CLF have further Mosquito control is usually handled through districts Information on state and federal acquisition and protection established by G.L. Ch. 252, under the Reclamation Board, laws. jointly appointed by the 3 commissioners of the Departments of Environmental Management, Environmental Quality 11.09 SCENIC MOUNTAINS Engineering and Food and Agriculture. Districts generally coincide with county boundaries. If a municipality does not An interesting new law, Ch. 131, §39A, permits Berkshire join or votes to withdraw from a district,the local health board County conservation commissions to Impose special land use runs the program under Ch.252,§5B. regulations on work In mountain regions. Boundaries are set In order to conduct pest-control programs, a municipality by town meeting or city council. Alteration of land, except must appoint a Superintendent of insect pest control,licensed forestry and utility work,thereafter requires a permit from the by DEGE under Ch.132,§11.G.L.Ch.41,§69G also permits any commission under a procedure similar to the Wetlands municipality to establish an office of lands and natural Protection Act. This law merits promotion by commissions. resources to be directed by a qualified aborrculturlst licensed Information is available from the Berkshire Natural Resources by the Department, which may be responsible for local tree Countil,8 Bank Row,Pittsfield,Mass. care and pest control programs. The commission might urge this type of change if it feels that present practices may be 11.10 BILLBOARD AND SIGN CONTROL ecologically damaging. It should also be aware that before local public health agencies begin work to poison algae, Billboards are signs which do not advertise goods or ser- weeds, and other "aquatic nuisances," the Water Resources vices available on the premises. Although periodic attempts Commission is supposed to conduct bio-engineering surveys have been made to substitute local control over billboards, (G.L.Ch.111,§51F). regulation Is still the responsibility of the state Outdoor Ad- Use of pesticides is subject to Increasing legal control.EPA vertising Board,which enforces a number of restrictions based classifies all pesticides and herbicides for "general" or on location anq number of boards. Under G.L. Ch.93 and the "restricted" use under the Federal Environmental Pesticides new Zoning Act, however, cities and towns may further Control Act of 1972(P.L.92-516).EPA may also restrict amount regulate and restrict billboards and signs, provided that the and means (e.g. aerial) of application. After September 1977, local law is consistent with the Board's regulations. The restricted pesticides may be applied only by- applicators Board's present regulations permit more stringent local certified by the state. Revision of G.L.Ch.948 In 1978 sets up restriction; thus local control will prevail In a "back door" the Department of Food and Agriculture as the licensing agency. 47 11.12 DEFACING NATURAL SCENERY A conscientious commission should spend some of its leisure time tearing down unlawful signs and painting out Initials on attractive ledges beside roads. It can do so with a clear conscience under G.L.Ch.266,§126: "Whoever paints,or puts upon,or in any manner affixes to, any fence,structure,pole,rock or other object which is the property of another,whether within or without the limits of the highway, any words,device,trademark, advertising nor notice which is not required by law to be posted thereon, without first obtaining the written consent of the owner or tenant of such property, shall, upon complaint of such owner,or of his tenant,or of any municipal or public officer, be punished by a fine of not more than ten dollars. Any word,device,trademark,advertisement or notice which has been painted, put upon or fixed within the limits of a highway in violation of this section shall be considered a public nuisance, and shall be forthwith removed or obliterated and abated by any person." 11.13 JUNK CARS Local zoning may bar this use. If permitted, Ch. 140, §59A requires a special license from the selectmen or council for rebuilding or selling parts of junk cars.The junkyard must be within a building or screened and cannot be located within 600 feet of a state highway or 300 feet of a playground or"park,"a term which should include conservation land. Ch.90,§2213 reads: "Whoever abandons a motor vehicle registered or unregistered on any public or private way or upon any property other than his own without the permission of the owner or lessee of said property shall be punished by a fine of not less than one hundred nor more than five hundred dollars. A conviction of a violation of this section shall be reported forthwith by the court to the registrar, who may revoke for a period not exceeding three months the license of the person so convicted...." G.L.Ch.40§5(59)permits appropriation of town money"for towing motor vehicles abandonedon any private way or private property." 11.14 NUISANCE In addition to the public rights which have been discussed herein,there is the common law relating to nuisance.On a bill in equity brought by one or several of the abutters who are directly affected,any condition which is clearly objectionable may be abated by a court order as a private nuisance it it particularly damages their property or health.If all the public is equally affected, only the Attorney General may act. Many municipalities have catch-all provisions in their zoning codes which permit the city or town to close down nuisance-type activities. 48 Chapter 12 . Other Useful State and Federal Laws 12.01 INTRODUCTION There are a number of laws and programs which are not effect in Massachusetts. The Massachusetts Environmental locally adminstered but which are of interest to commissions Policy Act(Ch.30,§61.62)is reprinted in§15.19.MEPA requires because they may offer a "handle" for solving local en- an Environmental Impact Report for "works, projects and vironmental problems.In addition,many commissioners enjoy activites," undertaken or funded by state (not municipal or becoming acquainted with these laws partly because people county) agencies and local housing or redevlopment expect them to be mines of information on environmental authorities, which may significantly affect the natural en- matters,and partly because It Is the duty(and sometimes even vironment, If a state agency Issues a license or permit the pleasure)of knowledgeable citizens to see that environmental private developer must prepare a "limited EIR," limited to laws are enforced. the scope of the licensing activity. Because the burden of preparing a fuliscale EIR for every project would be over- 12.02 CITIZENS RIGHT OF ACTION LAW whelming, the Executive Office of Environmental Affairs, which administers the law, has created a system whereby G.L. Ch. 124, §7A (§15.20) allows any ten persons living in Environmental Notification Forms(ENFs)are first submitted to the Commonwealth, or any municipality, to bring suit to stop EOEA. the violation of any Massachusetts statute,ordinance, bylaw, These brief summaries of possible environmental Impacts or regulation the primary purpose of which is to prevent are printed every other week in the EOEA "Environmental damage to the environment. Before beginning the suit, the Monitor". After a two-week comment period, the Secretary plaintiffs must give twenty-one days' notice(by certified mail) decides whether a EIR will be required.In practice,this system to the violator, the Attorney General, and the governmental offers an opportunity for effective citizen pressure, provided agency which is supposed to be enforcing the particular law, the conservation commission makes sure It is on the mailing The court will dismiss the case if the violator can show list for the "Monitor". For example, DEQE must file an en. compliance with a governmental permit or schedule for vironmental assessment for almost every superseding Order of abating the cited pollution.Ten residents of the state may also Conditions which it Issues under the Wetlands Protection Act. Intervene in certain types of "adjudicatory proceedings" If the commission believes the negative impact of the Order before state agencies in which damage to the environment will be significant, It should track down the assessment and ought to be an Issue.(G.L. Ch. 30A,§10A)An appeal to DEQE lobby for an Impact Report. Fullscale EIRs have been required for a hearing under the Wetlands Protection Act is such a for a number of large wetlands projects. proceeding. Intervening in a hearing is easier and less costly State agencies have by Regulations created a number of than a court suit and also raises Important issues earlier in the. categorical exemptions which require no EIR or even game. assessment form for projects under a certain size. For These laws essentially give citizens the sort of rights which example, DEQE need not f Ile an EAF when it Issues a Super- most of them already thought they had, but didn't. Victory seding Order for wetlands projects Involving less than one acre brings only an Injunction; the court cannot award money for of fill. However, the Secretary of Environmental Affairs has legal fees or damages. discretionary power to require an EIR In any important case. If this is declared an area to be of "critical environmental con- 12.03 ENVIRONMENTAL IMPACT STATEMENT LAWS cern",no exemptions will apply for work undertaken,funded or licensed by the state In that area. Commissions should The National Environmental Policy Act (42 U.S.C. §4321 et nominate such areas to the Secretary. seq.) requires that all federal agencies file, In advance of The Impact statement laws are powerful tools for opening up beginning major projects and activities,substantially affecting the decision-making processes of governmental agencies. the human environment, a detailed statement on the en- Many environmentalists feel an Impact report should be vironmental Impact of the proposed action and possible required for any major project, even if there Is no federal or alternatives.Copies of these statements are made available to state Involvement, so that citizens can be aware of any the public. possible adverse effects. Some municipalities have adopted The federal law has resulted in numerous lawsuits and local impact statement requirements. These local versions reams of publicity as conservationists attacked the existence have not been tested in court. and adequacy of Impact statements filed on such projects as the Alaskan oil pipeline, Not everyone realizes, however, that 12.04"A.95"REVIEW these reports are,or should be,filed for small projects such as flood control and federally aided highways.NEPA is principally §5.09 discusses this program for review of federal funding. an"information" law. If a reasonably adquate report has been The recommendation of the Regional planning agency con- filed, adverse findings on environmental impacts do not, in cerned is based upon comments from local officials. Con- themselves,stop the project.However, in one case involving a servation commissions should ask their RPA to notify them of federally aided housing project in Massachusetts, the First proposed projects affecting land use, especially land Circuit Court of Appeals rejected an impact statement as acquisition or work In wetlands, rivers, or lakes, In their Inadequate because it did not consider offsite drainage.(Silva respective towns. v.Lynn,482 F.2d 128 1,1 at Cir.1973.) As of July 1973, a state law patterned on NEPA went into 49 12.05 PROGRAMS COMBATING AIR AND WATER POLLUTION The Army Corps permit programs are described In§9.08. Commissions should also know that the Division of Mineral These laws are a complicated mix of federal and state laws, Resources in DEQE, now has jurisdiction over extraction of mostly administered by slate agencies.State responsibility for sand and gravel,including highway materials,in coastal waters curbing air pollution, water pollution, permitting of wetlands (G.L. 21 §54). State regulation is in addition to, and does not work, sanitary regulation, solid waste, and protection of supersede,local zoning laws. drinking water Is located generally within the Executive Office of Environmental Affairs,and usually within the Department of 12.06 PESTICIDE CONTROLS Environmental Quality Engineering,which has been organized Under federal law, the EPA registers pesticides for general Into 5 regi�naf offices, each headed by a Regional En- vironmental Engineer. The U.S. Environmental Protection or restricted use. A restricted pesticide can be applied only by Agency has a regional office in Boston. an applicator licensed by the state. Under a new state law, Air pollution is controlled by DEQE under a plan approved by passed in 1978,the Department of Food and Agriculture will be EPA.EPA has established ambient air quality standards for six the licensing agency. See§11.11 for a discussion of mosquito major air pollutants. The states have submitted plans to im- control. plement these standards. DEQE has divided the state into six districts and three interstate districts, each with two sets of 12.07 SOLID WASTE standards depending upon the degree of development in that area. Emmission standards have been established for new Under Ch. 111, §150A, every site for a sanitary landfill must first be designated by the local health board,then approved by construction.This means a large new facility in any community will require a state emissions permit.Two of the most obvious DEQE.A hearing may be required.State minimum regulations results of the program so far are; the statewide ban on open for operating landfills include a requirement that groundwater burning,and the use of low•sulphur-content oil for most large be at least four feet below the fill in the wettest time of year. heating plants. State policy precludes new landfills in drinking-watersheds, Since most of Massachusettts is a "nonattainment" area, because of dangerous leachates. (see§11.03). where certain pollutants exceed the national standards, any Under the new Resource Conservation and Recovery Act of new pollution must be offset by reduction of existing 1976 (PL 94.580), EPA must set standards for treatment and emissions. The most controversial other issues are whether disposal of "hazardous wastes", which abound in dumps. Mass. needs transportation controls, to limit auto travel and Federal grants may aid the Bureau of Solid Waste, DEM, in parking, and clean air"zoning" to prevent deterioration of air ambitious plans for regional waste disposal facilities. which is now clean.Under PL 95.95,most areas are assigned to "Class II", which permits some degredation. Conservation 12.08 FOREST PRACTICES commissions may wish to press for "Class I" (purest) reclassification for rural areas and for the Cape Cod National The Massachusetts Forest Cutting Practices Act (Ch.132,§ Seashore. 40-46)requires a plan certified by the state forester for timber The water pollution program is run by the Division of Water cutting over 25,000 board feet on public and private land. Pollution Control, DEQE.As required under federal Pl.92-500, Unfortunately, this law does not regulate nonsilvicultural the Division has set water quality standards for all rivers and cutting such as site preparation for development, highways, streams in the stale. These are available in booklet form. The utility lines, or agriculture. However, a municipality may classifications run from A(adequate for drinking water supply presumably pass a local bylaw or ordinance under G.L.Ch.40, without treatment) to D (suitable for aesthetic viewing only). requring a local permit for any largescale cutting. . Bait waters are classified SA through SD.Upgrading the waters Slash must be disposed of so as to avoid fire hazards and of the state to the established standard will require extensive water pollution. Under Ch. 48 §16, (§15.21) slash may not be Installation of municipal and industrial sewage treatment placed within 25 feet of any stream or pond, within 40 feet of facilities. Grants for such construction under §201 of the any abutter's woods, and within 100 feet of the center of a Federal Water Pollution Control Act Amendments of 1972(PL road. 92-500) are discussed in §5.13. They are of Interest to any Protection of public shade trees along scenic roads are community considering wastewater treatment plants or al- discussed in §11.05 and 11.06. All public trees in a town are ternate systems such as community septic systems, sludge managed by the local tree warden, an office required by G.L. composting, or living filter treatment systems. Under Ch. 21, Ch.41,§1.Town forests are discussed in Ch.3. the state may compel municipalities to join sewerage districts G.L. Ch. 266 contains criminal penalties for destruction of and fund regional treatment plants. private trees, orchards and gardens. Section 116A of Ch. 266 PL92.500 also contains an important permit program.A joint also makes it a crime to dig up wild azaleas,orchids or cardinal "NPDES"discharge permit from EPA and the Division of Water flowers on pu blic land or on private land without permission. Pollution Control in DEQE is required before any effluent other than pure water can be discharged Into surface waters from "Point sources" such as pipes, drains or ditches. DWPC has concentrated on large pollutors, but commissions can put pressure on state and federal authorities to require a permit for any significant point-source discharge.A parallel state law,Ch. 21, §43 appears to require a permit for discharge to ground water and for sewer hookups. 50 Chapter 13 — Private Conservation Organizations 13.01 INTRODUCTION Commissions are branches of government. Other govern- This is a very poor way to hold land, for a number of reasons. mental agencies which aid in conservation work are discussed The other major disability of an unincorporated association is In the next chapter.Commissions should also be aware of the that It cannot qualify for tax-exempt status under the federal many private groups which play a vital role in protecting the Internal Revenue Code.Therefore,gifts of land or money to the environment. Many are committees of civic or fraternal group are not tax deductible to the donor. Most people do not organizations; others are set up exclusively for conservation care If their dues of a few dollars a year are not deductible,but purposes. Such groups may be organized as charitable cor- tax deductions become very important when significant gifts porations,trusts,or under other names.This chapter explains are sought. how these entities are created and compares their powers and duties. 13.03 SELECTING A LEGAL ENTITY . THE NONPROFIT Two kinds of local conservation groups,"land trusts"(which TRUST may In form be other kinds of legal entity)are generally set up to acquire open space for public use within the municipality, A nonprofit trust is organized by filing a Declaration of Trust the area,the state,or even out of stale.Every area should have with the Attorney General. Some so-called land trust are ac- an active land trust to complement the efforts of the com- tually, in legal form, nonprofit corporations, discussed below. mission. Watershed and lakeshed associations are usually Some, like the Trustees of Reservations, were created by organized to keep a weather eye on everything happening to a special act of the legislature. Ordinarily, a trust is composed particular river or lake,whether It concerns water supply,water only of named trustees, although there may be "members" quality,recreational use,or developments along the banks and who vote on appointment of trustees.A nonprofit trust may be tributaries. Every river and lake in the commonwealth needs run as a very tight ship, with as few as one trustee, and with such a constituency. trustees picking their successors.Corporations have unlimited Two kinds of local conservation groups, land trusts and membership, officers and a governing board elected by the watershed associations, are of special Interest to com- members. The trustees must file an annual report with the missions. Private "land trusts" (which may in form be other Attorney General. A property organized trust can qualify for kinds of legal entity)are generally set up to acquire open space tax-deductible status and may own land If the Declaration of for public use within the municipality, the area, the state, or Trust Is tiled in the Registry with the deed 10 the land. even out of state.Every area should have an active land trust to complement the efforts of the commission. Watershed and 13.04 SELECTING A LEGAL ENTITY • THE NONPROFIT lakeshed associations are usually organized to keep a weather CORPORATION eye on everything happening to a particular river or lake, whether it concerns water supply, water quality, recreational Although the filing fees are greater for a corporation, this use, or developments along the banks and tributaries. Every form has several advantages.G.L.Ch. 180 dictates the form it river and lake in the commonwealth Heads such acon- must take and the secretary of the commonwealth supplies forms for the charter to be filed with that office.The corporate stituency. form is also somewhat more familiar to Internal Revenue,and Most major rivers now have a watershed association.Some, such as the Charles,Connecticut and Nashua River Watershed this may make it easier to process application for tax-exempt Associations have an office and stall. The newer ones are status.The corporation may own land. Transfer of the land is working toward this status. The MACC office and the New easier, because it will not involve amending a Declaration of England Rivers Center attempt to keep current lists of Trust since the corporate charter is filed with the state. watershed associations.Legal assistance In establishing such Changing corporate officers requires filing a form with the organizations can be obtained from the Conservation Law state,but does not involve amending the Declaration of Trust. Foundation of New England, Inc., which distributes a model Since the powers and duties of corporations(though not their charter. specific purposes) are established by law, the corporate document is not so complex as an Individually created 13.02 SELECTING A LEGAL ENTITY:The"UNICORPORATED Declaration of Trust. An annual report must be filed with the ASSOCIATION" Secretary of the Commonwealth. If the members plan only to learn about conservation or act 13.05 COMMON POWERSAND PURPOSES OF as a watchdog for a local natural resource or recreational area, NONPROFIT TRUSTS AND CORPORATIONS an unincorporated club or association is adequate.This kind of group has no officially filed charter and no status as a legal Both trusts and corporations will list the purposes of the entity. This association must report annually to the Attorney group, in conservation, education, land acquisition and/or General if It will do extensive fund raising.An unincorporated political action. Obviously the section must be carefully association can have bylaws and open a bank account and tailored to the desires of each group. For example, if the carry on most necessary business;and it Is blessedly short on charter or Declaration of Trust does not give the entity the paper work.As it Is not a separate legal entity,It cannot sign a specific power to own land, then the document would have to lease or own land. If it should acquire land,the land would in be amended before land could be-acquired. The'group's fact be owned by all the members of the group, as partners. decision, to lobby or not to lobby, should be set out In the charter. 51 Forms for both kinds of entities will contain provisions for 13.08 REAL ESTATE TAXATION OF NONPROFIT LAND- dealing with property, managing internal affairs,amendments, OWNERS replacing officers or trustees,meetings,dissolution,and after dissolution a gift of all properly to a private or public con- G.L.Ch.59, §.5,clause Third,exempts from taxation all real servation organization. estate owned by or held in trust for a charitable organization Both entities will hold meetings for members and the public, and occupied by it or its officers or by another charity, for the publish pamphlets, sponsor events, acquire land or con- purposes for which it is organized. The term "occupied" has servation restrictions,and work with other groups. been generously Interpreted by the Massachusetts court to Most organizations called"councils", "foundations" or the permit exemption of relatively unused lands (Assessors of like are, In legal form, unincorporated associations, trusts, or Dover v.Dominican Fathers Province of St.Joseph, 334 Mass. corporations,with the powers or disabilities discussed above. 530).Public use of natural areas need not be extensive and may Only a corporation may use the term"Incorporated"in Its title. even be limited to citizens of one community (Board of Assessors of City of Quincy v.Cunningham Foundation, 305 13.06 POWERS COMPARED TO CONSERVATION COM- Mass.411). MISSIONS 13.09 SOME WELL KNOWN NONPROFIT ORGANIZATIONS A nonprofit corporation or trust may do the following things which a commission cannot do: it can have unlimited mem- A. MASSACHUSETTS AUDUBON SOCIETY, South Great bership; it can negotiate, contract, receive gifts or make Road,Lincoln,Mass.,01773,(617)259.9500. purchases entirely without outside consultation;it can control The largest state Audubon Society In the United States land outside the municipal or state boundaries(see§4.10 for offers assistance on a wide variety of Commission problems.It the power of a municipality to own land outside Its boun-. maintains a conspicuous position in disseminating public daries); it may be able to dispose of unneeded land acquired Information on environmental matters. The Wetlands Project under a"landbank"program,In order to purchase betterareas, was particularly helpful to commissions in producing "Un- if not limited by the donor's deed; it is not subject to political derstanding and Administering the Wetlands Protection Act," pressures from municipal bodies. which can be purchased from the Society. Mass. Audubon On the other hand, the conservation commission has the maintains an extensive library, an active school educational following powers as a governmental body:it can use municipal program,a scientific investigation program,the environmental funds to purchase and maintain land; It can obtain state and intern program, and public forums (Focus Outdoors). Slides federal grants for open-space acquisition; it can control other and films are also available. municipally-owned open space; it can hold land which the B. MASSACHUSETTS FOREST AND PARK ASSOCIATION,3 municipality takes by eminent domain; its land is protected Joy Street,Boston,MA,02108,(617)742-2553. from disposal or diversion to Inconsistent uses by the"public This organization Is of real assistance to Commissions trust'doctrine and Article 97 of the State Constitution(§6.14). because Its work is primarily devoted to monitoring legislation Private nonprofit entities and conservation commissions of interest to conservationists. Periodic bulletins are sent to can both: accept gifts of money and land; build up con- members.MACC urges Conservation Commission members to servation funds; acquire conservation restrictions; work to join this Association so as to be well Informed on legislative develop open space and recreation programs for the com- Issues that are extremely important to the land and water munity. resources of the Commonwealth. MFPA can be called to get the latest information on pending legislation. 13.07 CREATING A NONPROFIT TRUST OR CORPORATION C. THE CONSERVATION LAW FOUNDATION OF NEW The first job is writing the corporate charter or Declaration of ENGLAND, INC., 3 Joy Street, Boston, MA, 02108 (617) 572- Trust and bylaws. The Conservation Law Foundation can 2540 provide advice and models.The help of a lawyer is desirable. The CLF has an agreement with the Massachusetts Certain language Is required in the charter or Declaration to Association of Conservation Commissions to give legal in. qualify for tax-deductible status.After the documents are flied formation to Conservation Commissions throughout the state. with the proper state offices the next step is to apply to the The MACC letterhead carries the CLF telephone number for Internal Revenue Service, If such status is desired. Internal legal information. The CLF has printed several bulletins on Revenue will scrutinize the charter or Declaration and the environmental law. Important publications Include: Con- bylaws, and probably require further information about the servation Restrictions, Outline of Massachusetts En- aims, activities and funding of the organization. Finally the vironmental Law,and a"Legal Guide"series on Environmental Service will send out a"letter of determination" Indicating tax- bylaws, Recreational Vehicles, The Wetlands Protection Act, deductibility of gifts under §501 C(3) of the Code. This Earth Removal, Scenic Roads in Massachusetts, and Sub- process may take a number of months, during which time division Control in Massachusetts. donors make gifts at their own risk; that is, on the hope that D.ASSOCIATION FOR THE PRESERVATION OF CAPE COD, deductible status will be achieved before the and of the year. Orleans,MA,02653,(617)255.4142. The Service is familiar with land trusts and watershed This Association, the second largest private conservation groups,and these should experience a minimum of delay. organization in the Commonwealth, is extremely Important to Under the 1976 Tax Reform Act,"C-3" groups are permitted persons who have an Interest in Cape Cod and the oceans to devote up to 20% of their expenditures to lobbying ac- generally. It has produced a number of technical bulletins tivities,provided they formally elect to do so and file the proper (available at low cost)on meetings, great pond bylaws, water tax forms. Endorsement of candidates for office is still for- supply,off-shore oil,salt marshes,sewage disposal,and other bidden, facets of the environment. 52 E. BERKSHIRE NATURAL RESOURCES COUNCIL, 8 Bank Row,Pittsfield,MA,01201,(413)499.0596. This private organization has been of tremendous assistance in protecting large areas of land located In the Berkshires.The Scenic Mountains Act was passed as a result of efforts on the part of BNRC. Assistance Is given to com- missions in the western part of the state in preparing ap- plications for federal and state funding to purchase land for Conservation purposes. At the same time, the Association 13 also able to find private funds to assist In land purchases, when public funds are not readily available. F. THE SIERRA CLUB, 3 Joy Street, Boston, MA, 02108, (617)227.5339. This activist volunteer organization helps to round up technical data and rally conservation support on national,state and local Issues.The New England chapter maintains a Boston office and publishes a newsletterwhich Includes club trips and outings throughout the region. Local chapters deal with local Issues. G. WATERSHED AND LAKESHED ASSOCIATIONS, are discussed above. For information on the Watershed Association in your area, call the MACC office or the New England Rivers Center, 84 State Street, Boston, MA,(617)742-9310. If your area does not now have a council or watershed association that seeks to plan for the basin as a whole,the Conservation Law Foundation or existing Associations are always willing to assist you with forming one or to answer immediate problems. H. FRIENDS OF THE EARTH, 3 Joy Street, Boston, MA, 02108,(617)742-6329. This organization works on environmental affairs on the state and national level. I. THE LINCOLN FILENE CENTER FOR CITIZENSHIP AND PUBLIC AFFAIRS, TUFTS UNIVERSITY, Medford, MA, 02155, (617)628.5000,ext.353. This private nonprofit foundation has as its primary function the education of citizens. An Environmental Fellowship Program brings environmental advocates, Including Con- servation Commissioners to Tufts University to study for one year within the Tufts Graduate Program in Urban Social and Environmental Policy. Courses include Environmental Ad- vocacy,Basic Ecology,Environmental Law,and Environmental Protection in a Technological Society. A NEW ENGLAND REGIONAL ENVIRONMENTAL NETWORK is presently being organized by the center. J. THE MASSACHUSETTS ASSOCIATION OF CON- SERVATION COMMISSIONS. Located at the Lincoln Fllene Center of Tufts University, Medford, MA, 02155, (617)628.5000, ext. 352. A private association dedicated to educating Its 2500 member Associates, Commissioners, and Commissions on matters of day-to-day import as well as apprising them of the larger state- wide and federal pictures. Individuals may, for $10.00 per year, become Associate Members of the Massachusetts Association of Conservation Commissions. They receive the monthly Newsletter and participate in meetings and workshops conducted by the Association. 53 Chapter 14 Public Conservation Organizations 14.01 INTRODUCTION Under the principles of government set out in the National Agriculture. It Involves an important responsibility for com- Environmental Protection Act and the Massachusetts missions.If the 1978 pilot program is successful,the ability of equivalent, MEPA (§15.19), all governmental bodies are ex- smaller towns to protect their open farm spaces will be pected to cooperate in protecting the environment. The measurably strengthened. following public agencies are of particular importance to Conservation Commissions. Telephone numbers for these 14.03 ATTORNEY GENERAL'S ENVIRONMENTAL PROTEC- agencies may be found or verified in the Telephone Directory TION DIVISION under"Massachusetts, Commonwealth of," or under"United 1 Ashburton Place,Boston,MA02202. (617)727.2265 States Government,"as the case may be. This division enforces state environmental laws on behalf of state agencies and can bring independent actions for citizens 14.02 MASSACHUSETTS EXECUTIVE OFFICE OF EN. when the state fails to act(see Chapter 12). VIRONMENTAL AFFAIRS(EOEA) Saltonstall Building, 100 Cambridge St., Boston, MA 02202 14.04 REGIONAL PLANNING AGENCIES (617)727.7700. There are thirteen Regional Planning agencies, the largest THE DIVISION OF CONSERVATION SERVICES. (617) 727- being the Metropolitan Area Planning Council.Such agencies 1552, This division of EOEA is responsible for the im- are responsible for A-95 Reviews where federal funding is plementation of the Mass. Self-Help program for land requested,and are beginning to develop Open Space Plans for acquisition, the Urban Self-Help program, the Agricultural each region. Development Rights Program and the Heritage and Cultural Resources Service (HORS) programs (formerly B.O.R.) See 14.05 DEPARTMENT OF COMMUNITY AFFAIRS Chapters. Office of Local Assistance, 1 Ashburton Place, Boston, THE DEPARTMENT OF ENVIRONMENTAL QUALITY Mass.02202.(617)727.3253. This governmental agency offers ENGINEERING (WETLANDS SECTION)(617) 727-3170. This is advice and good publications on zoning and other community the state office that handles the administration of Chapter 131, issues. Section 40(as amended).Adjudicatory Proceedings take place here and policy decisions affecting DEQE regional engineers 14.06THE ENVIRONMENTAL PROTECTION AGENCY are made here.See Chapter 9. JFK Building,Cambridge Street,Boston,MA 02203(617)223- THE MEPA UNIT.The administration of the Massachusetts 7223. This agency is responsible for implementation of federal Environmental Policy Act takes place in the EOEA. This unit legislation to protect the environment, i.e. The Safe Drinking publishes the MONITOR, a bl-weekly listing of all projects Water Act,The Clean Air Act,The Water Pollution Control Act, where environmental impact statements are being considered. and the Toxic Substances Control Act. The New England Conservation Commissions and Individuals may subscribe to Regional Office is located in Boston. the Monitor by calling or writing the Executive Office of En- vironmental Affairs with a request to be placed on the mailing 14.07 THE COOPERATIVE EXTENSION SERVICE list. It is recommended that Commissions receive the Monitor and that it be carefully checked to see if environmental impact This service was created in 1914 under the federal Depart- statements are being considered in their areas.Any citizen or ment of Agriculture, in order to bring updated technology to governmental body has the right to comment on notices or rural communities. It is managed by an Associate Dean of statements contained in the Monitor. Agriculture at the University of Massachusetts In Amherst. It THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. maintains an office in each county of the Commonwealth, (617)727-6893. staffed with Community Resource Development personnel. This department relates directly to commissions because Their services are no longer restricted to agricultural activities. the Wetlands Restriction Programs(Chapter 131,Section 40A The more traditional duties of helping families with practical and Ch. 130,Section 105)are the responsibility of this office. advice on homemaking and farming have been expanded to Conservation Commissions assist in implementing and include assistance to persons In suburban and coastal monitoring this program (see§9.09 and 9.10), and derive the locations. An office has recently been opened in Suffolk benefits of Its extra protection, while maintaining control over County to assist urban dwellers. The Extension Service con- "permitted uses"under Chapter 131,Section 40. ducts seminars and short courses on such diverse subjects as THE DEPARTMENT OF FOOD AND AGRICULTURE, (617) woodloi management, Christmas tree farming, septic 727-3000. systems, zoning bylaws, solar technology, home gardening Conservation Commissions have been empowered, under and wetlands problems. Meetings are always open to the the Agricultural Development Rights Act,Chapter 780,Acts of public. Each Conservation Commissioner should ask to be 1977, to assist farm owners in negotiating the sale of their placed on the mailing list of the local Extension Service. The farm's development rights to the town and/or state. The efforts of the Extension Service deserve high praise. Division of Conservation Services,EOEA,is responsible for the administration of this program, with decisions made by the Agricultural Lands Board of the Department of Food and 54 14.08 CONSERVATION DISTRICTS The federal Soil Conservation Act(16 USG 590 et seq.) was passed during the Dust Bowl era. Massachusetts districts were created under G.L.Ch.31,§18-25,and operate under the State Committee for the Conservation of Soil, Water and Related Resources with the assistance of the Division of Conservation Services in the Executive Office of En- vironmental Affairs. In addition to their agricultural interests, districts serve as the contact agency between the Con- servation commissions and the Massachusetts branch of the Soil Conservation Service. Other District activities include 208 "best available technology" control of non-point farm pollution sources, tree seedling safes,environmental education centers,and practical training courses, a variety of locally applicable projects in- volving landowners, and the securing of Soil Conservation services for Conservation Commissions. 14.09 THE SOIL CONSERVATION SERVICE 29 Cottage Street,Amherst,Mass.01002 Headed by the State Conservationist, the Service's usual contact is the "work unit conservationist," for a variety of services such as soil surveys,natural resource inventories,etc. The skills of soil scientists, soil conservationists, and engineering specialists of various types may be requested for specific instances. At the present time, call for any of these services by a conservation commission must be made through the Districts. The Districts may spend their own funds only on agricultural land projects. However, upon receiving an application for assistance in other matters, the District will request the Soil Conservation Service to respond. One of the Soil Conservation Service's most valuable ac- tivities is aiding in preparation of local inventories. A local natural resources inventory is best made by coordinating the skills of several agencies with the work of volunteer citizens. Such a study brings in a "natural resource technical team" from the Soil Conservation Service, composed of the Service, the state Division of Fisheries and Wildlife (EOEA), and the County Extension Service. Citizen participation is of course vital to both acceptance of the inventory process and ex- pediting Its conclusion by the community. The inventory maps produced will suggest sites for recreational developments such as swimming, skating and wildlife ponds, impoundment sites for multiple use, town forests, nature study areas, historic sites, trails and sub- surface water supply. The plans will show which areas are unsuitable for building by reason of high water table, steep slopes, or need for protecting surface water. A detailed in- terpretive Soils Report with maps will pinpoint problem areas for conservation commissions, planning boards, boards of health and building inspectors. Details for obtaining these services may be requested through the local Conservation District office. 55 Chapter 15: Statutes 15.01 Conservation Commission Act-G.L. Ch.40,§8C 15.02 Open Meeting Law-G.L.Ch.39,§23A-23C 15.03 Conservation Fund Act-G.L.Ch.40,§5(51) 15.04 Self-Help Act-G.L. Ch. 132A,§11, and§2B 15.05 Urban Self Help Act-Acts of 1977,Ch. 933 15.06 Debt for Land Acquisition-Ch.44,§8C 15.07 Massachusetts Constitution, Article 49, amended by Article 97 15.08 Opinion of Attorney General 616173 —(interpreting Article 49) 15.09 Private Landowner's Liability,G.L.Ch.21,§17C 15.10 Motorized Trespass Law-G.L. Ch.266,§121A 15.11 Wetlands Protection Act-G.L.Ch. 131,§40 15.12 Coastal Wetlands Restriction Act-G.L.Ch. 130,§105 15.13 Inland Wetlands Restriction Act-G.L.Ch. 131,§40A 15.14 Scenic Rivers Act-G.L. Ch.21,§17B 15.15 Forest Assesssment Act-G.L.Ch.61 15.16 Farm Assessment Act-G.L. Ch.61 A 15.17 (a)Conservation Restriction Act-G.L. Ch. 184, §31-33 and(b)Acts of 1977, Ch.232,§1&2 15.18 Scenic Roads Act-G.L.Ch.40,§15C 15.19 Massachusetts Environmental Policy Act- G.L.Ch.30,§61-62 15.20 Citizens' Right of Action Laws-G.L.Ch.214, §7A;Ch.30A,§10A 15.21 Timber Slash Law G.L.Ch48,§16 56 15.01 CONSERVATION COMMISSION ACT—G.L.CH.40,§SC damanges for which such city or town may be liable by reason of any such taking. The commission may adopt rules and A city or a town which accepts this section may establish a regulations governing the use of land and waters under Its conservation commission, hereinafter called the commission, control, and prescribe penalties, not exceedigg a fine of one for the promotion and development of the natural resources hundred dollars, for any violation thereof.'No action taken and for the protection of watershed resources of said city or under this section shall affect the powers and duties of the town.Such commission shall conduct researches into Its local stale reclamation board or any mosquito control or other land areas and shall seek to co-ordinate the activities of project operating under or authorized by chapter two hundred unofficial bodies organized for similar purposes, and may and fifty-two,or restrict any established public access. Lands advertise, prepare, print and distribute books, maps, charts, used for farming or agriculture,as defined in section one A of plans and pamphlets which in its judgment it deems necessary chapter one hundred and twenty-eight, shall not be taken by for its work. Among such plans may be a conservation and eminent domain under the authority of this section, passive outdoor recreation plan which shall be, as far as possible, consistent with the town master plan and with any regional plans relating to the area.The commission may, from 15.02 OPEN MEETING LAW—G.L.CH.39,§23A-23C time to time, amend such plan. Such plan shall show open areas Including marsh land, swamps and other wetlands, and §23A.Definitions shall show which areas are subject to restrictions or wetland zoning provisions and any other matters which may be shown The following terms as used in sections twenty-three B and on a plat index under section thirty-three of chapter one twenty-three C shall have the following meaing3,- hundred and eighty-four. Acquisitions of Interests in land "Deliberation", a verbal exchange between a quorum of under this section and other municipal open lands shall be members of a governmental body attempting to arrive at a shown thereon as well as lands owned by other entities kept decision on any public business within Its jurisdiction. open through any legal requirement. Such plan shall show "Emergency", a sudden, generally unexpected occurrence' other areas which public necessity requires to be retained for or set of circumstances demanding Immediate action. conservation and passive recreation use.It shall keep accurate "Executive session", any meeting of a governmental body records of Its meetings and actions and shall file an annual which is closed to certain persons for deliberation on certain report which shall be printed in the case of towns in the annual matters. town report. The commission may appoint a director, clerks, "Governmental body",every board,commission,committee consultants and other employees, and may contract for or subcommittee of any district, city, region or town,however materials and services within available funds insofar as the elected,appointed or otherwise constituted,and the governing same are not supplied by other departments.The commission board of a local housing,redevelopment or similar authority. shall consist of not less than three nor more than seven "Meeting", any corporal convening and deliberation of a members. In cities the members shall be appointed by the governmental body for which a quorum is required in order to mayor,subject to the provisions of the city charter,except that make a decision at which any public business or public policy In cities having or operating under a Plan D or Plan E form of matter over which the governmental body has supervision, city charter, said appointments shall be by the city manager, control, jurisdiction or advisory power is discussed or con- subject to the provisions of the charter,and In towns they shall sidered; but shall not include any on-site inspection of any be appointed by the selectmen, excepting towns having a project or program. manager form of government, In which towns appointments "quorum",a simple majority of a governmental body unless shall be made by the town manager,subject to the approval of otherwise defined by constitution, charter, rule or law ap- the selectmen. When a commission Is first established, the plicable to such governing body. terms of the members shall be for one,two or three years,and so arranged that the terms of approximately one third of the §236. Open meetings of governmental bodies; executive members will expire each year, and their successors shall be sessions;exceptions;notice;records;failure to comply;orders appointed for terms of three years each. Any member of a All meetings of a governmental body shall be open to the commission so appointed may, after a public hearing, If public and any person shall be permitted to attend any meeting requested,be removed for cause by the appointing authority.A except as otherwise provided by this section. vacancy occurring otherwise than by expiration of a term shall No quorum of a governmental body shall meet In private for in a city or town be filled by the unexpired term in the same the purpose of deciding on or deliberating toward a decision manner as an original appointment. Said commission may on any matter except as provided by this section. receive gifts, bequests or devises of personal property or in- No executive session shall be held until the governmental terests In real property of the kinds mentioned below in the body has first convened in an open session for which notice name of the city or town, subject to the approval of the city has been given, a majority of the members have voted to go council in a city or of the selectmen In a town.It may purchase Into executive session and the vote of each member is Interests In such land with sums available to it. If insufficient recorded on a roll call vote and entered into the minutes, the funds are available or other reasons so require, a city council presiding officer has cited the purpose for an executive or a town meeting may raise or transfer funds so that the session, and the presiding officer has stated before the commission may acquire In the name of the city or town by executive session If the governmental body will reconvene option, purchase, lease or otherwise the fee in such land or after the executive session. water rights, conservation restrictions, easements or other Nothing except the limitation contained In this section shall contractual rights Including conveyances on conditions or be construed to prevent the governmental body from holding with limitations or reversions,as may be necessary to acquire, an executive session after an open meeting has been con- maintain,Improve,protect,limit the future use of or otherwise vened and a recorded vote has been taken to hold an executive conserve and properly utilize open spaces In land and water session.Executive sessions may be held only for the following areas within its city or town, and It shall manage and control purposes: the same. For the purposes of this section a city or town may, (1) To discuss the reputation and character, physical con- upon the written request of the commission,take by eminent ditlon or mental health rather than the professional com- domain under chapter seventy-nine, the fee or any lesser in- petence of an Individual. A governmental body shall hold an terest in any land or waters located In such city or'town, open meeting if the individual Involved requests that the provided such taking has first been approved by a two-thirds meeting be open. vote of the city council or a two-thirds vote of an annual or (2) To consider the discipline or dismissal of, or to hear special town meeting, which land and waters shall thereupon complaints or charges brought against, a public officer, em- be under the jurisdiction and control of the commission.Upon ployee,staff member,or individual.A governmental body shall a like vote, a city or town may expend monies in the fund, if hold an open meeting If the individual involved requests that any,established under the provisions of clause(51)of section the meeting be open. five for the purpose of paying, in whole or in part, any (3)To discuss strategy with respect to collective bargaining 57 or litigation if an open meeting may have a detrimental effect able no later than ten days after the filing thereof and the on the bargaining or litigating postion of the governmental complaint shall be heard and determined on the return day or body,and to conduct collective bargaining sessions. on such day thereafter as the court shall fix, having regard to (4) To discuss the deployment of security personnel or the speediest possible determination of the cause consistent devices. with the rights of the parties; provided, however, that orders (5)To consider allegations of criminal misconduct. with respect to any of the matters referred to in this section (B)To considerthe purchase,exchange,lease or value of real may be issued at any time on or after the filing of the complaint property,it such discussions may have a detrimental effect on without notice when such order is necessary to fulfill the the negotiating position of the governmental body and a purposes of this section.In the hearing of such complaints the person,firm or corporation. burden shall be on the respondent to show by a preponderance (7)To comply with the provisions of any general or special of the evidence that the action complained of in such com- law or federal grant-in-aid requirements. plaint was in accordance with and authorized by section eleven This section shall not apply to any chance meeting, or a A 112 of chapter thirty A, by section nine G of chapter thirty- social meeting at which matters relating to official business four or by this section. All processes may be issued from the are discussed so long as no final agreement is reached. No clerk's office in the county in which the action Is brought and, chance meeting or social meeting shall be used in cir- except as aforesaid,shall be returnable as the court orders. cumvention of the spirit or requirements of this section to Such orders may invalidate any action taken at any meeting discuss or act upon a matter over which the governmental at which any provision of this section has been violated, body has supervision,control,jurisdiction or advisory power. providing that such complaint is filed within fourteen days of Except In an emergency, a notice of every meeting of any the date when such action is made public. governmental body shall be filed with the clerk of the city or Any such order may also, when appropriate, require the town in which the body acts,and the notice or a copy thereof records of any such meeting to be made public unless it shall shall, at least forty-eight hours, including Saturdays but not have been determined by such justice that the maintenance of Sundays and legal holidays, prior to such meeting,be publicly secrecy with respect to such records is authorized by the posted in the office of such clerk or on the principal official provisions of this section. The remedy created hereby is not bulletin board of such city or town. exclusive, but shall be in addition to every other available The secretary of a regional school district committee shall remedy. be considered to be its clerk and he shall file the notice of meetings of the committee with the clerk of each city or town §23C. Regulation of participation by public In open meetings within such district and each such clerk shalt post the notice in No person shall address a public meeting of a governmental his office or on the principal official bulletin board of the city or body without permission of the presiding officer at such town and such secretary shall post such notice in his office or meeting,and all persons shall,at the request of such presiding on the principal official bulletin board of the district. officer,be silent. If,after warning from the presiding officer,a If the meeting shall be of a regional or district governmental person persists in disorderly behavior, said officer may order body, the officer calling the meeting shall file the notice him to withdraw from the meeting, and, if he does not with- thereof with the clerk of each city and town within such region draw,may order a constable or any other person to remove him or district, and each such cleric shall post the notice in his and confine him in some convenient place until the meeting is office or on the principal official bulletin board of the city or adjourned. town.The notice shall include the date,time,and place of such meeting. Such filing and posting shall be the responsibility of 15.03-CONSERVATION FUND ACT-G.L.CH.40,§5(51) the officer calling such meeting. A governmental body shall maintain accurate records of its Cities and towns may expend money: meeting, setting forth the date,time, place, members present (51) For the establishment and maintenance of a con- or absent and action taken at each meeting, including servation commission. In addition a city or town may ap- executive sessions.The records of each meeting shall become propriate money in any year to a conservation fund of which a public record and be available to the public; provided, the treasurer shall be custodian. He may deposit or invest the however,that the records of any executive session may remain proceeds of said fund in savings banks, trust companies in- secret, so long as publication may defeat the lawful purposes corporated under the laws of the Commonwealth, banking of the executive session, but no longer. All votes taken in companies incorporated under the laws of the Commonwealth executive sessions shall be recorded votes and shall become a which are members of the Federal Deposit Corporation, or part of the record of said executive sessions.Upon the request National banks,or Invest it in paid-up shares and accounts of of any member of a governmental body, any vote taken In its and in co-operative banks or in shares of savings and loan executive session shall be verified by a roll call, associations or in shares of federal savings and loan A meeting of a governmental body may be recorded by any associations doing business in the Commonwealth, and any person in attendance by means of a tape recorder or any other Income therefrom shall be credited to the fund. Monies in the means of sonic reproduction except when a meeting is held in fund may be expended by said Commission for any purpose, executive session; provided,that In such recording there is no otherthan a taking by eminent domain,authorized by Sec.8C. active Interference with the conduct of the meeting. Upon qualification for office following an appointment or 15.04-SELF HELP ACT- election to a governmental body,as defined in this section,the G.L.CH.132A,§2B,11.11 0 member shall be furnished by the city or town clerk with a copy of this section. Each such member shall sign a written §2B acknowledgement that he has been provided with such a copy. It is hereby declared 10 be the policy of the commonwealth The district attorney of the county in which the violation that all such sites acquired or developed by the commissioner occurred shall enforce the provisions of this section. shall in so far as practicable be preserved in their natural state; Upon proof of failure by any governmental body or by any that they shall be in so far as possible collectively self- member or officer thereof to carry out any of the provisions for supporting; and that no commercial activities except those public notice or meetings, for holding open meetings, or for essential to the quiet enjoyment of the facilities by the people maintaining public records thereof,any justice of the supreme shall be permitted. Judicial court or the superior court sitting within and for the county In which such governmental body acts shall Issue an §11 appropriate order requiring such governmental body or The secretary of environmental affairs shall establish a member or officer thereof to carry out such provisions at future program to assist the cities and towns,-which have established meetings.Such order may be sought by complaint of three or conservation commissions under section eight C of chapter more registered voters, by the attorney general, or by the forty, in acquiring lands and in planning or designing suitable district attorney of the county in which the city or town is public outdoor facilities as described in sections two B and located.The order of notice on the complaint shall be return- two D. He may, from funds appropriated to carry out the 58 provisions of section three, reimburse any such city or town Section 11C. for any money expended by it in establishing an approved The agricultural lands preservation committee shall prepare project under said program in such amount as he shall an annual report. Such report shall include the number and determine to be equitable in consideration of anticipated geographic distribution of applications accepted and rejected, benefits from such project,but in no event shall the amount of the acreage and costs of purchases, and such other In- such reimbursement exceed fifty per cent of the cost of such formation as will enable the program to be evaluated, project.No reimbursement shall be made hereunder to a city or town unless a project application is filed by such city or town Section 11D. with the secretary setting forth such plans and information as Land under agricultural preservation restrictions, while the secretary may require and approved by him,nor until such actively devoted to agricultural, horticultural or agricultural city or town shall have appropriated,transferred from available and horticultural use as defined in sections one to five, In- funds or have voted to expend from its conservation fund, clusive, of chapter sixty-one A, shall be assessed for general under clause fifty-one of section five of chapter forty, an property tax purposes at values no greater than those deter- amount equal to the total cost of the project, nor until the mined by the methods and provisions of section ten of said project has been completed, to the satisfaction of the chapter sixty-one A. secretary, in accordance with said approved plans. Any reimbursement received by a city or town under this section 15.05 URBAN SELF HELP ACT— shall be applied to the payment of indebtedness, if any, in- ACTS OF 1977,CH.933 curred in acquiring land for such conservation project. Section 11A. SECTION 1. The secretary of environmental affairs shall The secretary of environment affairs shalt establish a establish a program to assist the cities in the commonwealth assist the commonwealth in the acquisition of and towns with a population of thirty-five thousand inhabitants program which have established park or recreation commissions and agricultural preservation restrictions as defined acquisition section conservation commissions under section eight C of chapter thirty-one of chapter one hundred and eighty-four, for land actively devoted to agricultural or horticultural uses defined forty of the General Laws In acquiring lands for municipal park in sections one to live, inclusive, chapter sixty-one a The and recreation purposes. Said secretary may, from funds appropriated, reimburse any such city or town for money ex- commissioner of food and agriculture may from funds ap- p propriated to carry out the provisions of this section, or by it in establishing an approved project under sale received from other sources, pay any agricultural land owner program in such amount as he shall determine equitable for a project submitted by a city or town and approved by the in consideration of anticipated benefits from such project,but agricultural lands preservation committee established by in no event shall the amount of such reimbursement exceed g eighty per cent of the cost of such project. No reimbursement section eleven B such amount as is determined by said shall be made hereunder 10 such city or town unless a project agricultural lands preservation committee to be equitable in application is filed by such city or town with the secretary consideration of anticipated benefits from such project but not setting forth such plans and information as the secretary may to exceed the difference between the fair market value of such require and approved by him, nor until such city or town shall land and the fair market value of such land restricted for have appropriated, transferred from available funds or have agricultural purposes pursuant to this section. Title to voted to expend from Its conservation fund, under clause(51) agricultural preservation restrictions purchased by the of section five of chapter forty of the General Laws,an amount commonwealth pursuant to this section shall be held in the equal to the total cost of the project, nor until the project has name of the commonwealth.Projects shall be administered by been completed to the satisfaction of the secretary, in ac- conservation commissions in cities and towns in which such cordance with said approved plans. Any reimbursement commissions have been established, or in a city, by the city received by a city or town under this act shall be applied to the council or Its delegated agency subject to the provisions of the payment of Indebtedness, if any,incurred In acquiring land for city charter, or In a town, by the board of selectmen or Its such conservation or recreation projects. For the purposes of delegated agency.Said commissioner, subject to the approval this act the words"cities and towns"shall mean all cities,and of the secretary,shall establish procedures for management of towns with a population in excess of thirty-five thousand such program. Inhabitants. The director of conservation services, subject to Section 11 B. approval of the secretary,shall establish rules and regulations There is hereby created an agricultural lands preservation for the management of such programs.This act shall not apply agriculture, the to lands already acquired under section eleven of chapter one committee In the department of food and food and hundred and thirty-two A of the General Laws or to a project If members of which shall be the commissioner It then in competition with a funding request under said agriculture, who shall be chairman, the secretary of en- vironmental affairs, the secretary of communities and section eleven. SECTION 2. This act shall cease to be effective on June development, the director of the office of state planning, the thirtieth,nineteen hundred and eighty. chairman of the board of food and agriculture or their respective designees, and four members appointed by the 15.06 DEBT FOR LAND ACOUISITION— governor,two of whom shall be owners and operators of farms G.L.CH.44,§8C within the commonwealth.The dean of the college of food and natural resources of the University of Massachusetts and the A city or town which has appropriated money for the state conservationist of the United States Department of acqusition of land, to be expended together with a sum or Agriculture Soil Conservation Service, or their respective sums of money allotted by the commissioner of natural designees,shall serve as nonvoting members.Said committee resources under section eleven of chapter one hundred and shall evaluate and accept or reject projects submitted by cities thirty-two A or by the United States or by both,may,if said city and towns. In so evaluating,the committee shall consider at a or town is required primarily to pay a portion of the expense of minimum the following: acquiring such land which Is to be reimbursed by the com- 1. The suitability of land as to soil classification and other monwealth or the United States or both, Incur debt outside its criteria for agricultural use. debt limit In the amount of such reimbursable expense and 2.The fair market value of such land and fair market value of may issue notes therefor which shall be payable In or within such land when used for agricultural purposes as determined two years from their dates;provided,that prior to the Issuance by independent appraisals, of such notes such reimbursement has been agreed upon by 3. The degree to which the acquisition would serve to the commonwealth or the United States or by both; and preserve the agricultural potential of the commonwealth, provided, further, that the proceeds of such reimbursement The commissioner of food and agriculture may establish shall be applied to the payment of the notes without further such rules and regulations as may be deemed necessary to appropriation, notwithstanding the provisions of section fifty- carry out the purposes of this section. 59 three. The provisions of chapter seventy-four of the acts of natural deposits,as formerly set out in the definition of the nineteen hundred and forty-five shall not apply to borrowing words"natural resources" in paragraph two of section one under this section, of chapter twenty-one of the General Laws? 15.07 MASSACHUSETTS CONSTITUTION— 4. Do the provisions of the fourth paragraph of Article Ant.49 as amended by Art.97,1972 XCVII of the Articles of the Amendments to the Con- stitution apply to any or all of the following means of "Art.XLIX.The conservation,development and utilization of disposition or change in use of land held for a public pur- agricultural, mineral,forest,water and other natural resources pose: conveyance of land; long-term lease for inconsistent of the Commonwealth are public uses, and the general court use;short-term lease,two years or less,for an inconsistent shall have power to provide for the taking, upon payment of use; the granting or giving of an easement for an in- just compenstaion therefor, of lands and easements or in- consistent use; or any agency action with regard to land terests therein, including water and mineral rights, for the under its control it an inconsistent use? purpose of securing and promotion the proper conservation, development, utilization and control thereof and to enact The proposed amendment to the Constitution was agreed to legislation necessary or expedient therefor. by the majority of the members of the Senate and the House of "The people shall have the right to clean air and water, Representatives, In joint session,on August 5,1969 and again freedom from excessive and unnecessary noise, and the on May 12, 1971, and became part of the Constitituion by natural, scenic, historic, and aesthetic qualities of their en- approval by the voters at the state election next following, on vironment;and the protection of the people in their right to the November 7,1972.The full text of Article 97 is as follows: conservation, development and utilization of the agricultural, mineral,forest,water,air and other natural resources is hereby Art. XCVII. Article XLIX of the Amendments to the declared to be a public purpose. Constitution is hereby annulled and the following is "The general court shallhavethe power to enact legislation adopted in place thereof:—The people shall have the right necessary or expedient to protect such rights. to clean air and water; freedom from excessive and un- "In the furtherance of the foregoing powers, the general necessary noise, and the natural, scenic, historic, and court shall have the power to provide for the taking, upon esthetic qualities of their environment; and the protection payment of just compensation therefor, or for the acquisition of the people in their right to the conservation,development by purchase or otherwise, of lands and easements of such and utilization of the agricultural, mineral, forest,water,air other interests therein as may,be deemed necessary to ac- and other natural resources is hereby declared to be a complish these purposes. public purpose. "Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of The general court shall have the power to enact except by laws enacted by a two-thirds vote,taken by yeas and legislation necessary or expedient to protect such rights. nays,of each branch of the general court." In the furtherance of the foregoing powers, the general 15.08 OPINION OF ATTORNEY GENERAL— court shall hvae the power to provide for the taking, upon Art 49 AMENDMENTSJuneB,i973 payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and The House of Representatives,by H.6085,has addressed to easements or such other interests therein as may be me several questions regarding Article 97 of the Articles of deemed necessary to accomplish these purposes. Amendment to the Constitution of Massachusetts. Lands and easements taken or acquired for such pur- Establishing the right to a clean environment for the citizens of poses shall not be used for other purposes or otherwise Massachusetts,Article 97 was submitted to the voters on the disposed of except by laws enacted by a two thirdsvote, November 1972 ballot and was approved.The questions of the taken by yeas and nays,of each branch of the general court. House go to the provision in the Article requiring that acts Concerning the disposition of,or certain changes in,the use of 1.The first question of the House Representatives asks, certain public lands be approved by a two-third roll call vote of in effect, whether the two-thirds roll-call vote requirement is branch of the General court. retroactive, to be applied to lands and easements acquired each Spec c of your questions are as follows: prior to the effective date of Article 97, November 7, 1972. For the reasons below,I answer in the affirmative. 1.Do the provisions of the Iasi paragraph of Article XCVII The General Court did not propose this Amendment nor was of the Articles of the Amendments to the Constitituion it approved by the voting public without a sense of history nor requiring a two thirds vote by each branch of the general void of a purpose worthy of a constitutional amendment. court, before a change can be made in the use or Examination of our constitutional history firmly establishes disposition of land and easements acquired for a purpose that the two-thirds roll-call vote requirement applies to public described in said Article, apply to all land and easements lands wherever taken or acquired. held for such a purpose, regardless of the date of Specifically, Article 97 annuls Article 49, In effect since acquisition,or in the alternative,do they apply only to land November 5, 1918. Under that Article the'General Court was and easements acquired for such purposes after the ef- empowered to provide for the taking or acquisition of lands, fective date of said Article of Amendments? easements and interests therein"for the purpose of securing the proper conservation, development, promoting 2. Does the disposition or change of use of land held for and p park purposes require a two thirds vote, to be taken by the utilization and control (of)"agricultural,mineral,forest,water yeas and nays of each branch of the general court, as and other natural resources of the commonwealth."Although provided In Article XCVII of the Articles of the Amendments inclusion of the word "air" in this catalogue as it appears In to the Constitution,or would a majority vote of each branch Article may make this new article slightly broader than the be sufficientforapprovaf? supplanted Article 49 as to purposes for which the General Court may provide for the taking or acquisition of land, it is 3. Do the words "natural resources" as used in the first clear that land taken or acquired under the earlier Article over paragraph of Article XCVII of the Articles of the Amend- nearly fifty years is now to be subjected to the two-thirds vote ments to the Constitution include ocean, shellfish and requirement for changes in use or other dispositions. Indeed inland 'fisheries; wild birds, Including song and in- all land whenever taken or acquired is now subject to the new sectivorous birds; wild mammals and game; sea and fresh voting requirement.The original draftsmen of our Constitution water fish of every description;forests and all uncultivated prudently included in Article 10 of the Declaration of Rights a flora,together with public shade and ornamental trees and broad constitutional basis for the taking of private land to be shrubs;land,soil and soil resources,lakes,ponds,streams, applied to public uses, without limitation on what are"public coastal, underground and surface waters; minerals and uses. By way of acts of the Legislature as well as through 60 generous gifts of many of our citizens,the Commonwealth and Thus,all land,easements and Interests therein are covered our cities and towns have acquired parkland and reservations by Article 97 If taken or acquired for "the protection of the of which we can be justly proud.To claim that new Article 97 people in their right to the conservation, development and does not give the same care and protection for all these utilization of the agricultural, mineral, forest, water, air and existing public lands as for lands acquired by the foresight of other natural resources"as these terms are broadly construed. future legislators or the generosity of future citizens would While small greens remaining as the result of constructing ignore public purposes deemed important in our laws since the public highways may be excluded, it Is suggested that parks, beginning of our commonwealth. monuments, reservations, athletic fields, concert areas and Moreover,if this amendment were only prospective in effect, playgrounds clearly qualify.Given the spirit of the Amendment It would be virtually meaningless.In our Commonwealth,with a and the duty of the General Court, it would seem prudent to life commencing in the early 1600s and already cramped for classify lands and easements taken or acquired for specific land, it is most unlikely that the General Court and the voters purposes not found verbatim in Article 97 as nevertheless would choose to protect only those acres hereafter added to subject to Article 97 if reasonable doubt exists concerning the many thousands already held for public purposes. The their actual status. comment of our Supreme Judicial Court concerning the earlier 3. The third question of the House asks, In effect, how the Article 49 is here applicable: "It must be presumed that the words"natural resources",as appearing In Article 97,are to be convention proposed and the people approved and ratified the defined. Forty-ninth Amendment with reference to the practical affairs Several statutes offer assistance to the General Court, all of mankind and not as a more theoretical announcement." without limiting what are"natural resources".General Laws c. Opinion of the Justices,237 Mass.598,608, 21, §1 defines "natural resources", for the purposes of 2. In Its second question the House asks, in effect,whether Department of Natural Resources jurisdiction,as including the two-thirds roll-call vote requirement applies to land held for "ocean,shellfish and inland fisheries;wild birds, including park purposes,as the term"park" Is generally understood. My song and Insectivorous birds,wild mammals and game;sea answer is in the affirmative,for the reasons below, and freshwater fish or every description; forests and all One major purpose of Article 97 is to secure that the people uncultivated flora, together with public shade and or- shall have"the right to clean air and water, freedom from ex- namental trees and shrubs; land, soil and soil resources, cessive and unnecessary noise, and the natural, scenic, lakes, ponds, streams, coastal, underground and surface historic, and esthetic qualities of their environment." The waters;minerals and natural deposits." fulfillment of these rights is uniquely carried out by parkland In addition, G.L.C. 12, §11D, establishing a Division of En- acquisition.As the Supreme Judicial Court has declared, vRonmental Protection In my Department, uses the words "The healthful and civilizing influence of parks In or near "natural resources" in such a way as to Include air, water, congested areas of population is of more than local interest "rivers,streams,flood plains, lakes,ponds or other surface or and becomes a concern of the State under modern con- subsurface water resources" and "seashores, dunes, marine ditions, It relates not only to the public health in its narrow resources, wetlands, open spaces, natural areas, parks or sense, but to broader considerations of exercise, historic districts or sites." General Laws c.214,§10A, the so- refreshment, and enjoyment." Higglnson v. Treasurer and called citizen-suit statute, contains a recitation substantially School House Identical. To these lists Article 97 would add Only Commissioners of Boston,212 Mass.583,590; "agricultural"resources. see also Hlgginson v.Inhabitants of Nahant, 11 Allen 530,536. It is safe to say, as a consequence, that the term "natural A second major purpose of Article 97 Is "the protection of resources" should be taken to signify at least these the people in their right to the conservation,development and catalogued items as a minimum. Public lands taken or utilization of the agricultural, mineral, forest, water, air and acquired to conserve,develop or utilize any of these resources other natural resources." Parkland protection can afford not are thus subject to Article 97. only the conservation of forests,water and air but also a means It is apparent that the General Court has never sought to of utilizing these resources in harmony with their con- apply any limitation to the term "natural,resources" but in- servation. Parkland can undeniably be said to be acquired for stead has viewed the term as an evolving one which should be the purposes in Article 97 and is thus subject to the two-thirds expanded according to the needs of the time and the term was roll-call requirement. originally Inserted in our Constitution for just that reason.See This question as to parks raises a further practical matter in Debate of the Constitutional Convention 1917-1918,p.595.The regard to Implementing Article 97 which warrants further resources enumerated above should,therefore,be regarded as discussion.The reasons the Legislature employs to explain its examples of and not delimiting what are"natural resources" actions can be of countless levels of specificity or generality 4.The fourth question of the House requires a determination and land might conceivably be acquired for general recreation of the scope of activities which is intended by the words: purposes or for very explicit uses such as the playing of "shall not be used for other purposes or otherwise disposed baseball, the flying of kites, for evening strolls or for Sunday of." afternoon concerts. Undoubtedly, to the average man, such The term "disposed" has never developed a precise legal land would serve as a park but at even a more legalistic level it meaning. As the Supreme Court has noted, "The word is clearly can also be observed that such land was acquired, in nomen generalissimum, and standing by Itself, without the language of Article 97,because it was a"resource" which qualification,has no technical signification."Phelps vs.Barris, could best be "utilized" and "developed" by being "con- 101 U.S. 370, 381 (1880). The Supreme Court has Indicated served" within a park. But It is not surprising that most land however, that "disposition" may Include a lease. U.S. v. taken or acquired for public use is acquired under the specific Gratiot,39 U.S.526(1840). Other cases on unrelated subjects terms of statutes which may not match verbatim the more suggest that in Massachusetts the word"dispose"can include general terms found in Article 10 of the Declaration of Rights all forms of transfer no matter how complete or incomplete. of the Constitution or in Articles 39, 43, 49, 51 and 97 of the Rogers v. Goodwin, 2 Mass. 475; Woodbridge v. Jones, 183 Amendments. Land originally acquired for limited or specified Mass.549;lord v.Smith,293 Mass.555. public purposes is thus not to be excluded from the operation In this absence of precise legal meaning, Webstsrs Third of the two-thirds roll-call vote requirement for lack of express New International Dictionary Is helpful. "Dispose of"it is invocation of the more general purposes of Article 97. Rather defined as "to transfer into new hands or to the control of the scope of the Amendment is to be very broadly construed, someone else." A change In physical or legal control would not only because of the greater broadness in"public purpose", thus prove to be controlling. changed from "public uses" appearing in Article 49, but also I therefore conclude that the"dispositions for which a two- because Article 97 establishes that the protection to be af- thirds roll-call vote of each branch of the General court Is forded by the Amendment is not only of public uses but of required include:transfers of legal or physical control between certain express rights of the people. agencies of government, between political subdivisions, and between levels of government, of lands, easements and In- terests therein originally taken or.acquired for the purposes 61 stated in Article 97, and transfers from public ownership to missioners of Hampshire, 154 Mass. 424 (eminent domain private. Outright conveyance, takings by eminent domain, taking of school lot). long-term and short-term leases of whatever length, the The doctrine has also been applied to the following changes granting or taking of easements and all means of transfer or of use of public lands within governmental agencies or within change of legal or physical control are thereby covered, political subdivisions: a) antra-agency uses, Sacco v. Depart- without limitation and without regard to whether the transfer ment of Public Works,352 Mass.670(filling a portion of a Great be for the same or different uses or consistent or Inconsistent Pond) b) Intramunicipality uses, Hlgglnson v. Treasurer and purposes. School House Commissioners of Boston, 212 Mass. 583 This interpretation affords a more objective test,and is more (erecting a building on a public park),and see Kean v.Stetson, easily applied, than "used for other purposes." Under Article 5 Pick. 492 (road built adjoining a rived, and c) intracounty 97 that standard must be applied by the Legislature, however, uses, Bauer v. Mitchell, 247 Mass. 522 (discharging sewage in circumstances which cannot be characterized as a upon school land). The doctrine may also possibily reach de disposition -that is, when a transfer or change in physical or facto changes in use, e.g., Pilgrfam Real Estate Inc. v. legal control does not occur. Within any agency or political Superintendent of Police of Boston,330 Mass.250(parking of subdivision any land,easement or interest therein, if originally cars on park area)and may be available to protect reservation taken oracquired for the purposes stated in Article 97,may not land held by charitable corporations, e.g., Trustees of be"used for other purposes"without the requisite two-thirds Reservations v. Town of Stockbridge, 348 Mass. 511 (eminent roll-call vote of each branch of the General Court. domain). it may be helpful to note how Article 97 is to be read with the In addition to these extensions of the doctrine, special so-called doctrine of "prior public use," application of which statutory protections, codifying the doctrine of "prior public also turns on changes in use.That doctrine holds that use",are afforded local parkland and commons by G. L. c. 45 "public lands devoted to one public use cannot be diverted and public cemeteries by G. L. c. 114,§§17,41.As to changes to another inconsistent public use without plain and ex- in use of public lands held by municipalities or counties, plicit legislation authorizing the diversion." Robbins v, generally,see G.L.c.40,§15A and G.L.c.214,§3(11). Department of Public Works,355 Mass.328,330 and cases This is the background against which Article 97 was ap- there cited. proved. The doctrine of "prior public use" requires legislative The doctrine of"prior public use"is derived from many early action, by majority vote, to divert'land from one public use to cases which establish its applicability to transfers between another inconsistent public use.As the cases discussed above corporations granted limited powers of the Commonwealth, Indicate, the doctrine requires an act of the Legislature such as eminent domain,and authority over water and railroad regardless whether the land In question is held by the Com- easement..E.g., Old Colony Railroad Company v. Framingham monwealth,its agencies,special authorities and commissions, Water Company,153 Mass.561;Boston Water Power Company political subdivisions or certain corporations granted powers v. Boston and Worcester Railroad Corporation, 23 Pick. 360; of the sovereign.And the doctrine applies regardless whether Boston and Maine Railroad v. Lowell and Lawrence Railroad the public use for which the land in question is held in a Company,124 Mass.368;Eastern Railroad Company v.Boston conservation purpose. and Maine Railroad, 111 Mass. 125, and Housatonic Railroad As to all such changes in use previously covered by the Company v.Lee and Hudson Railroad Company,118 Mass.391. doctrine of "prior public use" the new Article 97 will only The doctrine was also applied at an early date to transfers change the requisite vote of the Legislature from majority to between such corporations and muncipalities and counties. two thirds.Article 97 Is designed to supplement,not supplant, E.g., Boston and Albany Railroad Company v. City Council of the doctrine of"prior public use." Cambridge, 166 Mass. 224(eminent domain taking of railroad Article 97 will be of special significance, though, where the land);Eldredge v.County Commissioners of Norfolk,185 Mass, doctrine of "prior public use" has not yet been applied. For 186 (eminent domain taking of railroad easement); West instance, legislation and a Iwo-thirds roll-call vote of the Boston Bridge v.County Commissioners of Middlesex,10 Pick, Legislature will now for the first time be required even when a 270(eminent domain taking of turnpike land),and Inhabitants transfer of land or easement between governmental agencies, of Springfield v. Connecticut River Railroad Co., 4 Cush. 63 between political subdivisions, or between levels of govern- (eminent domain taking of a public way). ment Is made with no change in the use of the land,and even The doctrine of"prior public use"has in more modern times where a transfer is from public control to private. been applied to the following transfers between governmental Whether legislation pending before the General Court is agencies or political subdivisions;a) a transfer between state subject to Article 97, or the doctrine of "prior public use", or agencies, Robbins v, Department of Public Works, 355 Mass. both, it Is recommended that the legislation meet the high 328 (eminent domain taking of Metropolitan District Com- standard of specificity set by the Supreme Judicial Court in a mission wetlands). b)transfers between a state agency and a case involving the doctrine of"prior public use": special state authority, Commonwealth v. Massachusetts "We think it is essential to the expression of plain and Turnpike Authority, 346 Mass. 250(eminent domain taking of explicit authority to divert (public lands) to a new and In- MDC land) and see Loschl v. Massachusetts Port Authority, consistent public use that the Legislature Identify the land 354 Mass.53(eminent domain taking of parkiand),c)a transfer and that there appear In the legislation not only a statement between a special state commission and special state of the new use but aistatement or recital showing in some authority, Gould v. Greylock Reservation Commission, 350 way legislative awareness of the existing public use. In Mass. 410(lease of portions of Mount Greylock), d) transfers short, the legislation should express not merely the public between municipalities, City of Boston v. Inhabitants of will for the new use but its willingness to surrender or forgo Brookline, 156 Mass. 172 (eminent domain taking of a water the existing use." (Footnote omitted.) Robbins V. Depart- easement) and Inhabitants of Quincy v. City of Boston, 148 ment of Public Works,355 Mass.328,331. Mass.389(eminent domain taking of a public way).e)transfers Each piece of legislation which may be subject to Article 97 between state agencies and municipalities,Town of Brookline should, in addition, be drawn so as to Identify the parties to v. Metropolitan District Commission, 357 Mass. 435(eminent any planned disposition of the land. domain taking of parkland) and City of Boston v. Massachusetts Port Authority,356 Mass.741 (eminent domain CONCLUSIONS taking of a park)0 a transfer between a special state authority Article 97 of the Amendments to the Massachusetts Con- and a municipality, Appleton v. Massachusetts Parking stltution establishes the right of the people to clean air and Authority, 340 Mass. 303 (1960) (eminent domain, Boston water,freedom from excessive and unnecessary noise,and the Common), g)a transfer between a state agency and a county, natural, scenic, historic and esthetic qualities of their en- Abbot v. Commissioners of the County of Dukes County, 357 vironment. The protection of the people in their right to the Mass. 784 (Department of Natural Resources grant of conservation, development and utilization of the agricultural, navigation easement), and h)transfers between counties and mineral, forest, water, air and other natural resources is municipalities,Town of Needham v.County Commissioners of declared to be a public purpose. Lands, easements and in. Norfolk,324 Mass.293(eminent domain taking of common and teresis therein taken or acquired for such public purposes are park lands) and Inhabitants of Easthampton v. County Com• not to be disposed of or used for other purposes except by 62 two-thirds roll-call vote of both the Massachusetts Senate and charge or fee for the use of his land by the public for Hou• :of Representatives. recreational purposes shall not be limited by any provision of A .swering the questions of the House of Representatives I this section. advise that the two-thirds roll-call vote requirement of Article Added by St.1972,c.575. 97 applies to all lands, easements and Interests therein whenever taken or acquired for Article 97 conservation, 15.10 MOTORIZED TRESPASS LAW—G.L.Ch.288,j)121A development or utilization purposes,even prior to the effective date of Article 97, November 7, 1972.The Amendment applies Whoever, without right, enters upon the private land of to land, easements and interests therein held by the Com- another,whether or not such land be posted against trespass, monwealth, or any of Its agencies or political subdivisions, and in so entering makes use of or has in his immediate such as cities,towns and counties. possession or control any vehicle, machine, or device which I advise that "natural resources" given protection under Includes an Internal combustion engine or other source of Article 97 would include at the very least, without limitation: mechanical power,shall be punished by a fine of not more than air, water, wetlands, rivers, streams, lakes, ponds, coastal, one hundred dollars. underground and surface waters, flood plains, seashores, The provisions of this section shall not apply to such an dunes,marine resources,ocean,shellfish and Inland fisheries, entry at the junction of a public way with a paved private wild birds including song and insectivorous birds, wild roadway,unless said private roadway Is distinguished from the mammals and game, sea and fresh water fish of every public way by a sign, gatepost, or the display of a street description, forests and all uncultivated flora, together with number or the name of the occupant of the premises,or by the public shade and ornamental trees and shrubs, land, soil and improvement of adjacent land,the type of construction of the soil resources, minerals and natural deposits, agricultural roadway,or other distinguishing feature,or unless such entry resources,open spaces, natural areas, and parks and historic has been forbidden by the person having lawful control of said districts or sites. private roadway. I advise that Article 97 requires a two-thirds roll-call vote of Nothing herein shall In any way restrict the operation o1 the Massachusetts Senate and House of Representatives for power boats on waterways not otherwise restricted_ all transfers between agencies of government and between political subdivisions of lands, easements or Interests therein 15.11 WETLANDS PROTECTION ACT • G.L. Ch. 131 g40 (as originally taken or acquired for Article 97 purposes, and amended1978) transfers of such land, easements or interests therein from one level of government to another,or from public ownership No person shall remove, fill,dredge or alter any bank, fresh to private.This is so without regard to whether the transfer be water wetland, coastal wetland, beach, dune, list, marsh, for the same or different uses or consistent or Inconsistent meadow or swamp bordering on the ocean or on any estuary, purposes. I so advise because such transfers are creek, river, stream, pond, or lake, or any land under said "dispositions" under the terms of the new Amendment, and waters or any land subject to tidal action, coastal storm because "disposition" includes any change of legal or flowage, or flooding, other than In the course of maintaining, physical control, including but not limited to outright con- repairing or replacing, but not substantially changing or veyance, eminent domain takings, long and short-term leases enlarging,an existing and lawfully located structure or facility of whatever length and the granting or taking of easements. used In the service of the public and used to provide electric, I also advise that antra-agency changes in uses of land from gas,water,telephone,telegraph and other telecommunication Article 97 purposes,although they are not"dispositions",are services, without filing written notice of his intention to so similarly subject to the two-thirds roll-call vote requirement. remove, fill, dredge or alter, including such plans as may be Read against the background of the existing doctrine of necessary to describe such proposed activity and its effect on "prior public use",Article 97 will thus for the first time require the environment and without receiving and complying with an legislation and a special vote of the Legislature even where a order of conditions and provided all appeal periods have transfer of land between governmental agencies, between elapsed. Said notice shall be sent by certified mail to the political subdivisions or between levels of government results conservation commission or,if none to the board of selectmen in no change in the use of land, and even where a transfer is in a town or the mayor of a city in which the land upon which made from public control to private. I suggest that whether such activity is proposed is located.Each such notice shall be legislation pending before the General Court is subject to accompanied by a filing fee of twenty-five dollars payable to Article 97, or the doctrine of "prior public use", or both, the the city or town. Copies of such notice shall be sent at the very highest standard of specificity should be required of the same time by certified mail to the department of environmental draftsmen to assure that legislation clearly Identifies the quality engineering. No such notice shall be sent before all locus, the present public uses of the land, the new uses permits, variances and approvals required by local bylaw with contemplated, if any, and the parties to any contemplated respect to the proposed activity, which are obtainable at the "disposition"of the land. time of such notice, have been obtained, except that such In short, Article 97 seeks to prevent government from III- notice may be sent, at the option of the applicant, after the considered misuse or other disposition of public lands and filing of an application or applications for said permits, interests held for conservation, development or utlization of variances, and approvals; provided, that such notice shall natural resources. If land is misused a portion of the public's Include any Information submitted In connection with such natural resources may be forever lost,and no less so than by permits, variances, and approvals which is necessary to outright transfer. Article 97 thus provides a new range of describe the effect of the proposed activity on the an- protection for public lands far beyond existing law and much vironmant.Upon receipt of any notice herunder the department to the benefit of our natural resources and to the credit of our of environmental quality engineering, herinafter called the citizens. department,shall designate a file number for such notice and 15.09 PRIVATE LANDOWNER'S LIABILITY•�.L.Ch.21,§17C shall send a notifiction of such number to the person giving notice to the conservation commission,selectmen or mayor to whom the notice was given. Said notification shall state the An owner of land who permits the public to use such land for name of the owner of the land upon which the proposed work recreational purposes without imposing a charge or fee Is to be done and the location of said land. therefor, or who leases his land for said purposes to the Within twenty-one days of the receipt by a conservation commonwealth or any political subdivision thereof shall not be commission of a written request made by any person and sent liable to any member of the public who uses said land for the by certified mail, said commission shall make a written aforesaid purposes for injuries 10 person or property sustained determination as to whether this section is applicable to any by him while on said land in the absence of wilful, wanton or land or work thereon. When such person Is other than the reckless conduct by such owner,nor shall such permission be owner, notice of-any such determination shall also-be sent to deemed to confer upon any person so using said land the the owner. status of an Invitee or licensee to whom any duty would be The term"applicant"as used In this section shall mean the owed by said owner. The liability of an owner who imposes a person giving notice of Intention to remove,till,dredge or alter. 63 The term"person"as used in this section shall include any sedges (Cyperecese), smartweeds (Polygonum), sweet gale Individual, group of individuals, association, partnership, (Mydca gale), water milfoil (Heloregaceae), water lilies corporation,company,business organization,trust,estate,the (Nymphaeacese), water starworts (Callitrtchecese), water commonwealth or political subdivision thereof,administrative wi I low(Decodon verticillatus). agency, public or quasi-public corporation or body, or any The conservation commission, selectmen or mayor other legal entity or Its legal representative,agents or assigns. receiving notice under this section shall hold a public hearing The term "bogs" as used In this section shall mean areas on the proposed activity within twenty-one days of the receipt where standing or slowly running water Is near or at the sur- of said notice. Notice of the time and place of said hearing face during a normal growing season and where a vegetational shall be given by the hearing authority at the expense of the community has a significant portion of the ground or water applicant, not less than five days prior to such hearing, by surface covered with sphagnum moss(Sphagnum)and where publication in a newspaper of general circulation in the city or the vegetational community is made up of a significant portion town where the activity is proposed and by mailing a notice to of one or more of,but not limited to nor necessarily including the applicant and to the board of health and the planning board all, of the following plants or groups of plants: aster (Aster of said city or town. The conservation commission and its nemorelis), azaleas (Rhododendron canadense and R. agents, officers and employees and the commissioner of viscosum), black spruce (Picea madans), bog cotton natural resources and his agents and employees, may enter (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush upon privately owned land for the purpose of performing their blueberry (Vaccinium corymbosum), larch (Ladx laricina), duties under this section. laurels (Kalmis angustifolla and K. polifolla), leatherleaf If after said hearing the conservation commission, select- (Chemaedaphne calyculata), orchids (Arethuss, Calopogon, men or mayor,as the case may be,determine that the area on Pogonia), pitcher plants (Serra " enla purpurea), sedges which the proposed work is to be done is significant to public (Cyperecese), sundews ({Drosoreceae), sweet gale (Myrica or private water supply, to the ground water supply, to flood gale),white cedar(Chamaecyparis thyoldes). control, to storm damage prevention, to prevention of The term "coastal wetlands," as used in this section, shall pollution, to protection of land containing shellfish, or to the mean any bank, marsh, swamp, meadow, flat or other lowland protection of fisheries, such conservation commission, board subject to tidal action or coastal storm flowage. of selectmen or mayor shall by written order within twenty-one The term "freshwater wetlands," as used in this section; days of such hearing impose such conditions as will con- shall mean wet meadows, marshes, swamps, bogs, areas tribute to the protection of the interests described herein,and where groundwater, flowing or standing surface water or ice all work shall be done in accordance therewith, If the con- provides a significant part of the supporting substrate for a servation commission, selectmen or mayor, as the case may plant community for at least five months of the year;emergent be, make a determination that the proposed activity does not and submergent plant communities in Inland waters; that require the imposition of such conditions, the applicant shall portion of any bank which touches any inland waters. be notified of such determination within twenty-one days after The term "swamps, as used in this section, shall mean said hearing. Such order or notification shall be signed by the areas where ground water is at or near the surface of the mayor or a majority of the conservation commission or board ground for a significant part of the growing season or where of selectmen,as the case may be,and a copy thereof shall be runoff water from surface drainage frequently collects above sent forthwith to the applicant and to the department. the soil surface, and where a significant part of the If a conservation commission has failed to hold a hearing vegetational community is made up of, but not limited to nor within the twenty-one day period as required, or if a com- necessarily include all of the following plants or groups of mission, after holding such hearing, has failed within twenty- plants: alders (Alnus), ashes (Fraxinue), azaleas (Rhododen. one days therefrom to issue an order,or It a commission,upon dron canadense and R.viscosum),black alder(Ilex verticillata), a written request by any person to determine whether this black spruce ((Picea madam), buttonbush (Cephalanthus section is applicable to any work fails within twenty-one days occidentalis),American or white elm(Ulmus americana),white to make said determination,or where an order does issue from Hellebore (Veralrum vidde), hemlock (Tsuga canadensis), said commission, the applicant, any person aggrieved by said highbush blueberry (Vaccinium corymbosum), larch (Larix commission's order or failure to act,or any owner abutting the laricins), cowslip (Callha palustris), poison sumac land upon which the proposed work is to be done, or any ten (Toxicodendron vernix), red maple (Acer rubrum), skunk cab- residents of the city or town in which such land is located, bags(Symplocarpusfoetidue),sphagnum mosses(Sphagnum), may, by certified mall and within ten days from said com- spicebush (Lindera benzoin), black gum tupelo (Nyssa mission's order or failure to act, request the department to sylvatica), sweet pepperbush (Clethra alnifolia), white cedar determine whether the area on which the proposed work is to (Chamaecyparls thyoides),willow(Salicaceae). be done is significant to public or private water supply, to the The term "wet meadows," as used in this section where ground water supply, to flood control, to storm damage ground water Is at the surface for a significant part of the prevention, to prevention of pollution, to protection of land growing season and near the surface throughout the year and containing shellfish or to the protection of fisheries. The where a significant part of the vegetational community is commissioner of environmental quality engineering also may composed of various grasses,sedges and rushes;made up of, request such a determination within said ten days. The party but not limited to nor necessarily including all,of the following making any such request shall at the same time send a copy plants or groups of plants: blue flag (Iris), vervain (Verbena), thereof by certified mail to the conservation commission, thoroughwort (Eupstodum), dock (Rumex), false loosestrife board of selectmen or mayor which conducted the hearing (Ludwigla), hydrophilic grasses (Gramineae), loosestrife hereunder. If such party is other than the applicant, a copy of (Lythrum), marsh fern (Dryopteds thelypteds), rushes (Jun- such request shall also be sent at the same time by certified caceae), sedges (Cyperaceae), sensitive fern (Onoclea son- mail to the.applicant. Upon receipt of such request the sibilis),smartweed(Polygonum). department shall make the determination requested and shall The term "marshes," as used in this section, shall mean by written order issue within seventy days of receipt of such areas where a vegetational community exists in standing or request,signed by the commissioner,or his designate,impose running water during the growing season and where a such conditions as will contribute to the protection of the significant part of the vegetational community is composed of, Interests described herin; provided, however, that said but not limited to nor necessarily including all,of the following department shall notify the applicant within thirty days of the plants or groups of plants: arums (Araceae), bladder worts receipt of such request if his application or request is not In (Utricularia), bur reeds (Sparganlecese), button bush proper form or is lacking information or documentation (Cephatanthus occidentalls), cattails (Typhs), duck weeds necessary to make the determination. Such order shall (Lemnaceae), eelgrass (Vallisneria), frog bits supersede the prior order of the conservation commission, (Hydrocharltaceae), horsetails (Equlsetaceae), hydrophilic board of selectmen or mayor, and all work shall be done in grasses (Gremineae), leatherleaf (Chamsedephne accordance therwith,but in no event shall any work commence calyculata), pickeral weeds (Pontederiaceae), pipeworts until ten days have elapsed following the issuance of said (Erlocaulon), pond weeds(Potamogeton), rusnes (Juncaceae), order.At any time prior to a final order of determination by the 64 department, any party requesting a determination may in Any person who purchases, inherits or otherwise acquires writing withdraw the request, and such withdrawal shall be real estate upon which work has been done In violation of the effective upon receipt by the department.Notwithstanding the provisions of this section or in violation of any order Issued withdrawal, the commissioner or his designate may continue under this section shall forthwith comply with any such order the determination if he notifies all parties within ten days of or restore such real estate to Its condition prior to any such receipt of the withdrawal.A copy of such order shall be sent to violation; provided, however, that no action, civil or criminal, the applicant, to the conservation commission, board of shall be brought against such person unless such action is selectmen or mayor which conducted the hearing hereunder. commenced within three years following the recording of the No work proposed In any notice of Intention shall be un- deed or the date of the death by which such real estate was dertaken until the final order, determination or notification acquired by such person. Any court having equity jurisdiction with respect to such work has been recorded in the registry of may restrain a violation of this section and enter such orders deeds forthe district in which the land is located. as It deems necessary to remedy such violation, upon the Any site where work is being done which Is subject to this petition of the attorney general, the commissioner, a city or section shall display a sign of not less than two square feet or town,an owner or occupant of property which may be affected more than three square feet bearing the words by said removal,filling,dredging or altering,or ten residents of "Massachusetts Department of Environmental Quality the commonwealth under the provisions of'section ten A of Engineering File Number..."and the sign shall display the file chapter two hundred and fourteen. number assigned to the project. Rules and regulations shall be promulgated by the com- It the department of environmental quality engineering finds missioner to effectuate the purposes of this section.However, that any proposed work would violate the provisions of chapter failure by the commissioner to promulgate rules and ninety-one, it shall proceed immediately to enforce the regulations shall not act to suspend or Invalidate the effect of provisions of said chapter. this section. The provisions of this section shall not apply to any Whoever violates any provision of this section shall be mosquito control work done under the provisions of clause(36) punished by a fine of not more than one thousand dollars or by of section five of chapter forty, of chapter two hundred and Imprisonment for not more than six months or Moth. Each day fifty-two or of any special act;to maintainance of drainage and or portion thereof of continuing violation shall constitute a flooding systems of cranberry bogs, to work performed for separate offense. This section may be enforced by natural normal maintenance or Improvement of lands in agricultural resources officers,deputy natural resources officers,and any use;or to any project authorized by special act prior to January officer having police powers. first,nineteen hundred and seventy-three. The notice of Intention required in the first paragraphy of this section shall not apply to emergency projects necessary for the protection of the health or safety of the commonwealth which are to be performed or which are ordered to be per- formed by an agency of the commonwealth of a political subdivision thereof. An emergency project shall mean any project certified to .be an emergency by the conservation commission of the city or town in which the project would be undertaken, or If none, by the mayor of said city or the selectmen of said town. If the conservation commission, mayor or selectmen,as the case may be, fall to act favorably within twenty-four hours of receipt of a request for cer- tification of an emergency project, said project may be so certif led by the commissioner, In no case shall any removal, filling, dredging,or alteration authorized by such certification extend beyond the time necessary to abate the emergency. Notwithstanding the provisions of section fourteen of chapter twenty-one A or any other provision of law to the contrary,the notice of intention required in the first paragraph of this section shall not apply to a maintenance dredging project for which a license has been previously Issued within ten years by the division of waterways of the department of environmental quality engineering.A person intending to fill or dredge under such previously issued license shall file a written notice by certified mall to the conservation comission or If none, to the board of selectmen in a town or mayor of a city In which the land upon which such dredging project is located.Such notice shall contain the name and address of the applicant. If the conservation commission, the board of selectmen or mayor fails to notify the applicant at the applicant's address within twenty days of the receipt of such notice of the specific objections to the commencement of such dredging fill or maintenance dredging contemplated under said license, the applicant may commence such work without any further notice to other agencies of the commonwealth. Notwithstanding failure to notify an applicant, as herinbefore provided, the conservation commission, the board of selectmen or mayor may at any time designate an area at which spoilage from the dredging may be placed and may require the relocation of shellfish before such maintenance dredging takes place. If the conservation commission, the board of selectmen or mayor cites specific objections to the notice of Intention,such conservation commission, board of selectmen or mayor may order a hearing as provided in this section and all other per- tinent provisions of this section shall apply. 65 15.12 COASTAL WETLANDS RESTRICTION ACT 15.13 INLAND WETLANDS RESTRICTION ACT Q.L.Ch.130 1105 -G.L.Ch.131,§40A The commissioner of environmental management, with the The commissioner of environmental management, in this approval of the board of environmental management,may from section called the commissioner, with the approval of ine time to time, for the purpose of promoting the public safety, board of environmental management shall from time to time, health and welfare,and protecting public and private property, for the purposes of preserving and promoting the public wildlife and marine fisheries, adopt, amend, modify or repeat safety, private property, wildlife, fisheries, water resources, orders regulating restricting or prohibiting dredging, filling, flood plain areas and agriculture, adopt, amend or repeal or. removing or otherwise altering or polluting, coastal wetlands. ders regulating, restricting or prohibiting dredging, filling, In this section the term "Coastal wetlands" shall mean any removing or otherwise altering or polluting inland wetlands. In bank,marsh,swamp,meadow,flat or other low land subject to this section, the term "inland wetlands" shall include the tidal action or coastal storm flowage and such contiguous land definition of "freshwater wetlands" as set forth in section as the commissioner of environmental management forty,and it shall further include that portion of any bank which reasonably deems necessary to affect by any such order in touches any inland waters or any freshwater wetland,and any carrying out the purposes of this section. freshwater wetland subject to flooding. The commissioner of environmental management shall, The commissioner shall protect flood plain areas by before adopting, amending, modifying or repealing any.such establishing by order that, along any waterway or flood-prone order, hold a public hearing thereon in the municipality in area lines beyond which in the direction of the waterway or which the coastal wetlands to be affected are (coated, giving flood-prone area, no obstruction or encroachment shall be notice thereof to the state reclamation board,the department placed by any person, firm or corporation, public or private, of public works and the department of environmental quality unless authorized by the commissioner.The commissioner, in engineering and each assessed owner of such wetlands by establishing such encroachment lines shall base their location mail at least twenty-one days prior thereto. on the boundaries of the area which have been mapped, Upon the adoption of any such order or any order amending, designated and recorded as inland wetlands in accordance modifying or repealing the same, the commissioner of en- with the provisions of this section., vlronmental management shall cause a copy thereof, together The commissioner shall, before adopting any such order with a plan of the lands affected and a list of the assessed under the preceding paragraphs,hold a public hearing thereon owners of such lands,to be recorded in.the proper registry of in the city or town or watershed region in which the inland deeds or,if such lands are registered,in the registry district of wetlands or flood plains to be affected are located, giving the land court,and shall mail a copy of such order and plan to notice thereof to the state reclamation board, the department each assessed owner of such lands affected thereby. Such of environmental quality engineering,the metropolitan district orders shall not be subject to the provisions of chapter one commission, the selectmen, conservation commissioners and hundred and eighty-four. Any person whoviolates any such assessors of each such city or town,and each assessed owner order shall be punished by a fine of not less than ten nor more of such wetlands or flood plains by certified mail at least than fifty dollars, or by Imprisonment for not more than one twenty-one days prior thereto.For the purposes of this section month,or by both such fine and imprisonment. the person to whom the land was assessed In the last The superior court shall have jurisdiction in equity to preceding annual tax levy shall be deemed to be the assessed restrain violations of such orders. owner thereof, and the notice shall be addressed in the same Any person having a recorded interest in land affected by manner as the notice of such tax levy,unless a different owner any such order, may, within ninety days after receiving notice or a different address Is known by the commissioner to be the thereof,petition the superior court to determine whether such correct one in which case the notice shall be so addressed.No order so restricts the use of his property as to deprive him of order shall be adopted until it is approved by the selectmen or the practical uses thereof and is therefor an unreasonable city council of the town or city in which said wetlands or flood exercise of the police power because the order constitutes the plains are located; provided, that if the selectmen or the city equivalent of a taking without compensation.If the court finds council fail to approve or disapprove in writing,stating reasons the order to be an unreasonable exercise of the police power, for such disapproval, such proposed order within thirty days as aforesaid, the court shall enter a finding that such order after receipt of a written request from the commissioner such shall not apply to the land of the petitioner;provided,however, order shall be deemed to have been approved, and provided, that such findings shall not affect any other land than that of further,if such order is so disapproved the commissioner may, the petitioner. The commissioner of environmental after expiration of six months from the date of such disap- management shall cause a copy of such finding to be recorded proval and after due consideration of the reasons for such forthwith in the proper registry of deeds or, If the land is disapproval,adopt such order or amended order. registered,In the registry district of the land court.The method Upon the adoption of any such order or any order amending provided in this paragraph for the determination of the Issue of or repealing the same, the commissioner shall cause a copy whether any such order constitutes a taking without com- thereof,together with a plan of the lands affected and a list of pensation shall be exclusive, and such issue shall not be the assessed owners of such lands, to be recorded in the determined in any other proceeding, nor shall any person have registry of deeds or the office of the assistant recorder for the a right to petition for the assessment of damages under district wherein the land lies,and shall send by certified mail a chapter seventy-nine by reason of the adoption of any such copy of such order and plan to each assessed owner of land order. affected and to the clerk and board of assessors of each city or The department of environmental management may, after a town in which the land is located. Such order shall not be finding has been entered that such order shall not apply to subject to the provisions of chapter one hundred and eighty- certain land as provided in the preceding paragraph, take the four. The superior court shall have jurisdiction in equity to fee or any lesser interest in such land in the name of the enforce,and remedy violations of,such orders. commonwealth by eminent domain under the provisions of Any person having an interest in land affected by any such chapter seventy-nine and hold the same for the purposes set order, may within ninety days after receiving notice thereof, forth in this sectton. petition the superior court in equity to determine whether such No action by the commissioner of environmental order so restricts the use of his property as to deprive him of management or the department of enviromnental management the practical uses thereof and is therefore an unreasonable under this section shall prohibit,restrict or impair the exercise exercise of the police power because the order consitutes the or performance of the powers and duties conferred or imposed equivalent of a taking without compensation.If the court finds by law on the department of public works, the department of the order to be an unreasonable exercise of the police power, environmental quality engineering,the state reclamation board as aforesaid, the court shall enter a finding that such order or any mosquito control or other project operating under or shall not apply to the land of the petitioner, provided,however authorized by chapter two hundred and fifty-two, that such findings shall not affect any other land than that of the petitioner. The commissioner shall cause a copy of such 66 finding to be recorded forthwith in the proper registry of deeds modifying or appealing the same, the commissioner shall or, if the land is registered, in the registry district of the land cause a copy thereof,together with a plan of the river or stream court. The method provided in this paragraph for the deter- or portion thereof affected and a list of the assessed owners of mination of the issue of whether any such order constitutes a such lands, to be recorded in the registry of deeds for the taking without compensation shall be exclusive, and such county wherein said river or stream is located,and shall mall a issue shall not be determined in any other proceeding, nor copy of such order and plan to each assessed owner of such shall any person have a right to petition for the assessment of lands affected thereby. Such order shall not be subject to the damages.under chapter seventy-nine by reason of the adoption provisions of chapter one hundred and eighty-four. Any per- of any such order, sons who violates any such order shall be punished by a fine of The department of environmental management, in this not less than ten dollars nor more than one hundred dollars,or section called the department may, after a finding has been by imprisonment for not more than six months,or both. entered that such order shall not apply to certain land as The superior court shall have jurisdiction in equity to provided in the preceding paragraph,take the fee or any lesser restrain violations of such orders. interest in such land in the name of the commonwealth by Any person having a recorded Interest in land affected by eminent domain under the provisions of chapter seventy-nine any such order, may, within ninety days after receiving notice and hold the same for the purposes set forth in this section.No thereof, petition the superior court to determine whether such such order shall prohibit, restrict or regulate the use or im- order unreasonably restricts the use of his property as to provement of land or water for agricultural purposes without deprive him of the practical uses thereof and which constitutes the written consent of the owner, provided, however,that any an unreasonable exercise of the police power so as to become subsequent nonagricultural use of land which was filled or the equivalent of a taking without compensation. 11 the court dralned for agricultural purposes at a time when said land was finds the order to be unreasonable, the court shall enter a subject to an order under this section may be regulated, finding that such order shall not apply to the land of the restricted or prohibited by such order. No such order shall petitioner;provided,however,that such finding shalt not affect prohibit,restrict or regulate the exercise or performance of the any other land than that of the petitioner. The commissioner powers and duties conferred or imposed by law upon the shall cause a copy of such finding to be recorded forthwith In department of environmental quality engineering, the the proper registry of deeds or, if the land is registered, in the metropolitan district commission,the division of fisheries and registry district of the land court.The method provided in this game, the Massachusetts Aeronautics commission, or the paragraph for the determination of the issue of whether any state reclamation board, or any mosquito control or other such order constitutes a taking without compensation shall be project operating under or authorized by chapter two hundred exclusive,and such issue shall not be determined in any other and fifty-two. If after following the procedures, hereinbefore proceeding,nor shall any person have a right to petition for the set forth, no such order has become effective as to any par- assessment of damages under chapter seventy-nine by reason ticular land or interest therein, the department may, subject of the adoption of any such order. to a specific appropriation for the purpose, take such land or The department may, after a finding has been entered that Interest therein by eminent domain, or may acquire the same such order shall not apply to certain land as provided in the by purchase,gift or otherwise. Awards of damages, expenses preceding paragraph,take the fee or any lesser interest in such of acquisition of land and water, and expenses Incidental land in the name of the commonwealth by eminent domain thereto and to the preparation of maps and plans of the lands under the provisions of chapter seventy-nine and hold the to be affected,to the holding of hearings, and to the adoption same for the purposes set forth in this section. and recording of orders, as provided in this section, may be No action by the commissioner or the department under this paid out of funds made available for the purpose of section section shall prohibit, restrict or impair the exercise or per- three of chapter one hundred and thirty-two A. formance of the powers and duties conferred or imposed by . The exercise of the power of eminent domain under the law on the department of public works, the state reclamation provisions of this section shall be subject to the approval of board or any mosquito control or other project operating under the board of environmental management,the governor and the or authorized by chapter two hundred and fifty-two. No order executive council. adopted under the provisions of this section shall be deemed to invalidate any order Imposed prior thereto by the depart- 15.14 SCENIC RIVERS ACT-G.L.Ch.40,§15C ment of natural resources, the department of environmental management or the department of environmental quality The commissioner, with the approval of the board of en- engineering pursuant to section twenty-seven A of-chapter one vironmental management, may from time to time, for the hundred and thirty or of sections forty,forty A or one hundred purpose of promoting the public safety, health and welfare, and five of chapter one hundred and thirty-one. and protecting public and private property,wildlife,fresh water Costs Incurred under this section Including, but not limited fisheries, and irreplaceable wild, scenic and recreational river to, the acquisition of lands or Interests therein, awards of resources, adopt, amend, modify, or repeal orders regulating, damages, surveying and mapping, the preparation of restricting or prohibiting dredging, filling, removing or designation plans, printing of reports, conducting of public otherwise altering, or polluting the scenic and recreational hearings, and expenses incidental thereto may be paid In rivers and streams of the commonwealth.The notice required accordance with the provisions of section seventeen of by section two of chapter thirty A as a condition precedent to chapter twenty-one. the adoption or amendment of any regulation shall be given to 15.15 FOREST ASSESSMENT ACT-G.L.Ch.61 each assessed owner of any land on the banks of any such river or stream. In this section, the term "scenic and §11.Forest lands;classification recreational rivers and streams of the commonwealth" shall Except as otherwise hereinafter provided, all forest land, mean, rivers and streams of the commonwealth or portions thereof,and such contiguous land not to exceed one hundred having a value not In excess of four hundred dollars per acre yards on either side of the natural bank of such river as the for land and growth thereon and existing in parcels of not less commissioner reasonably deems it necessary to protect by than ten contiguous acres In area, not used for purposes In- any such order. compatible with forest production shall be listed by the The commissioner,with the approval of said board,may,for assessors as classified forest land upon written application of the purpose of protecting the scenic and recreational rivers the owner which shall Include a description of the area to be and streams of the commonwealth, provide for the restriction classified sufficient for Identification and a certification by the and classification of the waters of said rivers and streams for state forester that such land Is being managed under a planned scenic or recreational purposes. Signs indicating such program to improve the quantity and quality of a continuous restriction or classification shall be posted by the department forest crop. In the case of each application which has been r re reasonable intervals along the banks of said rivers and approved, the board of assessors shall forthwith cause to be at recorded In the registry of deeds of the county or district in streams. which the city or town is situated a statement of its action Upon adoption of any such order or any order amending, which shall constitute a lien upon the land covered by such 67 application for such taxes as may be levied under the The following terms shall have the following meanings when provisions of this chapter.The statement shall name the owner used in this chapter. "forest products" -- wood, timber, or owners and shall include a description of the land adequate Christmas trees,and all other tree or forest growth;"stumpage for Identification.Unless such a statement Is recorded,the Ilan value" - fair market value Immediately prior to severance; shall not be effective with respect to a bona fide purchaser or "cut"--severed or taken from the soil. other transferee without actual knowledge of such lien. The owner of classified forest land shall pay a products tax Discharge of said lien shall be accomplished by the board of equal to eight per cent of the stumpage value of all forest assessors In a similar manner. Once such land has been so products cut therefrom;provided,that the owner may annually classified, it shall remain listed as classified, forest land cut, free of the products tax, forest products from such land regardless of change in ownership, until December thirty-first for his own use or for the use of a tenant of said land, not of the year in which the owner requests in writing that the exceeding one hundred dollars in stumpage value. assessors remove it from such listing or In which it is removed The owner shall annually before May first make a return, in from classification In accordance with other provisions of this such form as shall be approved by the state forester, setting chapter. Land shall be removed from classification unless, at forth the amount of forest products cut from classified forest least every five years, the owner files with the assessors a land during the preceding calendar year and such other In- certification by the state forester that said land is continuing formation as may be required for assessment of the products to be so managed, provided that the assessors or the state tax. The assessors shall annually on or before April first give forester shall have notified the owner of his failure to file and written notice to each owner of record of classified forest land the owner shall not have submitted such certification within that he Is required to make such return.On the basis of such sixty days thereafter. For the purpose of determination of this return or any other available Information the assessors shall certification,neither the state forester nor the assessors shall assess such products tax. assign a higher value to front land employed in forest The owner shall also pay annually a land tax on the bare land, production than they assign to back land employed In forest based upon a valuation of not more than ten dollars per acre,at production. They shall use the mean per acre value, based the rate determined for the taxation of property under chapter upon forest use,of the aggregate acres of the parcel,which are fifty-nine, said land tax to be assessed annually by the employed in forest production. The state forester or his assessors. designee shall have the authority to enter on private lands for Both the products tax and the land tax shall be committed to the purpose of making Investigations to assure compliance the collector for collection In the same manner as taxes with this chapter.Classified forest land shall be exempt from assessed under chapter fifty-nine. The collector shall notify taxation under chapter fifty-nine but shall be subject to the the person assessed of the amount of the tax in the manner taxes provided in section two of this chapter. Buildings and provided in section three of chapter sixty for notification of other structures, and the land on which they are erected and local taxes, and in the collection of taxes under this chapter which Is necessary for their use, shall not be entitled to be the collector shall have all the remedies provided by chapter classified. sixty for the collection of taxes upon real estate. Taxes so If a single parcel or tract of land consists In part of forest assessed shall be due and payable October first of the year in land and In part of other land, the portion consisting of forest which the return is required to be made, and if not paid on or land,if said portion comprises at least ten contiguous acres in before November first of the year of assessment shall bear area and otherwise conforms to the requirements of this interest at the rate of six per cent per annum from the due date section, shall be listed as classified forest land upon ap- to the date of payment. Any person aggrieved by the plication as hereinbefore provided. assessment of a tax under this section may within sixty days An application to have forest land listed as classified forest of the date of notice of the tax apply In writing to the land may be submitted to the assessors at any time prior to assessors, upon a form approved by the commissioner of September first in any year; however, such listing shall take corporations and taxation, for abatement thereof, and if the effect on January first of the year following application or assessors, after hearing, find the tax Is excessive, they shall following the final determination of any appeal therefrom. abate in.whole or in part accordingly. If the tax has been paid, When in the judgment of the assessors land, which is the town treasurer shall repay to the person assessed the classified or which Is the subject of an application,Is not being amount of such abatement,with interest thereon at the rate of managed under such a program or is being used for purposes six per cent per annum, from the time when It was paid. Any Incompatible with forest product production or does not person aggrieved by the refusal of the assessors to abate a tax otherwise qualify under this chapter,the assessors may on or in whole or in part under this section or by their failure to act before October first In any year appeal to the state forester to upon such an application may appeal to the appellate tax board deny the owner's application or, in the case of land already within thirty days after the date of notice of their decision or classified,to remove the land from classification,stating their within three months of the date of the application for reasons and at the same time sending a copy of the appeal to abatement, whichever date is later. Any overpayment on tax the owner of such land. The state forester may on his own determined by decision of said appellate tax board shall be motion initiate on or before October first in any year a reimbursed by the town treasurer with interest at the rate of six proceeding to remove land from classification, sending notice percent per annum from time of payment. of his action to the assessors and the owner.The state forester shall investigate the matter and hold a hearing thereof, if J3. Failure to file return; determining forest products tax; requested by the assessors or the owner within two weeks abatement;appeal after receiving notice of the proceeding.The state forester may If an owner of classified forest land, having failed to file a deny the owner's application, may withdraw all or part of the return, or, having filed an Incorrect or insufficient return, land from classification, or may grant the application, im- without reasonable excuse fails to file an original return or a posing such terms and conditions as he deems reasonable to corrected return, as the case may require,within twenty days carry out the purposes of this chapter, and shall notify the after the.giving of notice to him by the assessors of his assessors and the owner of his decision no later than delinquency,the assessors shall determine the amount of the December first.If the owner or the assessors are aggrieved by products tax due and assess and commit the same at any time the decision,they may prior to December fifteenth petition the within two years after the date upon which the original return superior court in the county in which the land is located for a was due to be made.The owner may apply to the assessors for review under'the provisions of chapter 30A of the General abatement and appeal from their decision as provided in Laws, and said land shall not be classified or withdrawn from section two. A tax so committed shall bear Interest from Oc- classification until the final determination of any such petition. tober first of the year In which the original return was due to be The state forester may,with the approval of the commissioner filed, of environmental management,adopt such regulations as may q, Taxes, a be necessary to carev out his reponsibilities under this chapter. apportionment; special and betterment assessments 12.Definition;forest products taxes;returns;land taxes Classified forest land shall not be included in the town valuation in apportioning the state and county taxes. 68 Classified forest land shall be subject to special assessments horticultural products resulting from such uses together with and betterment assessments; provided, however, that such the amount, if any, .payable under 'a soil conservation or assessments, if for purposes other than the Installation of pollution abatement program of the federal government or the water pipes, shall become due and payable at the time when commonwealth total not less than five hundred dollars per year said land is removed from classification. or-when the use of such land is clearly proven to be for the purpose of achieving an annual total of not less than five §5.Failure to make returns;penalties hundred dollars from such gross sales and program payments Any owner of classif led forest land;who,having received the within the normal product development period as determined notice provided In section two, shall fail to make return as by the farmland valuation advisory commission established provided In section two, shall be subject to a penalty of five pursuant to section eleven of this chapter. In cases where the dollars a day during the period of delinquency, but the land Is more than five acres In area, the gross sales and assessors may for cause abate such penalty in whole or in part; program payment standard above set forth shall be Increased provided,that such penalty shall in no case exceed the amount at the rate of five dollars per acre except in the case of of the products tax assessable under section two. Penalties woodland or wetland for which such Increase shall be at the assessed hereunder shall be added to the tax, and shall bear rate of f Ifty cents per acre. Interest and be ccIlectkble as a part of the tax. §4.Valuation of land;five-acre minimum area requirement;inclusion of contiguous 16.Withdrawal of forest land from classification land under same ownership When the owner of'classified forest land voluntarily with- For general property tax purposes,the value of land,not less draws such land from classification or upon a final deter- than five acres In area, which is actively devoted to mination that said land should be withdrawn from agricultural,horticultural or agricultural and horticultural uses classification,the owner shall pay to the city or town in which during the tax year in issue and has been so devoted for at the land is located an amount determined by the assessors to least the two Immediately preceding tax years, shall, upon equal the difference between the amount of taxes which would application of the owner of such land and approval thereof,be have been paid under chapter fifty-nine and the taxes actually that value which such land has for agricultural or horticultural paid under this chapter from the date of classification to the purposes. For the said tax purposes, land so devoted shall be date of withdrawal plus interest thereon at the rate of eight per deemed to include such contiguous land under the same cent per annum or two hundred dollars per acre, whichever is ownership as is not committed to residential, industrial or smaller. The withdrawal tax imposed by this section shall be commercial use and which is covered by application submitted committed to the tax collector of the city or town for collection pursuant to section six. Land shall be deemed contiguous If it In the same manner as taxes assessed under chapter fifty-nine. is separated from other land under the same ownership only by a public or private way or waterway. §7.Farm lands;applicability of chapter Land under the same ownership shall be deemed contiguous One engaged exclusively In the business of farming In any of if it is connected to other land under the same ownership by an Its aspects shall have the right to lake advantage of the easement for water supply. Such contiguous land shall not provisions of this chapter as respects wild land,and any land exceed In acreage one hundred per cent of.the acreage which so rocky, so filled with Moulders, so hilly and with soil so is actively devoted to agricultural, horticultural or agricultural lacking in fertility or in the ability to grow farm crops of any and horticultural uses. kind,to the extent of'having said land valued at five dollars or less per acre. §5.Contiguous land under one ownership within more than one city or town 15.16 FARM ASSESSMENT ACT•G.L.Ch.61A Where contiguous land in agricultural, horticultural or agricultural and horticultural uses under one ownership Is. §i.Land in agricultural use defined located in more than one city or town,compllance with the five- Land shall be deemed to be In agricultural use when acre minimum area requirements of section four shall-be primarily and directly used in raising animals, Including, but determined on the basis of the entire area of such land and not not limited to, dairy cattle, beef cattle, poultry, sheep, swine, on the basis of the land area which falls within the bounds of horses,ponies,mules,goats,bees and fur-bearing animals,for any particular city or town. the purpose of selling such animals or a product derived from such animals in the regulzir course of business; or when §6.Annual determination of eligibility for valuation; primarily and directly used in a related manner which Is In- application;form;certification cidental thereto and represents a customary and necessary Eligibility of land for valuation, assessment and taxation use in raising such animals and preparing them or the products pursuant to section four shall be determined separately for derived therefrom for market, each tax year.Application therefor shall be submitted to the board of assessors of each city or town in which such land Is §2.Land In horticultural use defined situated not later than October first of the year preceding each Land shall be deemed to be In horticultural use when tax year for which such valuation,assessment and taxation are primarily and directly used in raising fruits,vegetables,berries, being sought and may not thereafter be withdrawn.Application nuts and other foods for human consumption, feed for shall be made on a form prescribed by the commissioner of animals,tobacco, flowers, sod, trees, nursery or greenhouse corporations and•taxation and provided for the use of products,and ornamental plants and shrubs for the purpose of claimants by said board of assessors.Such form shall provide selling such products In the regular course of business; or for the reporting of Information pertinent to the provisions of when primarily and directly used in raising forest products this chapter and of Article XCIX of the Articles of Amendment under a program certified by the state forester to be a planned to the Constitution of the Commonwealth and for certification . program to improve the quantity and quality of a continuous by the applicant that he will Immediately notify the board of. crop for the purpose of selling such products In the regular assessors in writing. of any subsequently developing cir- course of business; or when primarily and directly used in a cumstance within his control or knowledge which may cause a related manner which is Incidental thereto and represents a change in use of the land covered by such form prior to Oc- customary and necessary use in raising such products and toberfirst next following.Any application submitted under this preparing them for market. section and covering leased land shall be accompanied by a written statement signed by any lessee of his Intent to use §3.Land of five-acre minimum area such land for the purposes set forth in said application. A actively devoted to agricultural or horticultural uses defined; certification by a landowner that the information set forth In gross sales and program payment standard his application istrue may be prescribed by said commissioner Land not less than five acres in area shall be deemed to be to be in lieu of a sworn statement to that effect.An application actively devoted to agricultural or horticultural uses when the so certified shall be considered as if made under oath and gross sales of agricultural, horticultural or agricultural and subject to the same penalties as provided by law for perjury. 69 §7.Additional assessment;change In use shall be permitted to file an amendment to the original ap- In pre-tax year between October 1 and December 31 piication. If a change in use of land actively devoted to agricultural, With respect to the first application relating to a parcel of horticultural or agricultural and horticultural use occurs land which has been approved, and any subsequent such between October first and December thirty-first of the year applications after a lapse of time when such land has not been preceding the tax year,the board of assessors shall disallow or valued, assessed and taxed under this chapter or after a nullify the application flied under authority of section six,and, change of record ownership of such land, the board of after examination and inquiry,shall determine the full and fair assessors shall forthwith cause to be recorded In the registry value of said land under the valuation standard applicable to of deeds of the county or district in which the city or town is other land and shall assess the same according to such value. situated a statement of their action which shall constitute a If, notwithstanding such change of use, the land is valued, lien upon the land covered by such application for such taxes assessed and taxed under the provisions of this chapter in the as may be levied under the provisions of this chapter. The ensuing year, upon notice thereof said board shall enter an statement shall name the owner or owners of record and shall assessment and the amount of the Increased fax resulting include a description of the land adequate for identification. from such assessment, as an added assessment and tax Unless such a statement is recorded the lien shall not be ef- against such land, in the"Omitted list" for the particular year fective with respect to a bona fide purchaser or other trans- involved in the manner prescribed in section seventy-five of feree without actual knowledge of such lien.Upon application chapter fifty-nine. The amount of the added assessment shall by any record owner,such liens shall be released by the board be equal to the difference, if any, between the assessment of assessors with respect to any parcel of land as provided imposed under this chapter and the assessment which would below in this section upon the applicable facts being have been imposed had the land been valued and assessed as established by their records or by affidavits or otherwise. other land.The enforcement and collection of additional taxes All liens for conveyance tax under section twelve, shall be resulting from any additional assessment so imposed shall be released upon its being so established that no conveyance or as provided by said chapter fifty-nine. The additional change of use by the owner at the time of such release will assessment imposed under this section shall not affect the result in a conveyance tax under said.section twelve or that any conveyance or roll-back taxes, if any, applicable under sec- such taxes which have become due have been paid. tions twelve and thirteen. All liens for roll-back taxes under section thirteen,other than roll-back taxes based on change of use after the date of such §8.Timely filing of application In towns or cities release,shall be released upon its being so established that no with programs of revaluation not completed roll-back taxes have become due or that any such taxes which by October 1 of pre-tax year have become due have been paid. In any city or town in which a program of revaluation of all The board of assessors shall also have the power and property therein has been or shall be undertaken and com- authority to release any such liens to correct any errors or pleted in time to be reflected in the assessments for the next omissions. Any release under this section shall be recorded succeeding tax year but not insufficient time to permit Ian- with the registry of deeds. downers to make application prior to October first of the pre- When any land has been valued, assessed and taxed under tax year for the valuation, assessment and taxation of their this chapter ceases to be so valued, assessed and taxed the lands for the ensuing tax year on the basis of being actively board of assessors shall forthwith record In the registry of devoted to agricultural or horticultural use, any such ap- deeds a statement to the effect which shall include the name piication which has been or shall be filed with the board of of the record owner or owners,the date when such land ceased assessors after October first and not more than thirty days to be so valued, assessed and taxed and a description of the following the mailing of the tax bill containing the new land adequate for Identification. valuation shall be deemed to have been timely made for the tax year of the revaluation program,notwithstanding any provision §10.Factors to be considered In valuing land of this chapter to the contrary. If such application is approved and the lands qualify for valuation,assessment and taxation as The board of assessors of a city or town,in valuing land with lands actively devoted to agricultural, horticultural or respect to which timely application has been made and ap- agricultural and horticultural use in the ensuing tax-year,that proved as provided in this chapter, shall consider only those portion of any tax assessed for such year which is in excess of indicia of value which such land has for agricultural, hor-* the tax which would have been assessed on such lands had ticultural or agricultural and horticultural uses. Said board, in such application been timely made and approved shall be establishing the use value of such land,shall be guided by the abated. list of ranges of value published puruuant to section eleven and by its personal knowledge,judgment and experience as to 119.Allowance or disallowance of application for valuation; local land values. notice;appeal;liens §11.Farmland valuation advisory commission; An application for valuation, assessment and taxation of annual list of value ranges,determination; land under the provisions of this chapter shall be allowed or publication and distribution;expenditures disallowed by the board of assessors of the city or town in There is hereby created a farmland valuation advisory which such land is located within three months of the filing commission,the members of which shall be the commissioner thereof.An application for valuation,assessment and taxation of corporations and taxation who shall be chairman, the of land under the provisions of this chapter shall be disallowed commissionerof agriculture,the secretary of communities and by the board of assessors of the city or town in which such development, the dean of the college of food and natural land is located if, in their judgment such land, in whole or in resources of the University of Massachusetts, or their part, does not qualify thereunder. If any board of assessors respective designees, and one person to be appointed by the shall determine that any application pursuant to this chapter is governor who shall be a member of a local board of assessors. submitted for the purpose of evading payment of full and The commission shall meet from time to time at the call of any proper taxes, such board shall be and hereby is authorized to of the above named commissioners and shall,prior to January disallow such application jwithin three months following the first of each year,determine,for application during the ensuing filing thereof, shall be deemed an allowance of such ap- tax year,a range of values on a per acre basis for each of the piication. The board of assessors shall, within ten days of an several classifications of land in agricultural or horticultural allowance, or disallowance, send written notice of such uses in the several counties of the commonwealth.The annual allowance,or disallowance,by certified mail to the landowner list of value ranges so determined shall be published by the applicant and shall set forth therein the reason or reasons for commissioner of corporations and taxation and shall be mailed disallowance together with a statement advising the Ian- by him to the board of assessors of each city and town in the downer of his right to appeal therefrom as provided in section commonwealth no later than February first of each year. In nineteen. In the case of a partial disallowance, the landowner determining such ranges in value, the commission shall 70 consider evidence of agricultural or horticultural land use there had been an actual conveyance, and the value of such capability available from soil surveys and such other evidence land for the purpose of determining a total sales price shall be and documentation as may,in Its judgment,appear pertinent, fair market value as determined by the board of assessors of The commissioner of corporations and taxation may expend the city or town involved for all other property. If any tax Im- such sums as may be appropriated from the agricultural posed under this section should not be paid, the collector of purposes fund for the purposes of securing data for use in taxes shall have the same powers and be subject to the same determinations by said commission and for expenses incurred duties with respect to such taxes as in the case of the annual in the administration of this chapter. taxes upon real estate,and the law in regard to the collection §12.Sale of land or change of use; of the annual taxes, to the sale of land for the nonpayment liability for conveyance tax thereof and to redemption therefrom shall apply to such taxes, Any land in agricultural, horticultural or agricultural and so far as the same are applicable. horticultural use which is valued, assessed and taxed under the provisions of this chapter, if sold for other use within a §13.Change of use;liability for rollback taxes period of ten years from the date of Its acquisition or the earliest date of Its uninterrupted use by the current owner in Whenever land which is valued, assessed and taxed under agriculture or horticulture, whichever is earlier, shall be this chapter no longer qualifies as actively devoted to subject to a conveyance tax applicable to the total sales price agricultural, horticultural or agricultural and horticultural use, of such land, which tax shall be in addition to such taxes as it shall be subject to additional taxes,hereinafter referred to as may be imposed under any other provision of law. Said con- roll-back taxes,in the current tax year in which it is disqualified veyance tax shall be at the following rate: ten per cent if sold and in such of the four immediately preceding tax years in within the first year of ownership; nine per cent if sold within which the land was so valued, assessed and taxed; provided the second year of ownership;eight per cent if sold within the that such roll-back taxes shall not be applicable unless the third year of ownership;seven per cent it sold within the fourth amount thereof as computed pursuant to this section,exceeds year of ownership; six per cent if sold within the fifth year of the amount, if any, Imposed under the provisions of section ownership; five per cent if sold within the sixth year of twelve and, in such case, the land shall not be subject to the ownership; four percent if sold within the seventh year of conveyance tax imposed under said section twelve; and ownership; three per cent if sold within the eighth year of provided, further,that no roll-back taxes shall be applicable if ownership; two per cent If sold within the ninth year of the land involved is purchased for a public'purpose by the city ownership; one per cent if sold within the tenth year of or town In which it is situated. For each year, the roll-back tax ownership. No conveyance tax shall be imposed under the shall be an amount equal to the difference,If any,between the provisions of this section following the end of the tenth year of taxes paid or payable in accordance with the provisions of this ownership. Said conveyance tax shall be due and payable by chapter and the taxes that would have been paid or payable the grantor at the time of transfer of the property by deed or had the land been valued, assessed and taxed without regard other Instrument of conveyance and shall be payable to the tax to such provisions. If, at the time during a tax year when a collector of the city or town in which the property is entered change in land use has occurred,the land was not then valued, upon the tax list; provided, that, in the case of taking by assessed and taxed under the provisions of this chapter,then eminent domain, the value of the property taken shall be such land shall be subject to roll-back taxes only for such of determined In accordance with the provisions of chapter the five immediately preceding years in which the land was seventy-nine and the amount of conveyance tax,if any,shall be valued, assessed and taxed thereunder. In-determining the added thereto as an added value;and provided further, that if amount of roll-back taxes on land which has undergone a there is filed with the board of assessors an affidavit by the change in use, the board of assessors shall have ascertained purchaser that such land Is being purchased for agricultural, the following foreach of the roll-back tax years involved: horticultural or agricultural and horticultural use, no con- (a)The full and fair value of such land under the valuation veyance tax shall be payable by the seller by reason of such standard applicable to other land in the city or town; sale, but if such land is not in fact continued in such use, the (b)The amount of the land assessment for the particular tax purchaser shall be liable for any conveyance tax that would year. have been payable on such sale as a sale for other use. Except (c)The amount of the additional assessment on the land for with respect to eminent domain takings,the provisions of this the particular tax year by deducting the amount of the actual section shall not be applicable to the following: mortgage assessment on the land for that year from the amount of the deeds; deeds to or by the city or town In which such land is land assessment determined under subsection(a);and, located;deeds which correct,modify,supplement or confirm a (d) The amount of the roll-back tax for that tax year by deed previously recorded; deeds between husband and wife multiplying the amount of the additional assessment deter- and parent and child when no consideration is received; tax mined under subsection(c)by the general property tax rate of deeds; deeds releasing any property which is a security for a the city or town applicable for that tax year. debt or other obligation; deeds for division of property be- Added by St.1973,c.1118,§1.Amended by St.1975,c.794,§7. tween owners withot monetary consideration;forecloseures of mortgages and conveyances by the foreclosing parties;deeds §14.Sale for or conversion to residential, made pursuant to a merger of a corporation for no con- Industrial or commercial use; sideration other than the cancellation and surrender for no notice of intent to city or town; consideration other than the cancellation and surrender of option to purchase capital stock of such subsidiary which do not change Land which is valued,assessed and taxed on the basis of Its beneficial ownership; and property transferred by devise or agricultural or horticultural use under an application filed and otherwise as a result of death. A nonexempt transfer sub- approved pursuant to this chapter shall not be sold for or Sequent to any exempt transfer or transfers shall be subject to converted to residential, Industrial or commercial use while so the provisions of this section. Upon such nonexempt transfer valued, assessed and taxed unless the city or town in which the date of acquisition by the grantor, for purposes of this such land is located has been notified of Intent to sell for or section, shall be deemed to be the date of the last preceding convert to such other use; provided, however, that the transfer not excluded by the foregoing provisions from ap- discontinuance of the use of such land for agricultural or plication of this section;except that In the case of transfer by a horticultural purposes shall not be deemed a conversion. grantor who has acquired the property from a foreclosing Specific use of land for a residence for the owner or a parent, mortgagee the date of acquisition shall be deemed to be the grandparent, child, grandchild, or brother or sister of the date of such acquisition. Any land in agricultural or hor- owner,or the surviving husband or wife of any deceased such ticultural use which is valued, assessed and taxed under the relative, or for living quarters for any persons actively em- provisions of this chapter, if changed by the owner thereof to ployed full time in the agricultural or horticultural use of such another use within a period of ten years from the date of Its land, shall not be deemed to be a conversion for purposes of acquisition by said owner, shall be subject to the Conveyance this section; and a certificate of the board of assessors, tax applicable hereunder at the time of such change n use as if recorded with the registry of deeds, shall conclusively 71 establish that a particular use is such a use. For a period of subject to liability for conveyance or roll-back taxes applicable sixty days subsequent to such notification, said city or town thereto, but such separation shall not impair the right of the shall have,in the case.of intended sale,a first refusal option to remainder of such land to continuance of valuation, meet a bona fide offer to purchase said land,or,in the case of assessment and taxation thereunder„ provided, that such Intended conversion not involving sale,an option to purchase remaining land continues to qualify under the usage,minimum said land at full and fair market value to be determined by acreage and other provisions thereof. Impartial appraisal. Such notice of Intent shall be sent by the landowner via certified mail to the mayor and city council of a city, or to the board of selectmen of a town, to its board of §1S.Special or betterment assessments. assessors and to Its planning board and conservation com- Land qualifying for valuation, assessment and taxation mission, if any,and said option period shall run from the day under this chapter shall be subject to special assessments or following the latest date of deposit of any such notices in the betterment assessments to such pro rate extent as the service United States mails. No sale or conversion of such land shall or facility financed by such assessment is used for improving be consummated unless and until either said option period the agricultural or horticultural use capability of said land or shall have expired or the landowner shall have been notified in for the personal benefit of the. owner,thereof. Any such writing by the mayor or board of selectmen of the city or town assessment shall, however, upon application, be suspended. in question that said option will not be exercised.Such option during the time the land is in agricultural or horticultural use may be exercised only by written notice signed by the mayor or and shall become due and payable as of the,date when the use board of selectmen, mailed to the landowner by certified mail of such land is changed; provided, however,,that the Interest at such address as may be specified in his notice of intention thereon shall be paid annually. and recorded with the registry of deeds, within the option period. An affidavit by a notary public that he has so mailed §19.Roll-track taxes;procedures for assessment; such a notice of intent on behalf of a landowner shall con- appeal to appellate tax board , clusively establish the manner and time of the giving of such The assessment, collection, apportionment and payment notice;and such an affidavit,and such a notice that the option over of the roil-back taxes imposed by section thirteen shall be will not be exercised,'shall be recorded with the registry of governed by the procedures provided for'the assessment and deeds. Each such notice of Intention,notice of exercise of the taxation of omitted property under section seventy-five of option and notice that the option will not be exercised shall chapter fifty-nine.Such procedures shall apply to each tax year contain the name of the record owner of the land and a for which roll-back taxes may be imposted notwithstanding the } description of the premises so to be sold or converted limitation set forth in said chapter fifty-nine with respect to the adequate for identification thereof;and each such affidavit by periods for which omitted property assessments may be im- a notary public shall have attached to it a copy of the notice of posed. Any person aggrieved. by any determination or Intention to which it relates.Such notice of intention shall be assessment by the board of assessors under this chapter may } deemed to have been duly mailed to the parties above within sixty days of the date of notice thereof apply in writing specified if addressed to them in care of the town or city clerk; to the assessors for modification or abatement thereof. Any and in the case of notice to a city councilor a board or com- person aggrieved by the refusal of the assessors to modify mission,addressed to it a$such entity.The provisions of this such a determination or make such an abatement or by their section shall not be applicable with respect to a mortgage failure to act upon such an application may appeal to the foreclosure sale; but the holder of'a mortgage shall, at least appellate tax board within thirty days after the date of notice of forty-five days before a foreclosure sale,send written notice of' their decision or,within three months of the date of the ap- the time and place of such sale to the parties and in the manner plication,whichever date is later.It shall be'a condition of such above provided in this section for notice,of intent to sell or appeal with respect to the annual general property tax that the convert,and the giving of such notice may be established by asserted tax be paid, but no payment shall be required as a an affidavit of a notary public as above set forth. condition of such appeal with respect to any asserted con- veyance tax or roll-back tax. If any payment of any Imposed by §15.Taxation of buildings and land occupied by dwelling this chapter should be made and as the result of any such All buildings located on land which is valued,assessed and modification or abatement by the board of assessors or taxed on.the basis of-Its agricultural or horticultural uses in decision by the appelate tax board shall appear that any such accordance with the provisions of this chapter and all land tax has'been overpaid, such excess payment shall be reim- occupied by a dwelling or regularly used for family living shall bursed by the town treasurer with interest at the rate of six per be valued, assessed and taxed by the same standards, cent per annum from time'of payment. Collection of any methods and procedures as other taxable property. conveyance,or roll-back taxes, by sale or.taking or otherwise, may be stayed by the appellate tax board while any such'ap- peal is pending..Any.partial payment of the asserted tax that §16.Continuance of land valuation,assessment may be required by the appellate tax board in connection with and taxation under this chapter such stay shall not exceed one half of the asserted tax. dependent upon qualifying use Continuance of land valuation, assessment and taxation §19A.Salo of land;certification of taxes paid orpayable under the provisions of this chapter shall,depend upon con- In connection with any proposed or completed sale or other tinuance of such land in agricultural or horticultural uses and transfer of any land which has been valued, assessed and compliance with other requirements of this chapter and not taxed under the provisions of this chapter,the owner of record upon continuance in the same owner of title to such land. of the land may apply to the board of assessors for a certificate Liability to roll-back taxes, determined pursuant to section of the amount of conveyance tax and roll-back tax, if any, thirteen, shall attach when such land no longer qualifies as payable by reason of such sale or other transfer, or that.no actively devoted to agricultural or horticultural use and shall be such tax will or has so become payable and stating the amount the obligation of the then owner of the land. For purposes of any conveyance or roll-back taxes that have theretofore relating to roll-back taxes such qualification shall depend on become payable with respect to such land; and such a cer- the actual use of such land,and not on the filing of application tificate shall be provided to the applicant within twenty days under section six for any year. after application therefor. Such certificate may be recorded with the registry of deeds; and upon recording of such a cer- §17.Separation of land to other use; tificate that no such tax will or has so become payable, or a liability for conveyance or roll-back taxes; certificate by the collector of taxes that the amount of tax continuing qualification of remainder stated in such certificate of the board of assessors has been It, by conveyance or other action of the owner thereof, a paid, all liens on such land for taxes under this chapter shall portion of land which is valued,assessed and taxed under the terminate, except that any liens for any roll-back taxes provisions of this chapter is separated for a use other than assessed by reason of such land ceasing to qualify for agricultural or horticultural, the land so separated'shall be valuation, assessment and taxation under this chapter after 72 the date of such sale:or other transfer, shall continue. In surface use except for agricultural, farming, forest or outdoor connection with the Issuance of such a certificate,the board of recreational purposes or purposes permitting the land or water assessors may rely upon their own records,affidavits and such area to remain predominantly In Its natural condition, (Q ac- other information as they may deem appropriate.The board of tivities detrimental to drainage, flood control, water con- assessors shall charge six dollars for each certificate so servation,erosion control or soil conservation,or(g)other acts issued,and the money so received shall be paid Into the town or uses detrimental to such retention of land or water areas. treasury. A preservation restriction means a right, whether or not stated In the form of a restriction, easement, covenant or condition,in any deed,will or other Instrument executed by or §20.Valuation and assessment for purposes on behalf of the owner of the land or In any order of taking, other than of this chapter,equalization appropriate to preservation of a structure or site historically For any purpose, other than the provisions of this chapter, significant for its architecture, archeology or associations, to for which the assessed value-of land is relevant, including forbid or limit any or all (a) alterations In exterior or Interior exemptions under the provisions of chapter fifty-nine, land features of the structure, (b) changes in appearance or con- qualifying for taxation.under this chapter shall be valued and ditlon of the site,(c)uses not historically appropriate,(d) field deemed to 'have been assessed by the same standards, Investigation, as defined in section twenty-six A of chapter methods and procedures as other taxable property. nine, without a permit as provided by section twenty-seven C ••1n determining the equalization required by section nine of of said chapter, or (a) other acts or uses detrimental to ap- chapter flfty-eight, the state tax commission shall determine propriate preservation of the structure or site. the value of such land on the basis of its agricultural and horticultural use. §32.Acquisition by governmental body,conservation and preservation restrictlons (See Section 3,Amendments,page 74) No conservation restriction,as defined in section thirty-one, §21.Factual details on tax list held by any governmental body or by a charitable corporation The factual details to be shown on the'tax list of a board of or trust whose purposes include conservation of land or water assessors with respect to land which is valued, assessed and areas or of a particular such area, and no preservation taxed under this chapter shall be the same as those set forth restriction, as defined in section thirty-one, held by any by said board with respect to other taxable property in the governmental body or by a charitable corporation or trust same city or town. whose purposes Include preservation of buildings or sites of historical significance or of a particular such building or site, §22.Rules and regulations;forms and procedures shall be unenforceable on account of lack of privity of estate or The state tax commission shall promulgate such rules and contract or lack of benefit to particular land or on account of regulations and the commissioner shall prescribe the use of the benefit being assignable or being assigned to any other such forms and procedures as they deem appropriate to and governmental body ro id any charitable corporation or trust consistent with effectuation of the purposes of this chapter. city for purposes,provided(a)In case utof a restriction held by a city or town or a commission, authority; or ether In- strumentality thereof It is approved by the commissioner of §23.Use of valuation,etc,procedures to evade taxes;penalties natural resources. If a conservation restriction or the Massachusetts historical commission if a preservation Any person using the valuation, assessment and taxation restriction, and(b)'in case of a restriction held by a charitable procedures set forth In this 'Chapter for-the purposes of corporation or trust It is approved by the mayor, or In cities evading payment of full and proper taxes shall be subject to a having a city manager the city manager,and city council of the fine of not more than ten thousand dollars or imprisonment for city, or the selectmen or town meeting of the town, in which one year or both and to payment to the city or town in which the land is situated,and by the commissioner If a preservation the land is located of an amount equal to three times the restriction. amount of taxes so evaded. Such conservation and preservation restrictions are In- terests In land and may be acquired by any govemmental body or such charitable corporation or trust which has power to §24.Severabllity acquire interest in land, in the same manner as It may acquire If any clause, sentence, subdivision, paragraph, section or other Interests in land.Such a restriction may be enforced by part of this act be adjudged by any court of competent injunction or proceeding in equity, and shall entitle jurisdiction to be invalid, such judgment shall not affect, im- representatives of the holder of. it to enter the land in a pair or Invalidate the remainder thereof, but shall be confined reasonable manner and at reasonable times to assure corn- in its operation to the clause, sentence, subdivision, pliance.Such a restriction may be released,in whole or In part, paragraph, section or part thereof directly involved in the by the holder for such consideration,if any,as the holder may controversy In which said judgment shall have been rendered. determine, in the same manner as the holder may dispose of 16.17 CONSERVATION RESTRICTION ACT- land or other interests In land, but only after a public hearing G.L.Ch.194,§31.33 upon reasonable public notice, by the governmental body §S1.Conservation and preservation holding the restriction or If held by a charitable corporation or trust, by the mayor,or in cities having a city manager the city restrictions,definitions manager, and city council of the city or the selectmen of the A conservation restriction means a right,elther-in perpetuity town, whose approval shall be required, and in case of a or'for a specified number of yearswhether or not stated in the restriction requiring approval by the commission of natural form of a restriction,easement,covenant or condition, in any resources or the Massachusetts historical commission, only deed, will ovother instrument executed by or on behalf of the with like approval of the release. owner of the land or in any order of taking, appropriate to Approvals of restrictions and releases shall be evidenced by retaining land or water areas predominantly in their natural, certificates-of the commissioner of natural resources or the scenic or open condition of in agricultural, farming or forest chairman, clerk or secretary of the commission, city council, use to permit public recreational use, to forbid or limit any or selectmen or town,duly recorded or registered. all (a)' construction or placing of buildings, roads, signs, In determining whether the restriction or its continuance is billboards or other advertising, utilities or other structures on In the public Interest, the governmental body acquiring, or above the ground, (b) dumping or placing of soil or other releasing or approving shall take Into consideration the public substance or material as landfill, or dumping or placing of interest in such conservation or preservation,and any national, trash,waste or unsightly or offensive materials,(c) removal or state, regional and local program In furtherance thereof, and destruction of trees,shrubs or other vegetation,(d)excavation, also anv public state,regional or local comprehensive land use dredging or removal-of-loam, peat,'gravel, soil, rock or other or development plan affecting the land, and any known mineral substance In such manner as to affect the surface,(e) proposal by a governmental body for use of the land. 73 This section shall not be construed to Imply that any restriction having the benefit of section thirty-two, and no restriction, easement, conversant or condition which does not other restriction held by any governmental body, which is not have the benefit of this section shall, on account of any so indexed in the public restriction tract Index shall be en- provision hereof, be unenforceable. Nothing in this section or forceable after thirty years from the recording of the in- sections thirty-one and thirty-three shall diminish the powers strument imposing it unless before the expiration of such granted by any general or special law to acquire by purchase, thirty years there is similarly recorded a notice of restriction gift, eminent domain or otherwise and to use land for public identifying the instrument and Its place of record in the public purposes. records and naming one or more of the owners of record of each parcel of land to be affected by the notice, nor en- §33.Public restriction tract index(fee following Amendments) forceable after twenty years from the recording of any such Any city or town may file with the register of deeds for the notice unless before the expiration of twenty years another county or district In which It is situated a map or set of maps of such notice is so recorded, and in each case the notice is In- the city or town, to be known as the public restriction tract dexdd In the grantor index under the owner or owners named. index,on which may be Indexed conservation and preservation Such notices may be given by any official of a governmental restrictions and restrictions held by any governmental body. body holding the restriciton, by the commissioner of natural Such indexing shall Indicate sufficiently for Identification (a) resources in case of a restriction approved by him, by the the land subject to the restriction,(b)the name of the holder of chairman or acting chairman of the Massachusetts historical the restriction,and(c)the place of record in the public records commission in case of a restriction approved by it, or by any of the instrument imposing the restriction. Maps used by official of any charitable corporation or trust holding the assessors to identify parcels taxed, and approximate boun- restriction or whose purposes include, in case of a con- daries without distances,shall be sufficient,and,where maps servation restriction, the conservation of land or water areas, by parcels are not available, addition to other maps of ap- or, in case of a preservation restriction, the preservation of proximate boundaries of restricted land shall be sufficient. If buildings or sites of historical significance. the names of the holders and the instrument references cannot be conveniently shown directly on the maps, they may be In. Amendments:Acts 1977,Ch.780 dicated by appropriate reference to accompanying lists.Such SECTION 2.Section 31 of chapter 184 of the General laws, maps may also Indicate similarly,so far as practicable,(a)any as amended by chapter 15 of the acts of 1976,is hereby further order or license issued by a governmental body entitled to be amended by adding the following paragraph: recorded or registered, (b) the approximate boundaries of any An agricultural preservation restriction means a right, historic or architectural control district established under whether or not stated in the form of a restriction, easement, chapter forty C or any special act,ordinance or bylaw where a covenant or condition, in any deed, will or other instrument certificate of appropriateness may be required for exterior executed by oir on behalf of the owner of the land appropriate changes, (c) any landmark certified by the Massachusetts to retaining land or water areas predominately in their historical commission pursuant to section twenty-seven of agricultural farming or forest use,to forbid or limit any or all(a) chapter nine,(d)any other land which any governmental body construction or placing of buildings except for those used for may own In fee,or in which it may hold any other interest,and agricultural purposesor for dwellings used for family living by (e) such additional data as the filing governmental body may the land owner, his immediate family or employees; (b) ex- deem appropriate, cavation,dredging or removal of loam,peat,gravel,soil,rock or Whenever any instrument of acquisition of a restriction or other mineral substance in such a manner as to adversely order or other appropriate evidence entitled to be indexed in a affect the land's overall future agricultural potential; and (c) public restriction tract index is submitted for such indexing, other acts or usesdetrimental to such retention of the land for the register shall make, or require the holder of the right to agricultural use. Such agricultural preservation restrictions enforce the restriction or order or interest to make,appropriate shall be in perpetuity except as released under the provisions additions to the tract Index,and such addition shall,as to any of section thirty-two.All other customary rights and privileges restriction or order or other appropriate evidence previously of ownership shall be retained by the owner Including the right recorded entitled to be Indexed, be likewise made on request to privacy and to carry out all regular farming practices. of the holder of the right to enforce it. SECTION 3. Said chapter 184 is hereby further amended by The maps shall be In such form that they can be readily striking out section 32, as most recently amended by section added to, changed and reproduced, and shall be a public 294 of chapter 706 of the acts of 1975, and inserting in place record, appropriately available for public inspection. If any thereof the following section: governmental body,other than a city or town in which the land SECTION 32. No conservation restriction or agricultural affected lies, holds a right to enforce a restriction or order or preservation restriction as defined in section thirty-one, held an Interest entitled to be Indexed In a public restriction tract by any governmental body or by a charitable corporation or index for any city or town which has not filed such an index,or trust whose purposes include conservation of land or water If the commissioner of natural resources or the Massachusetts areas or of a particular such area, and no preservation historical commission approves a conservation or preservation restriction, as defined in section thirty-one, held by any restriction held by a charitable corporation or trust so entitled, governmental body or by a charitable corporation or trust and the city or town does not within one year after written whose purposes include preservation of buildings or sites of request to the mayor or selectmen file a sufficient map or set historical significance or of a particular such building such of maps for the purpose, the holding governmental body or building or site, shall be unenforceable on account of lack or approving commissioner or commission may do so. privity of estate or contract or lack of benefit to particular land The registers of deeds,or a majority of them,may,from time or on account of the benefit being assignable or being to time with the approval of the attorney general, make and assigned to any other governmental body or to any charitable amend rules and regulations for administration of public corporation or trust with like purposes,provided(a)in case of a restriction tract indexes,and the provisions of section thirteen restriction held by a city or town or a commission,authority,or A of chapter thirty-six shall not apply thereto. New tract in- other instrumentality thereof it is approved by the secretary of deees may be filed, from time to time, upon compliance with environmental affairs if a conservation restriction, the com- such rules and regulations as may be necessary to assure missioner of food and agriculture if an agricultural preser. against omission of prior additions and references still ef- vation restriction or the Massachusetts historical commission fective. if a preservation restriction,and(b)in case of a restriction held Except in the case of a restriction noted on the certificate of by a charitable corporation or trust it is approved by the mayor, title of registered land subject hereto, or where the general or in cities having a city manager the city manager,and the city location of the restricted land is indicated on a zoning map council of the city, or the selectmen or town meeting of the published by a city or town with a reference to a marginal note town, In which the land is situated, and the secretary of en• or list indicating the original or then holder of the restriction vironmental affairs if a conservation restriction, the com- and the place of record in the public records of the instrument missioner of food and agriculture if an agricultural preser• imposing the restriction, no conservation or preservation vation restriction or the Massachusetts historical commission 74 if a preservation restriction. words:-or the commissioner of food and agriculture approves Such conservation, preservation, and agricultural preser- a conservation or preservation restriction or agricultural vation restrictions are interests in land and may be acquired by preservation restriction. any governmental body or such charitable corporations or SECTION 6.The fourth paragraph of said section 33 of said trust which have power to acquire interest in the land, in the chapter 184, as appearing In section 5 of chapter 666 of the same manner as it may acquire other interests In land.Such a acts of 1969, is hereby amended by striking out the first sen- restriction may be enforced by Injunction or other proceeding, tence and inserting In place thereof the following two sen- and shall entitle representatives of the holder to enter the land tences: in a reasonable manner and at reasonable times to assure The registers of deeds,or a majority of them,may from time compliance.Such a restriction may be released,in whole or in to time make and amend rules and regulations for ad- part,by the holder for such consideration,if any,as the holder ministration of public restriction tract indexes, and the may determine,in the same manner as the holder may dispose provisions of section thirteen A of chapter thirty-six shall not of land or other-interests in land,but only afters public hearing apply thereto. No such rule, regulation or any amendment upon reasonable public notice, by the governmental body thereof shall take effect until after It has been approved by the holding the restriction or if held by a charitable corporation or attorney general. trust, by the mayor,or in cities having a city manager the city SECTION 7. Said section 33 of said chapter 184 is hereby manager, the city ocuncil of the city or the selectmen of the amended by striking out the fifth paragraph, as amended by town, whose approval shall be required, and in case of a section 296 of chapter 706 of the acts of 1975,and inserting In restrictton requiring approval by the secretary of en- place thereof the following paragraph: vironmental affairs, the Massachusetts historical commission Except in the case of a restriction noted on the certificate of or the commissioner of food and agriculture, only with like title of registered land subject thereto, or where the general approval of the release. location of the restricted land is Indicated on a zoning map No restriction that has been purchased with state funds published by a city or town with a reference to a marginal note shall be released unless it Is repurchased by the land owner at or list indicating the original or then holder of the restriction Its then current fair market value, Funds so received shall and the place of record in the public records of the Instrument revert to the fund sources from which the original purchase imposing the restriction, no conservation, preservation was made, or, lacking such source,shall be made available to restriction or agricultural preservation restriction having the acquire similar interests In other land. Agricultural preser- benefit of section thirty-two, and no other restriction held by vation restrictions shall be released by the holder only if the any governmental body, which is not so indexed in the public land is no longer deemed suitable for agricultural, or hor- restriction tract index shall be enforceable after thirty years ticultural purposes or unless two-thirds of both branches of from the recording of the instrument Imposing it unless before the general court, by a vote taken by yeas and nays, vote that expiration of such thirty years there is similarly recorded a the restrictions shall be released for the public good. notice of restriction identifying the Instrument and its place of Approvals of restrictions and releases shall be evidenced by record in the public records and naming one or more of the certificates of the secretary of environmental affairs or the owners of record of each parcel of land to be affected by the chairman, clerk or secretary of the Massachusetts historical notice, nor enforceable after twenty years from the recording commission, the commissioner of food and agriculture, city of any such notice unless before the expiration of twenty years council,or selectmen of the town,duly recorded or registered. another such notice is so recorded.Such notices may be given In determining whether the restriction or Its continuance is by any official of a governmental body holding the restriction, in the public interest, the governmental body acquiring, by the secretary of environmental affairs in case of a restric- releasing or approving shall take into consideration the public tion approved by him, by the chairman or acting chairman of Interest in such conservation, preservation or agricultural the Massachusetts historical commission in case of a preservation, and any national, state, regional and local restriction approved by It, by the commissioner of food and program in furtherance thereof, and also any public state, agriculture in case of a restriction approved by him,or by any regional or local comprehensive land use or development plan official of any charitable corporation or trust holding the affecting the land,and any known proposal by a governmental restriction or whose purposes include, In case of a con- body for use of the land. servation restriction, the conservation of land or water areas, This section shall not be construed to imply that any or in case of a preservation restriction, the preservation of restriction, easement, covenant or conditon which does not buildings or sites of historical significance, in case of an have the benefit of this section shall, on account of any agricultural preservation restriction the preservation of provisions hereof,be unenforceable.Nothing in this section or agricultural lands, section thirty-one and section thirty-three shall diminish the SECTION 8. The registers of deeds shall promulgate on or powers granted by any general or special law to acquire by before January first, nineteen hundred and eighty, rules and purchase, gift, eminent domain or otherwise to use land for regulations required by the fourth paragraph of section thirty- public purposes. three of chapter one hundred and eighty-four of the General Nothing in this section shall prohibit the department of Laws,as amended by section six of this act. public utilities from authorizing the taking of easements for SECTION 9.To meet the expenditures necessary in carrying the purpose of utility services provided that (a) said depart- out the provisions of this act, the state treasurer shall, upon ment shall require the minimum practicable Interference with request of the governor,issue and sell at public or private sale farming operations with respect to width of easement, pole bonds of the commonwealth, registered or with interest locations and other pertinent matters, (b) the applicant has coupons attached, as he may deem best,to an amount to be received all necessary licenses, permits approvals and other specified by the governor from time to time,but not exceeding authorizations from the appropriate state agencies, (c) the in the aggregate, the sum of five million dollars. All bonds applicant shall compensate the owner of the property in the issued by the commonwealth as aforesaid shall be designated same manner and at the same fair market value as If the land on their face, Agricultural Preservation Restriction Outlay were not under restriction. Loan, Act of 1977,and shall be on the serial payment plan for SECTION4. The first sentence in the first paragraph of such maximum term of years, not exceeding ten years, as the section 33 of said chapter 184, as appearing in section 5 of governor may recommend to the general court pursuant to chapter 666 of the acts of 1969, is hereby amended by striking Section 3 of Article I-XII of the Amendments to the Con- out, in line 4, the words "and preservation restrictions" and stitution of the Commonwealth,the maturities thereof to be so inserting in place thereof the words: -, preservation and arranged that the amounts payable In the several years of the agricultural preservation restrictions. period of amortization, other than the final year, shall be as SECTION 5.The second sentence of the third paragraph of nearly equal as in the opinion of the state treasurer It is said section 33 of said chapter 184,as amended by section 295 practicable to make them.Said bonds shall bear Interest semi- of chapter 706 of the acts of 1975, is hereby further amended annually-at such rate as the state treasurer, with the approval by striking out,in line 7,the words"approves a conservation or of the governor, shall fix.The initial maturities of such bonds preservation restriction" and inserting in place thereof the shall be payable not later than one year from the date of Issue 75 thereof and the entire issue not later than June thirtieth, minimize and prevent damage to the environment. Any nineteen hundred and ninety-two. determination made by an agency of the commonwealth shall SECTION 10. The commissioner of food and agriculture Include a finding describing the environmental Impact, If any, shall appoint a task force to consider mechanisms for the of the project and a finding that all feasible measures have protection and promotion of agriculture in the commonwealth, been taken to avoid or minimize said Impact. Including but not limited to the designation of agricultural As used in this section and section sixty-two"damage to the districts, creation of a land trust, and extension of the environment' shall mean any destruction, damage or im- agricultural preservation restriction program to cover other pairment,actual or probable,to any of the natural resources of lands and other mechanisms of financing.The taks force shall the commonwealth and shall include but not be limited to air report its recommendations to the general court from time to pollution,water pollution,improper sewage disposal,pesticide time,and shall submit a preliminary report to the general court pollution, excessive noise, Improper operation of dumping on or before January first,nineteen hundred and seventy-eight. grounds, impairment and eutrophication of rivers, streams, Approved December 1,1977. flood plains,lakes,ponds,or c+her surface or subsurface water resources;destruction of seashores,dunes,marine resources, 15.17(b)Acts of 1977,Ch.232. underwater archaeological resources, wetlands,open spaces, natural areas, parks, or historic districts or sites. Damage to SECTION 1. Section 5 of chapter 40 of the General Laws Is the environment shall not be construed to include any in- hereby amended by adding after clause (69), inserted by significant damage to or impairment of such resources. section 1 of chapter 416 of the acts of 1976, the following Added by St.1972,c.781,§2.Amended by St.1973,C.989,§4. clause:- (70),For acquiring restrictions in perpetuity as defined in Section62. sections thirty-one to thirty-three, inclusive, of chapter one For the purposes of sections sixty-one to sixty-two H, in- hundred and eighty- four, for the purpose of retaining lands clusive,the following words shall have the following meanings predominantly in their agricultural or'horticultural use, on unless the context otherwise requires: lands devoted to agricultural or horticultural uses as defined in "Agency"; an agency, department, board, commission or sections one to five,inclusive,of chapter sixty-one A. authority of the commonwealth, and any authority of any SECTION 2. Section 7 of chapter 44 of the General Laws is political subdivision which is specifically created as an hereby amended by striking out clause (3), as appearing in authority under special or general law. section 1 of chapter 88 of the acts of 1974, and Inserting in "Permit," a permit determination, order or other action, place thereof the following clause:- including the issuance of a lease, license, permit, certificate, (3)Far acquiring land,or interests in land,for any purpose variance,approval or other entitlement for use,granted to any for which a city or town Is or may hereafter be authorized to person, firm or corporation, including trusts, voluntary acquire land or interests therein, not otherwise specifically association or other forms of business organizations by an provided for; for the construction of buildings which cities agency for a project but shall not include a general entitlement or towns are or may hereafter be authorized to construct,or to a person to carry on a trade or profession or to operate for additions to such buildings where such additions in- mechanical equipment which does not depend upon the crease the floor space of said buildings, Including the cost location of such trade or operation. of original equipment and furnishings of said buildings or "Person," a private person, firm or corporation, or any additions,twenty years. governmental entity which is not an agency. "Project," work, project, or activity either directly un- dertaken by an agency, or if undertaken by a person, which 15.J8 Scenic Roads Act•Q.L.Ch.40,§15C seeks the provision of financial assistance by an agency, or requires the issuance of a permit by an agency but shall not Upon recommendation or request of the planning board, include a grant of aid for medical services or personal support, conservation commission,or historical commission of any city such as welfare or unemployment funds, to an individual or a or town,such city or town may designate any road in said city third party on behalf of an Individual. or town, other than a numbered route or state highway, as a scenic road. Section 62A. After a road has been designated as a scenic road any repair, A person applying or Intending to apply to an agency for a maintenance, reconstruction, or paving work done with permit or for financial assistance for a project may,at any time respect thereto shall not Involve or include the cutting or prior to, but, in any event, shall no later than ten days after removal of trees, or the tearing down or destruction of stone filing the first application for such permit or assistance notify walls,or portions thereof,except with the prior written consent the secretary of environmental affairs of the nature of the of the planning board, or If there is no planning board, the project and of such application, if any, on such forms as said selectmen of a town,or the city council of a city,after a public secretary shall prescribe and shall transmit copies of said hearing duly advertised twice in a newspaper of general cir- notification forms to such agency from which a permit or culation in the area, as to time, date, place and purpose, the financial assistance is or may be sought. Any agency last publication to occur at least seven days prior to such proposing a project may file said notification forms prior to the hearing. development of the project and shall file said forms no later Designation of a road as a scenic road shall not affect the than the secretary of environmental affairs shall by regulation eligibility of a city or town to receive construction or recon- prescribe. Within thirty days after issuance of notice of the struction aid for such road pursuant to the provisions of receipt of such notification, the secretary shall consult with chapter ninety. the person or agency proposing the project and the agency, if any, from which a permit or financial assistance is or may be 15.19 MASSACHUSE"S ENVIRONMENTAL POLICY ACT sought and shall Issue a certificate stating whether an en- a.L.CH.30,§81.62 vironmental Impact report Is required. If a report is required, the secretary with the cooperation of said person and agency §61. Determination of Impact by agencies; damage to on" shall, within the above mentioned thirty day period, limit the vironment; prevention of minimizing; definition applicable to scope of the report to those issues which by the nature and this section and section 62 location of the project are likely to cause damage to the en- All agencies, departments, boards, commissions and vironment. The secretary shall determine the form, content, authorities of the commonwealth shall review, evaluate, and level of detail and alternatives required for the report. In the determine the Impact on the natural environment of all works, case of a permil application to an agency from a private person projects or activities conducted by them and shall use all for a project for which financial assistance is not sought the practicable means and measures to minimize damage to the scope of said report and alternatives considered therein shall environment. Unless a clear contrary intent is manifested, all be limited to that part of the project which is within the subject statutes shall be interpreted and administered so as to matter jurisdiction of the permit. Any finding required by 76 section sixty-one shall be limited to those matters which are tend'the'review period for a draft report on a major and com- within the scope of the environmental impact report, If any, plicated project for a period not to exceed thirty days. A required by this section, statement of the secretary indicating whether or not In his In the case of a major and complicated project,the secretary judgment said report adequately and properly complies with of environmental affairs, with the agreement of the agencies the provisions of sections sixty-two to sixty-two H, Inclusive, and persons who are proposing, providing public financial shall be Issued within seven days after the public and agency assistance for or Issuing permits for a project subject to review period.The approval or disapproval of said secretary of sections sixty-two to sixty-two H, inclusive, may establish a any such report shall not be required. specific procedure for evaluation and review to the en- At least twice per month the secretary shall issue notice of vironmental Impacts of said project. This section shall not all filings and of the availability of all reports received during apply to the placing, maintaining, repairing or relocating of the preceding half month, which notice shall be In such form poles, wires, conduits, cables, pipes and associated fixtures as the secretary shall determine is reasonably sulted to In- by public utility companies under section seventy-one of forming all Interested agencies and persons of the receipt of chapter one hundred and sixty-four and sections twenty-one to such filings and the availability of such reports. twenty-two,inclusive,of chapter one hundred and sixty-six. Section 62D. Section 628. Agencies shall act on permit applications within ninety days In the case of projects directly undertaken by an agency,the following Issue of notice 'of availability of the final en- environmental impact report shall be prepared and submitted vironmental Impact report, within ninety days following issue by the responsible agency. If two or more agencies are of notice of the determination-that a report is not-required,or responsible,a joint report shall be prepared and submitted by ninety days following the permit application; whichever Is the agency designated by the secretary of environmental at- latest,unless otherwise provided by law. -, fairs.in the case of projects which require a permit or financial assistance from an agency, said report shall be prepared and Section62E. submitted by the person or agency seeking the permit or With the approval of._the secretary of the executive office financial assistance: having jurisdiction over an agency,or If an agency is not within Public funds made available for the purpose of design of or an executive office, with'the approval of such agency, the planning or undertaking a project subject to sections sixty-two secretary of environmental affairs shall establish general and to sixty-two H, Inclusive, may be expended for the research, special categories of projects and permits.which shall or shall preparation, and publication of the report and expenses in- not require environmental Impact reports based upon the cidental thereto, and said funds may be transferred or scope and duration of potential Impacts from the nature, size otherwise may be made available to other agencies designated and location of said projects or portions thereof which require by the secretary of environmental affairs to evaluate the draft permits. or f inai report. I . An environmental Impact report shall contain statements Section62F. describing the nature and extent of the proposed project and A project may commence prior to compliance with sections Its environmental impact; all measures being utilized to sixty-two to sixty-two H, inclusive, If emergency action by a minimize environmental damage; any adverse short-term and person or agency is essential to avoid or eliminate a threat to long-term environmental consequences which cannot be public health or safety, or a threat to any natural resources; avoided should the project be undertaken; and reasonable provided,that wherever practicable,the agency or person shall alternatives to the proposed project and their environmental obtain the prior approval of the secretary of-environmental consequences. The secretary shall encourage agencies and affairs. Following commencement of any such project, the persons to commence preparation of reports during the initial agency or person shall promptly, but In any case within sixty planning and design phase of projects. Said report shall be days, commence compliance with the provislons of sections prepared and disseminated to Inform the originating or par- sixty-two to sixty-two H,inclusive. mitting agency, reviewing agencies, the appropriate regional In the case of an urban renewal project proposed under planning commission, the attorney general and the public of chapters one hundred and twenty-one A or one hundred and the environmental consequences of state actions and the twenty-one 8,the specific procedure under section sixty-two A alternatives thereto prior to any commitment of state funds for may permit land acquisition and otheractlons required for land and prior to the commencement of the project if undertaken by acquisition to take place prior to the publication of the final an agency or prior to the Issuance of any permit or grant of environmental impact report provided that'the secretary has financial assistance for the project if undertaken by a person. issued notice of availability of an interim environmental Impact report which demonstrates to the satisfaction of said secretary Section 62C. that an urban renewal project may be carried out on the Any environmental impact report shall be submitted to the proposed land with appropriate constraints as may be secretary of environmental affairs who shall issue. public necessary :to minimize and prevent damage to the en- notice of the availability of such report. • vironment. A reviewing agency or person, and any agency which has jurisdiction by law or special expertise with respect to any Section 62G. environmental Impact involved may submit written comments In the case of projects for which an environmental Impact on any draft or final environmental Impact report to the statement is required under the National Environmental Policy secretary of environmental affairs who shall affix any such Act of 1969, draft and final federal environmental Impact comments which are timely received to his statement'on such statements may be submitted in lieu of environmental Impact reports. Said reports and any comments submitted in review reports. thereof shall be public documents. No agency shall untertake a project which is not exempted Section 62H. by the provisions of any law and which may cause damage to An agency or person Intending to commence an action or the environment or grant a permit or financial assistance for proceeding alleging an improper determination of whether a such a project until sixty days after the secretary 'of'en- project requires the preparation of an environmental impact vironmental affairs Issues such notice, provided that an report under section sixty-two A, shall first provide notice of agency or person may undertake research, planning, design intention to commence such action or proceeding within sixty and other preliminary work necessary to describe and evaluate days of Issuance of notice of such determination.An agency or such projects for the purposes of sections sixty-two to sixty- person intending to commence an action of proceeding two H,Inclusive alleging that a final environmental impact report falls to There shall be a public and agency review period of thirty comply with the requirements of sections sixty-two to sixty- days from the notice of availability of any draft or final report, two G, Inclusive, shall first provide notice of Intention to provided that the secretary of environmental affairs may ex- commence such action or proceeding within sixty days of 77 issuance of notice of availability of said final environmental Inclusive,as so amended. Impact report pursuant to section sixty-two C. Said notices of SECTION 5. Sections sixty-two to sixty-two H of chapter intention shall be In such form as the secretary of en- thirty of the General Laws,as amended by section one of this vironmental affairs shall prescribe, shall identify with par- act, shall take effect on February fifteenth, nineteen hundred ticularly the issues to be considered in any such action or and seventy-eight. proceeding, shall be in lieu of the notice and waiting period Approved January 10,1978. required by section seven A of chapter two hundred and fourteen, and shall be provided to the attorney general, the agency or person proposing the project and the secretary of 15.20 CITIZENS'RIGHT OF ACTION LAWS-G.L.CH.214,§TA; environmental affairs. CH.30A,§10A Any action or proceeding alleging an improper deter- mination that a project requires the preparation of an en- Ch.214,§7A. vironmental Impact report under section sixty-two A shall As used in this section, "damage to the environment" shall commence no later than thirty days following the first mean any destruction, damage or impairment, actual or Issuance of a permit or grant of financial assistance by an probable, to any of the natural resources of the com- agency or no later than sixty days after issuance of notice of monwealth, whether caused by the defendant alone or by the such determination, whichever occurs later, for a private defendant and others acting jointly or severally.Damage to the project, or no later than one hundred and twenty days after environment shall include, but not be limited to, air pollution, Issuance of notice of such determination for a public project. water pollution,improper sewage disposal,pesticide pollution, Any action or proceeding alleging that a final environmental excessive noise, improper operation of dumping grounds, impact report fails to comply with the provisions of sections Impairment and eutrophlcation of rivers,streams,flood plains, sixty-two to sixty-two G, inclusive, shall commence no later lakes, ponds or other water resources, destruction of than thirty days following the first Issuance of a permit or grant seashores,dunes,wetlands,open spaces,natural areas,parks of financial assistance by an agency for a private project or no or historic districts or sites. Damage to the environment shall later than one hundred and twenty days after issuance of not include any insignificant destruction, damage or im- notice of availability of said final environmental impact report pairment to such natural resources. under section sixty-two C,for a public project. As used in this section"person" shall mean any individual, No allegation shall be made in any action or proceeding association, partnership, corporation, company, business under this section unless the matter complained of was raised organization, trust, estate,the commonwealth or any political at the appropriate point in the administrative review subdivision thereof, any administrative agency, public or procedures; provided that a matter may be raised upon a quasi-public corporation or body,or any other legal entity or its showing that it is material and that it was not reasonably legal representatives,agents or assigns. possible with due diligence to have raised it during such The superior court for the county In which damage to the procedures or that the matter sought to be raised is of critical environment is occurring or is about to occur may,upon a civil Importance to the environmental impact of the project. action in which equitable or declaratory relief is sought in If the court determines that an agency or person proposing a which not less than ten persons domiciled within the corn- project has knowingly concealed a material fact or knowingly monwealth are joined as plaintiffs,or upon such an action by submitted false information in any form or report required any political subdivision of the commonwealth, determine under sections sixty-two to sixty-two H,inclusive,limits on the whether such damage is occurring or is about to occur and manner and time in which actions or proceedings may be may, before the final determination of the action, restrain the commenced shall not apply and the secretary of environmental person causing or about to cause such damage; provided, affairs may require the preparation and review of such forms or however, that the damage caused or about to be caused by reports as may be necessary to correct any deficient form or such person constitutes a violation of a statute, ordinance, report. bylaw or regulation the major purpose of which is to prevent or The secretary of environmental affairs shall, after con- minimize damage to the environment. sultation with other secretaries of executive offices and with No such action shall be taken unless the plaintiffs at least agencies not within executive offices, promulgate reasonable twenty-one days prior to the commencement of such action rules and regulations to carry out the purposes of sections direct a written notice of such violation or Imminent violation sixty-two to sixty-two H,inclusive. by certified mail, to the agency responsible for enforcing said SECTION 2.In the event that the federal government permits statute,ordinance,bylaw or regulation,to the attorney general, delegation of authority for implementation of the National and to the person violating or about to violate the same; Environmental Policy Act to the states, the secretary of en- provided, however, that if the plaintiffs can show that vironmental affairs is authorized and directed to seek and to irreparable damage will result unless immediate action is taken take such actions as may be necessary to secure such the court may waive the foregoing requirement of notice and delegation to the commonwealth. issue a temporary restraining order forthwith. SECTION 3. Any agency or person proposing a project for It shalt be a defense to any action taken pursuant to this which any filing has been made with the secretary of en- section that the defendant is subject to, and in compliance In vironmental affairs prior to the effective date of sections sixty- good faith with, a judicially enforceable administrative two to sixty-two H, inclusive, of chapter thirty ofjhe General pollution abatement schedule or implementation plan the Laws as amended by section one of this act,may elect to have purpose of which is alleviation of damage to the environment said project reviewed either under the provisions of said complained of, unless the plaintiffs demonstrate that a danger sections sixty-two to sixty-two H, inclusive, or under the to the public health and safety justifies the court in retaining provisions of section sixty-two of chapter thirty in effect prior jurisdiction. to the effective date of this act. Any action brought pursuant to the authorization contained SECTION 4.The provisions of section sixty-two E of chapter in this section shall be advanced for speedy trial and shall not thirty of the General Laws,as amended by section one of this be compromised without prior approval of the court. act, under which the secretary of environmental affairs is If there Is a finding by the court in favor of the plaintiffs it required to establish general and special categories of may assess their costs, including reasonable fees of expert projects and permits which shall or shall not require en- witnesses but not attorney's fees; provided, however, that no vironmental impact reports shall take effect on July first, such finding shall include damages. nineteen hundred and seventy-eight. From February fifteenth The court may require the plaintiffs to post a surety or cash to June thirtieth, nineteen hundred and seventy-eight, the bond in a sum not to exceed five hundred dollars to secure the classes of categorically exempt activities in regulations im- payment of any costs which may be assessed against the plementing section sixty-two of chapter thirty of the General plaintiffs in the event they do not prevail. Laws in effect prior to February fifteenth, nineteen hundred Nothing contained in this section shall be construed so as to and seventy-eight, shall remain in full force and effect and Impair,derogate or diminish any common law or statutory right shall govern compliance with sections sixty-two to sixty-two H, or remedy which may be available to any person, but the cause 78 of action herein authorized shall be in addition to any such right or remedy. Ch.30A,§10A. Notwithstanding the provisions of section ten,not less than ten persons may Intervene in any adjudicatory proceeding as defined In section one,in which damage to the environment as defined in section seven A of chapter two hundred and four- teen, is or might be at Issue; provided, however, that such Intervention shall be limited to the issue of damage to the environment and the elimination or reduction thereof in order that any decision in such proceeding shall include the disposition of such issue.Notwithstanding any other provision of this chapter, any intervener under this section may in- troduce evidence,present witnesses and make written or oral argument, except that the agency may exclude repetitive or irrelevant material. Any such Intervener shall be considered a party to the original proceeding for the purposes of notice and any other procedural rights applicable to such proceeding under the provisions of this chapter, including specifically the right of appeal. 15.21 TIMBER SLASH LAW-O.L.Ch.48,§16 Every owner, lessee, tenant or occupant of lands,or of any rights or interests therein, except electric, telephone and telegraph companies,who cuts or permits the cutting of brush, wood or timber on lands which border upon woodland of another, or upon a highway or railroad location, shall dispose of the slash caused by such cutting in such a manner that the same will not remain on the ground within forty feet of any woodland of another, or of any railroad location, or of one hundred feet from the center of any highway, and all slash resulting from such cutting operations shall be cut and scattered in such a manner as to minimize the danger from fire. Where multiple highway systems exist adjacent to cuttings,no slash shall be permitted within one hundred feet from the outer edge of the highway. No slash shall be permitted within twenty-five feet o1 any brook, stream, pond, river or water supply.For the purposes of this section the word"slash"shall have the following meanings: tops,branches, slabs, sawdust, or debris left from logging or land clearing operations. 79 Chapter 16 Forms and Models 16.01 Warrant Article to Establish Conservation Commission 16.02 Conservation Commission Bylaws: Operations and Meetings 16.03 Conflict of Interest Disclosure Form 16.04 Warrant Article for Land Purchase 16.05 Deed of Land 16.06 Deed of Gift in Trust 16.07 Regulations for Use of Conservation Commission Land 16.08 License of Conservation Commission Land 16.09 Self-Help Step Procedures 16.10 HCRS Step Procedures 16.11 Conservation Restriction over Parcel 16.12 Conservation Restriction over Strip 16.13 Guidelines to Taxing Conservation Restriction Land 16.14 Flood-PlainlWetlands Protection Zoning Bylaw 16.15 HUD Flood Insurance Flood Plain District Regulations 16.16 WPA: Notice of Intent 16.17 WPA:Order of Conditions-Approval 16.18 WPA:Order of Conditions-Denial 16.19 WPA: Request to Determine Applicability 16.20 WPA: Determination of Aplicability 16.21 WPA: Extension 16.22 WPA: Certificate of Compliance 16.23 WPA: Certificate of Emergency 16.24 WPA: Request for Compliance 16.25 WPA:Cease and Desist Order 16.26 WPA: Recommended Procedures for Enforcement 16.27 WPA: Enforcement by Criminal Complaint 16.28 WPA: Attorney General Memo reMacGibbon Case 16.29 Scenic Roads Bylaw 16.30 Earth Removal Bvlaw 16.31 Transfer of municipally-owned land to Conservation Commission jurisdiction 80 16.01 WARRANT ARTICLE TO ESTABLISH COMMISSION(Applicable to Town only) To see If the Town of will accept the provisions of G.L.Ch 40,Sec.8C as amended and es• tablish the Conservation Commission of the Town of for the purposes and with the rights and duties provided by law,to be composed of(3 to 7)members appointed by the Selectmen for terms of three years each,except that initial appointments shall be:(two)for one year,(two)for two years and(three)for three years;...and that there be established a Con- servation Fund as authorized by law and that$ be raised and appropriated for the maintenance of such Commission and$ be appropriated to such Conservation Fund,to be under the control of such Commission. 16.02 MODEL BY-LAWS FOR A CONSERVATION COMMISSION GOVERNING OPERATION AND MEETINGS OF minutes of meetings to each member by mall,and shall notify THE CONSERVATION COMMISSION each member of each meeting of the Commission.This person shall perform all other duties Imposed by law,assigned by the 1.NAME AND PURPOSE Chairman,or otherwise herein provided. A. The name of this organization shall be the Can- D.Financial Secretary servation Commission,herein called the Commission, The Financial Secretary shall recommend action on all bills B. The purpose of the Commission is to promote and. received by the Commission, insure that the appropriate develop the natural resources and to protect the watershed authorizing signatures are secured on these bills,transmit duly resources of the town/city,as provided for under G.L. Ch40 S. authorized bills to the appropriate municipal office for 8C as amended.The commission will conduct researches Into disbursement approval required or payment, and shall coor- local land areas and develop a plan to accomplish the purpose dlnate with the city or town Treasurer and Accountant so that set forth above. It will conduct a broad educational program, he is prepared to render a report on the status of all funds cooperate with the elected and appointed Boards and Com- under the jurisdiction of the Commission at each meeting,and missions of the Town/City and with the State and Federal shall perform all other duties Imposed by law,assigned by the Natural Resources agencies with regard to natural resources Chairman,or otherwise herein provided. regulatlons and other regulations imposed by taw, and shall perform other duties as may be Imposed by law. IV.CONSULTANTS AND HONORARY MEMBERS 11.ELECTIONS The Commission may, by vote at any meeting, appoint The officers of the Commission shall be elected from the consultants to the Commission(see G.L.Ch.40,Sec.8C).Such membership annually in the first meeting of the Commission consultants shall not have the right to vote, nor to represent after the Annual Town Meeting(In a town)or after the Annual themselves as official members of the Commission, but shall Dateof Appointments(in a city)or at such other time as may be have the right to participate In meetings and activities of the designated by amendment of these bylaws. This meeting shall Commission as the Chairman may designate. be designated the election meeting. The Commission may elect Honorary members from former The following officers shall be elected: Chairman, Vice- members of the Commission. Such members shall have the Chairman,Recording Secretary,and Financial Secretary. same rights and privileges as consultants. 111.OFFICERS V.DUTIES OF MEMBERS A.Chairman The members of the Commission shall perform the duties The Chairman shall,in addition to the duties Imposed by law, and responsibilities as set forth in Massachusetts General preside at all meetings of the Commission at which he Is Laws, Ch. 40, Sec. 8C as amended; the Massachusetts Con- present, and direct the work of the Commission. This person servation Comisslon Environmental Handbook; and these shall annually appoint members to committees and designate bylaws. chairman of same as provided for under Article V no later than Members who will be unable to attend a meeting of the the first meeting of the Commission following the election Commission shall notify the Secretary. meeting and shall direct the calling of meetings of the Com- Members shall make every effort to attend all meetings and mission. The Chairman shall be an ex-officlo member of all perform all duties assigned by the Chairman. committees. VI.COMMITTEES S.Vice-Chairman The Vice-Chalrman shall preside at all meetings of the Commtltes may be created by vote of the Commission as Commission in the absence of the Chairman,and shall perform such committees may be needed. These committees shall be all duties and shall have all powers of the Chairman in case of responsible for planning within their specific area of concern absence or incapacity of the Chairman. and for reporting the results of this planning to the Com- mission. They shall act in the name of the Commission only C.Recording Secretary when directed to do so by vote of the Commission. Com- The Recording Secretary shall keep an accurate record of mittees may include,but not be limited,to: the proceedings of the Commission, shall send copies of the 81 A.Planning Committee E.Pollution Control Committee This committee shall be responsible for the preparation and This committee shall be responsible for gathering and updating of natural resource inventories, open space in- collating information and data on all forms of pollution within ventories, wetlands Inventories, and a conservation and the community and shall keep appropriate records of pollution passive outdoor recreation plan as specified in G.L. Ch. 40, levels. 11 shall coordinate its activities with other community Sec.8G;and the coordination of these plans with Community agencies and unofficial groups concerned with pollution and Master Plans or plans of the Planning Board and any Regional lend such assistance to such groups as may be available. Planning Agencies. It shall cooperate with the Information and Education Commitee so that students and the general public will be made B.Land Acquisition Committee aware of the pollution problem In the community and what This committee shall recommend to the Commission actions they may undertake to minimize the problem. specific land areas to be acquired under the conservation and passive outdoor recreation plan so as to represent a logical VII.MEETINGS time-phased acquisition program for the community. It shall present to the Commission recommendattons for specific The Commission shall hold no less than two meetings each acquisition projects to include: engagement of appraisers, month,except when a quorum,as defined in Article VIII,is not land surveyors and legal counsel as required; sources of present. Robert's Rule of Order(or Cushing's Manual,or other financial assistance; and a plan for proceeding with the recognized parliamentary guide) shall govern meeting acquisition. Upon approval by the Commission, it shall secure procedure,when not in conflict with statutes or these by-laws. the required services.It shall prepare applications for financial Notices of meetings will be given by the Recording Secretary assistance under the Self-Help Program and appropriate as specified in Article IIIC.Meetings,and notices thereof,shall Federal programs, and submit these to the Commission. It comply with the provisions of G.L.Ch.39,Sec.23A-C. shall accomplish other land activites as approved by the Commission. VIII QUORUM C.Information and Education Committee In the absence of an existing municipal bylaw or ordinance, This committee shall be responsible for the conduct of a a majority of the members of the Commission shall constitute public Information and education program designed to further a quorum.A majority of those present and voting, if a quorum the purposes of the Commission. It shall seek to coordinate is present, shall be sufficient to conduct the business of the the activities of unofficial bodies organized for similar pur- Commission unless otherwise specified by statute. poses as set forth in G.L. Ch. 40, Sec. 8C. Activities for this committee may Include: IX.APPOINTMENTS AND VACANCIES 1. Liaison with School Administration to encourage in- clusion of conservation programs within the educational Original appointments to the Commission are made in ac- program, provision of educational materials to the schools or cordance with G.L. Ch. 40, s. 8C and by the Appointing libraries, development of selected school sites for con- Authority stated therein.A vacancy in the membership caused servation education, and presentations on Commission ac- other than by expiration of a term of office shall be filled as tivites. specified in G.L.Ch.40,Sec.8C 2. Contact with the news media to encourage continuing public education in conservation matters and concerns. X.HEARINGS 3. Assistance to unofficial bodies, such as land trusts or recycling organizations, In the development of cooperative When the Commission is required by law to conduct a public programs. hearing, a quorum of the members must be present. The Commission is required to conduct a public hearing on any D.Land Management Committee properly executed Notice of Intent filed under the provisions of This committee will be responsible for the preparation of the Wetlands Protection Act,G.L.Ch.131,Sec.40.The hearing plans for the use of lands under the administrative control of must be held within twenty-one days of receipt of such notice, the Commission. It will prepare regulations governing the use and at least a majority of the Commission must be in at- of lands under Commission control for adoption by the tendance. A majority of the Commission must sign the Order Commission. It will assure that allowable uses for all of Conditions issued. legitimate Interests of the citizens are considered in plans and The Chairman shall preside at the hearing. The Chairman facilities of the community. It shall, with the approval of the shall open the hearing by reading the purpose for which Commission, coordinate the construction, installation and the hearing Is held, and then call for a description of the maintenance of signs, vehicular access ways and controls of project by the petitioner or the petitioner's representative.The same, bridges, dams, wildlife habitat, and other facilities for Chairman shall then allow questions to be asked of the Improving the availability,accessibility, use and enjoyment of petitioner, first by members of the Commission, then by conservation areas by the public. It shall mark and maintain representatives of other town bodies, and then by the public. trails, boundaries, and access points to such areas, and Speakers shall be asked first to Identify themselves and any develop and publish maps and guides to all conservation areas special expertise they may have.Testimony may,but need not, as directed by the Commission. It shall provide supervision be taken under oath.The hearing may be tape recorded by the over all conservation areas, either by commission members, Commission andfor the public. No Commissioner who has any consultants, Parks and Recreation Department employees, or Interest in the outcome which might cause or appear to cause paid employees of the Commission as required. a conflict of interest should participate in the hearing or vote of 82 the Commission. present or future actions in my position, A list should be circulated so that members of the public may identify themselves.A copy of the commission's decision shall be sent to all persons so requesting. 'Xf AMENDMENTS (Signature) These by-laws may be amended at any regular meeting of the .197 Commission,by a two-thirds vote of the total Commission, provided written notice of intent to amend is sent to each (APPROVED) (DENIED) member of the Commission at least seven(7)days prior to the meeting at which the proposed action is to be taken. Selectmen of the Town of 16.03 THE CONFLICT OF INTEREST LAW City Council of the City of Commission members should have been classified as "Special Municipal Employees"under Ch.268-A,Sec.1(n)as of C. Special problems may be referred to town counsel or May 1, 1963.These remarks and the form assume this to have city solicitor by letter to the chairman of the Commission, been done. Members and their families may hold other jobs in forwarded with or without comments. Opinions are public the town. If they are regular employees as to another job,that records. Counsel is required to respond to an employee's re- classification will control. quest loran opinion. A. Commission members(as"special employees") may, D. A member should be able to give land to the municipal- in their businesses, contract with any agency of the munici• ity without this formality. A member who might contract with pality except the Conservation Commission on filing with the the Commission as often as once a year probably ought to Town or City Clerk a statement somewhat as follows: resign. However, there is no stigma whatsoever in filing the disclosure to permit other contracts.Active businessmen with TOWNICITY OF local knowledge are important members of any Commission. 197 The term"contract"includes most arrangements for goods or services which are not done gratis. Section 23 of Ch. 268A The undersigned,a member of the contains general prohibitions on behavior and employment Conservation Comm. classified as a Special Municipal Em- which may give the appearance of impairing impartiality. ployee on , 197 , declares, under, G.L. Ch. 268A,Sec.20 that I or my immediate family have an interest in 16.04 WARRANT ARTICLE FOR LAND PURCHASE contract or a proposed contract with the Town/City of TO SEE IF THE TOWN WILL VOTE: as follows: To acquire by gift and/or purchase or eminent domain(em• Inent domain or borrowing needs two-thirds .vote, majority A. The contract is: vote suffices otherwise),for conservation purposes,to be held b. The contracting party is: in the care and custody of the conservation commission under c. I or my immediate family have the following direct or G.L.Ch.40, s.8C,certain parcels of land including the struct- indirect interest in the contracting party: ures and fixtures thereon erected, generally described as d. I certify, to the best of my knowledge and belief, that follows: ; to appropriate I have not nor will not participate in or have official money for such acquisitions, for incidental expert appraisals, responsibility for any of the contracting agency of engineering and legal expenses, the appropriation of money Town/City of to be provided by borrowing and/or taxation and/or from other sources; to authorize the issuing of bonds or notes; to auth- orize town officials to aply for and accept federal andlor state (Signs#ure} grants to be applied by the town toward financing and to enter B. A member who wishes to contract with the Conser- into contracts or agreement with state and/or federal agencies vation Commission itself, must first obtain written approval for this purpose. (Optional: this acquisition shall be on the of the Selectmen or City Council and file it with the Clerk. condition that no less than 50% of the Cost shall qualify for C The form can be the same as above through "c", substituting federal and/or slate grants or private donations available now the following paragraph"d". or in the future.) d. I request the Selectmen/City Council of the Town/ City of to exempt me or my immed• iate family from Sec. 20 of said act and declare that no sub- stantial conflict of interest will arise which will prejudice my 83 16.05 DEED OF LAND and conditions: We,John Doe and Mary Doe,husband and wife(etc.)for con- sideration paid in the amount of $ hereby 1.Such Town/City shall be Trustee under this trust. grant to the inhabitants of the Town/City of 2. The Conservation Commission of the Town/City of with Quitclaim Covenants the land situated in said Town/City shall manage and control the pro- of County of perty conveyed to this public charitable trust and shall con- Commonwealth of Massachusetts,and bounded and described stitute a board of visitors to enforce and preserve this trust. as follows: As such it may take appropriate legal action, as an alternate Northerly to the Attorney General as petitioner.If it should cease to exist, Easterly such powers shall devolve upon the Board of SelectmenlCity Southerly Council. Westerly 3.The Trust property shall be forever used only for Conser- containing square feet of land, more vation purposes authorized by G.L. Ch. 40, §8C as it may or less, according to a plan (de- hereafter be amended and other Massachusetts statutes relat- scribe plan by surveyor's name,date,and recording data). ing to Conservation, including the protection and develop- For our title, see deed of to the ment of the natural resources and the protection of the water- grantors dated and recorded with shed resources of the Town/City of County Deeds, Book (include references to recreation,view or other purposes which Page are basic to the particular parcel.) Said real property is conveyed to said Town/City under the 4.If the Trust property or any interest or part thereof should provisions of General Laws, Ch. 40, § 8C as it may hereafter be taken by eminent domain by any body corporate or politic, be amended and of Amendment Article 49 of the Mass. Con- the net proceeds of the award after paying charges related stitution to be managed and controlled by the Conservation thereto shall be added to the conservation fund of said Town/ Commission of the Town/City of for City the promotion and development of the natural resources and 5. This Trust shall become effective upon the acceptance for the protection of the watershed resources of said Town/ of this deed by said Town,signified by the approval of Its Board City. of Selectmen hereto as authorized by G.L.CH.40,§8C. In Witness Whereof we hereto set our hands and seal this day of 19 For our title see(etc.) Signatures IN WITNESS WHEREOF,(etc.) Acknowledgement before Notary Public (No Documentary Stamps Needed) (Documentary Stamps$1.14 for each$500 of purchase price.) Signatures 16.06 DEED OF GIFT INTRUST Acknowledgement before Notary Public We John Doe and Mary Doe, husband and wife (etc.), re- lease, grant and dedicate to the inhabitants of the Town/City (APPROVAL) of without covenants, the land situated in said Town/City of We the undersigned Board of Selectmen of the Town of County of ,Commonwealth of Mass- hereby approve the receipt of the achusetts,and bounded and described as follows: within trust deed under G.L. CH. 40, § 8C as it has been and Northerly may be amended as requested by vote of the Conservation Easterly Commission of said Town. Westerly Southerly containing feet of land, more or less, ac cording to a plan(describe plan by surveyor's name, date and (To be recorded in the Registry of Deeds) recording date.) BUT NEVERTHELESS IN TRUST upon the following terms 84 16.07 SAMPLE RULES GOVERNING USE OF LAND UNDER COMMISSION CONTROL 2. The licensee is and his employees, 1. All people are welcome to enjoy themselves without without right of assignment of substitution; charge in these conservation areas of the Town/City from % hour after sunrise until V2 hour after sunset. 3. The premises are: together with (Commission may establish reasonable fee schedule access as follows by vote). 4. The agreement shall commence 2. No cars, trucks or other powered vehicles or tools ex con- cept for municipal vehicles are allowed except on de and shall terminate (and shall signated roads. tinue from year to year for a maximum of years 3. If not posted areas may be(hunted)or fished in season from commencement unless either party gives 60 days' with license and in accord with applicable law. notice to the other; but the Licensor shall not terminate 4. In these areas,no person shall cut,break,remove,deface, defile, or ill-use any structure, fence, sign, or have pos- session of any part there of. No growing trees, bushes, stating good cause); plants or flowers shall be defaced or cut, nor shall trails 5. The Licensee shall pay the Licensor the sum of be cut or marked,nor dams built nor any structure such as a lean-to, bridge, tower or handrail be constructed, Per year, payable Real Estate taxes, if any, without authorization of the Conservation Commission. shall be paid by the Licensee. 5. No person shall engage in business, sell or expose for 6. The Licensee shall use the premises only for the sale,or give away any goods,wares orcirculars. purpose of farming and may clear, fill, Irrigate,cultivate 6. Overnight camping in these areas may be permitted to and plant for that purpose only In accordance with a plan organizations having an adult leader present at all times. approved by the Conservation Commission (or, specifi- Every group shall obtain prior written permission from tally described areas to be left In their natural state the Conservation Commission,must obtain a fire permit and/or type of work to be permitted) (Licensee shall if open fires are planned,and must each time notify the use pest lcideslherbicideslfertillzer only as follows: Chief of Police of both exact dates of occupancy and identity of the accompanying responsibile adult. VIOLATIONS HEREOF shall be punished by fines not less than (Licensee shall not cut during bird-nesting season with- $5.00 nor more than $25.00 for a first offense, not less than out Conservation Commission approval) (Licensee may $10.00 nor more than$50.00 for a second offense and not less erect the following temporary structures:) than $15.00 nor more than $100.00 for a third or subsequent offense. 7. The Licensee shall maintain soil pH and productivity, Date Adopted: and shall maintain during the nongrowing season ground Date filed with Town Clerk cover adequate to prevent erosion. Date Certified copies sent to: 8. Licensee shall erect no permanent structures (except) Amended: and shall not store farming equipment on the premises Chief of Police except in the(growing/harvesting)season. 9. Members of the public shall have access to premises Fire Chief except as necessary to prevent damage to crops. The Dept.of Public Works public shall have the full use of the land off-season Water Department subject to Conservation Commission regulations. The Recreation Commission Licensor may enter at reasonable times to enforce this agreement. 10. The Licensee shall indemnify the Licensor for any loss 16.08 LICENSE FOR AGRICULTURAL USE OF or damage incurred by the Licensor on account of this CONSERVATION LAND agreement or any activity under It(and shall maintain In- surance sufficient for this purpose). LICENSE AGREEMENT 11. The licensee hereby waives any claims which he may have during the term of this agreement for loss or dam- WHEREAS the Licensor wishes to maintain and improve the age suffered by the Licensee or his employees on ac- soil fertility of land under its custody, to keep the land open count of acts or omissions of the Licensor or public for recreational use, to encourage wildlife habitat, to preserve using the premises. open spaces and vistas important to the character of the area, and to promote agriculture; and WHEREAS the Licensee Signed and sealed this day of wishes to practice farming in a manner congruent with proper Lr use of conservation land, 16.09 SELF HELP PROCEDURE(REVISED 10f77) NOW THEREFORE the Licensor and Licensee agree Step 1. 1. The Licensor is {the Conservation Commission, select- Conservation commission requests Self-Help application from the Division of Conservation Services before purchas- men,mayor,town,city of ) ing land. At this time, deadlines for filing applications should be ascertained. 85 Step 2. Step 6. Conservation Commission files complete application with Application reviewed and approved or rejected by Secretary the Division of Conservation Services before purchasing of Environmental Affairs. land. The following items must be included with the application; Step 7. a) Certified copy of town vote accepting M.G.L. Chapter Project approval, billing forms and Self-Help contract for 40, §.8C approved projects sent to conservation commissions. b) Certified copy of date conservation commission was Funds are at this time obligated for approved projects. established and current appointments to commission. Applications which are not approved are returned to com- c) Plot plan of area adequately defining meets and bounds missions with brief explanations of why the projects were of project. rejected and recommendations regarding resubmission of d) Professional appraisals; See Appraisal Requirements the applications. for the Self-Help and Land&Water Conservation Fund programs. Step 8. e) Open spacelrecreation plan no more than five years old if not already on file with the Division of Conservation Town or City votes to appropriate, transfer from available Services or evidence that such a plan is underway and funds, expend from its Conservation Fund, or borrow an will be complete by the application filing deadline. amount equal to the total cost of the proejct stated in the Self-Help application. A city or town may vote to borrow No incomplete applications will be accepted. funds in anticipation of state or federal reimbursement prior to receiving agreement of reimbursement; however, If a city or town intends to file an application for HCRS assis- the borrowing cannot actually take place until state or tance jointly with the Massachusetts Self-Help Program, it Is federal consent of reimbursement has been given. Munici- sugested that contact be made with the Division of Conserva- pal approval may also take place prior to Step 1 but com- tlon Services prior to submitting these applications. missions should ensure proper compliance with Self-Help policies and procedures. Step 3. Step 9. Conservation commission submits articles to be placed in Town Warrant to division of conservation Services for re- Conservation commission makes purchase, after having view before Town Meeting or City Council vote. Municipal received Town Meeting or City Council and EOEA approval. counsel should be consulted in drafting the article or order. The article shall cite the particular parcel to be adquired and Step 10. shall contain authorization to seek funding under M.G.L. Chapter 132A, § 11 and to enter into any contracts there- Conservation commission files billing form with Division of for.Similar authorization is necessary for federal Land and Conservation Services after purchase completed. The fol. Water Conservation Fund assistance. lowing documents, in duplicate, must accompany the bill• ing form. Step 4. a) Certified copy of deed or order of taking, as recorded. Application assigned for field examination by Division of The grantee clause of all deeds granting lands or interest Conservation Services to Assistant Regional Forests and therein to cities and towns in which the conservation Parks Supervisor, In some emergency cases in which the subject property commission is applying for Self Help funds shall Contain must be acquired before the Self-Help application can be the following ". . . hereby grant(s) to the City/town of processed,the Division of Conservation Services may grant through its conservation permission to proceed with acquisition, provided that a commission for administration,control and maintenance field examination has been completed and that a complete Seff-Help application with all the necessary attachments under the provisions of General laws, Chapter 40, § listed in Step 2 above has been submitted to the Division. 8C as amended, with con- This clearance to proceed with acquisition in no way obli- venants the land in bound- gates the Commonwealth to fund the project. ed and described as follows" Step 5. b) Municipal counsel's certification of title (statement Interagency review and priority rating by the Division of relative to the condition of the title). Conservation Services and Self-Help Review Committee. Consultations with the conservation commission, it c) Vote of Town Meeting or City Council authorizing the necessary. purchase of said parcel of land. d) Attested statement of the City or Town Treasurer in- 86 dicating the amount of payment made, the grantor, date representative with: site layout plan, required appraisals, paid and authority of payment together with a xerox engineering coat estimates(if applicable), and photographs. copy of the cancelled check(s). In cases of owners un- Copy of the field exam will be sent to applicant when com- known or refusal to accept pro Canto payment the tress- pleted. surer shall certify that he or she has complied with the provisions of Chapter 79, §7D. 4. Upon receipt of field exam, applicant submits OMB Cir- cular A-95 Notice to Stale and Regional Clearinghouses N.B. Reimbursements for Sell-Help projects are based on (Notice to State Clearinghouse shall Include site plan, cost the cost of land acquisition only. Self-Help funds estimates, appraisals and the Exec. Office of Environmental cannot be used for payment of back taxes, interest Affairs Field Exam.) charges,court costs or any fees other than the cost of the land itself. 5. Project priority rating by Exec. Office of Environmental Affairs. e) Self-Help contract. A copy of this contract must be re- corded at the Registry of Deeds either at the same time 6.Priority projects proceed to Step 6-all others rejected. the deed for land comprising the Self-Help project is recorded or later as an adjunct to the deed. 7. Participant prepares and submits draft application to State Liaison Olficer for review and editing; corrected draft f) Evidence that a permanently fixed sign,which identifies returned to applicant. the project as a cooperative venture between the munici- pal conservation commission and the Commonwealth of 8.Final,formal submission of application(original and six(6) Massachusets, has been placed at a prominent access copies), Clearinghouses also sent copy of application as per point to the property.This sign must be constructed of OMB Circular A-95,if requested at Step 4. sturdy enough material to be permanent and must be large enough to be clearly visible. In suitable project 9. Preparation of application for submission to H.C.R.S. areas,off-street parking may also be required. contingent upon: a. Final A-95 review clearance; Step 11. b. G.L. Chapter 30, section ' 62 Environmental Assessment; Billing form and documents reviewed by the Division of c.Approval by Secretary of Environmental Affairs as per Conservation Services for any changes from the project Administration Bulletin No.74.16. application. 10. Submission to H.C.R.S. for approval (or qualification Step 12. only). 11.H.C.R.S.approval and notice to State Liaison Officer. Report to Secretary of Environmental Affairs on billing and request for approval. 12.State Liaison Officer notice to participant. Step 13. 13. Execution of contract with participant, and then per- mission to proceed with acquisition or construction is given. Invoice prepared and submitted for payment. Self-Help sign must be in place at main access point before pay- 14. Project completion, participant submits final billing men wilt be made. together with all audit documents such as cancelled checks, Invoices,etc. Step 14. 15.Review of documents and billing sent to H.C.R.S. Payment made to municipality. 16.Payment by H.C.R.S.to State Liaison Officer(EOEA). Division of Conservation Services Executive Office of Environmental Affairs 17. Federal check deposited Into state receipt account,or If Revised 10177 municipality,in holding account.After money appears on daily statement, invoice Is prepared, check drawn up and payment 16.10 H.C.R.S.STEP PROCEDURES made. STEP—BY—STEP PROCEDURES FOR FILING ' in the case of acquisition projects It should be noted that LAND AND WATER CONSERVATION FUND APPLICATIONS the State Liaison Officer must review the appraisals and establish fair market value prior to negotiations. Participant 1. Letter of Intent to Secretary of Environmental Affairs then proceeds In accord with steps required by PL 91-646. (including general scope togetherwith locus map). In construction projects, participants can submit final 2.Consultation type visit by field representative,if required. engineering plans and specifications at any time before Step 12,but before before Step 13.Review and approval of plans and 3. Subsequent field exam - participant to provide field specifications conducted by State Liaison Officer.It should be 87 noted that preliminary plans and cost estimates must be that all slash is removed from public view; prepared before Step 13. c. the construction and maintenance of a small duck-blind; The funding decision Is made in September, prior to the start(Oct.1)of the federal fiscal year. d. the installation of underground utilities; 16.11 CONSERVATION RESTRICTION OVER A WHOLE e. ................... PARCEL We,John Doe and Mary Doe,husband and wife of The foregoing restriciton is intended to conform to G.L.Ch 184, County of § 31-33 and is intended to retain said parcel predominantly in its natural,scenic and open condition, in agricultural, farm- Massachusetts, grant (without covenants - if a gift) (for ing, or forest use(choose appropriate) in order to protect the $ consideration paid and with quitclaim natural and watershed resources of said town/city. The re- covenants - if a purchase) to said town/city, acting through striction shall be administered by the conservation commission Its Conservation Commission a conservation restriction on a of said town/city,established under G.L.Ch40, §8C. parcel of land located in said townlcity bounded and described The conservation restriction hereby conveyed does not grant as follows: either the town/city or the public any right to enter said parcel except as follows: (description,plan,and title reference,it any) 1. We grant to the townlcity a permanent easement of ac- cess to enter said parcel,by its conservation commission, The terms of the conservation restriction are as follows: that for the purpose of inspecting the premises and enforc- neither we nor our successors or assigns will perform the ing the foregoing restrictions and remedying any viola- following acts nor permit others to perform them,hereby grant- tion thereof.The right hereby granted shall be in addition ing to the town/city the right to enforce these restrictions to any other remedies available to the town/city for the against all persons: enforcement of the foregoing restrictions. (Required by G.L.Ch 184, §32.) 1. No building, sign, outdoor advertising display, fence, mobile home, utility pole or other temporary or perman- 2. We grant to the town/city a permanent easement to enter ent structure will be constructed, placed or permitted said parcel by its conservation commission or its de- to remain on said parcel.(Optional:except for the follow- signees to plant or selectively cut or prune trees, brush ing existing structures....and except as provided in or other vegetation to improve the scenic view and to paragraph five.) implement disease prevention measures.(Optional) 2. No soil, loam, peat, gravel, sand, rock, or other mineral 3. We grant to the townlcity and its inhabitants an ease- substance, refuse, trash, vehicle bodies or parts, rub- ment to pass and repass upon said parcel on foot for bish, debris, junk, waste, or unsightly or offensive mat- purposes of fishing, hiking, winter sports or nature erial will be placed,stored or dumped thereon. study,and to permit the townlcity through its conserva- tion commission to clear and mark trails for said pur- 3. No loam, peat, gravel, sand, rock, or other mineral re- poses. (Optional) (No documentary stamps are needed source or natural deposit'shall be excavated or removed for this instrument,it a gift). from said parcel in such a manner as to affect the sur- face thereof. (Optional: except as may be provided in In witness thereof we have hereto set our hands and seals paragraph five.) this day of 4. No trees, grasses, or other vegetation shall be cut or 19 otherwise destroyed. (Optional: except as may be pro- John Doe vided in paragraph five.) Mary Doe COMMONWEALTH OF MASSACHUSETTS 5. (Optional) not withstanding anything contained in para graphs one through four, we reserve to ourselves, our County of ss successors and assigns the right to conduct or permit Then personally appeared the above-named John Doe and the following activities on said parcel: Mary Doe and acknowledge the foregoing to be their free act a. The cultivation and harvesting of crops, flowers, hay, deed,before me. and shellfish; the planting of trees and shrubs and the mowingof grass; the grazing of livestock; and the con- My commission ex- 9 9 g Notary Public struction and maintenance of fences necessary in con- pires nection therewith; APPROVAL BY SELECTMEN/CITY COUNCIL(if a gift) b. the cultivation and harvesting of forest products in ac- cordance with recognized forestry conservation prac- We, the undersigned Board of Selectmen (City Council) tices, including the construction of fire roads, provided of the town/city of hereby certify 88 that we approve the foregoing deed under G.L.Ch.40,Sec.8C bind all future owners.Terms of CRs differ.Some require that as it has been and may be amended as requested by vote of the the land be left entirely in a natural condition; others permit conservation commission of the town/city of farming,forestry, or even erection of some buildings,such as accessory uses. CRs are not required to provide for public for the protection of the natural and watershed re- access.CRs may be held by governmental bodies or qualified sources of the town/city. charities. Since every CR must be approved by the selectmen or the APPROVAL BY THE SECRETARY mayodmanagedcouncil, these officials (or the town meeting) may set policy as to which CRs they will accept and which they (required for either purchase or gift) will not. For example, some municipalities may not wish to accept CRs on land under a certain size,or CRs which do not The Secretary of the Executive Office of Environmental provide for public access.Other communities accept or reject Affairs,Commonwealth of Massachusets, hereby certifies ap- CRs on a case by case basis. For example, a town may proval of the withiin conservation restriction under G.L. Ch. welcome a CR on certain small parcels such as stream banks 184,Sec.32. or mountain tops.Similarly,a town might wish to approve a CR on environmentally sensitive lands,such as wetlands,without SECRETARY EOEA requiring public access. Some communities oppose CRs 16.12 CONSERVATION RESTRICTION OVER A STRIP because they oppose any reduction of the tax base. Other communities actively solicit CRs of all types because they feel CRs help preserve open space for future use or acquisition. We,John Doe and Mary Doe(etc.)grant to the Town/City of These are all valid policy considerations,suitable for debate by etc., as in 13.03.......with respect to the community. However, such policy considerations should not be permitted to interfere with the rights and duties of the that portion of our land situated on the easterly side of the local tax assessors. River in said Town/City of which is located One Hundred (100) I.General Policies:Considering reduction of fair market value. feet from the thread(or the easterly or the westerly bank)of the All land must be assessed at full and fair market value under local zoning and other binding legal restrictions which affect said stream. the fair market value.The assessors are obliged by G.L.Ch.59, s. 11,to reconsider the assessment of that land as a separate This restriction-(Copy 13.03 as far as first "Optional')(Op- parcel,as of January i of the year following the Imposition of tional: We grant to the inhabitants of the said Town/City an the restriction.In making such a reassessment,the assessors easement to pass and repass upon such portion of our land must determine for themselves whether the imposition of the for purposes of hunting, fishing or nature study, etc., but the restriction does in fact reduce the fair market value of the said townlcity is not hereby permitted to construct paths there- property,and,if so,to what degree the value is reduced. on nor to place any structures thereon.) The assessors must annually determine the fair market value of every parcel of land except for forest land classified under The foregoing covenant shall run with the land and bind our Ch. 61. Unless land is subject to a special system of in-lieu successors in title to the premises, but we shall not be per- taxation such as that found under Ch. 121A, no agreement sonally liable for any breach occurring after we shall have reached between the assessors and the landowners can bind ceased to own the premises where the breach occurs. The future assessors. Assessors may adopt local guidelines for benefit of Its covenant shall Inure to the TownlCity in per- valuing CR land,which need not be approved by town meeting petulty.(Add eminent domain clause If desired). or city council. No documentary stamps are needed for this instrument. 11.Characteristics of the Parcel May Affect Value A.Size of parcel. (in witnesses whereof,etc.) There will normally be no loss of fair market value if a CR Is placed upon a narrow strip of land, for example,a strip of 100 As in Sec.16.11 Signatures feet bordering a stream.However,if such a CR renders the rest Acknowledgement; of a building lot unbuildable, the value of the affected land Approval by Selectmen/City Council should be adjusted to reflect this loss in value. Approval by Secretary B.Improvements. 16.13 PROPOSED GUIDELINES FOR REAL ESTATE Normally,there will be no loss of fair market value If a CR is TAX ASSESSMENT OF LANDS placed upon a building lot which is already fully developed PLACED UNDER PERMANENT under existing zoning, since the right to develop has already CONSERVATION RESTRICTIONS. been exercised and the only detriment to future owners is the loss of the right to put on accessory uses such as garages, Introduction parking lots,etc. However, in some cases,the assessors may Under the Conservation Restriction Act, G.L. Ch, 184, S.31• determine that such a limit on expansion into the unused 33, a landowner may record a document which permanently portions of the lot merits reduction of taxes, restricts development of land, such as building, paving or excavation.A properly recorded CR runs with the land and will 89 111.Characteristics of the Agreement May Affect Value included within a local Floodplain or Wetlands Protection A.'Public access. zoning district?These programs may have already so reduced Some communities require public access in a CR the assessment that no further reduction is merited. However, agreement; most do not.The assessors' consideration of this these restrictive situations are less permanent than those Issue should be restricted to the Issue of whether a provision listed in section IV (1), so that further reduction may still be for public access does or does not further reduce the market merited fora permanent CR. value of the particular parcel.In some cases,public access will 3. Land Difficult to Develop. Is the land assessed at a low reduce the market value because of loss of landowner's valuation because of inherent difficulties of development, privacy and increased costs of maintaining and policing the such as ledge or wetlands? In such a case, further reduction property.In such cases,the assessors may grant a lower value may still be merited if the assessors determine that such to land subject to a CR offering public access rights than they "unbuildable" land within the community has some would grant if the CR did not offer any public access. speculative sale value, whereas such a parcel subject to a B.Preserved Rights permanent CR may have almost no market value. In determining the precise amount of reduction for each 4. Common Open Space. Valuing common open space in a parcel, the assessors shall consider the effect of each of the condominium, cooperative, or cluster zoning project: If the following factors relating to the retained value which the common land does not exceed the amount required by the parcel may continue to have,even after a CR is imposed upon approving body under the local ordinance or bylaw,there is no It because the agreement reserves certain rights to the land- reason for the assessors to assess it at less than any other owner.Examples of such right include the following: developed building lot upon which a CR has been placed.The 1. Agricultural Rights. Under the terms of the CR, may the value placed upon open land in excess of that required by the land be used for agriculture,horticulture,or silviculture?If so, approving authority depends upon the "amenity" or other these uses may well represent the highest and best possible value as determined above. use of the land. 5. Underassessment of Open Space. Is land already un- To establish a range of market value for land in these uses, derassessed, due to local policies on assessment of open the assessors may refer to the Farmland Valuation Advisory space? Commission Guidelines,issued annually by the Department of V.Amount of Reduction In Valuation Revenue under G.L.Ch.61A. If CR land is in active agricultural A. The percentage of reduction recognized by the board of use, it should not be assigned a lower value than the values assessors shall represent the decrease in fair market value of listed in the Farmland Guidelines. the land that results to the owner from the burden of the CR. If a CR is Imposed upon lands classified under the Ch.61 or B. All percentage reductions shall be computed from 100% 61A programs for agricultural or forest lands, no further valuation of the land, even if such valuation is not yet in force reduction may be granted. in the community. 2. Recreational Rights. Under the terms of the CR, may the C. A CR in perpetuity shall entitle the landowner to a land be used for moneymaking recreational activity,such as a reduction of not less that 5% and not more than 95% from the golf course,gun club,marina,ski facility,act.?If so,then such valuation which would have been placed upon the parcel if it use may constliute the highest and best possible use of the were buildable land in the same general area assessed at 100% land,and the assessors should value the property according to of market value. comparable sales of the land for such uses. 3."Amenity Value.,,Does the restricted property continue to VI.Temporary CRs have "amenity value"? That Is, would abutters or others pur- A. The value of a temporary CR may be determined by (1) chase it In order to use it for hiking, camping, riding, swim- determining the value of a permanent CR upon that parcel,and ming,beach access,etc?Such amenity value should be taken (2)using IRS tables to determine the value of a gift for a term of Into consideration in reducing assessment. Amenity value years of that particular sum(e.g.,the value of a gift of$10,000 varies greatly.For example,the value of a beach parcel may not for a period of 20 years). be at all reduced because of a conservation restriction.On the B. The value of the CR may be figured on a sliding scale, other hand, the amenity value of a small wetland may be starting at the above determined figure In the first year and negligible. In some cases,such value may best be reflected by declining to a nominal figure in the last year of the restriction. placing an increased value upon the owner's other land. IV.Other Limitations on Use of the Parcel May Affect Value A. In determining the precise amount of reduction for each parcel, the assessors shall consider the effect of each of the following factors which may already have reduced the fair market value: 1.Permanent Restrictions.Is the land assessed at a reduced valuation because It is subject to permanent recorded restrictions under the state Inland or Coastal Wetlands Restriction Acts or the Scenic Rivers Act? If so,the value may have been reduced already to the point where the CR does not further reduce its assessable value. 2. Other limitations. Is the land already assessed at a reduced value because it is subject to an Order of Condition Issued under the Wetlands Protection Act (Ch. 131, s. 40), or 90 16.14 FLOODPLAIN OR FLOODPLAINfWETLANDS DISTRICT District, Drytown, Mass. - 1978" which is hereby made a PROTECTION ZONING BYLAW part of this bylaw and of the municipal zoning map and which is on file in the office of the town clerk. (Note:This bylaw must be voted In as an amendment to your town's existing zoning bylaw, into which it must be properly (This map should be based upon authoritative geological, integrated. The model•Is not necessarily intended to be used hyrfrological,vegetative,photogrammetric and/or historical verbatim. The wording should reflect your town's needs and data. Ir`ormation to help communities select areas to be purposes,such as to curb flooding,or to minimize development inck0ed may be obtained from the U.S.Geological Service; of wetlands areas with poorly drained soils, or to prevent the :,oil Conservation Service of the U.S. department of coastal storm damage,or to include all of these and/or others. Agriculture; the Division of Conservation Services of the The model may, of course, be adapted for use by cities by Massachusetts Executive Office of.Environmental Affairs; changes in terminology. the Army Corpsof Engineers;and final detailed"rate"maps prepared for the Flood Insurance Administrator of the U.S. This suggested model bylaw may be characterized as a "bare Department of Housing adn Urban Development under the bones" bylaw. In a compilation of existing bylaws from many Flood Disaster Protection Act of 1973 (federal flood In- communities a wide variety of miscellaneous provisions has surance program). Other areas not identified by these been found,presumably to meet local concerns and considera- agencies may need protection under your bylaw.:Such tions.In some instances,these have tightened this suggested areas may be established from-other sources, from local model and In other Instances have liberalized it.All Individual- records, and by field surveys either by professionals or ized provisions should be reviewed by town counsel to assure by local residents with knowledge of the municipality). their legality under the Zoning Act(G.L.CH.40A)and their con- sistency with Massachusetts court cases. Assistance in the OPTION 2 review may be furnished by the Conservation Law Foundation or by the Attorney General's office.) All zoning districts must (The combination of a floodplaln/wetlands district map and be shown on a map adopted as the "Official Zoning Map" by descriptive text many times helps to define the boundaries town meeting vote. of the district precisely, particularly where it would be dif- 1. PURPOSES ficult on a map (as when 10' contour USGS map is used) The purposes of this district(in addition to those enumerated unless the map was an extremely large one or was prepared elsewhere In this zoning bylaw)are: in sections covering small areas within the community.Text descriptions may take numerous forms.Samples of various A. To provide that lands In the Town of descriptions are enumerated below.The use of any or all of subject to seasonal or periodic flooding as described these types will depend on the individual community, its hereinafter shall'not be used for residence or other characteristics and the areas Included within the district). purposes In such a manner as to endanger the health, safety or welfare of the occupants thereof, or of the The locations and boundaries of the flood plain/wet lands public generally,or so as to burden the public with costs district are shown on a map entitled,"FloodplalnANetlands resulting from unwise individual choices of land use. District, Drytown, Mass. - 1978," which Is hereby made a part of this bylaw and of the municipal zoning map and B. To protect, preserve and maintain the water table and which Is on file in the office of the town clerk, and said water recharge areas within the town so as to preserve district shall include all those areas identified on said map present and potential water supplies for the public health and generally described as follows: and safety of the town. All that land along the following named water courses C. To assure the continuation of the natural flow pattern of and their tributaries ... and certain unnamed water courses the water course(s)within the town, in order to provide for a horizontal distance of feet from the mean adequate and safe floodwater storage capacity to protect high-water line along each bank thereof except as otherwise persons and property against the hazards of flood in- defined on the floodplain/wetlands district map. undation. All that land bordering all waterbodies, except swimming II. DISTRICT DELINEATION pools constructed as an accessory use to a residential building,that lies within a horizontal distance of There are numerous ways in which floodplain/wetlands dis- feet from the mean high-water line except as otherwise tricts may be defined and delineated. These ways are in- defined on the floodplainlwetlands district map. dicated below by various options,the use of which depends in large measure upon the basic data available In a munici- All that land along or sloping toward the pality,the form in which it exists,and its degree of refine- River. ment and accuracy. 1) between Dam and Street that is at or below an elevation of feet Mapping is legally essential under the new Zoning Act,with above mean sea level. or without further descriptive text in the bylaw. OPTION 1 2) between Street and the town line that The locations and boundaries of the floodplain/wetlands is at or below an elevation of feet above mean district are shown on a map entitled, "FloodpiainANetlands sea level. 91 (These descriptions are for the same elevation for an entire 6. Temporary nonresidential structures used in connection "reach"of the river between two known points.) with fishing or growing, harvesting, storage or sale of crops raised on the premises. 3) from Bridge at elevation feet above mean sea level to Street 7. Dwellings lawfully existing prior to the adoption of these at elevation feet above mean sea level. provisions but not including improvements which in- crease ground coverage. '(Where the elevation at each end of a "reach" may be dif- ferent,the following phrase should be included:"The flood- 8. Utility pipes,installed according to plan approval by the plain elevation for any land is determined by interpolation Conservation commission under G.L.Ch.131,s.40. between the upstream and downstream floodplain elevations on the basis of its relative distance in feet from the upstream (Note:You may select any or all of the permitted uses listed, and downstream ends of the appropriate "reaches" of the enlarge the list to include such use as small ponds,or sub- river, stream or water course." This method is most ap• stitute for the entire list the following: "Any woodland, propriate where there are significant changes in the eleva- grassland,wetland,agricultural,horticultural,or recreational tion of the water course.The number of segments into which use of land or water not requiring filling, together with the stream course is divided is dependent upon topo- temporary buildings and sheds accessory to any of•these graphy or land-use characterislics.) uses.") All water bodies and wetlands encircled by an area desig- C. The portion of any lot within the area delineated in Sec- nated on the map or by description are hereby included tion II above may be used to meet the area and yard within the floodplain/wetlands district. requirements for the district or districts in which the re- mainder of the lot is situated,provided that portion does All lands within feet from the thread of all brooks, not exceed percent of the minimum lot area. streams and other water courses.(This method is effective only on small, uniform water courses without easily desig- (Note: The percentage should vary according to the lot nated floodplain elevations or "reaches." The stream can size and should be specified In the bylaw.) be defined by"reach",if necessary.) IV.BOARD OF APPEALSIPLANNING BOARD Ill.USE REGULATIONS In the ftoodplainlwetlands district the board of appeals/ A. The Floodplain/wetlands district shall be considered as planning board may, upon application, permit any use and/ overlying other districts. Any uses permitted in the or structure complying in all respects with the provisions portions of the districts so overlaid shall be permitted, of the underlying district(s)within which the land is located, subject to all the provisions of this section. if B. Permitted and Prohibited Uses. A. The application and plans have been referred to the planning board,the board of health,and the conservation (Note:In addition to prohibiting new buildings,you may commission and reports shall have been received from choose to prohibit fences,paving,vehicles,salt storage, all three boards(or thirty days shall have elapsed follow- septic systems,and/or structures of all kinds.) ing referral without receipt of such reports)and if In the floodplainlwetlands district no new buildings shall be B. The land is proven by the applicant to be neither in fact erected or constructed, no existing structure shall be en- subject to flooding nor unsuitable for the proposed use larged or moved, no dumping, filling or earth transfer or because of hydrologicatltopographic conditions; but no relocation shall be permitted,and no land,building or struc- other special permit which may be provided for elsewhere ture shall be used for any purpose except: in the municipal bylaws of the Town of shall be granted in the district. 1. Conservation of water,plants and wildlife. (Note: The intent of this provision is to allow an appeal to the zoning board of appeals or the planning board (as per- t. Outdoor recreation, including play areas, nature study, mitted under the new Zoning Act, Ch. 808, Acts of 1975) boating, fishing, and hunting where otherwise legally where a landowner claims his property was not actually permitted but excluding building and structures. Intended to be included with the flood plainlwetlands district boundaries as designated by the mapltext.Thus,the board 3. Non-commercial signs (as permitted in the residential must find not only suitable drainage conditions but a factual district), wildlife management areas, foot, bicycle, and/ absence of flooding on the site. This wording is not de- or horse paths and bridges provided such uses do not signed to allow the board to issue special permits or ex- affect the natural flow pattern of any water course. ceptions for otherwise impermissible structures and/or uses d. in the district. If the coverage of the district is seriously Grazing and farming, including truck gardening and disputed, the recommended relief is amendment of the harvesting of crops. district map and/or text by the town meeting. See next Appendix for additional language which may be required 5. Forestry and nurseries. by HUD for entrance into the regular phase of the Flood Insurance program.) 92 16.15 HUD FLOOD INSURANCE FLOODPLAIN DISTRICT plicant demonstrating that encroachments shall not REGULATIONS result in any increase in flood levels during the oc- curence of the 100-year flood. Note: HUD describes the following as minimum land use re- gulations to satisfy the flood insurance program, and urges b. If Section BA(a)above Is satisfied,all new construc- communities to go beyond them. Those communities which tion and substantial improvements shall comply with have adopted, or will adopt, a floodplain protective district at provisions of Section B. bylaw similar to the Model Bylaw In Appendix 16.14. which If areas have been designated as "coastal high hazard permits practically no development in the floodplain; should areas",add the following section: , work with HUD to integrate the necessary language into the bylaw, not substitute the following for the stronger bylaw. If 5. in areas designated as coastal high hazard area(Zone V), the HUD language is integrated into a stronger local bylaw, the following provisions shall apply: then the provisions regarding elevation and floodproofing will apply only to building which is for some reason permitted in a. all new construction shall be located landward of the the floodplain district. reach of the mean high tide. SAMPLE ZONING AMENDMENT(Pursuant to FIA Regulations: b. the use of fill for structural support of buildings is 19.10.3(c) 1910.3(e) F.R.October 26,1976) prohibited. FLOOD PLAIN DISTRICT REGULATIONS c. man-made alteration of sand dunes, which would in- A. Flood Plain District crease potential flood damage,Is prohibited. The Flood Plain District is herein established as on over lay district and includes all special flood hazard areas de- d. all new construction and substantial improvements signated as Zone A, Al-30 on the shall be elevated on adequately anchored pilings or Flood Insurance Rate Maps (FIRM) dated columns, and securely anchored to such piles or on file with the Town Clerk, Planning Board and Building columns so that the lowest supporting member of Official. These maps as well as the accompanying the lowest floor (excluding the piles or columns) is Flood Insurance Study are incorporated elevated to or above the base flood elevation. herein by reference. e. a registered professional engineer or architect shall B. Development Regulations certify that the structure•is securely anchored in compliance with B.4(d) so as to withstandvelocity The Following requirements apply in the Flood Plain District; waters and hurricane wave wash. 1. Within Zones A1-30,all new construction and substantial f. all new construction and substantial improvements Improvements (the cost of which equals or exceeds shall have the space below the lowest floor free of .50 percent of the market value of the structure) of re- obstruction or be constructed with"breakaway walls" sidential and non-residential structures shall have the intended to collapse under stress; such temporarily lowest floor,including basement or cellar,elevated to or enclosed space shall not be used for human habitation. above the base flood elevation (the 100-year flood ele- vation designated on the FIRM) or in the case of non- SAMPLE ADMINISTRATIVE PROCEDURES residential structures be floodproofed watertight to the base flood level. to order to fulfill the minimum requirements of the Flood In- 2. Within Zone A, where the base flood elevation is not surance Program several Items can best be handled through administrative action. Three actlons.are suggested below provided on the FIRM, the applicant shall produce any although any other action(s)that meet these requirements are already existing, reasonable, base flood elevation data acceptable. and it shall be used to meet the requirements of B. 1 above. BUILDING OFFICIAL DUTIES In order to insure the proper administration of the Flood Plain 3. Where watertight floodproofing of a structure is per-mitted, a registered professional engineer or architect District Di Official s established under the Zoning Bylaw, the Building shall certify to the Building Official that the methods shall:Review used are adequate to withstand the flood depths, pres- proposed. development to assure that all sures and velocities, impact and uplift forces and other necessary permits have been or are In the process of being factors associated with the 100-year flood, obtained from those governmental agencies from which approval Is required by.federal or state law. 2.Obtain and maintain records of:the elevation to which 4. In the "floodway" designated on the Flood Boundary any structure has been floodproofed; the floodproofing and Floodway Map,the fallowing provisions shall aply: certificates required under the Flood Plain District, and a. Prohibit encroachments, including fill, new con- whether or not the structure has a basement. struction,substantial Improvements,and other devel- CONSERVATION COMMISSION DUTIES opment unless certification by a registered profes- 1. Notify, In riverine situations, adjacent communities sional engineer or architect is provided by the ap- 93 and the Massachusetts Division of Water Resources as the shall be reviewed to assure complaince with the following: State Coordinating Agency prior to any alteration or 1. the proposal is designed consistent with the need to relocation of a watercourse where an order of conditions minimize flood damage. has been issued,and submit copies of such notification to 2. all public utilities and facilities, such as sewer, gas, the Federal Insurance Administration. electrical and water systems shall be located and con- 2. Assure that the flood carrying capacity within the structed to minimize or eliminate flood damage. altered or relocated portion of any water course is main- 3.adequate drainage systems shall be provided to reduce tained. exposure to flood hazards,and 4. base flood elevation (the level of the 100-year flood) BOARD OF APPEALS AND/OR PLANNING BOARD DUTIES data shall be provided for proposals greater than 50 lots or 5 acres, whichever is the lesser, for that portion within the Should the Board of Appeals and/or Planning Board, as ap- Flood Plain District. propriate,consider a special permit, exception, or variance to the regulations set forth in the Flood Plain District of the NOTE: If mobile home parks and/or subdivisions are Zoning Bylaw the following procedures will be adhered to: permitted in the Flood Plain District,an additional standard 1.The Board of Appeals shall only Issue a special permit will be necessary. Sample language is available upon (or variance)upon: request. a.a showing of good and sufficient cause, b, a determination that failure to grant the special SAMPLE HEALTH AMENDMENT permit(or variance)would result in exceptional hardship 10 the applicant, The following language is suggested for adoption by the local c. a determination that the granting of a special Board of Health or Water and Sewer Commissions as ap- permit (or variance) will not result in increased flood propriate in order to meet the minimum requirements of the heights,add itlonal threats to public safety,extraordinary Flood Insurance Program. public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local HEALTH REGULATION PERTAINING laws,and TO THE FLOOD PLAIN DISTRICT d. a determination that the special permit (or variance) is the minimum necessary considering the The Board in reviewing all proposed water and sewer facilities flood hazard to afford relief. to be located in the Flood Plain District established under the 2. Special permits (or variances) may be issued for Zoning Bylaw shall require: structures to be erected on a lot of one acre or less In size,if 1. new and replacement water supply systems to be otherwise permitted by law,contiguous to and surrounded designed to minimize or eliminate infiltration of floodwater by lots with existing structures constructed below the base into the systems,and flood level. 2. new and replacement sanitary sewage systems to be 3.If a special permit(or variance)is granted,the Board of designed to minimize or eliminate infiltration of flood Appeals shall notify the applicant in writing over their waters into the systems and discharges from the systems signature that: into f lood waters. a.the Issuance of such a special permit(or variance) to construct a structure below the base flood elevation will result In Increased premium rates for flood In- surance up to amounts as high as $25 for $100 of In- surance coverage,and b. such construction below the base flood level In• creases risks to life and property. 4. The Board of Appeals will maintain a record of all special permit(or variance)actions, Including Justification for their Issuance and report such special permits (or variances) Issued In the Annual Report submittted to the Federal Insurance Administration. SAMPLE SUBDIVISION AMENDMENT The following language Is suggested for adoption by the Planning Board in order to most the minimum requirements of the Flood Insurance Program. SUBDIVISION STANDARDS IN THE FLOOD PLAIN DISTRICT All subdivision proposals and other proposed new develop- ment shall be reviewed to determine whether such proposals will be reasonably safe from flooding. If any part of a sub- division proposal or other new development is located within the Flood Plain District,established under the Zoning Bylaw,It 94 16.16 FORM 3 WETLANDS PROTECTION ACT MASSACHUSETTS G.L. CH.131§40 NOTICE OF INTENT All parts of this form and the attached Environmental Data Form shall be completed under the pains and penalties of prejury. Incomplete filings may be rejected. DATE: Conservation Commission of(City/Town): 1. Notice is hereby given in accordance with the provisions of Massachusetts G.L.CH.131 §40 that the proposed activity described herein is within the jurisdiction of (CitylTown) ___ _ at Street Most recent recording at the Registry of Book Page Certificate(if registered) 2. The land on which the work is proposed to be done is owned by: NAME(s) ADDRESS 3. The Applicant submitting this Notice is: NAME ADDRESS TELEPHONE (Optional)The following person is hereby designated to represent the applicant in matters arising hereunder: NAME _ _ ADDRESS TELEPHONE 4. Plans describing and defining the work,included herewith and made apart hereof,are titled and dated: 5. Identical material has been submitted by certified mail as follows: Original to Conservation Commission (Date) Three copies to appropriate regional office of the Department of Environmental Quality Engineering(see map for regions and addresses).Date Northeast Southeast Central Western 6. Has the required $25.00 filing fee, payable to the city or town, been included with the submission to the Conservation Com- mission? 7. Has the Environmental Data Form been completed and submitted with each copy? 8. Has a locus map(81/2"x 11112"copy of USGS topographic sheet with the site marked)been included with each copy? 9. (A) Have all obtainable permits,variances,and approvals required by local by-law been obtained? (B) If they have not been obtained,have they been applied for? If yes,include with this Notice of Intent any information which has been submitted with such applications which is necessary to describe the effect of the proposed activity on the environment. 10.(A) Is the site of the proposed work subject to a wetland restriction order recorded pursuant to G.L.CH.1311 40A,or G.L.CH.130, s. 105,by the Department of Environmental Management?Yes No Do not know (8) Is the site of the proposed work in, or within 100 feet of: a coastal dune ; coastal bank coastal beach_ ;salt marsh __ ; land under the ocean ;a salt pond ;anadromous/catadromous fish run ;do not know? 95 11.Signature(s)of owner(s)of the land(it by agent or option holder,written authorization must be attached) 12.What is the purpose of the proposed project? 13. 1 HEREBY CERTIFY UNDER THE PAINS AND PENALTIES OF PERJURY THAT THE FOREGOING NOTICE OF.INTENT AND ACCOMPANYING ENVIRONMENTAL DATA FORM ARE TRUE AND COMPLETE. Signature of Applicant Date WETLANDS PROTECTION ACT ENVIRONMENTAL DATA FORM 1. All parts of this form are to be filled out by the applicant or his agent under the provisions of G.L.CH.131§40. 2. Where a section is not relevant to the application in question,the words"Not Applicable" should be entered on the appropriate line. NAME OF APPLICANT ADDRESS OF APPLICANT MUNICIPALITIES WHERE ACTIVITY IS PROPOSED AND NOTICE IS FILED DESCRIPTION OF PROPERTY INVOLVED IN APPLICATION(including the dimensions of any existing buildings,decks,marinas, existing cesspools) DESCRIPTION OF MODIFICATIONS PROPOSED ON THE SITE,including grading,dredging, removal of vegetation,etc. A. SOILS 1. United States Department of Agricultural Soil Types(show on map) 2. Permeability of soil on the site.(Dates of testing) 3. Rate of percolation of water through the soil.(Dates of testing) B. SURFACE WATERS 1. Distance of site from nearest 96 surface water(Date of measurement) 2. Sources of runoff water 3. Rate of runoff from the site 4. Destination of runoff water 5. Chemical additives to runotf water on the site C. GROUND COVER 1. Extent of existing impervious ground cover on the site 2. Extent of proposed impervious ground cover on the site 3. Extent of existing vegetative cover on the site 4. Extent of proposed vegetative Cover on the site D. TOPOGRAPHY 1. Maximum existing elevation on site 2. Minimum existing elevation on site 3. Maximum proposed elevation of site 4. Minimum proposed elevation of site 5. Description of proposed change in topography E. GROUNDWATER 1. Minimum depth to water table on site(at time of filing) 2. Maximum depth to water table on site(at time of filing) 97 3. Seasonal maximum groundwater elevation F. 'WATER SUPPLY 1. The source of the water to be provided to the site 2. The expected water requirements(g.p.d.)for the site 3. The uses to which water will be put G. SEWAGE DISPOSAL 1. Sewage disposal system(description and location on the site,of system) 2. Expected content of the sewage effluents(human waste,pesticides, detergents,oils,heavy metals, other chemicals) 3. Expected daily volume of sewage H. SOLID WASTE 1. Estimated quantity of Solid waste to be developed on the site 2. Method for disposal of solid waste 3. Plans for recycling of solid waste I. BOAT YARDS,DOCKS,MARINAS 1. Capacity of marina(number of boats,running feet) 2. Description of docks and floats (site,dimensions) 3. Description of sewage pumpout facilities(type of waste disposal) 98 4. Description of fueling facilities and fuel storage tanks 5. Description of fuel spill prevention measures and equipment J. IMPACT OF PROPOSED ACTION APPLIED FOR 1. Effects on plant species (upland and marine) 2. Effects on marine species(shellfish,finfish) 3. Effects on drainage and runoff 4. Effects on siltation of surface waters 5. Effects on groundwater quality 6. Effects on surface water quality K. ALTERNATIVES TO PROPOSED ACTION 1. Describe alternatives to the requested action 2. Describe the benefits of the requested action over the alternatives 99 16.17 FORM 4 ORDER OF CONDITIONS WETLANDS PROTECTION ACT G.L.CH.131§40 CITYITOWN FILE NUMBER TO:NAME ADDRESS CERTIFIED MAIL NUMBER PROJECT LOCATION: Address Recorded at Registry of Book Page Certificate(if registered) REGARDING: Notice of Intent dated and plans titled and dated THIS ORDER IS ISSUED ON(date) Pursuant to the authority of G.L.c.131, §40,the has reviewed your Notice of Intent and plans identified above,and has determined that the area on which the proposed work is to he done is significant to one or more of the interests listed in G.L.c.131,§ 40.The hereby orders that the following conditions are necessary to protect said interests and all work shall be performed in strict accordance with them and with the Notice of Intent and plans identified above except where such plans are modified by said conditions. CONDITIONS 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this order. 2. This order does not grant any property rights or any exclusive privileges;it does not authorize any injury to private property or invasion of private rights. 3. This order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statues,ordinances,bylaws andlor regulations. 4. The work authorized hereunder shall be completed within one(1)year from the date of this order unless it is for a maintenance dredging project subject to Section 5(9).This order may be extended by the issuing authority for one or more additional one- year periods upon application to the said issuing authority at least thirty(30)days prior to the expiration date of the order or its extension. 5. Any fill used in connection with this project shall be clean fill,containing no trash,refuse,rubbish or debris,including,without limiting the generality of the foregoing, lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts of any of the foregoing. 6. No work may be commenced until all appeal periods have elapsed from the order of the Conservation Commission or from a final order by the Department of Environmental Quality Engineering. 7. No work shall be undertaken until the final order,with respect to the proposed project, has been recorded in the Registry of Deeds for the district in which the land is located within the chain of title of the affected property.The Document number in- dicating such recording shall be submitted on the form at the end of this order to the issuer of this order prior to commence- ment of work. 8. A sign shall be displayed at the site not less than two square feet or more than three square feet bearing the words, "Mas- sachusetts Department of Environmental Quality Engineering Number . 9. Where the Department of Environmental Quality Engineering is requested to make a determination and to issue a superseding order,the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 10. Upon completion of the work described herein,the applicant shall forthwith request,in writing,that a Certificate of Compliance be issued stating that the work has been satisfactorily completed. 100 11. The work shall conform to the following described plans and additional conditions. The applicant,any person aggrieved by this order,any owner of land abutting the land upon which the proposed work is to be done, or any ten residents of the city or town in which land is located,are hereby notified of their right to appeal this order to the Department of Environmental Quality Engineering provided the request is made in writing and by certified mail to the Department within ten (10)days from the issuance of this order. ISSUED BY On this day of 19 before me personally appeared to me known to be the person described in,and who executed,the foregoing instrument and acknow- ledged that he executed the same as his free act and deed. Notary Public My Commission expires .............................................................................................................................. DETACH ON DOTTED LINE AND SUBMIT TO THE ISSUER OF THIS ORDER PRIOR TO COMMENCEMENT OF WORK TO (Issuing Authority) PLEASE BE ADVISED THAT THE ORDER OF CONDITIONS FOR THE PROJECT AT FILE NUMBER ,HAS BEEN RECORDED AT THE REGISTRY OF ON(DATE) If recorded land,the instrument number which identifies this transaction is If registered land,the document number which identifies this transaction is Signed Applicant 101 16.18 ORDER OF CONDITIONS UNDER G.L.CH.131 §40(DENIAL) COMMONWEALTH OF MASSACHUSETTS CITYITOWN FILE NUMBER PROJECT LOCATION TO: CERT.MAIL NO— RE:NOTICE OF INTENT AND PLANS DATED, Pursuant to the authority of G.L.CH.131,§40,the has reviewed your notice of intent and plans describing the proposed activity and its effect on the environment.The said Commission has determined that your application is denied and no work can be commenced for the following reasons: ISSUED BY: Conservation Commission On this day of 19 before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his fee act and deed. My commission expires Notary Public 102 i8.19 FORM i COMMONWEALTH OF MASSACHUSETTS G.L.CH.131 §40 REQUEST TO DETERMINE APPLICABILITY OF THE WETLANDS PROTECTION ACT i. I,the undersigned,hereby request that the (name of Conservation Commission) make a determination as to whether or not the Act is applicable to the area,or work to be performed on said area,a description of which is submitted herewith and made a part of this request. 2. The name(s)and address(es)of the owner(s)of the area are: 3. 1 hereby certify that all abutters (attached list)to the area described above which is subject to this written request, and the owner, if not the person making the request, have been notified that a determination is being requested of the Conservation Commission under the Act. 4. 1 have filed a copy of this request with the appropriate regional office of the Massachusetts Department of Environmental Quality Engineering (see map for regions and addresses). Northeast Southeast Central Western 5. 1s the area subject to this request in,or within 100 feet of:a coastal dune ;coastal bank ;coastal beach salt marsh ;land under the ocean ;a salt pond ;anadromouslcatadromous fish run — ;do not know Signature Date Address 103 16.20 FORM 2 COMMONWEALTH OF MASSACHUSETTS DETERMINATION OF APPLICABILITY OF THE WETLANDS PROTECTION ACT G.L.CH.131 §40 TO: DATE: Pursuant to the authority of G.L.C.131§40,the has considered your request for a determination of applicability together with the plans submitted with it and has made the following determination: 1. [ ] The area shown on the plans is not subject to the Act. 2. [ ] The entire area shown on the plans is subject to the Act and shall require a filing of the Notice of Intent. 3. [, ] Only the area described below is subject to the Act and shall require a filing of the Notice of Intent: 4. [ ] The area shown on the plans is subject to the Act but the proposed work is not dredging,filling, removing, or altering, and therefore a Notice of Intent is not required. 5. The determination that the work is not subject to the Act shall expire within one(1)year from the date herein. 6. This determination does not relieve the person requesting the determination from complying with all other applicable federal, state or local statutes,ordinances,by-laws,and/or regulations_ 7. Failure to comply with this determination and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify the said determination. 8. No work may be commenced under this determination until all appeal periods have elapsed. ISSUED BY: Where the Department of Environmental Quality Engineering issues a negative superseding determination,you are hereby notified of your right to a formal hearing provided it is made within ten(10)days from the date of the superseding determination of the De- partment of Environmental Quality Engineering. On this day of 19 before me personally appeared to be known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. My commission expires Notary Public 104 16.21 FORM 5 COMMONWEALTH OF MASSACHUSETTS WETLANDS PROTECTION ACT G.L.CH.131 §40 EXTENSION PERMIT DATE FILE NO. PROJECT LOCATION TO: CERTIFIED MAIL NO. This document extends the order issued to for a period of one year,from the date of termination of the last order issued in regard to this project or extension of same which ever is the later date. Signature of Issuing Authority On this day of 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. - My commission expires . Notary Public 105 16.22' FORM 6 COMMONWEALTH OF MASSACHUSETTS WETLANDS PROTECTION ACT G.L.CA31 s.40 II' CERTIFICATE OF COMPLIANCE PROJECT LOCATION DATE FILE NO. It is hereby certified that the work regulated by an Order of Conditions dated by the Department of Environmental Quality Engineering[ ]Conservation Commission[ ]has been satisfacorily completed. This Certificate shall be recorded in the Registry of deeds for the district in which the land is located.The Order was originally recorded on in (Date) (Book) (Page) Signature of Issuing Authority On this day of 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. My commission expires Notary Public d r 106 18.19 FORM 1 COMMONWEALTH OF MASSACHUSETTS G.L.CH.131 §40 REQUEST TO DETERMINE APPLICABILITY OF THE WETLANDS PROTECTION ACT 1. I,the undersigned,hereby request that the (name of Conservation Commission) make a determination as to whether or not the Act is applicable to the area,or work to be performed on said area,a description of which is submitted herewith and made a part of this request. 2. The name(s)and address(es)of the owner(s)of the area are: 3. 1 hereby certify that all abutters (attached list)to the area described above which is subject to this written request,and the owner,it not the person making the request,have been notified that a determination is being requested of the Conservation Commission under the Act. 4. 1 have filed a copy of this request with the appropriate regional office of the Massachusetts Department of Environmental Quality Engineering (see map for regions and addresses). Northeast Southeast Central Western 5. Is the area subject to this request in,or within 100 feet of:a coastal dune ;coastal bank ;coastal beach salt marsh ; land under the ocean ;a salt pond ;anadromouslcatadromous fish run ;do not know Signature Date Address 103 16.20 FORM 2 COMMONWEALTH OF MASSACHUSETTS DETERMINATION OF APPLICABILITY OF THE WETLANDS PROTECTION ACT G.L.CH.131§40 TO: DATE: Pursuant to the authority of G.L.C.131§40,the has considered your request for a determination of applicability together with the plans submitted with it and has made the following determination: 1. [ j The area shown on the plans is not subject to the Act. 2. [ [ The entire area shown on the plans is subject to the Act and shall require a filing of the Notice of Intent. 3. [ [ Only the area described below is subject to the Act and shall require a filing of the Notice of Intent: 4. [ j The area shown on the plans is subject to the Act but the proposed work is not dredging, filling, removing, or altering, and therefore a Notice of Intent is not required. 5. The determination that the work is not subject to the Act shall expire within one(1)year from the date herein. 6. This determination does not relieve the person requesting the determination from complying with all other applicable federal, state or local statutes,ordinances,by-laws,andlor regulations. 7. Failure to comply with this determination and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify the said determination. B. No work may be commenced under this determination until all appeal periods have elapsed. ISSUED BY: Where the Department of Environmental Quality Engineering issues a negative superseding determination,you are hereby notified of your right to a formal hearing provided it is made within ten(10)days from the date of the superseding determination of the De- partment of Environmental Quality Engineering. On this day of 19 before me personally appeared to be known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. My commission expires Notary Public 104 16.21 FORM 5 COMMONWEALTH OF MASSACHUSETTS WETLANDS PROTECTION ACT G.L.CH.131 §40 EXTENSION PERMIT DATE FILE NO. PROJECT LOCATION TO: CERTIFIED MAIL NO. This document extends the order issued to for a period of one year,from the date of termination of the last order issued in regard to this project or extension of same which ever is the later date. Signature of Issuing Authority On this day of 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. My commission expires Notary Public 105 16.22 FORM 6 COMMONWEALTH OF MASSACHUSETTS WETLANDS PROTECTION ACT G.L.C.131 s.40 CERTIFICATE OF COMPLIANCE PROJECT LOCATION DATE FILE NO: It is hereby certified that the work regulated by an Order of Conditions dated by the Department of Environmental Quality Engineering[ ]Conservation Commission[ ]has been satisfacorily completed. This Certificate shall be recorded in the Registry of deeds for the district in which the land is located.The Order was originally recorded on in (Date) (Book) (Page) Signature of Issuing Authority. On this day of 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. My commission expires Notary Public 106 16.23 COMMONWEALTH OF MASSACHUSETTS WETLANDS PROTECTION ACT G.L.CH.131§40 CERTIFICATION OF EMERGENCY LOCATION OF EMERGENCY WORK: DATE: 1. The undersigned hereby requests the conservation commission (or mayor or selectmen) to certify the following project as an emergency project:(describe work to be allowed). 2. The project is necessary for the protection of the health and safety of the Commonwealth because: 3. The agency of the Commonwealth or political subdivision of the Commonwealth which has ordered the project'to be per- formed is: (Note: Emergency work must be ordered or performed by a state or local governmental body with statutory authority to do or order such emergency work). 4. No further work shall be allowed beyond that necessary toabate the emergency.Work shall be completed by and shall in no event exceed 30 days without written approval of the Commissioner,DEQE. Applicant On the basis of the above information and after a site inspection,we hereby certify that the project described above Is emergency work and may be performed without filing of a Notice of Intent under the Act. issuing Authority: By The Conservation Commission,mayor or selectmen having failed to act favorably within 24 hours of receipt of the above request, the Commissioner,Department of Environmental Quality Engineering,hereby Certifies the above project to be emergency work. Commissioner,Dept.Environmental Quality Eng. 107 16,24 COMMONWEALTH OF MASSACHUSETTS CITYITOWN OF REQUEST FOR COMPLIANCE MASS.G.L.CH.131,§40 PROJECTION LOCATION DATE TO: After an inspection of the project indicated above,it has been determined that the area upon which work is proceeding is potentially essential to public or private water supply, ground water supply, flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish or the protection of fisheries. Therefore the hereby makes the following request that: 1. The owner of the subject property, his agents and employees and parties entering the premises pursuant to a contract with that owner or his agents and employees immediately cease and desist from any and all removal, dredging, filling or altering any bank,flat,marsh,meadow or swamp bordering on the ocean or on any existing creek,river,steam,pond,or lake or on any land under said waters or any land subject to tidal action,coastal storm flowage or flooding. 2. No further work take place on the subject property until such time as the acting under said chapter has issued an Order of Conditions regulating the said work. 3. The owner of the subject property file appropriate forms and plans as required by G.L.Ch. 131, §40. ISSUED BY: CONSERVATION COMMISSION WARNING: Work in violation of the laws pertaining to streams, wetlands, or floodplains may result in fine or imprisonment and the owner may be required to restore the site to its original state. 168 16.25 COMMONWEALTH OF MASSACHUSETTS CITY/TOWN OF CEASE AND DESIST ORDER MASS.G.L.CH.131,§40 TO: __ _ _ DATE: Propertylparcel number,address: Extent and type of activity: The Conservation Commission has determined that the activity described above is in violation of Chapter 131,Section 40 because: Said violation has beenlis being conducted without a valid Order of Conditions Said activity has beenlis being conducted in violation of Order number Condition number(s) The Conservation Commission hereby orders the following: V The property owner, agents and permittees, and all others shalt immediately cease and desist from further activity affecting the wetland portion of this property. lJ Wetlands alterations resulting from said activity shall be corrected and the site returned to its original condition. lJ Completed application forms and plans as listed in the Regulations under the Act shall be filed with the Commission, on or before .,_ ,and no further work shall be performed until a public hearing has been held and an Order of Conditions has been issued to regulate said work. L The 1property owner shall take every reasonable step to prevent further violations of the Act. Failure to comply with this order constitutes grounds for legal action. Issued by Signature of delivery person For the Commission Certified Mail No. 109 16.26 sometimes used to deliver them. The form for a Cease and RECOMMENDED PROCEDURES Desist Order may be helpful.(See 16.25) FOR ENFORCEMENT OF THE WETLANDS PROTECTION ACT,MASS. B.REQUEST FOR COMPLIANCE G.L.CH.131,s.40 If the violator is simply unaware of the law and will comply FOR CONSERVATION COMMISSIONS once notified,an informal verbal request for compliance might January 17,1977 be made before issuing a Cease and Desist Order.(See 16.24) Massachusetts Dept.of Environmental STEP 3.COURT ACTION BY LOCAL AUTHORITY Massachusetts Dept.of the Attorney General Quality Engineering Environmental Protection Division If a violator ignores the Commission's Cease and Desist 100 Cambridge Street One Ashburton Place Order, the Conservation Commission should seek judicial Boston,MA 02202 Boston,MA 02108 enforcement. (617)727.3170 (617)727-2265 A.CIVIL ACTION In 1972 the Wetlands Protection Act ("The Act") was Ask Town Counsel or the City Solicitor to file a Complaint in amended to give the Conservation Commission the initial Superior Court on behalf of the municipality against the responsibility for the administration of the statute. In addition violator of the Act.When the Commission believes that Town to issuing regulatory Orders of Conditions, a Conservation Counsel or the City Solicitor is not enthusiastic about en- Commission is,in an excellent position to take enforcement forcing the Act,the request should be made in writing, setting actions. We recommend the following enforcement forth a date by which you would like the complaint filed, and procedures to help Conservation Commissions obtain com- sent certified mail. A realistic time span within which the pliance with the Act. town's or city's attorney should file the Complaint is 10 days to 2 weeks. In cases where continuation of the activity will cause STEP 1. DETERMINATION OF A VIOLATION AND SITE.IN- irreversible harm, ask Town Counsel to file a Complaint im- SPECTION mediately. A Complaint which remains unresolved leads to trial.Since a Failure to comply with an existing Order of Conditions and full trial could be delayed in many counties because of work without an Order of Conditions constitute violations of crowded court dockets, counsel should be asked to seek a the act. Violations can include the failure to observe a par- Preliminary Injunction from the Courts which orders an im- ticular condition or time period specified in the Order and mediate halt of all illegal wetlands alterations on the subject failure to record an Order with the Registry of Deeds. State property. Orders can be enforced by Conservation Commissions. Obtaining a Preliminary Injunction can involve several days Violations of State Orders should be quickly brought to the because the defendant must be given notice and an op- attention of the DEQE Regional Environmental Engineer. If portunity to appear in Court. In situations involving an ex- DEQE supports enforcement action by the Conservation tremely valuable wetland resource where serious, irreversible Commission, or falls to respond, the Commission should alterations are occurring, counsel should be asked to seek a promptly proceed with its own enforcement action. Temporary restraining Order. A T.R.O. can be issued im- Upon learning of a violation, Commission members or their mediately,without notice to the violator.It remains in effect no representative(s) should promptly visit the site, take pictures more than 10 days, however, and the parties must appear in and record relevant data such as location, the names of court to have a T.R.O. extended to a Preliminary Injunction, equipment operators, pertinent license plate numbers,the which continues until trial. estimated type and amount of fill, water levels, etc. Both a Preliminary Injunction and a Temporary Restraining Photographs should show the extent and type of violation and Order can be requested only in conjunction with the filing of a have the time, date and location legibly written on the back Complaint. Model Complaints are available from the Attorney along with the photographer's name, address and phone General's Office. number. Counsel for the MUNICIPALITY will have to demonstrate Conservation Commissions have the right to enter upon that a violation has occurred. Therefore, the Commission property to carry out their statutory responsibilities. Some should provide him with the following: property owners are not aware of this, however, and Com- 1.Photographs; mission members may find it appropriate on occasions to be 2. Stalement(s) from Commission members or others accompanied by a police officer when Inspecting a site. who have observed the violation, incorporating the labeled Contact owners before visits. photographs and authenticating them as a "fair and ac- curate representation"of the property as they saw it; STEP 2. CEASE AND DESIST ORDER, AND REQUEST FOR 3. Copies of the Cease and Desist Order and any other COMPLIANCE relevant correspondence. A.CEASE AND DESIST ORDER B.CRIMINAL ACTION After documenting a violation, the Conservation Com- While a civil action is more appropriate for achieving mission should issue a Cease and Desist Order, A Cease and remedial results such as the restoration of a site, criminal Desist Order constitutes a formal notice of violation and action is better suited for achieving punitive results (fines or should be delivered by a reliable method such as certified mail, imprisonment). In cases of flagrant violations, Commissions return receipt requested or hand delivery. Police officers are may wish to proceed in criminal court. A sympathetic District 110 Court can be helpful to the wetlands protection efforts of a to prosecute alleged violation of the Act in the name of the Conservation commission. (See Appendix 16.27) Commonwealth. Technical justification for such recognition A criminal action may be initiated by any person, including can be established, if necessary, by the appointment of such the Conservation Commission. The action is initiated by persons by the court as "assistants" 10 the usual court submitting to the Clerk of Court a statement of the violation prosecutor.See Comm.v.Herman,253 Mass.516,149 N.E. 198 which specifie the: (1925). Practical justification for such recognition lies In the special expertise these persons have in this narrow area of the 1.type and extent of the violation; law and in their generalized duties under G.L.Ch. 40§8C. 2.name and address of the violator; 3.location of violation; 16.28 4.date of violation; 5.statute which has been violated(G.t.CH.131,§40). WETLANDS PROTECTION ACT ATTORNEY GENERAL'S MEMO RE MACGIBBON CASE Indicate that this statement has been approved by vote of the Conservation Commission and include names and ad- T0:ALL CONSERVATION COMMISSIONS April 26,1976 dresses of witnesses plus clearly identified photographs.Also, RE:POWER OF MUNICIPALITIES TO REGULATE THE USE OF include Cease and Desist Orders and any other relevant WETLANDS AFTERMacGIBBONIII documentation. In January,the Supreme Judicial Court issued a decision In STEP 4. STATE ASSISTANCE IN ENFORCEMENT AS A LAST the case of Bruce MacGlbbon and Another vs. Board of Ap- RESORT peals of Duxbury,(MacGlbbon III).The decision was modified If Town Counsel or the City Solicitor fails to respond to the twice by the Court. This memorandum will address the most written request of a Conservation Commission for legal en- important of the many questions which have been raised about forcement action, the Commission can seek help from the the effect of the decision on the work of Conservation Com- state. A letter requesting support in an enforcement action missions in administering Ch.131,§40. should be sent to the DEQE Regional Environmental Engineer The Duxbury Board of Appeals,acting under its local zoning with a copy to the Environmental Protection Division of the bylaws, had denied MacGlbbon a special permit to fill portions Department of the Attorney General.Copies of the Cease and of seven(7)acres of coastal marsh for residential development. Desist Order and correspondence with counsel should be The Board of Appeals was upheld by the Superior Court which enclosed.When requesting this assistance,it is important that found among other pertinent facts, that the property was the Commission demonstrate that it has made every effort to bought for one thousand dollars($1,000)in 1961,had Increased deal with the problem at the local level. in value to five thousand three hundred dollars ($5,300) in Its undeveloped state, and would be worth forty-four thousand 16.27 ENFORCEMENT BY CRIMINAL COMPLAINT dollars($44,000)if it could be subdivided for residential lots. WETLANDS PROTECTION ACT The High Court overruled the Superior Court and ordered the Board to issue the permit. Although it considered the Board's Note: The following is a reprint of item #9 from Bulletin authority only under the former Zoning Enabling Act and the No. 4-77, District Courts of Massachusetts, dated July 20, old town bylaw,the Court's opinion contained some language 1977 and carrying the signature of Samuel E. Zoll, Chief which might have cast doubt on current efforts to protect Justice of the District Courts,which has been distributed to coastal wetlands either under state statutes or by the District Courts throughout the Commonwealth. municipalities pursuant to the new zoning Act. Language In 9.Enforcement of Wetlands Protection Act.Some questions the decision holding that MacGlbbon had been"deprived of all have arisen regarding the procedure for instituting and practical uses"of his land was particularly troublesome,since prosecuting alleged violations of the Wetlands Protection Act, it implied that an unconstitutional "taking" without com- G.L.Ch.131, §40. Specifically,these questions have involved pensation had occurred, the issues of who can seek a complaint for the criminal offense As a result, the Attorney General, along with several other set forth in the Act,and who can prosecute the case should the friends of the Court, petitioned for a rehearing so that the matter progress past the complaint stage.These issues should Court could clarify its decision. not be confused with the civil actions that are authorized as In a further opinion, the Court denied the request for alternative enforcement techniques In the Act. rehearing but stated expiicity that it had not considered or As with any other alleged criminal offense, any person may ruled on the validity of any state statutes or on any con- seek a complaint for a criminal .violation of the Act. Un- stitutional questions. Those statutes therefore remain in full derstandably, the more direct that person's information, the effect. more likely probable cause will be established to the satisfaction of the magistrate.The portion of the Act defining This department remained somewhat concerned that, although the Court had slated that it was limiting Its con- the criminal offense states,"This section may be enforced by natural resource officers,deputy natural resource officers,and sideration to the case before it(in which the MacGibbons had any officer having police powers." Just as this provision three times in the course of twelve years gone to the Court in cannot be read to limit the persons who can seek a criminal an attempt to secure a permit),its decision might nevertheless complaint,it is suggested that it not be read to limit those who encourage court challenges to the efforts of local and state can prosecute such cases. It is recommended that in addition government to protect wetlands.We therefore petitioned once to these officers empowered by statute to "enforce the law", again, pointing out certain logical inconsistencies in the official members of Conservation Commissions can and decision. should be formally recognized by the court as proper persons Once again the Court modified its opinion,this time making 111 it clear that its decision applied only to the law as it existed in 1962,when the controversy arose.This was done by adding to thesentence which held that the Board's action exceeded its authority the words"in defining the power of a town under the Zoning Enabling Act(the Pre-1975 statute)." In our view, therefore, municipalities may continue to protect wetlands by the enactment of conservation bylaws under the new Zoning Act and by the imposition of conditions or the prohibition of alteration of wetlands under G.L.Ch. 131, s.40. Chief Environmental Protection Division 16.29 MODEL VOTE TO DESIGNATE"SCENIC ROADS" VOTED: Pursuant to the recommendation of the(planning boardlconservation commission, or historical commission), the following roads (or portions of roads)within the townlcity of are hereby designated as "scenic roads" under the provisions of G.L. Ch. 40, Sec. 15C; and the planning board is instructed to establish regulations for exercising its responsi- bilities thereunder, taking into consideration sound planning principles, and preservation of aesthetic and natural resources of the Community. (Names of roads,and points of beginning and ending). 16.$0 MODEL EARTH REMOVAL BYLAW UNDER CHAPTER 40,SECTION 21(17) Earth Removal Regulations 1i The!removal from the premises during any twelve(12) month the Gravel Committee may impose as conditions to the period of more than twenty-five (25) cubic yards of topsoil, issuance of its permit. borrow, rock, sod, loam, peat, humus, clay, sand, earth or gravel,except when necessarily incidental to or in connection 4. Before granting a permit, the Gravel Committee shall with the removal at the site of construction of a building for give due consideration to the location of the proposed earth which a permit has been issued within the past six(6)months, removal, to the general character of the neighborhood shall not be permitted except in accordance with the fallowing surrounding such location and to the general safely of the conditions and procedures: public ways in the vicinity.All truck routes may be subject to approval of the Chief of Police. 1.Written application for a Special Permit must be made 10 the Gravel Committee. 5.Restoration The following shall be conditions for such issuance: Forthwith following expiration or withdrawal of a permit, or upon voluntary cessation of operations, all land shall be 2: The application shall be accompanied by a plan graded leaving no slopes in excess of one(1)foot vertical to describing the premises and the proposed operation. The two (2) feet horizontal, providing for surface drainage, plan shall be prepared by a registered Land Surveyor or boulders and stumps buried or disposed of, and the entire Engineer showing property lines, names and addresses of area covered with not less than 4 inches of topsoil,planted all abutters, Including those across any street or way, with cover vegetation, which shall have been established existing contours at two (2) foot intervals in the area from prior to release of the bond. which the above material is to be removed, and in surrounding area,together with the contours at two(2)foot 6.Stockpf ling intervals below which no excavation shall take place, and Topsoil stripped and stockpiled in preparation for con- the proposed cover vegetation and trees. struction or for earth removal shall be restored to its original distribution within thirty-six (36) months of such stripping 3. A performance bond in an amount determined by the unless a valid building permit or earth removal permit exists. Gravel Committee has been posted in the name of the Town assuring satisfactory performance in the fulfillment of the 7. No excavation not intended for approved building pur- requirements of this bylaw and such other conditions as poses will be closer than fifty(50)feet to an existing public way d 112 or to a neighboring lot line. Natural vegetation shall be left and 16.31 TRANSFER OF MUNICIPALLY OWNED LAND TO maintained on the undisturbed land for screening and noise CONSERVATION COMMISSION reduction purposes. The undersigned, being the board or officer having control 8.Operation hours shall be only between 7:00 a.m.and 5:00 of the following property in the city/town (describe), hereby p.m. on weekdays and loaded trucks may leave prescribed premises only within such hours. All loaded vehicles shall be vote to transfer to the Conservation Commission the care, suitably covered to prevent dust and contents from spilling custody, management and control of said property (or, the and blowing from the load. portion thereof shown on the atached sketch map). The Con- 9.The active gravel removal operation area shall not exceed servation Commission will manage the property for conser- a total area of five(5)acres at any one time. vation and passive recreation in accordance with the Con- servation Commission Act. (G.L. CH. 40, § 8C) and will 10. All access roads leading to public ways shall be treated not make any major improvements or erect any structures with oil, stone, or other suitable material to reduce dust and without the permission of the undersigned. mud for distance of 200 feet back from said public way. Any spillage on public ways shall be cleaned up by the operator. This transfer shall terminate (as of or by mutual agreement of the undersigned and the Conser- 11. No gravel shall be removed closer to spring high water vation Commission,or by thirty days' written notice by either table that would preclude Its subsequent reuse according to existing public health standards. This elevation shall be party to the other). established from a test pit and the level related to a permanent monument on the property.This Information shall show on the topographic plan. Officer or majority of Board Date 12. No area shall be excavated so as to cause accumulation of free standing water. Permanent drainage shall be provided as needed In accordance with good conservation practices. Drainage shall not lead directly into streams or ponds. All top soil and subsoil shall be stripped from the operation area and stock piled for use In restoring the area after the removal operation has ceased. Any temporary shelters or buildings erected on the premises for use by personnel or storage of equipment shall be screened from public view as much as possible.These structures shall be removed from the premises within thirty (30) days after they-re no longer needed. 13. Upon completion of the operation and the final grading has been accomplished the applicant shall supply the Gravel Committee with a plan of the area showing contours at two(2) foot intervals of the finished site drawn by a Registered Engineer or Surveyor. 14. No excavation not Intended for approved building pur- poses will be closer than fifty(50)feet from a wetland, stream or pond. 15.The issuance of a special permit for earth removal shall be for an initial period of no more than three (3) years. A renewal permit will be necessary for each year of each ad- ditional year beyond the Initial three(3)year period. 113 INDEX Section Page Access,Board of Public......................................................................... 7.05 29 Access to Coastal Marshes and Beaches......................................................... 9.12 39 Accidents,liability for........................................................................... 6.85 24 AcquiringLand................................................................................. 4.01 13 Agreements,land............................................................................... 4.14 16 Agricultural Use of C.C.land and Options........................................................ 6.07 24 Agricultural Preservation........................................................................ 7.12 30 Air Pollution and Water .........................................................................12.05 50 Airport Development Program................................................................... 5.17 22 Appeals,Board of............................................................................... 3.15 11 Appointing Authority,Relations with............................................................. 3.03,3.10 8,10 Appraisal Requirements,Self-Help............................................................... 5.06 20 Appraisal Requirements,Federal ................................................................ 5.10 21 Appropriation for expenses ..................................................................... 5.04 19 Army Corps of Engineers 5.14 21 Article, Forpurchase.................................................................................16.04 83 Fortaking....................................................................................16.04 83 Associate members ............................................................................ 3.05 9 Association,Mass.of Cons.Comms. 2.03 4 Bylaws ...................................................................................... 2.04 5 Attorney,retaining.............................................................................. 4.22 18 Attorney General's Environmental Protection Div..................................................14.03 54 Bargain Sale,for income tax..................................................................... 8.04 32 Beautification,highways........................................................................ 5.15 22 Berkshire Natural Res.Council ..................................................................13.09 52 Betterments,Assessments of................................................................... 4.12 16 Bikeways ...................................................................................... 5.16 22 Billboard and Sign Control ......................................................................11.10 47 Boardof Appeals............................................................................... 3.15 11 Board of Health,Relations with.................................................................. 3.13 11 Borrowing for Conservation Land................................................................ 4.13 16 Bureau of Outdoor Recreation-see Heritage Conservation and Recreation Service Capital Gains Tax............................................................................... 8.03 32 Cease and Desist Order......................................................................... 9.06 37 Chairman,election of........................................................................... 3.06 9 Citlzens'Rightof Action ........................................................................12.02 49 Clubs,conservation ............................................................................13.02 51 ClusterZoning .................................................................................10.07 43 Coastal zone management ...................................................................... 9.13 39 Community Affairs,Dept.of.....................................................................14.05 54 Conflict of Interest Law 3.04 8 Conservancy Zoning............................................................................10.08 43 Conservation Act,Statute.......................................................................15.01 57 Adopting .................................................................................... 3.02 8 Formof Article...............................................................................16.01 81 Conservation Aspects of Subdivision Control.....................................................11.02 45 Conservation Commission Appropriationsfor............................................................................ 3.08 9 Article to establish ...........................................................................16.01 81 Control of Land By ........................................................................... 6.01 23 Expenses.................................................................................... 3.08 9 Finances .................................................................................... 3.09 10 Functions ................................................................................... 2.02 3 Hearings..................................................................................... 3.07 9 Historyof.................................................................................... 2.01 3 Meetings.................................................................................... 3.06 9 Members.................................................................................... 2.03 4 Organizing................................................................................... 3.02 8 Powers,outline .............................................................................. 9.01 35 Reasonsfor.................................................................................. 3.01 8 Records and plans............................................................................ 3.08 9 Rules and Regulations........................................................................16.07 85 Conservation, meaning of..................................................................... 2.02 3 Conservation districts..........................................................................14.08 55 Conservation Fund............................................................................. 3.09 10 Land &Water Conservation Fund(HCRS)...................................................... 5.08 20 114 Statue....................................................................................... 15.03 58 Conservation Law Foundation...................................................................13.09 52 Constitution, Massachusetts(Article 49).........................................................15.07 60 Contracts Federal Block grants......................................................................... 5.11 21 Landpurchase............................................................................... 4.09 14 Maintenance of Conservation Land............................................................ 6.03 23 Tax title land................................................................................. 4.15 16 Transfer or Sale of Cons.Comm. Land......................................................... 4.04,6.14 13,26 ConveyingLand................................................................................ 4.09 14 Cooperative Extension Service..................................................................14.07 54 Corporation,landholding........................................................................13.04 51 Creating..................................................................................... 13.07 52 Types.......................... .............................................................13.01 51 Creating a Conservation or Historical Preservation Restriction................................................................................... 7.02 28 Dedication,in gift............................................................................... 4.07 14 Deeds Gift(form)....................................................................................16.06 84 Purchase (form)..............................................................................16.05 84 Restriction, strip (form).......................................................................16.12 89 Restriction, whole parcel (form)...............................................................16.11 Be Definitions..................................................................................... 1.05 1 Eminent Domain................................................................................ 4.10 15 Acquiring tax title land by..................................................................... 4.21 18 Clearingtitle................................................................................. 4.21 18 Highways.................................................................................... 4.10 15 "Second chance.............................................................................. 4.11 16 Encroachment(see Highways)................................................................... 6.13 26 Environmental Policy Act and Impact Statement..................................................12.03 49 Environmental Protection Agency............. ....14.06 54 Federal programs............................................................................... 5.11 21 A•95 Review.................................................................................. 5.09 21 Appraisal Requirements...................................................................... 5.10 21 Army Corps of Engineers......................................I.............................. 5.14 21 Flood Insurance Program............................................I........................10.06 42 Forestry Operations........ ................................................................. 6.08 25 Open Space Land Program(HUD).............................................................. 5.11 21 Outdoor Recreation(HC RS)................................................................... 5.08 20 Surplusproperty............................................................................. 5.12 21 Finance Committee, Relations with.............................................................. 3.12 11 Floodplainzoning..............................................................................10.03 41 Legalbasis..................................................................................10.03 41 SampleBylaw................................................................................16.14 91 Functions of Commission....................................................................... 2.02 3 Gifts of Land......................................................................................... 4.06 13 Land subject to Rights and Conditional Leases................................................. 4.08 14 Landin Trust................................................................................. 4.07 14 Grants, see Federal programs................................................................... 5.11 21 Great ponds, access............................................................................ 6.05 24 Handbook Definitions................................................................................... 1.05 1 Finding Things............................................................................... 1.02 1 Obtainingcopies............................................................................. 1.04 1 Purpose..................................................................................... 1.01 1 Style........................................................................................ 1.03 1 Health, Board of, Relations with................................................................. 3.13 11 Health,Board of,Local Regulations..............................................................11.03 45 Heritage Conservation and Recreation Service.................................................... 5.08 20 Highways Beautification................................................................................ 5.15 22 Encroachment............................................................................... 6.13 26 Takingsfor................................................................................... 4.10 15 Historical protection............................................................................11.08 47 History of Conservation in Mass................................................................. 2.01 3 Housing and Urban Development Open Space Program........................................... 5.11 21 115 Income Tax,deduction from..................................................................... 8.02 32 Individual Members of the Association...........................................................13.09 52 Inland Wetlands Act Discussion.................................................................................. 9.02-9.07 35.37 Forms.......................................................................................16.16-16.25 95-109 Statute...................................................................................... 15.11 63 InsectControl..................................................................................11.11 47 JunkCars......................................................................................11.13 48 Land,also see Purchase Acquisition.................................................................................. 4.01 13 Controlof..... .............................................................................. 6.02 23 Formalities of purchase....................................................................... 4.09 14 Maintenance................................................................................. 6.03 23 Possibilities of Mgt. Practices................................................................. 6.16 27 Rulesgoverning use.......................................................................... 6.11 25 Transfer between departments................................................................ 6.14 26 Trust,gift in.................................................................................. 4.07 14 Utilities...................................................................................... 6.12 26 Land Trust, see Trust........................................................................... Laws Conservation Land and Wetland Laws......................................................... 6.11 25 Forest Practices.............................................................................12.08 50 Pesticide Controls............................................................................12.06 50 Private Rights to Sue•Damages............................................................... 9.14 40 SolidWaste..................................................................................12.07 50 Local Administration, other laws..............................................................11.01 45 Floodplain, Legal.............................................................................10.02 41 Natural Resources........................................................................... 2.02 3 Sand and Gravel Laws..................................................... ..................11.04 46 State and Federal Laws(Others)...............................................................12.01 49 Legal Assistance............................................................................... 4.22 18 Legal Entity-Private Conservation Organizations.................................................13.01 51 Creating a nonprofit trust or corporation.......................................................13.07 52 Non Profit Trust and Corporation,Common Powers and Purposes...............................13.05 51 The Non Profit Corporation...................................................................13.04 51 Nonprofit landowners:Taxation on Real Estate.................................................13.08 52 Nonprofit organizations:Well Known..........................................................13.09 52 The Nonprofit Trust..........................................................................13.03 51 Powers compared to Conservation Commission................................................13.06 52 Unincorporated Association..................................................................13.02 51 Marshes,tidal,access to........................................................................ 9.12 39 Mass.Assoc.of Cons.Comm.'s Bylaws.......................................................... 2.04 5 Mass. Audubon Society.........................................................................13.09 52 Mass.Conservation Act.........................................................................15.01 57 Mass. Assoc. of Conservation Districts..........................................................14.08 55 Mass.Executive Office of Environmental Affairs(EOEA)...........................................14.02 54 Mass. Forest and Park Assoc....................................................................13.09 52 Mass.Self-Help Act,see Self-Help Meetings...................................................... 3.06 9 Mosquito Control Districts....................................................................1.11.11 47 Municipal Laws to Protect Wetlands.............................................................10.01 41 Natural Scenery, Defacing of....................................................................11.12 48 Nuisance, law of................................................................................11.14 48 Openmeeting Law..............................................................................15.02 57 Options......................................................................................... 4.14 16 Other Offices and Bodies,Relations with......................................................... 3.17 12 Parks, Betterments for.......................................................................... 4.12 16 Pesticide Control...............................................................................12.06 50 Plan,Open-Space............................................................................... 5.03 19 Planning Board, Relations with.................................................................. 3.11 11 Reservingparks..............................................................................11.02 45 Subdivision control........................................................................... 3.11 11 PolicePower................................................................................... 6.01 23 Policy:Setting Municipal re:Conservation Lands................................................. 6.01 23 Pollution,see water and air pollution............................................................. 5.13,12.05 21,50 Private Conservation Organizations......................................:.......................13.01 51 Private Right to Sue for Damages................................................................ 9.14 40 Protection zoning,Conservancy&Aquifer........................................................10.08 43 Public Access Board............................................................................ 7.05 29 116 Public Conservation Organizations.............................................................. 14.01 54 Public Shade Tree Act...........................................................................11.06 46 Purchase formalities, Land...................................................................... 4.09 14 Real Estate taxes 8.07 33 Advantages.................................................................................. 7.11 30 Deferral...................................................................................... 8.09 33 Restrictions................................................................................. 8.08 33 Recreation "Passive.......................................................I.............................. 6.04 23 Fishing and Hunting and Recreation Vehicles.................................................. 6.05 .24 Intensive.................................................................................... 6.06 24 Snowmobiles and Motorboats.................................................................11.07 46 Regional Planning Agericies.....................................................................14.04 54 Restrictions 7.01 28 Access, Public............................................................................... 7.05 29 Advantages,Tax................ .....'........................................................ 7,11 30 Activities permitted.......................................................................... 7.04' 29 Agricultural.................................................................................. 7.12 30 Assessment or Suitability..................................................................... 7.03 28 Charities..................................................................................... 7.09 29 Cons. or Historical Preservation............................................................... 7.02 28 Duration..................................................................................... 7.08 29 Enforcing and Releasing...................................................................... 7.06 '29 Form........................................................................................16.11,16.12 88,89 Kindsof land................................................................................. 7.03 28- Public Access........................ ................................... 7.05 29 Public Restriction Tract index................................................................. 7.10 30 Purchase............... ................................................................... 7.01 28 Short-term Restriction...................................................................... 7.07 29 Statute......................................................................................15.17a,b 73,76 Review, A 95....................................... 5.09,12.04 21,49. Rules and Regulations.......................................................................... 6.01 23 Sand and Gravel................................................................................11.04' 46 Scenic Rivers Act............................................................................... 9.11 39 Scenic Roads and other ways..................................... ..............................11.05 46 Seif-Help....................................................................................... 5.01 19 Appraisal requirements....................................................................... 5.06 20 Funding..................................................................................... 5.04 19 Planning requirements........................................................................ 5.03 19 Procedures.................................................................................. 5.05,16.09 20,85 Statute......................... ............................................................ 15.04 58 Use requirements............................................................................ 5,02 19 UrbanSelf-Help.............................................................................. 5.07 20 ShadeTree Act.................................................................................11,06 46 Snowmobiles and Motorboats................................................................... 6.05,11.07 24,46 Soil Conservation Service.......................................................................14.09 55 SolidWaste....................................................................................12.07 50 Subdivision control, use in conservation.........................................................11.02 45 Takings,see Eminent domain Tax Title Land.................................................................................. 4.15 16 Foreclosure 4.16 16 Lowvalue............................................. ...................................... 4.17 17 Purchase.................................................................................... 4.19 17 Registrationof............................................................................... 4.20 17 EminentDomain............................................................................. 4.21 18 Transferof................................................................................... 4.18 17 Taxes-What applies............................................................................ 8.01 32 Bargainsale................................................................................. 8.04 32 CapitalGains Tax............................................................................. 8.03 32 Deduction for gifts........................................................................... 8.02 32 Deferralplans................................................................................ 8.09 33 Estate Tax Considerations.................................................................... 8.05 32 Historic Structures........................................................................... 8.10 33 IncomeTax.................................................................................. 8.02 32 Life Estate reserved.......................................................................... 8.06 33 Real Estate Tax.............................................................................. 8.07 33 Restrictions................................................................................. 8.08 33 Title to Land, Legal....................... ..................................................... 4.02 13 117 Assuming control of other town land.......................................................... 4.03 13 Clearing.......................................................I............................. 4.05 13 Eminent Domain for.......................................................................... 4.10 15 Town Forest Committee, relations with.......................................................... 3.16 12 Transferof control.............................................................................. 4.04 13 Trust, Gift In................................................................................... 4.07 14 Trustees of Reservations........................................................................13.09 52 Trusts......................................................................................... 13.03 51 Turnpike Realty v.Town of Dedham.............................................................. 9.05 36 Utilities on conservation land.................................................................... 6.12 26 Water pollution control, grants.................................................................. 5.13 21 Watersheds.................................................................................... 6.09 25 Wetlands Protection Act........................................................................ 9.02 35 Appeals..................................................................................... 9.04 36 Army Corps Flll permits................................................. 9.08 38 Enforcement................................................................................. 9.06 37 Forms....................................................................................... 9.07 37 Order of conditions-Approval................................................................. 9.03 36 Order of conditions- Denial................................................................... 9.05 36 Wildlife................ ..................................................................... 6.10 25 Zoning Administration,relations with............................................................ 3.14 11 Board of Appeals............................................................................. 3.15 11 LargeLot....................................................................................10.09 43 Cluster............................................... ...................................... 10.07 43 Floodplaln, Legal.............................................................................10.02 41 Floodplaln Procedures........................................................................10.03 41 Flood plain Bylaws.............. ..............................................................10.04 42 Non-Zoning Bylaws...........................................................................10.05 42 Conservancy and Aquifer Protection...........................................................10.08 43 Phased Growth and Moratoria.................................................................10.10 43 118