Proposed Changes to Northampton Wetlands Protection: Making Way for Infill

Below for your reference are the proposed changes to wetlands protection in Northampton, also available as a PDF. Rules for vernal pools, which are to enjoy at least 100 feet of buffer space in a related proposal (PDF), are also under consideration. The Ordinance Committee will discuss these ordinances in a public meeting on July 24, 6:00pm at 212 Main Street in City Council Chambers. We encourage citizens to attend.

Wetlands protection is a priority for NSNA. I have called attention to certain passages below with bold type. There is concern that “infill” is being excessively prioritized over urban wetlands and forests.


Section 24-1. Purpose (replace entire section)

The purpose of this ordinance is protect wetlands, and to maintain the quality of surface water, the quality
and level of the ground water table and water recharge areas for existing, or potential water supplies; to
protect public health and safety; to protect persons and property against the hazards of flood water
inundation; to protect the community against the costs which may be incurred when unsuitable
development occurs in or adjacent to resource areas
; and to provide for the reasonable protection and
conservation of certain irreplaceable natural features, resources and amenities for the benefit and welfare
of the present and future inhabitants of the City of Northampton.

Accordingly, this ordinance protects the resource areas, and adjoining areas in the City of Northampton
by prior review and control of activities likely to have a significant or cumulative effect upon resource
area values, including but not limited to the following: public water supply, private water supply,
groundwater, fisheries, wildlife, wildlife habitat, rare species habitat including rare plant species,
recreation, agriculture, aesthetic values, flood control, erosion and sedimentation control, storm damage
prevention, water quality, and prevention of water pollution; these values are to be known collectively as
the “resource area values protected by this ordinance”. This ordinance supplements the Wetlands
Protection Act and is intended to utilize the Home Rule authority of this municipality to protect additional
resource areas, for additional values, with additional standards and procedures stricter than those of the
Wetlands Protection Act (G.L. Ch. 131 §40) and Regulations thereunder (310 CMR 10.00), subject,
however, to the rights and benefits accorded to agricultural uses and structures of all kinds under the laws
of the Commonwealth of Massachusetts.

Section 24-3. Exceptions (add to existing section)

Those “Jurisdiction,” “Performance Standards” and “Definition” requirements that are over and above state
law shall not apply to City of Northampton Municipal Landfills.

Section 24-5. Public Notice and Hearings (replace entire section)

An application for any wetland permit (Notice of Intent, Request for Determination of Applicability, or
Abbreviated Notice of Resource Area Delineation) shall be hand delivered or sent by certified mail, return
receipt, or certificate of mailing to the Conservation Commission, care of the Northampton Office of
Planning and Development. Said applicant shall give written notice to the owner if other than the applicant
and, with the exception of a Request for Determination of Applicability, to all abutters at their mailing
addresses shown on the most recent applicable tax list of the assessors, including owners of land directly
opposite on any public or private street or way, and other property owners within 100 feet of the property
line of the applicant, including any in another municipality or across a body of water. The Notice to
Abutters shall state where copies of the application or request may be examined and obtained by abutters
and shall state where information on the date and time of the public hearing may be obtained. An affidavit
of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the
Commission as part of the application.

After the application/request is received, the applicant shall place an 11”x 17” laminated sign, with one-inch
black lettering, facing a public right-of-way and visible from the right-of-way at the edge of the property
upon which the permit or request is being made. Said sign shall notify the public that an application or
request is pending on the property. Said sign shall be posted at least five (5) working days before the first
public hearing on the application or request.

A signed statement stating that the required sign was posted shall be filed with the Commission prior to the
public hearing.

The Commission shall conduct a public hearing on any application, Notice of Intent, Abbreviated Notice of
Resource Area Delineation (ANRAD), or Request for Determination of Applicability. Notice of said hearing
shall be published in a newspaper of general circulation in the City at least five (5) working days prior to said
hearing. The published notice, which shall be prepared by the Commission, shall contain the following
information: the date, time, and place of the hearing; the location of the property affected; the name of the
applicant; and the action requested from the Commission. The Commission shall deliver the notice to the

The Commission shall commence the public hearing within twenty-eight (28) days from receipt of a
completed application (one which shows all the information, based on a staff determination, necessary to
make a decision), unless the applicant extends the time period by a written waiver.

The Commission shall have authority to continue the hearing to a date and time announced at the hearing for
reasons stated at the hearing, which may include the receipt of additional information offered by the applicant
or others, information and plans required of the applicant, deemed necessary by the Commission, or
comments and recommendations of other boards and officials of the City of Northampton. In the event the
applicant objects to a continuance or postponement, the hearing shall be closed and the Commission shall
take action on such information as is available.

In addition, when there is snow on the ground and/or the ground is frozen the Commission may continue a
hearing until the snow melts and/or the ground thaws if it determines that an accurate wetland delineation is
not possible otherwise.

The Commission shall issue its permit, permit denial, or determination in writing within twenty-one (21) days
of the close of the public hearing, unless an extension is authorized in writing or at the public hearing by the

The Commission shall combine its hearing under this ordinance with the hearing conducted under the
Wetlands Protection Act, G.L. Ch. 131, §40, and Regulations, 310 CMR 10.00 in instances of concurrent

Section 24-9. Definitions (replace Buffer Zone Definition)

Buffer Zone: means that area of land extending 100 feet horizontally (forty feet for lands subject to
flooding) from the boundary of the resource areas defined in Section 24-2.

Section 24-10. Performance Standards (replace entire section)

1. All work shall be subject to inspection and require the approval of the Conservation Commission.

2. To encourage infill development, which is considered more sustainable under the principals of smart
growth and generally has a smaller environmental footprint than development in outlying areas, in the
Central Business, General Business, Highway Business, Neig
hborhood Business, General Industrial,
Special Industrial, Planned Village, Medical, Urban Residential-B and Urban Residential-C zoning
districts, within those portions of the Water Supply Protection overlay district which was zoned
industrial as of 1/1/2006, the Conservation Commission hereby waives any of the Section 24-10
performance standards that are over and above state law with the exception of the setback
requirements in Table (1).
The reduced setback requirements in Table (1) shall apply.

3. To encourage infill development, which generally has a smaller environmental footprint than
development in outlying areas, in the Business Park zoning district for non-residential uses only, the
Conservation Commission hereby waives any of the Section 24-10 performance standards that are
over and above state law, except as provided in this paragraph. All removal, filling, dredging, or
altering of any wetland shall be mitigated by the creation of artificial or replacement wetlands, with the
replacement wetland built at one hundred and fifteen (115) percent of the size of the area which was

4. Artificial or Replacement Wetlands: If the applicant demonstrates to the Commission that the
replacement wetland is a restoration and will provide wetland values equal or greater than the wetland
values being lost, the Commission may allow replacement wetlands to be the same size as the
disturbed area. If the applicant is attempting to replace a wetland through replication, the area of
replication must be at least twice as large as the area of the original wetland that will be destroyed. In
those rare instances where replication is approved by the Commission the following conditions must
be met:

A. At minimum the replicated wetland must reproduce the values and functions of the original
wetland as determined by the Conservation Commission. Site conditions permitting, the
Commission may require that additional values and functions be incorporated into the
replication design. In particular, in circumstances where replacement of specific functions
and values would require substantial amounts of time before being completely replicated
(for example, those provided by large mature trees) the Commission may require additional
compensation of area, functions, values, etc. beyond those required in other sections of this

B. In most instances the replication of wetlands will result in the destruction of adjacent buffer
zone areas. In certain instances, replication or additional permanent preservation of new
buffer zone areas may be required.

C. The top 12″ of soil from the original wetland must be transplanted with soil structure –
especially lamination and density profile – intact to the replication area. This is intended to
preserve plant, invertebrate, and planktonic communities of the wetland and inhibit the
blossoming of invasive species.

D. Any replication or restoration work that creates a resource on abutting properties shall
require an easement from the abutting property owner covering the full extension of the
resource on that property prior to commencement of the work.

E. Standards for the replication shall be specified and verified in terms of functions, values,
and actual performance. Technical and engineering specifications used for design and
construction shall be considered approximate. Criteria for acceptance and approval shall be
based solely on function and performance as specified in the Order of Conditions. In other
words replications will be evaluated on what they are expected to do, not how closely
actual construction matched the plan. For example, although elevations may be used for
design and planning of a pond, the standards shall be set in terms of volume and depth of
water over the course of a year. In vernal pool replication the pool must be capable of
sustaining full development of vernal pool species, regardless of design elevations or

F. Replications that do not properly perform the approved functions and values as specified in
the order of conditions will not be deemed acceptable no matter how closely they adhere to
approved engineered plans.

G. The Commission may set other conditions on a project/site specific basis.

H. For limited development projects, as defined in the wetlands protection act regulations,
where it is not be practical to layout an element of the project without a wetlands
replication, the Commission may waive some or all of the requirements of this section.

5. Work Within Upland Areas Adjacent to Wetlands

A growing body of research evidence suggests that even “no disturbance” areas reaching 100 feet from wetlands may be insufficient to protect many important wetland resource characteristics and values. Problems with nutrient runoff, erosion, siltation, loss of groundwater recharge, poor water quality, vegetation change and harm to wildlife habitat are greatly exacerbated by activities within 100 feet of wetlands. These impacts may happen either immediately, or over time, as a consequence of construction, or as a consequence of daily operation. Thus, in general, work and activity within 100 feet of wetlands should be avoided and discouraged and reasonable alternatives pursued.

A. Certain areas 50 to 100 feet from wetlands may be suitable for temporary, limited or permanent disturbance as appropriate when the applicant can demonstrate to the Commission’s satisfaction that the proposed work, activity or use will not affect wetland values singularly or cumulatively and, by means of a written and plan view assessment, that reasonable alternatives to the proposed work or activity do not exist.

1. The Commission may allow the alteration of up to 20% of the area within the 50-100’
buffer zone on a lot, or up to 2,000 square feet on a lot within a cluster subdivision. This is a total, cumulative allowance for all projects on a lot developed since the City first adopted a wetlands protection ordinance (8/17/1989). The proposed work must have no significant adverse impact on the resource area, and the applicant must provide evidence deemed sufficient by the Commission that the area being disturbed will not harm the resource area values protected by the law.
B. The City’s general policy is no encroachment within 50 feet of wetlands. The Commission
may allow work within the 50-foot non-encroachment zone in response to a written request for
a waiver, which shall include a written and plan view assessment as part of the application
process as follows:

1. Projects in areas down-gradient of wetlands and projects in areas already degraded by impervious surfaces from existing structures or pavement.

2. Projects in certain infill areas, in accordance with Table-(1) in Section 24-10, where
development includes mitigation measures that will improve the existing condition of
the wetlands or adjacent upland area and is otherwise permitable under the
Massachusetts Wetlands Protection Act.

3. Limited development projects, as defined in the Massachusetts Wetlands Protection
Act Regulations

Section 24-13. Burden of Proof (add to existing section)

The Commission may waive specifically identified and requested procedures, design specifications,
performance standards, or other requirements set forth in its regulations, provided that: the Commission
finds in writing after said public hearing that there are no reasonable conditions or alternatives that would
allow the proposed activity to proceed in compliance with said regulations; that avoidance, minimization
and mitigation have been employed to the maximum extent feasible; and that the waiver is necessary to
accommodate an overriding public interest to avoid a decision that so restricts the use of the property as to
constitute an unconstitutional taking without compensation.

Section 25-5. Non-Criminal Disposition: Enforcing Officer; Penalties (replace entire

Northampton District Court. (Ord. of 8-17-89)

Sections 24-2 – 24-13

Enforcing Officer: The Director of Planning and Development or his/her designee or the Conservation
Commission by majority vote.

Fine: $100.00 for the first offense, $200 for the second offense, and $300 for each additional offense.