ZONING BYLAW AMENDMENT / DELETE INLAND WETLAND OVERLAY DISTRICT

To see if the Town will vote to delete Sections 4.1.2(2) and 5.8, Inland Wetland District, of the Zoning Bylaw, and adjust the numbering of subsequent sections; or take any action related thereto.

Inserted at the request of the Redevelopment Board

VOTE: Favorable Action (5-0) 

DISCUSSION
Article 27 proposes to remove the Inland Wetland District (IWD) from the Zoning Bylaw, as recommended by the Redevelopment Board, the Conservation Commission, the Zoning Board of Appeals, the Department of Planning and Community Development (DPCD), and in consultation with the Inspectional Services Department. The original intent of the IWD was to regulate land use within wetland areas in lieu of other legal protections at the time. The IWD was established before the state adopted a comprehensive Wetlands Protection Act in 1972 and Conservation Commissions were given the responsibility and authority to protect wetlands. The state wetlands protection regulations have been updated many times since to increase protections and stay current with wetlands science. In addition, the town has a wetlands protection bylaw, which provides even more protection for wetlands than does state law. Significantly, the IWD's definitions are unclear and unenforceable by Town government. Existing permitting processes address wetland protection to a fuller extent than the IWD. The development conditions set by the IWD are more comprehensively addressed by the Town at multiple points, including through the Conservation Commission and the Department of Public Works, as well as the Zoning Board of Appeals and Redevelopment Board.

 
Deleting the IWD will not create any gaps in wetlands protection, which is better accomplished through non-zoning means, as reflected in the Town's existing permitting processes. The responsibilities that the IWD was meant to cover are already managed by the Conservation Commission and other existing regulations:

 
Protection of Water Bodies: The Conservation Commission is responsible for safeguarding streams, ponds, and wetlands in Arlington. It operates under strong laws, including the Wetlands Protection Act, which provides comprehensive protection. Arlington’s Conservation Commission is well-equipped and has some of the strictest regulations in the state.

 
Flood and Contamination Safety: The Zoning Bylaw contains a separate Floodplain District that is more effective than the IWD in protecting against flooding and contamination. The standards in this district are higher, and the Conservation Commission has jurisdiction in these areas, ensuring thorough protection.

 
Groundwater Protection: The Conservation Commission also manages groundwater protection under the Wetlands Protection Act and local bylaws. Even though Arlington relies on the Massachusetts Water Resource Authority for its water supply, the Conservation Commission is the authority on protecting groundwater.

 
Development Near Watercourses: The IWD focuses only on streams and rivers, leaving out other important water bodies and wetlands. The Conservation Commission is responsible for overseeing any development near all types of wetlands, ensuring better protection than the IWD provides.

 
Watershed Conservation: While the IWD aims to conserve watershed areas, its language is vague and lacks clear standards. All of Arlington is part of the Charles River or Mystic River watersheds, and the IWD does not specify how to protect these areas effectively.

 
Furthermore, the IWD is outdated, redundant, and in some cases not usable for the following reasons:

 
Overlapping Regulations: The IWD duplicates efforts already covered by the Conservation Commission and other regulations, which are more effective and comprehensive. As the IWD was written to function as a standalone regulatory tool it does not “talk” to existing permitting processes.

 
Inaccurate Definitions: The definitions in the IWD are often incorrect or inconsistent. For example, wetlands are not defined by elevation, and the IWD’s definitions conflict with established laws, leading to confusion. By itself, the IWD offers less protection.

 
Technical Challenges: Some terms used in the IWD, like “shallow depth to water table,” are difficult to define accurately and consistently, making it nearly impossible to enforce. Also, although the IWD is an overlay district, it has not been mapped and does not appear on the Zoning Map, in part because of the impracticality of designating all land having a shallow depth to water table, making its use questionable.

 
These deficiencies demonstrate why the IWD should not stay in the bylaw as an added protective measure. The overlap in jurisdiction between various Town bodies and the Conservation Commission is potentially confusing and detrimental to overall wetlands protection efforts.

 
In summary, the IWD is no longer necessary for wetlands protection in Arlington and has significant problems to use. The existing regulations and the work of the Conservation Commission provide far more robust safeguards for our water bodies and surrounding areas. Removing the IWD will improve the regulatory process without compromising environmental protection.

2/3 Vote Required

That the Zoning Bylaw be and hereby is amended as follows:

Amend SECTION 4.1.2, Overlay Districts, as follows:

4.1.2. Overlay Districts

(1) Floodplain District
(2) Inland Wetland District
(3) (2) Multi-Family Housing Overlay Districts

Delete SECTION 5.8, Inland Wetland District, as follows:

5.8 INLAND WETLAND DISTRICT
5.8.1. Purpose
The purpose of Section 5.8 is to:
A. Preserve and protect the streams, water bodies, and other watercourses, including wetlands, in the Town of Arlington.
B. Protect the health and safety of persons and property against the hazards of flooding and contamination.
C. Preserve and maintain the groundwater table for potential water supply purposes.
D. Protect the community against the detrimental use and development of lands adjoining such watercourses.
E. Conserve the watershed areas in Arlington for the health, safety, and welfare of the public.

5.8.2. Definition
The Inland Wetland District is superimposed over any other district established by this Bylaw and includes the following areas:
A. All lands within the elevations shown on the Wetland and Floodplain Overlay Map of the Zoning Map and designated as wetlands as defined by the Massachusetts Wetlands Protection Act, G.L. c.131 §40, and the implementing regulations, 310 CMR 10.00, as well as the Town of Arlington Bylaw for Wetlands Protection (Title V, Article 8), and the Wetland Protection Regulations (Regulations) promulgated thereunder. These include lakes, ponds and swamps.
B. All land area along all perennial rivers, brooks, and streams as defined by the Massachusetts Wetlands Protection Act, G.L. c.131 §40, and the implementing regulations, 310 CMR 10.00, as well as the Town of Arlington Bylaw for Wetlands Protection (Title V, Article 8), and the Wetland Protection Regulations (Regulations) promulgated thereunder for a horizontal distance of 200 feet from the center line thereof are included in the Inland Wetland District.
C. All lands designated on the zoning map as having a shallow depth to water table. These lands are the poorly and very poorly drained mineral soils, and very poorly drained soils formed in organic deposits. Poorly drained mineral soils have a water table at or near the surface for at least 7 to 9 months during the year. The water table remains at or close to the surface of very poorly drained mineral and organic soils throughout most of the year.

5.8.3. Applicability
Any proposed use to be located within the limits of the Inland Wetland District as determined by the Building Inspector under Section 3.1 of this Bylaw shall be governed by all regulations of this Section as well as all other applicable provisions of this Bylaw.

5.8.4. Permitted Uses
Municipal use, such as waterworks, pumping stations, and parks, is permitted under this section. Land in the Inland Wetland District may be used for any purpose otherwise permitted in the underlying district except that:
A. No structure intended for human occupancy or use on a permanent basis having water and sewerage facilities and no other building, wall, dam or structure (except flagpoles, signs, and the like) intended for permanent use shall be erected, constructed, altered, enlarged, or otherwise created or moved for any purpose unless a Special Permit from the Board of Appeals or, in cases subject to Environmental Design Review, a Special Permit from the Arlington Redevelopment Board, is issued. However, a structure existing at the time this Bylaw becomes effective may be reconstructed or repaired after a fire or other casualty, as provided in Section 8.1.8 of this Bylaw.
B. Dumping, filling, excavating, or transferring of any earth material within the district is prohibited unless a Special Permit from the Board of Appeals or, in cases subject to Environmental Design Review, a Special Permit from the Arlington Redevelopment Board, is issued. However, this paragraph does not prohibit ordinary gardening activities in lawn or garden areas which are used for such purposes at the time this Bylaw became effective.
C. No ponds or pools shall be created or other changes in watercourses, for swimming, fishing, or other recreational uses, agricultural uses, scenic features, or drainage improvements or any other uses unless a Special Permit from the Board of Appeals or, in cases subject to Environmental Design Review, a Special Permit from the Arlington Redevelopment Board, is issued.

5.8.5. Procedures
Applications for a special permit shall be filed in accordance with the rules and regulations of the Special Permit Granting Authority and G.L. c. 40A, as outlined in Section 3. Such conditions shall include, where applicable, approval by the Board of Appeals, Arlington Redevelopment Board, Conservation Commission, the Massachusetts Department of Environmental Protection, and/or the Massachusetts Department of Transportation under Chapter 131 of the General Laws, acts relating to the protection of the inland wetlands of the Commonwealth.

5.8.6. Development Conditions
A. For the development of land within the Inland Wetland District, the following conditions shall apply:
(1) A minimum of six test borings to a minimum depth of eight (8) feet shall be taken; three of which shall be within the area of the proposed structure and three within 25 feet of the outside walls of the structure, but not closer than 10 feet. A report by a soil scientist or qualified engineer shall accompany the test data.
(2) The floor level of areas to be occupied by human beings as living or work space shall be four (4) feet above the seasonal high water table and not subject to periodic flooding.
(3) If the basement floor level is below the seasonal high water table and affords the possibility of human occupancy at some future date, although not originally intended, adequate perimeter drainage and foundation shall be installed to withstand the effect of pressure and seepage. Furnace and utilities are to be protected from the effects of leaching.
(4) Safe and adequate means of vehicular and pedestrian passage shall be provided in the event of flooding of the lot(s) or adjacent lot(s) caused by either the overspill from water bodies or high runoff.
B. The developer shall show that the proposed development will not endanger health and safety, including safety of gas, electricity, fuel, and other utilities from breaking, leaking, short-circuiting, grounding, igniting or electrocuting; shall not obstruct or divert flood flow; substantially reduce natural floodwater storage capacity; destroy valuable habitat for wildlife; adversely affect groundwater resources or increase storm water run-off velocity so that water levels on other land are substantially raised or the danger from flooding increased.

Renumber subsequent Sections as appropriate.

Redevelopment Board Report

ARB Presentation