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Bylaw would put teeth in wetlands protection

Disturb a frog's vernal pool habitat: Pay $300.

Alter a marsh, meadow, bog, bank, or pond of any size: See you in court.

The potential fine and enforcement actions are some of the teeth in a proposed wetlands protection bylaw that would give the Belmont Conservation Commission greater authority over what happens in or around wetlands.

The proposal, which voters will decide at Town Meeting on April 24, would reinforce a state law that more than half of the communities in Massachusetts have found lacking in some way.

Belmont would join at least 180 others with a new wetlands bylaw, including Arlington, Andover, Dracut, Lexington, Methuen, North Andover, Reading, and Winchester. Such bylaws, which are outside traditional zoning bylaws, change the regulatory landscape in a state that is increasingly squeezed by residential and commercial growth. It's also a state that is increasingly conscious of its natural resources.

Carolyn Bishop, one of Belmont's conservation commissioners, said the proposal is not intended to impede development. Rather, she said, it is aimed at protecting wetlands that are important to everything from flood control to habitat preservation.

''This is not meant to obstruct," said Bishop.

Developers say otherwise. And they say these local rules are driving housing costs out of sight.

''They're typically a tool to thwart construction or development of any kind," said Ben Osgood, a builder and developer from North Andover. ''The applicant is held hostage in these cases."

Part of his complaint, one echoed by the Builders Association of Greater Boston, is that the bylaws take away a state appeals process for municipal wetlands issues. Instead of a state review, which is readily available to builders, the only recourse is Superior Court. According to Osgood, that would contribute to a longer permitting and regulatory process, and higher home costs.

Belmont's proposed bylaw would supplement the state Wetlands Protection and Rivers Protection acts. Among the additional protections, the commission would extend jurisdiction over intermittent streams and creeks and give ponds of any size a 100-foot buffer that currently is available for ponds of 10,000 or more square feet.

The bylaw would establish the buffer zone around freshwater wetlands, marshes, meadows, bogs, swamps, vernal pools, springs, banks, lakes, and ponds of any size. It calls for a 200-foot buffer zone around rivers, streams, brooks and creeks.

The commission may order an applicant to conduct a study of the natural resource and a survey of existing wildlife, according to a draft of the bylaw. Its ''consultant fee," for work that could include scientific or legal services ranges from $500 to $10,000, depending on the size of the project.

There are exemptions for existing work around utilities and in the case of a town or state emergency. Commissioners said the proposal has no effect on pending projects in town, such as a 299-unit housing plan for the Belmont Uplands.

But while dedicated to conservation in any form, the commission itself is not wholly behind the bylaw.

During last week's commission meeting, Ruth Foster, an associate member, questioned whether the bylaw was being drafted in secret. The latest draft of the document was to be made final by Friday to be put on the town's warrant.

Commissioner Nancy Davis said any changes to the copy of the bylaw on the town's website since January had to be vetted by legal counsel. The proposal is being drafted in the public's eye, and the changes, she assured at the meeting, would not be major.

In a separate telephone interview, Foster said the bylaw was too broad and its application too subjective. She said creating it was too much power for a volunteer, appointed board.

''If this goes through, it'll be a power grab of historic proportions," she said of the commission's authority to direct the selectmen, town counsel, and police chief to take legal action.

Despite her objections, the bylaw's enforcement provisions are nearly word for word the same as the model bylaw drafted by the Massachusetts Association of Conservation Commissions.

In fact, much of the bylaw is identical to the model, said Kenneth D. Pruitt, the association's executive director. Pruitt acknowledged that many communities facing growth have recently adopted the bylaws. Instead of decreasing development, the regulations more often direct development to specific sites, he said.

''It's extremely rare," said Pruitt, that a bylaw blocks house construction. But the Homebuilders Association of Massachusetts pointed to a 2005 land-use report by the Rappaport Institute at Harvard University and the Pioneer Institute, an independent, nonprofit research group in Boston.

New construction appears to have dropped by about 10 percent in towns and cities that have implemented the stricter wetlands bylaws, according to the report. Pruitt said his association's model was reviewed by the attorney general's office. He added that Belmont's proposal, if voters approve it, would get a similar legal review by that office.

While builders may want uniform requirements across the state, communities often face unique land and wetlands issues, said state Representative Anne M. Paulsen, a Belmont Democrat. She said the bylaw is worthy of consideration.

''Protecting the wetlands is certainly in the best interests of everybody," Paulsen said.

The Conservation Commission is holding meetings on the proposed bylaw March 29 and April 10. The meetings are scheduled to begin at 7:30 p.m. at the public library.

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