Section 49 Scenic Roads
Section 49. Scenic Roads.
49.l Purpose. These regulations are established pursuant to M.G.L. Chapter 40, Section 15(c) and are intended to ensure that:
1. Ways will be recommended for designation as scenic road on stated criteria;
2. Ways so designated will not be altered without following proper procedures and without adherence to proper considerations; and
3. Ways so designated will not be altered by the decision of any person, organization, or agency other than the Planning Board.
49.2 Definitions. In the absence of contrary meaning established through legislature or judicial action pursuant to M.G.L. Chapter 40, Section 15C, the following terms contained in the statute shall be defined as follows:
1. "Cutting or Removal of Trees". "Cutting or Removal of Trees" shall mean the removal of one or more trees, trimming of major branches or cutting of roots, but not trimming or cutting of dead trees or dead branches. Trimming of roots sufficient in the Tree Warden's opinion to cause eventual destruction of a tree is included in this definition.
2. "Repair, Maintenance, Reconstruction, or Paving Work". "Repair, Maintenance, Reconstruction, or Paving Work" shall mean any work done within the right-of-way by any person or agency, public or private. Within this definition is any work on any portion of the right-of-way which was not physically commenced at the time the road was designated as a scenic road. The review and approval of the construction of new driveways or alteration of existing ones shall be the responsibility of the Millbury Driveway Inspector.
3. "Road". "Road" shall mean the entire right-of-way of any used and maintained public way including the vehicular traveled way plus its necessary appurtenances, including bridge structures, drainage systems, retaining walls, traffic control devices and sidewalks, but not intersecting streets or driveways beyond the right-of-way. The right-of-way includes the area on and within the boundaries of the public way. When the boundary of the right-of-way is in issue so that a dispute arises as to whether or not certain trees or stonewalls or portions thereof are within or without the way, the trees or stone walls shall be presumed to be within the way until the contrary is shown.
4. "Tearing Down or Destruction of Stone Walls". "Tearing Down or Destruction of Stone Walls" shall mean the destruction of more than fifteen linear feet of stone wall involving more than one cubic foot of wall material per linear foot above existing grade, but shall not be construed to include temporary removal and replacement at the same location with the same materials.
5. "Trees". "Trees" shall include a tree whose trunk has a diameter of four inches or more as measured one foot above the ground.
49.3 Criteria for Designation as a addressStreetScenic Road.
1. The Planning Board shall be responsible for the recommendation to the Town Meeting as to whether a road, other than a numbered road or a state road, should be designated as scenic.
2. Upon the receipt of a request to designate an accepted Town road as scenic, the Planning Board shall forward the request to the Historical Commission and the Conservation Commission for review and comment. Should either the Historical Commission or the Conservation Commission fail to make recommendation to the Planning Board within forty-five (45) days of the request for designation, such failure shall be deemed approval by that Commission.
3. The Planning Board, Historical Commission and Conservation Commission shall, in determining their recommendations as to which road(s) or portion(s) should be designated as scenic roads consider the following criteria:
a). preservation of natural resources;
b). environmental and historic values;
c). scenic and aesthetic considerations; and
d). public safety.
49.4 Notification of Designation as addressStreetScenic Road. Upon the designation at town meeting of any road as a scenic road the Planning Board shall take the following steps within sixty (60) days of such designation.
l. Notify all municipal departments that may take any action with respect to such road.
2. Notify the State Highway Department.
3. Publish in the local paper by a news release that the road or roads have been so designated;
4. Indicate such designations on all maps currently in use by municipal departments; and
5. Notify all utility companies or other such parties which may be working on the border of such road.
49.5 Procedures
49.51 Filing Any person, organization, state or municipal agency seeking the written consent of the Planning Board under M.G.L., Chapter 40, Section l5(c) regarding the cutting or removal of trees or the tearing down or destruction of stone walls or portions thereof on a scenic road shall file a request with the Planning Board, together with the following:
l. The text of a legal notice identifying the location of the proposed action in terms enabling readers to locate it with reasonable specificity on the ground without need for additional plats or references, and describing in reasonable detail the proposed changes to trees and stone walls;
2. A statement of the purpose or purposes for the changes proposed;
3. A list of owners of properties located in whole or in part within l00 feet of the proposed action;
4. Except in the case of town agencies, a deposit sufficient to cover the cost of advertising and notification; and
5. Any further explanatory material as may be required by the Planning Board.
49.52 Notice. The Planning Board shall, as required by the statute, give notice of its public hearing by advertising twice in a newspaper of general circulation in the area. This notice shall contain a statement as to the time, date, place and purpose of the hearing with a reasonable description of the action proposed by the applicant. Copies of this notice shall also be sent to the Selectmen, the Conservation Commission, the Historical Commission, the Highway Surveyor, the Tree Warden and the owners of the property within l00 feet of the proposed action.
49.53 Timing of Notice. The first publication of the notice shall be as soon as feasible after the Planning Board receives the request from the applicant, and shall in all cases be at least l4 days before the hearing. The last publication shall occur, as required by statute, at least seven days prior to the hearing.
49.54 Timing of Hearing. The Planning Board shall hold a public hearing within 45 days of the Planning Board meeting at which a properly filed request is received. The date and time of the public hearing shall be set outside of normal weekday work hours (8:00 a.m. - 5:00 p.m., Monday - Friday) so as to encourage maximum citizen participation.
49.55 Timing of Decision. The Planning Board shall make a decision on the request within 2l days of the public hearing.
49.56 Public Shade Tree Act. Notice shall be given and Planning Board hearing shall be held in conjunction with those held by the tree warden acting under M.G.L., Chapter 87. The consent of the Planning Board to a proposed action shall not be regarded as inferring consent by the tree warden or vice versa. The Planning Board decision shall contain a condition that no work should be done until all applicable provisions of the Public Shade Tree Law, M.G.L., Chapter 87 have been complied with.
49.57 Performance Guarantee. Before endorsement of its approval on a plan, the Planning Board may require that the proposed work to be done, be secured by bond sufficient in form and amount in the opinion of the Planning Board to ensure satisfactory performance of the proposed work.
49.6 Considerations. The Planning Board's decision on any application for proposed action affecting scenic roads shall be based on consideration of the following:
l. The degree to which the proposed action would adversely affect the scenic, aesthetic and historical values upon which the scenic road designation was originally based;
2. The necessity for the proposed action in terms of public safety, welfare, or convenience;
3. Availability of reasonable alternatives to the proposed action which could reduce or eliminate anticipated damage to trees or stone walls;
4. Whether the proposed action would compromise or harm other environmental or historic values;
5. Compensatory actions proposed, such as replacement of trees or walls;
6. Consistency of the proposed action with previously adopted Town plans and policies.
49.7 Severability. If any section or portion of this bylaw is ruled invalid by a court of competent jurisdiction, such ruling will not affect the validity of the remainder of the bylaw.
49.8 Enforcement. The building inspector may issue a citation for violations of these regulations. A failure to respond to properly issued citations, or the issuance of three (3) or more citations, shall be construed as a major violation, subject to a fine of not more than three hundred ($300.00) dollars. Each day that such violation continues shall constitute a separate offense.
49.9 General. The Planning Board may adopt detailed regulations for carrying out provisions hereunder.
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