The Shoreland Protection Ordinance Committee was formed following the March 2006 Eaton Town Meeting in order to develop a proposed ordinance that will?protect the Town's myriad streams, ponds and wetlands that are not presently protected by State or local?regulations.

Citizens who have volunteered to serve as members of this committee are:

Richard Fortin?????????? ??? Paul Hennigan???????? ????? John Hartman????????? ??? Joan Kojola

Johnny Edge???????????????? Fred Goss????????????????????? ?Kenneth McKenzie

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Selectmen

Town of Eaton

Eaton, NH, 03832

Tuesday, May 16, 2006

Dear Selectmen,

At the conclusion of our 2nd meeting, the Shoreland Protection Committee has arrived at the objectives listed below. These objectives reflect opinions of the community, at large, as well as committee members.

In pursuit of our review/recommendations, we realize we will need Town legal opinion and/or NH State Attorney General opinion, for clarification/resolution. We are asking for this help with the related RSA?s, which are copied as an attachment to this letter, for your convenience.

Objective:

  1. The need for Town ?on site enforcement?.

    The Town of Eaton is dissatisfied with the NH state response to enforcement of RSA 483-B.

    RSA 483-B: 3 II Consistency Required

    RSA 483-B: 7 Reporting; Onsite Inspections; Local Participation

    In order to have better enforcement, it appears we would have to go it on our own and recognize the inherent costs of enforcement for the Town.

    RSA 483-B: 19 Applicability

    RSA 483-B: 8 I Enforcement by Commissioner

  2. The Town needs to become, ?the designee?

    In order for this ordinance to be truly effective; the Town needs to be able to do onsite assessment in a timely fashion and assume the role designated in paragraph V.

    RSA 483-B: 5 II Enforcement by Commissioner

    RSA 483-B: 5 V Enforcement by Commissioner

    RSA 483-B: 7 Reporting; Onsite Inspections; Local Participation

  3. The desire to include smaller bodies of water.

    There is a desire to have a more inclusive ordinance.

    RSA 483-B: 8 II Municipal Authority

  4. The Town needs to have the ability to establish and levy more appropriate penalties.

    Current ?dollar fines? are less effective, particularly for the ?willful? violator who will pay ?any dollar? amount. Replanting should be the first order of penalty. Make the fine, fit the crime. Drafting guidance/opinion as to feasibility, is needed.

    RSA 483-B: 18 III Penalties

    RSA 483-B: 17 III Rulemaking

  5. The ordinance must be "agricultural tolerant"

RSA 483-B: 3 III Consistency Required

Submitted by

?

Paul Hennigan, /s/ for the Shoreland Protection Committee

RELATED RSA'S

??? 483-B:3 Consistency Required. ?
??? I. All state agencies shall perform their responsibilities in a manner consistent with the intent of this chapter. State and local permits for work within the protected shorelands shall be issued only when consistent with the policies of this chapter.
??? II. When the standards and practices established in this chapter conflict with other local or state laws and rules, the more stringent standard shall control.
??? III. All agricultural activities and operations in the state as defined in RSA 21:34-a and as governed by RSA 430, including the use of animal manure, lime, wood ash, irrigation, and the clearing of land for agricultural utilization, and other agricultural technologies, shall be exempt from the provisions of this chapter, provided such activities and operations are in conformance with the most recent best management practices determined by the United States Department of Agriculture Natural Resources Conservation Service, the United States Department of Agriculture Cooperative Extension Service and the department of agriculture, markets, and food. Persons carrying out such agricultural activities and operations in the protected shoreland shall work directly with the local representatives of the above agencies for their particular property.

Source.

??? 483-B:5 Enforcement by Commissioner; Duties; Woodland Buffer. ?
??? I. The commissioner, with the advice and assistance of the office of energy and planning, department of resources and economic development and department of agriculture, markets, and food, shall enforce the provisions of this chapter.
??? II. The commissioner or his designee may, for cause, enter upon any land or parcel at any reasonable time to perform oversight and enforcement duties provided for in this chapter.
??? III. [Repealed.]
??? IV. To encourage coordination of state and local enforcement measures, the commissioner shall notify, at the time of issuance or filing, the local governing body of enforcement action undertaken by the state in respect to protected shoreland within the municipality by sending it copies of relevant administrative orders issued and pleadings filed.
??? V. The commissioner may issue an order to any person in violation of this chapter, of rules adopted under this chapter, or of any condition of a permit issued under this chapter.

Source.

483-B:7 Reporting; On-Site Inspections; Local Participation. ?

Source.

483-B:8 Municipal Authority. ?

Source.

??? 483-B:17 Rulemaking. ? The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:
??? I. The content and structure of all forms, applications and permits to be received or issued by the department under this chapter, including information and other materials to be submitted by an applicant.
??? II. Procedures for filing and review of requests for urbanized shoreland exemptions and standards for granting urbanized shoreland exemptions, including time frames for decisions.
??? III. Enforcement of the minimum shoreland standards, including methods and timing of inspection and coordination with municipalities.
??? IV. Procedures and criteria for the placement of small accessory structures such as storage sheds and gazebos, the size, placement, and construction of which is consistent with the intent of this chapter, between the reference line and the primary building line.
??? V. Criteria governing the assessment of administrative fines.
??? VI. Criteria governing low phosphate, slow release nitrogen fertilizer.
??? VII. Criteria governing maintaining a healthy, well-distributed stand of trees, saplings, shrubs, and ground covers.
??? VIII. A methodology for identifying unsafe trees.
??? IX. Defining the opening for building construction.
??? X. Definitions of terms not defined in this chapter.

Source.

?

483-B:18 Penalties. ?


??? I. The following shall constitute a violation of this chapter:
?????? (a) Failure to comply with the provisions of this chapter.
?????? (b) Failure to obey an order of the commissioner or a municipality issued relative to activities regulated or prohibited by this chapter.
?????? (c) Misrepresentation by any person of a material fact made in connection with any activity regulated or prohibited by this chapter.
??? II. Any person who violates this chapter and any person who purchases land affected by a violation of this chapter who knew or had reason to know of the violation shall be liable for remediation or restoration of the land affected.
??? III. Persons violating the provisions of this chapter shall be subject to the following:
?????? (a) Upon petition of the attorney general or of the municipality in which the violation occurred, the superior court may levy upon any person violating this chapter a civil penalty in an amount not to exceed $20,000 for each day of each continuing violation. The superior court shall have jurisdiction to restrain a continuing violation of this chapter, and to require remediation.
?????? (b) Any person who knowingly violates any provision of this chapter, or any rule adopted or order issued under this chapter or any condition of any permit issued under this chapter shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person, and, notwithstanding RSA 651:2, may in addition to any sentence of imprisonment, probation or conditional discharge, be fined not more than $20,000 for each violation if found guilty pursuant to this section. Each day of violation shall constitute a separate offense.
?????? (c) The commissioner, after notice and hearing pursuant to RSA 541-A, shall impose an administrative fine of up to $5,000 for each offense upon any person who violates this chapter. Rehearings and appeals relating to such fines shall be governed by RSA 541. Imposition of an administrative fine under this section shall not preclude the imposition of further civil or criminal penalties under this chapter.
??? (d) Notwithstanding the $5000 fine limit in subparagraph (c), the administrative fine for each repeat violation of this chapter may be multiplied by a factor of 2 for every previous violation committed by the person or entity.

Source.

??? 483-B:19 Applicability. ?
??? I. Subject to paragraph II, the provisions of this chapter shall not apply to any applicant whose land is in a municipality that has adopted a shoreland protection ordinance under RSA 674:16, the provisions of which are at least as stringent as similar provisions in this chapter. The director of the office of energy and planning shall certify to the commissioner that the provisions of a local ordinance are at least as stringent as similar provisions in this chapter.
??? II. If a municipality has a local ordinance that does not contain a counterpart to all of the provisions of this chapter, the more stringent provisions shall apply.

Source.

1991, 303:1. 1992, 235:26. 1994, 383:20, eff. July 1, 1994. 2002, 263:12, eff. July 17, 2002. 2003, 319:9, eff. July 1, 2003. 2004, 257:44, eff. July 1, 2004. 1991, 303:1. 1994, 383:19, eff. July 1, 1994. 2002, 169:2, eff. Jan. 1, 2003. 1991, 303:1. 1992, 235:25. 1994, 383:18. 1996, 100:2, eff. May 15, 1996. 2002, 263:11, eff. July 1991, 303:1. 1992, 235:11, eff. Jan. 1, 1993.
??? I. Municipalities may adopt land use control ordinances relative to all protected shorelands which are more stringent than the minimum standards contained in this chapter.
??? II. Municipalities are encouraged to adopt land use control ordinances for the shorelands of water bodies and water courses other than public waters.
??? III. Municipalities in which protected shoreland is situated may enforce the provisions of this chapter by issuing cease and desist orders and by seeking injunctive relief or civil penalties as provided in RSA 483-B:18, III(a) and (b). Civil penalties and fines collected by the court shall be remitted within 14 days to the treasurer of the municipality prosecuting said violations, for the use of the municipality. Any municipality electing to enforce the provisions of this chapter shall send copies of any pleading to the attorney general at the time of filing. Municipalities bordering the same water body are encouraged to employ jointly a single code enforcement officer to monitor compliance.
??? IV. The authority granted to municipalities under this chapter shall not be interpreted to extend to RSA 430:28-48.
??? V. Municipalities bordering the same water body are encouraged to employ jointly a single code enforcement officer to monitor compliance. 1991, 303:1. 1992, 235:23, eff. Jan. 1, 1993. The department may devise a system whereby municipal officials may voluntarily assist with the permitting process under RSA 483-B:6 and the subsequent enforcement of permit conditions, by performing certain reporting functions relative to on-site inspections. Utilization of such reports shall be at the department's discretion, but may, when appropriate, obviate the need for further on-site review by department staff. 1991, 303:1. 1992, 235:8, 9. 1994, 383:6, 22, II. 1995, 130:4, eff. July 23, 1995. 2003, 319:9, eff. July 1, 2003. 2004, 257:44, eff. July 1, 2004. 1991, 303:1. 1992, 235:21. 1995, 130:8, eff. July 23, 1995; 206:2, eff. Aug. 11, 1995.
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