The Berkshire Scenic Mountain Act is a provision that may be adopted by a city or town in Berkshire County that imposes additional regulations on mountainous regions. As of 2004, 4 of our 36 towns have adopted it. REALTORS® should be clearly aware if the city or towns that they are practicing real estate has adopted this provision, as new construction projects are limited. Specifically, new projects must not be visible above the ridge line, tree-cutting must be limited to one-quarter of an acre and it cannot cause erosion or flooding that would damage water quality.

The Chapter in Massachusetts Law:

Chapter 131: Section 39A Berkshire County; watershed resources; natural scenic qualities

Section 39A. A city or town in the county of Berkshire which accepts the provisions of this section may designate its conservation commission, or if having none, the board of selectmen in a town or the mayor in a city, to carry out the provisions of this section. The designated agency shall adopt reasonable rules and regulations relative to the mountain regions situated within the territorial limits of such city or town to protect watershed resources and preserve the natural scenic qualities of the environment. The term “”applicant” as used in this section shall mean the person giving notice of intention to conduct any regulated activity.

The term “”base elevation” as used in this section shall mean the elevation of the watershed in which the activity is proposed. The mean elevation shall be determined relative to the portion of the watershed which is situated in said county by taking the highest and lowest elevation in each city and town within the watershed and finding the average of these elevations.

The base elevation for each of the watersheds in said county shall be as follows:

Farmington River watershed 1,500 feet above mean sea level
Housatonic River watershed 1,500 feet above mean sea level
Westfield River watershed 1,600 feet above mean sea level
Deerfield River watershed 1,700 feet above mean sea level
Hudson River watershed 1,700 feet above mean sea level
Hoosic River watershed 1,800 feet above mean sea level

• The term “”department” as used in this section shall mean the department of environmental management in the executive office of environmental affairs.

• The term “”commissioner” as used in this section shall mean the commissioner of environmental management.
• The term “”hearing authority” as used in this section shall mean the conservation commission, or if none, the board of selectmen in a town, or the mayor of a city within the county of Berkshire which has accepted the provisions of this section.
• The term “”mountain regions” as used in this section shall mean those highland areas within any city or town within the county of Berkshire which are made subject to the provisions of this section.
• The term “”owner” as used in this section shall mean the person appearing as the owner in the most recent records of the tax assessor.
• The term “”person” as used in this section shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof, administrative agency, public or quasi-public corporation or body, or any other legal entity or its legal representative, agents or assigns.
• The term “”regulated activities” as used in this section shall mean the removal, filling, excavation or other alteration of land within mountain regions which is likely to have a significant adverse effect on watershed resources or natural scenic qualities because of the pollution or diminution of ground or surface water supply, public or private; erosion; flooding; substantial changes in topographic features or substantial destruction of vegetation.
• The term “”regulations” as used in this section shall mean reasonable rules and regulations, adopted by the hearing authority pursuant to chapter thirty A, and approved by the commissioner in consultation with the office of state planning, to carry out the provisions of this section for the protection of watershed resources and the preservation of natural scenic qualities of mountain regions.

The hearing authority shall draft proposed boundaries for mountain regions. The mountain regions shall generally be those areas within the city or town which have an elevation greater than the base elevation as defined in this section. If the hearing authority determines that the regulation of certain areas which have elevations lower than the base elevation is necessary to accomplish the purposes of this section, the hearing authority may include those areas in the proposed mountain regions. If the hearing authority finds that regulation of certain areas above the base elevation would not accomplish the purposes of this section, the hearing authority may exempt those areas from the proposed mountain regions.

After drafting proposed boundaries for mountain regions, the hearing authority shall submit a map and text delineating the proposed boundaries to the board of health, to the planning board, and to the city council or board of selectmen of said city or town, and to the department of environmental management in this section called the department. After submission of the map and text the city council or board of selectmen may, after a hearing of which notice shall have been published at least seven days in advance in a newspaper of general circulation in the city or town, adopt, or amend and adopt, in each case by a two-thirds vote, final boundaries of the mountain regions. The hearing authority shall file the map and text delineating the location of final boundaries of mountain regions so adopted with the city or town clerk, and simultaneously shall send verified copies of such map and text to the commissioner and to the register of the registry of deeds for the district in which the land lies. The provisions of this section governing regulated activities shall take effect with respect to land within such boundaries upon such filing or upon approval of the regulations by the commissioner, whichever shall last occur. The location of such boundaries of mountain regions may be amended, changed, or repealed by a two-thirds vote of the city or town in the same manner as they were adopted. No regulated activities shall be conducted on land within any mountain region after the provisions of this section take effect with respect to such land except in accordance with the provisions of this section.

Any person who believes that any land is not within the boundaries of a mountain region or that any proposed work is subject to an exemption specifically provided for hereinafter in this section may file with the hearing authority by certified mail a request for an exemption determination. The hearing authority shall within twenty-one days make the determination requested and send a copy thereof to the person making the request and to the owner of the land in question if other than such person.

Any person who proposes to remove, fill, excavate, or alter any land within a mountain region and who believes such proposed work is not a regulated activity may request a preliminary determination as provided in this paragraph. Such person shall file by certified mail notice thereof with the hearing authority together with such information or plans as may be necessary to describe in general terms the nature and scope of the proposed activity and its effect upon the watershed and scenic resources sought to be protected by this section; provided, however, that any plans need not be detailed engineering or architectural plans so long as the nature and scope of the proposed activity is reasonably described. No such notice shall be sent before all permits, variances, and approvals required by by-law or ordinance with respect to the proposed activity have been applied for. Upon receipt of such notice the hearing authority shall designate a file number for such notice and within twenty-one days, shall make a preliminary determination whether or not the proposed work is a regulated activity. If the hearing authority finds that the activity is not a regulated activity, then it shall issue a written order which states that finding, and send a copy thereof to the applicant and to the owner of the land in question if other than the applicant. If the hearing authority finds that the activity is a regulated activity, then it shall hold a public hearing as provided in this section. Whether the hearing authority finds the proposed activity a regulated activity or not, it shall post a notice of its finding in its customary place of general public notice within one day of making its finding.

The hearing authority may rescind an order issued after a preliminary determination and hold a public hearing as provided in the following paragraph if any owner of land abutting the land upon which the proposed activity is to be conducted or any ten residents of the city or town where the land is located request by certified mail a hearing within ten days of the issuance of the order. If an applicant is not notified within fourteen days after an order issues that the hearing authority has rescinded the order, then the applicant may perform the proposed activity.

Before performing any regulated activities, or in the case of a public hearing ordered under the preceding paragraph, an applicant shall pay a filing fee of twenty-five dollars to the city or town and file notice of the regulated activities to be performed together with such information as may be reasonably required by regulation to describe the nature and scope of the proposed activities and their effect on the watershed or scenic resources protected under the provisions of this section; provided, however, that any environmental impact statement filed with any state or federal agency shall be sufficient information with respect to such activity for purposes of complying with this section. The hearing authority shall hold a public hearing on the proposed activity within twenty-one days of receipt of such notice, and shall give notice of such hearing at the expense of the applicant at least five days prior thereto by publication in a newspaper of general circulation in the city or town where the activity is proposed and mailing by certified mail a copy of the published notice to the applicant, to the board of health, and to the planning board of said city or town, if any.

Within twenty-one days after the hearing, the hearing authority shall issue a written order which may impose on the proposed activity such reasonable conditions as may be necessary to protect watershed resources or natural scenic qualities against any significant adverse effect because of the pollution or diminution of ground or surface water supply, public or private; erosion; flooding; substantial changes in topographic features or substantial destruction of vegetation. The order shall be signed by a majority of the hearing authority and a copy thereof shall be sent by certified mail to the applicant, to the owner if other than the applicant, and to the department of environmental management. The order shall be posted within one day of its issuance in the hearing authority’s customary place of general public notice.

Upon issuance of an order, the applicant or any person aggrieved by the order or any owner of land abutting the land upon which the proposed activity is to be conducted, or any ten residents of the city or town where such land is located may request the department to determine if other reasonable conditions should be imposed, or if such conditions should be modified in order to protect against a significant adverse effect on watershed resources or natural scenic qualities, or if conditions can be modified or eliminated without any loss of protection against any significant adverse effect on watershed resources or scenic qualities. Such request may also be submitted if the hearing authority fails to hold a hearing within twenty-one days after receipt of the notice of intention, or if the hearing authority holds a hearing but fails to issue an order within twenty-one days after the hearing. The request shall be sent to the department by certified mail within ten days after the hearing authority has acted or failed to act. At the same time, the party making the request shall send copies thereof by certified mail to the hearing authority and, if the party is not the owner and applicant, to the owner and to the applicant. Upon receiving a copy of such request, the hearing authority shall within seven days forward the file on the matter to the department. Within ten days after receipt of such file, the department shall notify the applicant if the application in not in the proper form or is lacking information necessary to make the determination. Within twenty-one days after receipt of such request, the department shall make the determination requested and shall issue a written order, signed by the commissioner, imposing such reasonable conditions as may be necessary to protect the resources described herein, or modifying or eliminating conditions that may reasonably be so changed without any loss of protection of the resources described herein; provided, however, that if within such time the department finds the matter is of such size or complexity that additional time is needed, such twenty-one day period may by order be extended up to an additional sixty days. Any order of the department shall supersede any prior order of the hearing authority and all work shall be done in accordance therewith. A copy of the order shall be sent by certified mail to the applicant, to the owner, to the hearing authority, and to the party who requested the order if not the applicant. Any action by the department under this section shall not be considered an action subject to the provisions of sections sixty-one and sixty-two of chapter thirty.

If the applicant is not notified of a request of the department within fourteen days after the issuance of an order by the hearing authority, or upon the issuance of an order by the department, said applicant may conduct any regulated activities in accordance with the terms of the order, issued by the hearing authority.

Any person aggrieved by an order of the department issued under the provisions of this section may appeal under the provisions of chapter thirty A. Such right of appeal shall be exclusive.

Any order issued under the provisions of this section may be recorded in the registry of deeds for the district in which the land lies, and, upon completion of the activity in compliance with the order, the applicant may obtain a certificate of compliance from the agency which issued the order which may be recorded in like manner.

Any person except a bona fide purchaser for value without notice who purchases or otherwise acquires land upon which an activity has been done in violation of the provisions of this section or in violation of an order issued under this section shall forthwith comply with the order or restore the land to its condition prior to any violation.

If an applicant fails to commence the proposed activity within one year following the date of issuance of an order, and thereafter prosecute diligently such activity to completion, such inaction shall constitute an abandonment of the project and the hearing authority, after reasonable notice to the applicant, may revoke the order. The applicant may request an extension of the order prior to the expiration of the one-year period from the agency which issued the order. Said agency, in its discretion, may grant two extensions of the order for a period no longer than one year.

The agency which issued the order may suspend or revoke the order if it finds that the applicant has not complied with the conditions set forth in the order, or that the applicant has exceeded the scope of activity as set forth in the application. Such a finding shall be made only after giving notice to the applicant of the facts or conduct which warrant the intended action, and after a hearing at which the applicant is given an opportunity to show compliance with the conditions of the order.

The hearing authority, its agents, officers and employees, and the commissioner, and his agents and employees, may enter upon privately owned land for the purpose of carrying out the provisions of this section.

Any court having equity jurisdiction may restrain a violation of this section and enter such orders as it deems necessary to remedy such violation, upon the petition of the attorney general, the commissioner, a city or town, an owner or occupant of property which may be affected by removal, filling, excavation, or altering, or ten residents of the commonwealth under the provisions of section seven A of chapter two hundred and fourteen.

Whoever violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months or both. Each day or portion thereof of continuing violation shall constitute a separate offense. This section shall be enforced by officers of the executive office of environmental affairs.

The provisions of this section shall not apply to owners of land who propose to cut forest products on land devoted to forest purposes and who have complied with the provisions of sections forty to forty-six, inclusive, of chapter one hundred and thirty-two.

This section shall not apply to any activity which is subject to the provisions of section forty of this chapter.

This section shall not apply to any activity which is conducted in connection with the construction or maintenance of any facility, as that term is defined in section sixty-nine G of chapter one hundred and sixty-four, or to the maintenance, repair, reconstruction, replacement, enlargement which is not of a substantial nature, or change in use of any lawfully located and constructed structure, nor to any activity conducted in connection with the construction or maintenance of any electrical, transmission or distribution facilities or facilities used in the transmission of intelligence by electricity or by telephone or otherwise for which locations in the public ways have been approved by the selectmen or aldermen under the provisions of section twenty-two of chapter one hundred and sixty-six, nor to the construction or maintenance of any electric distribution facilities required to serve a building or structure whose construction has been approved hereunder.