Chapter 7-10
SPECIAL REGULATIONS

Sections:

7-10-010    Open space-residential design

7-10-020    Common driveways

7-10-030    Industrial/office campus development

7-10-040    Wireless communications facilities

7-10-050    Adult uses

7-10-010 Open space-residential design.

A.    Purposes. The purposes of open space-residential design (OSRD) are to protect open space, agricultural and forestry land, viewsheds, wildlife habitat and corridors, wetlands and water resources, and historical and archeological resources; to protect the value of real property; to encourage creative, environmentally sensitive design as the preferred form of residential development; and to encourage more efficient development that consumes less open land and respects existing topography and natural features better than a conventional or grid subdivision.

B.    Applicability. In the Residence A or Residence B District, the Planning Board may grant a special permit for an OSRD that includes two (2) or more detached single-family dwelling units.

C.    Reserved.

D.    Permitted uses. An OSRD may include the following uses:

(1)    Detached single-family dwelling.

(2)    Open space, conservation or recreation areas, including trails for walking, hiking, cross country skiing, horseback riding, picnicking and wildlife observation.

(3)    Agricultural, equestrian and horticultural uses.

(4)    Accessory recreational amenities for residents of the OSRD, such as a tennis court or playground.

E.    Dimensional regulations.

(1)    The maximum number of dwelling units in an OSRD shall be determined in accordance with subsection (F) of this section.

(2)    The Planning Board may waive the minimum lot dimensional requirements that normally apply to lots in the Residence A or Residence B District in order to maximize the open space area or facilitate a desired arrangement of buildings and other amenities, and may permit more than one (1) dwelling on a lot in an OSRD, except as follows:

(a)    Lots having reduced area or frontage shall not have frontage on a street other than a street within the OSRD unless the Planning Board makes a written determination that such reduced lot(s) or frontage on other streets will further the goals of this section.

(b)    Dwelling units in an OSRD shall be separated from abutting residential lots by an open space buffer of at least fifty (50) feet.

(c)    Unless waived by the Planning Board, all other dimensional requirements of the applicable zoning district shall apply.

F.    Base maximum number of dwelling units. The base maximum number of dwelling units allowed in an OSRD shall be determined in accordance with the following formula:

Total Number Dwelling Units = 1.50 ×

Total Site Area (in square feet) minus

(.5 × Wetlands) minus

(.1 × Total Site Area)

 

Zoning District Minimum Lot Area (square feet); See Chapter 7-06

    The proponent shall have the burden of proof with respect to the calculation of wetlands on the site.

G.    Common open space requirement. The OSRD must provide at least thirty-five percent (35%) of the total area of the site as common open space to be protected in perpetuity. The common open space shall have no structures, parking, private yards, patios, sanitary waste disposal facilities or gardens restricted for the exclusive or principal use by the occupants of individual dwelling units. The common open space shall not be further subdivided, and a notation to this effect shall be placed on the plan of record, which shall be recorded at the Registry of Deeds. The following standards apply to the common open space in an OSRD:

(1)    Use, shape and location.

(a)    Common open space shall be functional for wildlife habitat, passive recreation, resource preservation, agriculture or equestrian uses.

(b)    To the maximum extent feasible, the open space shall be undisturbed, unaltered and left in its natural or existing condition. It shall be appropriate in size, shape, dimension, location, and character to assure its use as a conservation area, or where appropriate, a recreational area. Not more than ten percent (10%) of the open space may be covered by gravel roadways, pavement or structures accessory to the dedicated use or uses of the open space. However, principal or accessory structures and access roads essential to an agricultural use are exempt from this limitation.

(c)    The percentage of open space that includes wetlands normally shall not exceed the percentage of the site that includes wetlands. However, the common open space may include a larger percentage of wetlands if the Planning Board determines that such inclusion promotes the purposes of this section.

(d)    Wherever feasible, the common open space shall be contiguous and linked as a unit, and linked to other existing open space.

(e)    Underground utilities providing shared or common benefits to residents of the OSRD site may be located within the common open space.

(f)    Existing or proposed utility easements shall not be counted as common open space unless approved by the Planning Board.

(2)    Ownership. Any proposed common open space within an OSRD shall be conveyed in accordance with the provisions of MGL C. 40A, § 9. In any case where the common open space is not conveyed to the Town, a restriction enforceable by the Town by its Conservation Commission or other board under MGL C. 184, §§ 31 through 32 shall be recorded providing that such land shall be kept in perpetuity in an open or natural state, and the Board of Selectmen is hereby authorized to accept such restrictions if the Conservation Commission declines to do so in any instance. Wherever possible, existing trails shall be kept open for limited recreational use.

H.    Pre-submission meeting. Proponents are encouraged to meet with the Planning Board prior to applying for a special permit. The purposes of a pre-application review are to minimize the proponent’s costs for engineering and other technical experts and to solicit guidance from the Planning Board at the earliest possible stage in the planning and permitting process. At the request and expense of the proponent, the Planning Board may engage technical experts to review the informal plans of the proponent and to facilitate submittal of a formal application for an OSRD special permit.

I.    Design process. At the time of the application for a special permit under subsection (J) of this section, the proponent shall demonstrate to the Planning Board that the following design process was carried out by a registered landscape architect and considered by the proponent in determining the layout of proposed streets, house lots, and open space.

(1)    Site analysis. The first step in the design process is to identify the natural, scenic and cultural features on the site and surrounding it, to analyze the design implications of these features, and to evaluate the site in its larger context by identifying physical, cultural and transportation connections to surrounding land uses and activities. Wherever possible, site and context features shall include areas identified by the Planning Board during the pre-submission meeting.

(2)    Open space. The second step in the design process is to identify the open space to be preserved on the site. The open space should include the most sensitive and noteworthy resources of the site, be contiguous, and where appropriate, serve to extend neighborhood open space networks.

(3)    Development envelope. The third step is to locate building sites, streets, parking areas, paths and other built features of the development. The design should include a delineation of private yards, public and private streets and other areas, and shared amenities, so as to reflect an integrated community, with emphasis on consistency with the town’s historical development patterns. To the maximum extent feasible, the proposed area of disturbance shall consist of land outside the areas identified under subsection (I)(1) of this section. The location of dwelling units should account for proximity to common open space and other amenities, including community buildings for use by residents of the development. Toward this end, the number of dwelling units with direct access to the amenities of the development should be maximized.

(4)    Lot and easement lines. The fourth step is to identify the approximate location of lot and easement lines, where applicable.

J.    Special permit procedures.

(1)    General. The special permit application, review and decision procedures shall be in accordance with this section and Section 7-03-040, and MGL C. 40A, § 9. Where a development requires a special permit under this section and any other section of this bylaw, the special permit applications may be combined into a single submission and the Planning Board may grant a single special permit that addresses all applicable requirements.

(2)    Application requirements. The special permit application shall include an OSRD concept plan and a yield analysis in accordance with the requirements herein. The size, form, number and contents of the required plans and any supplemental information shall be in accordance with Planning Board regulations.

(3)    Sources of data. The concept plan and yield analysis may be prepared from existing data such as deed information, USGS topographical maps, FEMA floodplain maps, assessor’s maps, orthophotos, soil maps or soil conservation survey, Department of Environmental Protection (DEP) Wetlands Conservancy Program maps or other wetland maps as may be on file with the Northborough Conservation Commission, or federal, state or local maps of wildlife habitat and supporting landscapes. While it is not necessary to verify all site constraints prior to preparing a concept plan, they should be represented as accurately as possible in order to avoid significant changes to the concept plan in subsequent applications for approval of a site plan or a subdivision plan. The proponent shall bear the risk of any such changes.

(4)    Required information for OSRD concept plan. The concept plan shall be a schematic representation of the proposed OSRD, with sufficient detail about existing and proposed conditions to enable the Planning Board to understand the nature, scope and impacts of the project being proposed and to be able to respond to the proponent’s proposals in an informed manner. The concept plan shall include scaled drawings prepared by a registered landscape architect. The concept plan shall incorporate the OSRD design process outlined in subsection (I) of this section and account for the minimum design standards of subsection (L) of this section. At minimum, the concept plan shall provide the following information:

(a)    The location of the proposed development;

(b)    The size of the proposed site in acres;

(c)    An existing conditions inventory and an analysis of site and context features identified during the OSRD design process;

(d)    The total number and approximate locations of the proposed buildings, dwelling units and/or lots, and the approximate size of each in square feet;

(e)    The acreage and proposed use(s) of permanent open space;

(f)    A statement on the disposition or manner of ownership of the proposed open space;

(g)    The areas or approximate delineation of lots that will be used as building areas, and the areas or approximate delineation of lots that are to remain as permanent open space;

(h)    The approximate location of proposed roadways;

(i)    A general description of how drainage and wastewater will be handled, including a soils statement and the general area of the site to be used for stormwater management facilities;

(j)    A general description of the proponent’s plans for site improvements, including mitigation of noise, odor or visual impacts arising from the operation of a package treatment plant, where applicable; and

(k)    Sufficient detail of the proposed area(s) of disturbance and built and natural features to enable the Planning Board to make the required determinations under subsection (G) of this section.

(5)    Yield analysis. The proponent shall submit a yield analysis based on the formula for base maximum number of units in subsection (F) of this section. The purpose of the yield analysis is to demonstrate the maximum number of lots that could be developed on the site under a conventional plan and the maximum number of units that may be permitted in an OSRD. The total number of lots in the OSRD shall be determined by the Planning Board, based upon its review and determination of the proponent’s yield analysis.

(6)    Site alterations. After an OSRD special permit application has been submitted, no tree removal, no utility installation, no ditching, grading or construction of roads, no grading of land or lots, no excavation, except for purposes of soil testing, no dredging or filling and no construction of buildings or structures shall be done on any part of the tract of land proposed for an OSRD until the application has been reviewed and approved or denied as provided by these regulations.

(7)    Decision.

(a)    The Planning Board may grant a special permit for an OSRD with any conditions, safeguards, and limitations necessary to ensure compliance with this section, only upon finding that:

[1]    The conceptual design and layout of the proposed OSRD is superior to a conventional development in preserving open space for conservation and recreation, preserving natural features of the land, achieving more efficient provision of streets, utilities and other public services, and providing a high degree of design quality;

[2]    The OSRD provides for a more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional subdivision;

[3]    The OSRD furthers the purposes of this section.

(b)    The Planning Board may deny a special permit upon finding that the application does not provide sufficient information or does not comply with the provisions of this bylaw; or that the site is not suitable for an OSRD and would be more appropriate for a conventional subdivision plan, which finding shall be set forth in detail in a written decision.

(c)    Effect of special permit approval. Approval of a special permit under this section shall not be considered approval for any construction. The special permit is a preliminary approval, intended to give guidance to the proponent for the development of an OSRD definitive plan, and to determine whether the proponent’s submittal meets the objectives of this section. Any subsequent application for an OSRD definitive plan shall comply with all material aspects and conditions of the special permit granted hereunder.

K.    Definitive plan procedures. Following issuance of a special permit for an OSRD, the proponent is eligible to submit an OSRD definitive plan to the Planning Board. The definitive plan shall be a site plan submitted to the Planning Board in accordance with Section 7-03-050. An OSRD that involves a subdivision of land must be submitted to the Planning Board for approval under the Planning Board’s subdivision rules and regulations.

(1)    The Planning Board may approve a definitive plan that substantially complies with the special permit granted under subsection (J) of this section and meets all of the following additional requirements for common facilities, operations and maintenance:

(a)    Each unit and the OSRD as a whole shall be served by a privately owned and maintained on-site sewage disposal or treatment system. An approved on-site sewage disposal or treatment system serving more than one (1) dwelling unit may be located on land owned in common by the owners of the residential units in the OSRD, subject to requirements of the Northborough Board of Health and Title 5 of the Massachusetts Environmental Code or approved in accordance with the requirements of the Department of Environmental Protection Groundwater Discharge Permit Program.

(b)    To ensure that common open space and common facilities will be maintained properly, each OSRD shall have a residents association in the form of a corporation, nonprofit organization, or trust, established in accordance with appropriate state law by a suitable legal instrument or instruments properly recorded at the registry of deeds or registry district of the Land Court. As part of the definitive plan submission, the proponent shall supply copies of such proposed instruments to the Planning Board.

(2)    The Planning Board may conditionally approve an OSRD definitive plan that does not substantially comply with the special permit. A conditional approval shall identify where the plan does not substantially comply with the special permit, identify the changes to the special permit required to bring the plan into compliance with the special permit, and require the special permit to be amended within a specified time. The public hearing on the application to amend the special permit shall be limited to the significant changes identified in the Planning Board’s conditional approval.

(3)    The Planning Board may disapprove a definitive plan for failure to comply with the special permit or for failure to meet the OSRD design standards in subsection (L) of this section. The definitive plan will be considered not to comply with the special permit if the Planning Board determines that any of the following conditions exist:

(a)    Any increase in the number of buildings or dwelling units;

(b)    A significant decrease in acres of common open space; or

(c)    A significant change in the general development pattern which adversely affects natural landscape features and open space preservation.

L.    Minimum design standards. An OSRD definitive plan shall address the following design standards and any supplemental design regulations or guidelines adopted by the Planning Board under subsection (N) of this section.

(1)    Landscape preservation. Insofar as practicable, an OSRD shall preserve the landscape in its natural state by minimizing tree removal and grade changes. Any grade changes shall be in keeping with the general appearance of neighboring developed areas. The location and orientation of individual building sites shall be such as to maintain maximum natural topography and limit the removal of trees with four (4) inches or more of diameter at breast height (dbh). Topography, viewsheds, tree cover, and natural drainage ways shall be treated as fixed determinants of road and lot configuration rather than as elements that can be changed to follow a particular development scheme.

(2)    Roadway design. Streets shall be designed and located in such a manner as to maintain and preserve natural topography, significant landmarks, and trees; to minimize cut and fill; and to preserve and enhance views and vistas on or off the subject parcel.

(3)    Cultural resources. The removal or disruption of historic, traditional or significant uses, structures, or architectural elements shall be minimized.

(4)    Architectural design. In scale, massing, height, exterior materials and roofline articulation, residential buildings in an OSRD shall be compatible with surrounding residential areas.

(5)    Buffer areas. An OSRD that abuts an existing residential use shall provide a buffer area of at least one hundred (100) feet to the property line of adjacent homes. Within the buffer area, no vegetation will be disturbed, destroyed or removed, except for normal maintenance of structures and landscapes approved as part of the OSRD, except that roads or driveways necessary for access and egress to and from the site may cross such buffers. The Planning Board may waive buffer requirements when it determines that a smaller buffer will suffice to accomplish the objectives of this section. The Planning Board may also approve the inclusion of buffer area within the area provided as common open space.

(6)    Drainage. The Planning Board shall encourage and may require the use of nonstructural stormwater management techniques, such as swales, and other drainage techniques that reduce impervious surface and enable infiltration where appropriate.

(7)    Common/shared driveways. A common or shared driveway shall serve not more than four (4) single-family dwelling units unless the Planning Board determines that a common driveway serving more than four (4) units will further the purposes of this section.

(8)    Pedestrian circulation. Where appropriate, walkways shall be provided within the OSRD to link residences with parking areas, recreation facilities and open space, and adjacent land uses.

M.    Incentive for additional open space. For each additional ten percent (10%) of the site (over and above the required thirty-five percent (35%)) set aside as common open space, the Planning Board may authorize an increase in the number of dwelling units; provided, that the total number of additional units shall not exceed twenty-five percent (25%) of the base maximum number of dwelling units determined in accordance with subsection (F) of this section.

N.    OSRD regulations and design guidelines. The Planning Board may adopt rules, regulations and guidelines to administer this section, following a public hearing.

(4-27-09 ATM, Art. 31; 4-26-10 ATM, Art. 28.)

7-10-020 Common driveways.

Common driveways may be allowed by special permit by the planning board, subject to the requirements of Section 10-36-130.

(4-24-17 ATM; 4-27-09 ATM, Art. 31; 4-26-10 ATM, Art. 28.)

7-10-030 Industrial/office campus development.

A.    Purposes. The purposes of industrial/office campus development (IOCD) are to encourage planned campus park developments in the Industrial District through the use of master plans that are designed for compatibility with nearby residential or commercial areas; to provide a project review process for business parks that will be constructed in phases; to encourage economic growth in the Town of Northborough through high-quality industrial and office development; to establish regulations and guidelines that accomplish the foregoing objectives while minimizing adverse impacts on the natural features of a proposed site and the town’s water resources; and to encourage nonresidential mixed-use developments for research and development, manufacturing, offices, and administrative and support facilities.

B.    Applicability. Any nonresidential development involving five (5) or more acres of land in the Industrial District may be considered for IOCD approval. An IOCD shall be allowed only upon issuance of an IOCD master plan special permit in accordance with the provisions of this section, Section 7-03-040 and Section 7-03-050.

C.    Use regulations. Any use allowed as of right in the Industrial District shall be allowed as of right in an IOCD, and any use allowed by special permit shall also require a special permit to be included in an IOCD.

D.    Design and performance standards. The intent of the IOCD is to provide for development in accordance with master plans that meet the following standards:

(1)    Overall unity of site design and attention to the public realm, including coordinated patterns for streets, ways and pedestrian paths; distributed open space, appropriate landscaping; aesthetic harmony of features including building architecture, street furniture, pedestrian amenities and signage.

(2)    Preservation and integration of open spaces, wetlands, mature trees and other features of environmental significance into the design of the site.

(3)    Drainage systems that protect and appropriately employ open spaces and wetlands, utilizing best management practices (BMPs) and other measures to manage stormwater runoff in accordance with the Town of Northborough’s stormwater management regulations and applicable regulations of the Massachusetts Department of Environmental Protection (DEP).

(4)    Underground utilities shall be used, except for existing above ground electric and telephone lines.

(5)    Mitigation of the adverse effects of development on traffic circulation and street capacity; air quality; noise (including that generated by traffic); stormwater runoff on adjacent and downstream surface water bodies; flooding, erosion, sedimentation, changes in water tables; wildlife, wildlife habitat, rare or endangered plant or animal species; water supply, including adverse impacts on aquifers and the public water distribution system; and adverse effects of sewage disposal on ground water, aquifers, surface water and, where applicable, the municipal sewer system.

(6)    Compatibility with uses of abutting properties, including aesthetic compatibility; or appropriate separation and buffers from such abutting property by plantings or terrain.

(7)    Availability of public services and impacts on municipal services, including but not limited to police and fire services, public road maintenance, traffic control and solid waste disposal.

(8)    Costs and benefits to the Town of Northborough, showing net benefits.

(9)    Facilities for meeting transportation needs, and planning for control and reduction of vehicle trips by means such as ride sharing, car pooling or use of vans or shuttles.

(10)    Organizational and management arrangements and documents pursuant to which the master plan will be implemented and common facilities will be maintained, including provisions for architectural review and control, enforcement of applicable restrictions, and the planning with respect to transportation.

E.    Procedures.

(1)    IOCD master plan special permit. Application requirements, including fees, shall be in accordance with the rules and regulations of the Planning Board and the following requirements.

(a)    The master plan submission shall contain the necessary plans, information, data and documents to indicate the anticipated scope and intensity of development, size and location of structures, layout of streets and ways, and impacts on the environment, municipal services and traffic, and shall conform with the design criteria and guidelines in this section to the maximum feasible extent. An IOCD special permit approved by the Planning Board under this section shall govern the development of the tract of land included therein, and shall be a public record.

(b)    The Planning Board shall hold a public hearing on an IOCD application no later than sixty-five (65) days from the date of submission. Notice of the hearing shall be in accordance with MGL C. 40A, § 11. Review authorities shall forward their comments, in writing, to the Planning Board no later than the date of the public hearing.

(c)    No later than ninety (90) days from the close of the public hearing, the Planning Board shall grant a special permit for the master plan as proposed, or approve it with conditions, or deny the proponent’s submission. If no action is taken within ninety (90) days, the application shall be deemed approved as submitted except where the Planning Board and the proponent have agreed in writing to an extension.

(2)    Special permit decision criteria. The Planning Board shall grant special permit for an IOCD only upon its determination that:

(a)    The master plan meets all applicable requirements of this section and Section 7-03-040;

(b)    Given the location, type and extent of land use proposed by the proponent, building location, egress points, anticipated grading, and other elements of the master plan could not reasonably be altered to address the criteria in Section 7-03-050(C)(2), where applicable;

(c)    Any variances required from the Zoning Board of Appeals have been granted.

F.    IOCD master plan amendments. The proponent may propose to amend, modify or supplement an IOCD master plan from time to time in order to bring the plan into conformity with changed circumstances, ongoing development in an IOCD, and information disclosed through detailed study and engineering of particular development sites within the IOCD. The Planning Board may approve such amendments and may in its discretion hold a public hearing, with notice given as set forth above, if it deems the proposed modification and supplementation to be substantial.

G.    Lapse. An IOCD Master Plan Special Permit shall lapse if a substantial use thereof or construction thereunder has not begun, except for good cause, no later than two (2) years following the filing of the special permit approval with the Town Clerk, including such time required to pursue or await the determination of an appeal referred to in MGL C. 40A, § 17. Such approval may, for good cause, be extended in writing by the Planning Board upon written request of the proponent. For purposes of this section, “substantial use” shall mean the issuance of at least one (1) building permit for a use included in the IOCD.

H.    Project plan submissions and procedures.

(1)    Prior to application for a building permit for a use permitted in an IOCD, the proponent shall submit a project plan to the Planning Board.

(2)    For project plans submitted under an approved Master Plan, application requirements, review and decision procedures shall be in accordance with site plan approval under Section 7-03-050(A)(1), except as follows.

(a)    In addition to meeting the requirements of Section 7-03-050, the proponent shall provide written statements that the project for which a building permit is sought complies with (1) the master plan special permit, (2) the uses permitted within an IOCD and (3) all requirements of this section, and shall provide such plans, information, analyses, computations and other data as are reasonably necessary to document such statements.

(b)    If no action is taken on a project plan within sixty (60) days, the application shall be deemed approved as submitted except where the Planning Board and the proponent have agreed in writing to extend the review period.

(3)    Where applicable, the proponent shall submit for endorsement of an approval not required plan or approval of a subdivision plan, if required, in accordance with the Planning Board’s subdivision regulations.

I.    Signs. Signs in an IOCD shall be in accordance with Section 7-09-040 and this section. Where a conflict exists between this section and Section 7-09-040, this section shall govern.

(1)    At each public street entrance to an IOCD, a sign shall be permitted to identify the development as a whole. No such sign shall exceed three hundred (300) square feet in size nor eight (8) feet in height, nor be located less than twenty (20) feet from the street line.

(2)    At an appropriate location within an IOCD, a directory map shall be permitted to identify organizations and enterprises. With the approval of the Planning Board additional directory signs may be permitted. No such sign shall exceed three hundred (300) square feet in size nor twelve (12) feet in height, nor shall any lettering thereon exceed eight (8) inches in height. If such sign includes a locator map, at least two (2) adjacent parking spaces shall be provided.

(3)    Each principal building shall be permitted to have one (1) identifying sign designating the names and/or logos of the organizations or enterprises occupying the same. No such sign shall exceed three hundred (300) square feet in size nor twelve (12) feet in height, nor be pole mounted, but may be located in front of the building or mounted thereon.

(4)    Traffic direction and control signs are permitted when required or authorized by state and local officials with jurisdiction over such signs. Temporary signs are permitted to identify construction, financing, sale, leasing or pending tenancy with respect to buildings, or the occurrence of a special event, a hazard or a restriction or limitation of access or use.

(5)    No signs shall be moving or flashing, but may be illuminated by nonflashing, nonblinking lights.

J.    Regulations. To implement this section, the Planning Board may adopt regulations consistent with the provisions herein, further specifying and defining submission requirements, fees, design guidelines, and procedures.

(4-27-09 ATM, Art. 31; 4-26-10 ATM, Art. 28.)

7-10-040 Wireless communications facilities.

A.    Purpose and intent. The purpose of this section is to minimize adverse impacts of communication structures, monopoles, buildings and appurtenances on adjacent properties and residential neighborhoods; and to protect, to the maximum extent practicable, the rural character and aesthetic qualities of the Town of Northborough, the property values of the community and safety of the citizens. This section is promulgated under the authority of MGL C. 40A, the Home Rule Amendment of the Massachusetts Constitution and the 1996 Telecommunications Act, 47 U.S.C. Section 332(c)(7)(A). A wireless communication facility shall not be placed, constructed or modified except in accordance with the provisions of this bylaw.

B.    Applicability. Unless exempted in accordance with subsection (H) of this section, any wireless communications facility (WCF) as defined hereunder shall require a special permit from the Planning Board.

C.    Definitions. Where used in this section, the following terms shall have the following meanings:

(1)    WIRELESS COMMUNICATIONS FACILITY - A “wireless communications facility” (“WCF”) shall mean a facility used for the purpose of commercial or public wireless communications uses, such as cellular telephone services, enhanced specialized mobile radio services, microwave communications, personal wireless communications services, paging services and the like, as defined in Section 704 of the Federal Telecommunications Act of 1996, as amended. Such facilities shall include towers, antennas, antenna support structures, panels, dishes, communication buildings, communication structures and accessory structures in their entirety or as separate components.

(2)    COMMUNICATION BUILDING - Any building utilized primarily for the installation and operation of equipment for generating or receiving electromagnetic radiation and which is accessory to a communication structure.

(3)    COMMUNICATION STRUCTURE - Any structure intended to support equipment used for the transmission and/or reception of electromagnetic radiation, including communication monopoles, antennas, wiring or other devices attached thereto. Such a structure shall not include a lattice tower.

(4)    COMMUNICATION MONOPOLE - Any cylindrical pole intended to support equipment used for the transmission and reception of electromagnetic radiation including antennas, wiring or other devices attached thereto.

(5)    LATTICE TOWER - A type of mount that is self-supporting with multiple legs and cross-bracing of structural steel.

(6)    MOUNT - The structure or surface upon which antennas are mounted, including the following four (4) types of mounts:

(a)    Roof-mounted: Mounted on the roof of a building.

(b)    Side-mounted: Mounted on the side of a building.

(c)    Ground-mounted: Mounted on the ground.

(d)    Interior-mounted: Mounted within a building such that the WCF is not visible from the exterior of the building/structure.

(7)    RADIOFREQUENCY (Rf) ENGINEER - An engineer specializing in electrical or microwave engineering, especially the study of radio frequencies.

(8)    RADIOFREQUENCY RADIATION (RFR) - The emissions from WCFs.

D.    Application process. Every special permit application for a WCF shall be made under the provisions of Section 7-03-050 and filed on the applicable application form available from the Planning Board. Site plan approval by the Planning Board is also required for all co-locations and all mounted WCFs.

(1)    An application for a special permit for a WCF may be approved; provided, that a proponent satisfies the requirements of this section and Section 7-03-050.

(2)    Applications for special permits shall be denied if the proponent cannot fulfill or address the requirements of this section to the satisfaction of the Planning Board.

(3)    When considering an application for a new WCF, the Planning Board shall place great emphasis on the proximity of the WCF to residential dwellings and its impact on these residences.

(4)    A locus plan at a scale of one (1) inch equals one hundred (100) feet which shall show all property lines, the exact location of the proposed structure(s), streets, landscape features, residential dwellings, and all buildings within five hundred (500) feet of the WCF. Such plan shall also include an engineer’s certification stating that all property lines of the lot on which the WCF is proposed to be located are not within one thousand (1,000) feet of any school property line.

(5)    The following information shall be prepared by one (1) or more professional engineers:

(a)    A description, including illustrations and photographs, of the monopole and the technical, economic and other reasons for the proposed location, height and design.

(b)    Confirmation that the monopole complies with, or is exempt from, all applicable Federal and State standards.

(c)    A description of the capacity of the monopole including the number and type of panels, antennas and/or transmitter receivers that it can accommodate and the basis for these calculations.

(6)    Material describing a specific plan for a balloon or similar test, including the date and time, as well as a rain date and time, shall be submitted with the application. The Planning Board shall approve the plan and specify the manner by which the proponent shall give notice to the public.

(7)    In addition to the filing fees, the proponent shall pay any additional cost of retaining professional services if such services are deemed necessary by the Planning Board.

(8)    Any special permit granted under this section shall lapse within two (2) years of the date of the grant, not including the time required to pursue or await the termination of an appeal referred to in MGL C. 40A, § 17, if substantial use thereof has not sooner commenced except for good cause or, in the case of a permit for construction, if construction has not begun within two (2) years of the date of grant, except for good cause.

E.    General requirements.

(1)    No WCF shall be placed, constructed or modified except in compliance with this Zoning Bylaw.

(2)    All WCFs shall be co-located, to the maximum extent practicable and technologically feasible, with one (1) or more WCFs for which a special permit has been previously granted and whose height, location and characteristics meet the needs of the proposed new WCF. The proponent shall demonstrate to the Planning Board that it has made a reasonable effort to co-locate the proposed WCF upon an existing structure or WCF.

(3)    All new wireless communication monopoles or support structures shall be designed and constructed, to the maximum extent practicable with existing technology and with height limits set forth in this chapter, for co-location of antennas and other necessary facilities for at least three (3) other wireless communication providers, and shall offer space to all other providers at market rates. Any special permit granted for a new WCF under this section shall be conditioned upon the written agreement of the WCF operator to allow the co-location of at least three (3) other wireless communication providers on commercially reasonable terms. If co-location facilities are not installed at the time of construction of the WCF, then, at the time of any addition of a co-located facility, the holder of the special permit and the new provider shall notify the Planning Board and the Building Inspector that the installation has occurred and certify that the installation has been performed in accordance with the special permit for the WCF.

(4)    In descending order of zoning district preference, a WCF shall be located in the Industrial District; the Business West, Business East, Business South, and Highway Business District; the Residence A, Residence B, and Residence C District; and the Downtown Business, General Residential, Main Street Residential, and Downtown Neighborhood District.

(5)    Any proponent not proposing to locate their WCF in the Industrial District shall demonstrate why it is not feasible for the WCF to be co-located with an existing WCF or to be located in the Industrial District, and any other district having preference over the proposed location.

(6)    No WCF shall contain more than one (1) monopole, tower or other structure for elevating an antenna or dish. No more than one (1) WCF, except co-locators, shall be constructed on one (1) lot. In no event shall any WCF be located closer than one (1) mile to any other such WCF, unless the proponent can show that no existing space on the existing WCF can be leased or procured.

(7)    The maximum height of the WCF, measured from the mean finished ground level, shall not exceed one hundred twenty-five (125) feet in the Industrial, Highway Business, Business South, Business West, or Business East District and shall not exceed seventy-five (75) feet in the Downtown Business, General Residential, Main Street Residential, Residence C, Residence B, Residence A, or Downtown Neighborhood District. The Planning Board may waive such requirement in exceptional circumstances to allow a greater height where such action is in the public interest and is not inconsistent with the purpose and intent of the Zoning Bylaw.

(8)    In the Industrial, Highway Business, Business South, Business West, Business East, and Downtown Business District, the setbacks for the WCF shall be a minimum of one and one-half (1 1/2) times the height of the monopole. The WCF shall also be five hundred (500) feet from the lot line of the nearest residential structure. Said distance shall be measured from the base of the WCF to the lot line of the nearest residential use. The Planning Board may waive such requirement in exceptional circumstances to allow a lesser setback where such action is in the public interest and is not inconsistent with the purpose and intent of the Zoning Bylaw.

(9)    In residential districts, the setbacks shall be a minimum of four (4) times the maximum height of the WCF from the nearest lot line, but not less than five hundred (500) feet as measured from the base of the WCF to the nearest residential structure. The Planning Board may waive such requirement in exceptional circumstances to allow a lesser setback where such action is in the public interest and is not inconsistent with the purpose and intent of this bylaw.

(10)    The property line of a WCF shall be a minimum of one thousand (1,000) feet from any school property line.

(11)    All structures associated with a WCF shall be removed within one (1) year of the cessation of said use.

(12)    RFR measurement. After the WCF is operational, the proponent shall submit to the Planning Board and the Building Inspector, within ninety (90) days of beginning operations, and at annual intervals, existing measurements of RFR from the WCF. All annual reports shall be due July 1st of each year. Such measurements shall be performed by an independent consultant and shall be signed and certified by an RF engineer, stating that RFR measurements are accurate and meet FCC regulations. Testing shall be done for all freestanding facilities and all mounted facilities. The RFR shall not exceed FCC regulations.

(13)    Noise measurement. After the WCF is operational, the proponent shall submit to the Planning Board and the Building Inspector, within ninety (90) days of beginning of operations, and at annual intervals, existing measurements of noise from the WCF. All annual reports shall be due July 1st of each year. Such measurements shall be performed by an independent consultant and shall be signed by an acoustical engineer, stating that noise measurements are accurate. Testing shall be done for all freestanding facilities and all mounted facilities.

(14)    As a condition for any special permit for the placement, construction or modification of a WCF, the proponent shall provide a bond, in a form acceptable to the Planning Board, or shall place into escrow a sum of money sufficient to cover the costs of removing the WCF from the subject property and, furthermore, said funds shall be held by the Town Treasurer or an independent escrow agent to be appointed by the carrier and the Planning Board. The amount of the surety shall be certified by an engineer, architect or other qualified professional registered to practice in the Commonwealth of Massachusetts. The proponent shall authorize and, as necessary, shall provide the authorization of the owner of the property to allow the town or the escrow agent to enter upon the subject property to remove the WCF when the WCF has been abandoned or discontinued.

    A WCF shall be deemed to be abandoned or discontinued if it has not been used for the purpose for which it was constructed for a period of one (1) year or more. Once abandonment or discontinuance has occurred, the proponent shall remove the WCF from the subject property within ninety (90) days. In the event that the proponent fails to remove the WCF, the town shall give notice to the proponent and, if appropriate, the independent escrow agent that the WCF shall be removed forthwith and the town or the escrow agent, after affording written notice seven (7) days in advance to the proponent, shall remove the WCF.

    The special permit shall further state that, in the event the amount of surety is insufficient to cover the costs of removal, the town may place a lien upon the property to cover the difference in cost.

(15)    The proponent shall provide to the Planning Board a contact for emergencies and said contact person and phone number and the owner of the WCF and phone number shall be posted on the fence surrounding the WCF.

(16)    A qualified independent structural engineer shall perform a structural safety inspection of the WCF at least every two (2) years and shall deliver a copy of said reports to the Town Engineer on July 1st. All structural safety deficiencies noted in any such report shall be remedied and the Town Engineer notified by the structural engineer within sixty (60) days of the date of the report.

F.    Design provisions. Design provisions for each WCF shall include, but are not limited to:

(1)    No new WCF shall be placed or constructed that uses a lattice-type construction which requires three (3) or more legs or guy wire supports or both.

(2)    Except as provided herein, every WCF shall comply with all applicable signage regulations set forth in this section. Notwithstanding any other regulation, however, no WCF shall place any signage above the height of ten (10) feet as measured from the ground to the highest point of the sign or twelve (12) feet to the top of the sign structure.

(3)    All monopoles, antennas, antenna support structures and similar facilities shall be of neutral colors that are harmonious with, and blend with, the natural features, buildings and structures of the surrounding environment. Such structures shall be constructed out of nonreflective materials.

(4)    Every building-mounted WCF shall be designed and located so as to appear to be an integral part of the existing architecture of the building and shall be of colors that match and/or blend with those of the building.

(5)    The related unmanned equipment and/or building, per carrier, shall not contain more than two hundred (200) square feet of gross floor area or be more than ten (10) feet in height.

(6)    There shall be a minimum of one (1) parking space for each WCF, to be used in connection with the maintenance of the site, and not to be used for the permanent storage of vehicles or other equipment.

(7)    Every WCF shall be protected against unauthorized climbing or other access by the public. The fencing shall be compatible with the scenic character of the town and shall not be constructed of barbed wire or razor wire.

(8)    WCFs shall be lighted only if required by the Federal Aviation Administration (FAA). Lighting of equipment structures and any other facilities on site shall be shielded from abutting properties.

(9)    Proponents shall submit eight (8) view lines shown in a one (1) mile radius from the site, beginning at true North and continuing clock-wise at forty-five degree (45°) intervals. Said view lines shall, to the extent feasible, be taken from existing vantage points commonly used by the public, such as public ways, buildings or facilities. The submittal shall include unaltered photographs taken from eye level, five (5) feet above grade, which show the existing condition of these view lines, as well as accurate scale perspective elevation drawings, computer-altered photographs or other accurate representations showing said view lines with the WCF in place.

(10)    Landscape plans submitted with the application shall identify all existing vegetation, shall indicate which vegetation is to be removed or altered, and shall show all proposed new vegetation and other landscape treatments.

(11)    Every WCF shall be located on the landscape in such a manner so as to minimize visibility from abutting streets and structures and to limit the need to remove existing vegetation. All equipment shall be colored, molded and/or installed to blend into the structure and/or landscape.

G.    Environmental standards.

(1)    No hazardous waste shall be discharged on the site of any WCF. If any hazardous materials are to be used on site, there shall be provisions for full containment of such materials. An enclosed containment area shall be provided with a sealed floor, designed to contain at least one hundred ten percent (110%) of the volume of the hazardous materials stored or used on the site.

(2)    Ground-mounted equipment for a WCF shall not generate noise in such concentrations and of such duration as to:

(a)    Be greater than fifty (50) dB at any audible frequency measured at the WCF property line;

(b)    Be injurious, or be, on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or

(c)    Unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business.

H.    Exemptions.

(1)    The following types of WCFs are exempt from the requirements of this chapter, but must comply with all other applicable requirements of the Zoning Bylaw:

(a)    A television antenna or satellite dish which is accessory to a use permitted as of right in a business or residential district, provided such use does not include the provision of wireless communications services for a fee. Such antenna or dish must be: (1) less than two (2) meters in diameter; and (2) not visible from any neighboring property or public way.

(b)    Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the FCC; provided, that the tower is not used or licensed for any commercial purposes.

(2)    The following types of WCFs shall not require a special permit, but shall comply with all other requirements of this section and shall require Planning Board site plan approval in accordance with the provisions of Section 7-03-050(A)(1).

(a)    An interior-mounted WCF installed wholly within and not protruding from the interior space of an existing building or structure, excluding buildings used for residential use.

(b)    A roof-mounted WCF installed on the roof of an existing building, providing no part of the WCF extends more than ten (10) feet above the existing roof and the roof of such building is at a higher elevation than any other building within one thousand (1,000) feet.

(c)    A side-mounted WCF not projecting above the height of the existing building and not extending by more than eighteen (18) inches out from the face of the building to which it is attached.

(4-27-09 ATM, Art. 31; 4-26-10 ATM, Art. 28.)

7-10-050 Adult uses.

A.    Purpose and intent. This bylaw is enacted pursuant to MGL C. 40A, § 9A in order to serve the compelling interests of the town in preventing the clustering and concentration of adult entertainment enterprises because of their deleterious effect on adjacent areas and in response to studies demonstrating their effect on generating crime and blight.

B.    Definitions. The term “adult uses” shall include and be defined as follows:

(1)    ADULT BOOKSTORE - An establishment having as a substantial or significant portion of its stock-in-trade printed matter, books, magazines, picture periodicals, motion picture films, video cassettes, computer compact disks, computer disks or diskettes, or coin-operated motion picture machines for sale, barter or rental which are distinguished or characterized by their emphasis on matters depicting, describing or relating to “sexual conduct” as that term is defined in MGL C. 272, § 31, sexual devices or an establishment having for sale sexual devices, which shall mean any artificial human penis, vagina or anus or other device primarily designed, promoted or marketed to physically stimulate or manipulate the human genitals, pubic area or anal area, including dildos, penisators, vibrators, penis rings, erection enlargement or prolonging creams or other preparations or an establishment with a segment or section devoted to the sale or display of such materials.

(2)    ADULT LIVE ENTERTAINMENT ESTABLISHMENT - Any establishment which displays live entertainment which is distinguished or characterized by its emphasis depicting, describing or relating to sexual conduct or sexual excitement as defined in MGL C. 272, § 31.

(3)    ADULT MOTION PICTURE THEATER - An enclosed building with a capacity of fifty (50) or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to “sexual conduct” as defined in MGL C. 272, § 31, for observation by patrons therein.

(4)    ADULT MINI MOTION PICTURE THEATER - An enclosed building with a capacity for less than fifty (50) persons used for presenting material distinguished or characterized by emphasis on matter depicting, describing or relating to “sexual conduct” as defined in MGL C. 272, § 31, for observation by patrons therein.

(5)    SUBSTANTIAL OR SIGNIFICANT PORTION - “Substantial or significant portion” shall mean at least that portion of:

(a)    Retail sales accounting for at least twenty-five percent (25%) of gross sales; or

(b)    Merchandise accounting for at least twenty-five percent (25%) of total merchandise available for sale; or

(c)    Shelf space and display space which when combined is in excess of eighty (80) square feet.

C.    Special permit standards for adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater or adult live entertainment establishment.

(1)    The Zoning Board of Appeals shall not grant a special permit for an adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater or adult live entertainment establishment unless all of the following conditions are satisfied:

(a)    No adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater or adult live entertainment establishment shall be located less than one thousand (1,000) feet from a residential zoning district, school, library, church or other religious use, child care facility, park, playground, or another adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater or adult live entertainment establishment. The one thousand (1,000) foot distance shall be measured from all property lines of the proposed adult use.

(b)    No pictures, publications, videotapes, movies, covers, or other implements, items, or advertising that fall within the definition of adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater or adult live entertainment establishment merchandise or are erotic, prurient, or related to violence, sadism, or sexual exploitation shall be displayed in the windows of, or on the building of, any adult bookstore, adult video store, adult paraphernalia store or adult motion picture theater, or be visible to the public from the pedestrian sidewalks or walkways or from other areas, public or semi-public, outside such establishments.

(c)    No special permit shall be issued to any person convicted of violating the provisions of MGL C. 119, § 63, or MGL C. 272, § 28.

(2)    Signs for adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater and adult live entertainment establishment shall conform to the requirements of Section 7-09-040(G)(1)(b) for the Business East, Business West, and Business South Districts.

(3)    Any special permit granted under this section shall lapse within two (2) years of the date of the grant, not including the time required to pursue or await the termination of an appeal referred to in MGL C. 40A, § 17, if substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun within two (2) years of the date of grant, except for good cause.

(4-27-09 ATM, Art. 31; 4-26-10 ATM, Art. 28.)