The Building Official is hereby appointed and
authorized to administer and enforce the provisions of this bylaw.
A.
Where authorization of a use of land or of a structure
is required by a board, a copy of such written authorization shall
be sent by the clerk of the board to the Building Official within
22 days of a granting of the approval by the board and shall be received
by the Building Official prior to issuance of a permit. In addition,
the Building Official, in such case, shall not issue a permit until
the applicant submits an affidavit from the Barnstable County Registrar
of Deeds that the authorization of the board is recorded, if such
recording is required by law. Where approval under the Subdivision
Control Law[1] by the Planning Board is required and/or Conservation
Commission and the State Department of Public Works, no permit shall
be issued by the Building Official until these requirements also are
met in writing and any other necessary permits or licenses are obtained.
Within 10 days of the completion of all these actions, the Building
Official shall act upon the application.
[1]
Editor's Note: See MGL c. 41, §§ 81K
to 81GG.
B.
The rights authorized by a variance must be exercised
within one year of the date of grant of such variance or said rights
shall lapse. Rights authorized by a special permit must be exercised
within two years of the date of grant thereof. Said time periods shall
not include the period of time during which any appeal of a decision
is being processed to final judgment in any court. Notwithstanding
the foregoing provisions, any subsequent amendment of this Zoning
Bylaw shall apply to construction or use authorized by a special permit,
unless the construction or use is commenced within a period of not
more than six months after the issuance of the permit, exclusive of
any time periods involved in appealing the grant of a permit through
the courts, and in cases involving construction after a bona fide
start, unless said construction is continued through to completion
as continuously and expeditiously as is reasonable under the applicable
circumstances.
The Building Official shall serve, by certified
mail, a notice of violation on any person responsible for any violation
of this bylaw, and such notice shall direct the immediate discontinuance
of the unlawful action, use or condition and the abatement of the
violation. Any owner who has been served with a notice and ceases
any work or other activity shall not leave any structure or lot in
such a condition as to be a hazard or menace to the public safety,
health, morals or general welfare.
A.
Any person who, after receipt of the notice above
provided, continues in violation or refuses to comply with any of
the provisions of this bylaw may be prosecuted in a criminal action
brought by the Building Official on behalf of the Town and, upon conviction,
be fined a sum of $150 for each offense. Each day, or portion of a
day, that any violation is allowed to continue shall constitute a
separate offense.
B.
In addition to the enforcement procedures set forth in Subsection A above, the Building Official may enforce the provisions of this bylaw by the noncriminal complaint procedures as established by MGL c. 40, § 21D. The penalty for each offense shall be $150 as provided in Subsection A, and each day, or portion of a day, that any violation is allowed to continue shall constitute a separate offense.
C.
Nothing herein contained shall be construed so as
to limit the Building Official from enforcing this bylaw through an
appropriate civil action seeking injunctive as well as other relief,
commenced in a court of competent jurisdiction.
There is hereby created a Board of Appeals of
five members and five associate members. Members in office at the
effective date of this bylaw shall continue in office. Hereafter,
as terms expire or vacancies occur, the Board of Selectmen shall make
appointments pursuant to the Zoning Act.[1] The Board shall have those powers and duties granted under
the Zoning Act, by this bylaw and all other pertinent acts of the
commonwealth. The Board shall adopt rules to govern its proceedings
pursuant to the Zoning Act. The Board of Appeals is hereby authorized
to establish, from time to time, by regulation, the filing fee to
be charged for filing a petition or appeal with the Board.
[1]
Editor's Note: See MGL c. 40A.
[Amended 5-4-2010 STM by Art. 9]
All petitions, applications and appeals to the Board of Appeals shall be made in accordance with the filing policy requirements in effect at the time of the application on forms provided by the Board of Appeals and shall be filed together with copies of all information previously submitted to the Building Inspector with or in the original application for a building permit, if any, and with the required number of copies of a site plan, as instructed on the application when a site plan is required under Article X, § 325-55, of this bylaw. In addition, one copy of the application material and site plan, if any, shall be submitted to the Planning Board at the time of submission to the Board of Appeals. The Planning Board shall render an advisory opinion on the application to the Board of Appeals, and if no such advisory opinion is submitted by the Planning Board prior to the Board of Appeals hearing on the application, the Board of Appeals may act without such advisory opinion.
[Amended 5-4-2010 STM by Art. 8; 5-3-2011 STM by Art. 24]
The Board of Appeals shall have authority to hear and decide applications for all changes, alterations, or extensions of a nonconforming structure or use that require a special permit and for certification of continuance of existing dwellings under § 325-51P. The Planning Board shall have authority to hear and decide all other applications for special permits. Special permits shall only be issued following public hearings held within 65 days after filing of an application with the Board of Appeals or the Planning, Board, a copy of which shall forthwith be given to the Clerk by the applicant, and all notices and other requirements provided by the Zoning Act shall govern said hearing.
A.
Conditions of approval.
(1)
The Board of Appeals or Planning Board shall not approve
any application for a special permit, except a special permit for
a site plan, unless it finds that in its judgment all of the following
conditions are met:
(a)
The use as developed will not adversely affect
the neighborhood.
(b)
The specific site is an appropriate location
for such a use, structure or condition.
(c)
There will be no nuisance or serious hazard
to vehicles or pedestrians.
(d)
Adequate and appropriate facilities will be
provided for the proper operation of the proposed use. This includes
the provision of appropriate sewage treatment facilities which provide
for denitrification, when the permit granting authority deems such
facilities necessary for protection of drinking water supply wells,
ponds or saltwater embayments.
(2)
The permit granting authority may require the applicant
to submit professionally prepared documentation of the environmental,
traffic or other impacts of a particular project or project element
in order to determine compliance with these general conditions.
B.
In approving a special permit, except a special permit
for a site plan, the Board of Appeals or Planning Board may attach
such conditions and safeguards as are deemed necessary to protect
the public and the neighborhood, such as but not limited to the following:
(1)
Modification of the exterior features or appearances
of the structure or structures.
(2)
Limitation of size, number of occupants, method or
time of operation, or extent of facilities.
(3)
Regulation of number, design, and location of access
drives or other traffic features.
(4)
Requirement of off-street parking or other special
features beyond the minimum required by this or other applicable bylaws.
(5)
Limitation of the total projected volume of sewage
or nitrate discharge from the project based on standard sewage flow
projection or nitrate loading calculations to be provided by the applicant
when required by the permit granting authority. Such calculations
must be reviewed and approved by the Harwich Town Engineer prior to
their acceptance as facts by the permit granting authority.
C.
Notwithstanding the provisions of Subsection A above, the conditions set forth therein shall not apply to applications for special permits in the Drinking Water Resource Protection Districts unless a special permit is required for the intended use in the underlying zoning district.
(1)
In granting a special permit for a use requiring such
permit in the Drinking Water Resource Protection District, the Planning
Board shall make the following findings:
(a)
Adequate provision has been made to safely and
adequately store, handle and dispose of all toxic or hazardous materials,
as well as to protect said materials from vandalism, corrosion, leakage
and spills.
(b)
Any proposed wastewater treatment or disposal
system must be submitted for approval by responsible state and local
health agencies as a condition precedent to construction.
(c)
All anticipated runoff from impervious surfaces
will, whenever possible, be diverted to areas covered with vegetation.
(d)
In cases where part of a site is located outside
the Drinking Water Resource Protection District, maximum possible
use of the area outside the district will be made for disposal of
toxic or hazardous materials and sewage.
(e)
All systems designed and intended to minimize
or eliminate the threat of pollution to the groundwater resource are
adequate in terms of design and proposed construction to provide reasonable
protection against such pollution and, in the event said systems should
fail, corrective measures and procedures are available to warrant
the conclusion that no unreasonable threat of pollution to groundwater
resources will be created. In making this required finding, the special
permit granting authority shall require submission by the applicant
of a written determination by the Board of Health of the Town of Harwich
that all such systems called for or required are designed and intended
to meet all applicable design and construction standards for such
facilities and will limit to five parts per million the total concentration
of nitrate nitrogen discharged to the groundwater on the site.
(2)
To assist in making the required findings, the Board
shall require, by regulation, an hydrogeologic impact statement which
addresses the specific issues herein set forth, and the Board shall,
by regulation, establish a format for such hydrogeologic impact statement.
Upon receipt of an application for a special permit under this section,
the Building Official or the applicant at the direction of the Building
Official will provide to the Planning Board, Conservation Commission,
Board of Health, Town Engineer, Water Department, and such other affected
Town agencies as the Building Official shall determine a complete
copy of the application and accompanying documents for review and
such comment and advice to the Board as the affected departments should
deem appropriate.
D.
Special permit to construct multifamily dwellings,
hotels or motels.
[Amended 9-26-2020 ATM by Art. 22]
(1)
The Planning Board, in acting upon an application
for special permit to construct hotels or motels, shall have the authority,
pursuant to MGL c. 40A, § 9, to include in the grant of
permission authorization to increase the permissible density of population
or intensity of a particular use in a proposed development, provided
that the petitioner or applicant shall, as a condition for the grant
of authority to increase permissible density, provide certain open
space or some or all of the amenities hereafter listed, but the Board
shall not have the authority to increase the density of population
or intensity of uses beyond the maximums hereafter specified.
|
Amenity
|
Maximum Density Increase
|
|---|---|
|
Swimming pool
|
8%
|
|
Tennis courts
|
4%
|
|
Golf course
|
16%
|
|
Community building or recreation building
|
2%
|
E.
Special permits for open space residential development.
Special permits for open space residential development may be granted
upon a determination by the Planning Board that the plan is preferable
to a conventional residential subdivision and that it conforms to
the requirements of this section and other applicable provisions of
this bylaw.
(1)
Rules and regulations. The Planning Board shall adopt
and may from time to time amend rules and regulations consistent with
the provisions of this bylaw and shall file the same with the Town
Clerk. Such rules and regulations shall address, at the minimum, procedures
and submission requirements for open space residential development
applications.
(2)
Density/number of dwelling units.
(a)
The total number of dwelling units permitted
in an open space residential development shall not exceed that which
would be permitted under a conventional subdivision that complies
with the Harwich Zoning Bylaw and Planning Board Rules and Regulations
Governing the Subdivision of Land[1] and other applicable laws of the Town, County of Barnstable, or Commonwealth of Massachusetts, unless said total is increased in accordance with the provisions of Subsection E(8) hereunder which sets forth opportunities for density increases.
[1]
Editor's Note: See Ch. 400, Subdivision of
Land and Site Plan Special Permits.
(b)
The exact number of dwelling units shall be
determined by the Planning Board following its review of a preliminary
subdivision plan depicting compliance with the aforesaid laws. Such
plan may be submitted prior to the formal submission of an application
or together with all other materials submitted with a formal application
for a special permit.
(3)
Criteria for special permit decision.
(a)
Findings. The Planning Board may approve a special permit for an open space residential development upon finding that it complies with the requirements of this bylaw and the rules and regulations adopted pursuant to Subsection E(1) above and that it is superior in design to a conventional subdivision with regard to protection of natural features and scenic resources on the site.
[1]
In making its finding on design, the Planning
Board shall consider the following criteria:
[a]
Open space as required by this bylaw has been provided and generally conforms to the design requirements in Subsection E(7) below.
[b]
Approximate building sites have
been identified and none are located closer than 100 feet to wetlands
or water bodies.
[c]
Proposed streets have been aligned
to provide vehicular access to each house in a reasonable and economical
manner. Lots and streets have been located to avoid or minimize adverse
impacts on open space areas and to provide views of and access to
the open space for most, if not all, of the home sites.
[d]
All lots meet the applicable dimensional
requirements of Subsection D(4) below.
[2]
The Planning Board's findings, including the
basis of such findings, shall be stated in the written decision of
approval, conditional approval, or denial of the application for special
permit and shall require a two-thirds vote for approval.
(b)
Conditions. The Planning Board may impose conditions
in its decision as necessary to ensure compliance with the purposes
of this bylaw. Approval of an open space residential development shall
be conditioned upon definitive subdivision approval and shall be conditioned
to provide that no further division of land which increases the number
of lots or results in an alteration to the area to be set aside as
open space may occur without a modification of the special permit.
Any alteration of lot lines or layout of ways shall require modification
of the special permit issued by the Planning Board and shall be in
compliance with the governing provisions of this bylaw and the Subdivision
Rules and Regulations.
(4)
Standards and dimensional requirements.
(a)
Minimum lot size. The minimum lot size shall
be 12,000 square feet.
(b)
Minimum frontage. The minimum frontage shall
be 50 feet for lots fronting on any proposed roadway within the development.
Lots which will utilize existing frontage shall have a minimum frontage
of 100 feet. Lots may have a minimum of 25 feet of frontage on any
roadway within the development where the building site is to be generally
behind another building site relative to the same road frontage or
at least 75 feet from the front lot line.
(c)
Lot shape. All building lots must be designed
to contain within them a circle with a diameter of 50 feet with said
circle being tangent to the front lot line, provided that in cases
where the frontage will be less than 50 feet, the fifty-foot circle
must fit within the boundaries of the proposed building site on the
same lot.
(d)
Setbacks. The Planning Board may reduce by up
to 1/2 the setbacks listed in Table 2, Area Regulations, of this bylaw,
if the Board finds that such reduction will result in better overall
design and improved protection of natural and scenic resources and
will otherwise comply with this bylaw. Notwithstanding this provision
or the requirements of the Zoning Bylaw, every dwelling fronting on
a proposed roadway shall be set back a minimum of 15 feet from the
roadway right-of-way and a minimum of 50 feet from the outer perimeter
of the entire open space residential development site. This fifty-foot
setback shall be maintained in a naturally vegetated state to screen
and buffer the development and may be included within the open space.
This fifty-foot setback may be eliminated where the proposed development
abuts existing protected open space.
(5)
Permissible uses.
(a)
Purposes. Open space shall be used solely for
noncommercial recreation, conservation, or commercial or noncommercial
agriculture. Proposed use of the open space area(s) shall be specified
in the application. The Planning Board shall have the authority to
specify what uses will be allowed in the open space, what uses will
occur in what areas of the open space, and how much of the open space
shall remain undisturbed.
(b)
Recreation areas. Where appropriate to the topography
and natural features of the site, the Planning Board may require that
at least 10% of the open space or two acres (whichever is less) shall
be of a shape, slope, location and condition to provide an informal
field for group recreation or community gardens for the residents
of the subdivision.
(c)
Leaching facilities. Subject to the approval
of the Board of Health and as otherwise required by law, the Planning
Board may permit a portion of the open space to be used for components
of sewage disposal systems serving the subdivision, where the Planning
Board finds that such use will not be detrimental to the character,
quality, or use of the open space, wetlands or water bodies, and enhances
the site design, consistent with these regulations. In permitting
such use of the open space area, the Planning Board shall find, based
on the report of the Board of Health, that the use of open space for
sewage disposal system components shall not result in more building
lots than achievable under a conventional subdivision. The Planning
Board shall require adequate legal safeguards and covenants that such
facilities shall be adequately maintained by the lot owners within
the development.
(d)
Accessory structures. Up to 10% of the open
space may be set aside and designated to allow for the construction
of structures and facilities accessory to the proposed use of the
open space, including parking and paved pathways. With this exception,
no other impervious areas may be included within the open space.
(6)
Ownership of open space.
(a)
Options. At the developer's option and subject
to approval by the Planning Board, all areas to be protected as permanent
open space shall be:
[1]
Conveyed to the Town to be placed under the
care, custody and control of the Conservation Commission and be accepted
by it for a park or open space use; land conveyed to the Town will
be open for public use;
[2]
Conveyed to a nonprofit organization, the principal purpose of which is the conservation or preservation of open space, with a conservation restriction as specified in Subsection E(6)(b) below; such organization shall be acceptable to the Board as a bona fide conservation organization; or
[3]
Conveyed to a corporation or trust owned or
to be owned by the owners of lots or residential units within the
development (i.e., "homeowners' association") and placed under conservation
restriction. The documents which form said association are subject
to approval by the Planning Board. If such a corporation or trust
is utilized, as indicated herein, ownership thereof shall pass with
conveyance of the lots or residential units. The developer is responsible
for the maintenance of the open space and other facilities to be held
in common until such time as the homeowners' association is capable
of assuming such responsibility. Thereafter, the members of the association
shall share the cost of maintaining the open space. The Planning Board
shall require the applicant to provide documentation that the homeowners'
association is an automatic (mandatory) association that has been
established prior to the conveyance of any lots within the subdivision.
(b)
Permanent restriction. In any case where open
space is not conveyed to the Town, a permanent conservation or agricultural
preservation restriction approved by the Board of Selectmen and enforceable
by the Town, conforming to the standards of the Massachusetts Executive
Office of Environmental Affairs, Division of Conservation Services,
shall be recorded to ensure that such land shall be kept in an open
or natural state and not be built for residential use or developed
for accessory uses such as parking or roadways except as permitted
by this bylaw and approved by the Planning Board. Restrictions shall
provide for periodic inspection of the open space by the Town. Such
restriction shall be submitted to the Planning Board prior to endorsement
of the definitive subdivision plan and covenant for the project and
recorded at the Registry of Deeds/Land Court prior to release of the
covenant or performance guarantee for any lot.
[Amended 5-8-2012 STM by Art. 5]
(c)
Encumbrances. All areas to be set aside as open
space shall be conveyed free of any mortgage interest, security interest,
liens or other encumbrances. Certification of said condition by a
qualified title examiner shall be provided to the Planning Board at
the time of conveyance.
(d)
Maintenance of open space. Removal of underbrush
in designated open space shall be permitted only when a plan for such
activity is approved by the Planning Board as part of approval of
a special permit to create an open space residential development.
(e)
Monumentation. The Planning Board may require
placement of surveyed bounds sufficient to identify the location of
the open space.
(7)
Design requirements. The location of open space provided
through this bylaw shall be substantially consistent with the policies
contained in the local Comprehensive Plan and the Open Space and Recreation
Plan of the Town (where available). The following design requirements
shall apply to open space and lots provided through this bylaw:
(a)
Open space shall be planned as large, wide,
contiguous areas whenever possible. Long, thin strips or narrow areas
of open space (less than 100 feet wide) shall occur only when necessary
for access, as vegetated buffers along wetlands or the perimeter of
the site, or as connections between open space areas.
(b)
Open space shall be arranged to protect valuable
natural and cultural environments such as stream valleys, wetland
buffers, unfragmented forestland and significant trees, wildlife habitat,
open fields, scenic views, trails, and archaeological sites and to
avoid development in hazardous areas such as floodplains and steep
slopes. The development plan shall take advantage of the natural topography
of the parcel and cuts and fills shall be minimized.
(c)
Open space may be in more than one parcel, provided
that the size, shape and location of such parcels are suitable for
the designated uses. Where feasible, these parcels shall be linked
by trails. Said trails shall be shown on the open space residential
definitive plan.
(d)
Where the proposed development abuts or includes
a body of water or a wetland, these areas and the one-hundred-foot
buffer to such areas shall be incorporated into the open space. Where
appropriate, reasonable access shall be provided to shorelines.
(e)
The maximum number of house lots compatible
with good design shall abut the open space and all house lots shall
have reasonable physical and visual access to the open space through
internal roads, sidewalks or paths. An exception may be made for resource
areas vulnerable to trampling or other disturbance.
(f)
Open space shall be provided with adequate access,
by a strip of land at least 20 feet wide and suitable for a footpath,
from one or more streets in the development.
(g)
Development along existing scenic roads and
creation of new driveway openings on existing roadways shall be minimized.
(h)
Where a proposed development abuts land held
for conservation purposes, the development shall be configured to
minimize adverse impacts to abutting conservation land. Trail connections
should be provided where appropriate.
(8)
Optional incentive provisions.
(a)
Reduction of roadway standards. The Planning
Board may reduce applicable subdivision road construction standards
(roadway width, center line radii, curbing, cul-de-sac radius, drainage
requirements, etc.) in exchange for the provision of greater than
50% open space within the open space residential development where,
in the opinion of the Planning Board, such reductions will result
in enhanced overall site design and provide adequate and safe access
for the development.
F.
The Planning Board, in granting a special permit for
cluster development, shall have the authority, pursuant to MGL c.
40A, § 9 and MGL c. 41, §§ 81K through 81GG,
to require that open space be conveyed to the Town or a nonprofit
organization, the principal purpose of which is the conservation of
open space, or a corporation or trust owned or to be owned by the
owners of lots or residential units within the development. If such
a corporation or trust is utilized, ownership thereof shall pass with
conveyance of the lots or residential units. In any case, where the
open space is not conveyed to the Town, a restriction enforceable
by the Town shall be recorded providing that such land be kept in
an open or natural state, not to be built upon or developed for accessory
uses such as parking or roadways.
G.
In a cluster development, the total number of dwelling
units shall not exceed the number of units which could be developed
under a conventional grid-type subdivision.
(1)
The maximum number of dwellings per development shall
equal the applicable land area divided by the minimum lot area requirements
for a conventional grid-type subdivision in that district or districts.
(2)
Applicable land area shall be determined by a registered
land surveyor and equal the total area encompassed by the development
plan minus all marsh or wetland and minus land for road construction
or land otherwise prohibited from development by local bylaw or other
regulations.
(3)
When the cluster development includes more than one
ownership and/or lies in more than one district, the number of units
allowed shall be calculated as above for each zoning district and
summed to give an overall total, which may be located on the plan
without respect to allowable subtotals by district or ownership.
I.
(Reserved)[3]
[3]
Editor’s Note: Former Subsection I, regarding the intent of permitting accessory apartments, was repealed 5-7-2013 STM by Art. 12. See now § 325-14T(1).
I.1.
Granting of a special permit for a dwelling with an accessory
apartment shall be conditioned upon the owner maintaining occupancy
of one of the units. Prior to the issuance of the special permit,
a certificate in the form of a notarized affidavit to verify that
the owner is or shall be in residence in one of the units shall be
submitted to the special permit granting authority and, thereafter,
every two years such notarized affidavit shall be submitted to the
Building Inspector by January 31. Failure to comply with these provisions
or termination of occupancy by the owner shall result in the special
permit becoming null and void and within 12 months thereafter one
kitchen unit shall be removed and the property returned to a single-family
dwelling.
J.
Granting of a special permit for a personal wireless service facility shall be pursuant to the requirements of Article XI, Personal Wireless Service Facilities, in addition to all other special permit requirements hereunder.
K.
Granting of a special permit for an adult entertainment use shall be pursuant to the requirements of Article XIII, Adult Entertainment, in addition to all other special permit requirements hereunder.
L.
Village Commercial Overlay District.
(1)
Purpose. The Village Commercial Overlay District enables
the development and redevelopment of Harwich Port's village center
to be in keeping with its historic development patterns, including
the size and spacing of structures and additional open space. The
redevelopment of existing structures will allow them to come into
compliance with current plumbing, electric and building codes, as
well as the latest fire and handicapped access regulations.
(2)
Scope.
(a)
Within the Village Commercial District only
property that has frontage on Route 28 (Main Street), Harwich Port,
is permitted to utilize this section. Property located on the south
side of Lower County Road between Ayer Lane and the intersection of
Route 28 and Lower County Road is also permitted to utilize this section.
A contiguous section of property is permitted for commercial uses
and mixed-use development. All property owners, including the Town
of Harwich, are required to locate the majority of these structures
on the portion of this property facing Route 28 and to locate parking,
septic and open space to the rear of this property. All single uses
remain under the present Town of Harwich Zoning Bylaw. All other property
that does not have frontage on Route 28 in this overlay district is
not affected by this section.
(b)
The dimensional requirements, including building setbacks, maximum site coverage and heights of these structures, are outlined in Subsection L(5) of this section.
(c)
This bylaw is intended to be used in conjunction
with other regulations of the Town, including site plan review and
other bylaws designed to encourage appropriate and consistent patterns
of village development.
(d)
Applicants, with the approval of the Board of
Health and Water Quality Management Task Force, are encouraged to
utilize new and improved technologies for septic treatment and rainwater
drainage purposes.
(3)
Location. The Village Commercial Overlay District is shown on the following map: Village Commercial Overlay District, dated June 2001, prepared by the Town of Harwich Planning Department. Only contiguous sections of property with frontage on Route 28 (Main Street), Harwich Port, or Lower County Road in Harwich Port as described in Subsection L(2) are included in this overlay district. The overlay district is bounded on the north side of Route 28 by Freeman Street to the east and by the east side of Bank Street to the west to a depth of 200 feet; also by the west side of Bank Street to the east and the east side of South Street to the west to a depth of 200 feet; also by the west side of South Street to the east and Miles Street to the west to a depth of 200 feet. The overlay district is bounded on the south of Route 28 by Bay View Road to the east and by the intersection of Route 28 and Lower County Road to the west to a depth of 200 feet. In addition, the overlay district includes the south side of Route 28 bounded by Route 28, Lower County Road and the irregular line formed by the westernmost property line of Assessor's Map 13, Parcel W7-10.
(4)
Procedure.
(a)
The Planning Board shall serve as the special
permit granting authority for developments within the Village Commercial
Overlay District.
(b)
Prior to the submission of an application for
special permit under this bylaw, the applicant may meet with the Planning
Board at a public meeting for a preapplication conference to discuss
the proposed development in general terms and establish the plan filing
requirements. The Planning Board shall schedule a meeting for a preapplication
conference following a written request from the applicant, inviting
preliminary comments from the Board of Health, Conservation Commission,
and any other interested officials or agencies. The purpose of this
preapplication conference is to inform the Planning Board as to the
nature of the proposed project. As such, no formal filings are required
for the preapplication conference. However, the applicant is encouraged
to prepare sufficient preliminary architectural and/or engineering
drawings to inform the Planning Board of the scale and overall concept
of the proposed project and its relationship to abutting properties.
(5)
Dimensional requirements.
(a)
Lots shall have frontage along Route 28 (Main Street) to utilize the dimensional requirements of this Subsection L(5). Adjacent parcels may be included provided that they are under the same ownership and are also located within the overlay district. Where possible, lots should be combined by plan or deed prior to the issuance of the special permit.
(c)
Parking shall be permitted at the side or rear
of the property.
(d)
Maximum site coverage shall not exceed 80%.
(e)
The maximum permitted height for new constructions
shall not exceed 30 feet or 2 1/2 stories.
(g)
Assessor's Map 13, Parcel W7-10 is included
in this overlay district with the provision that the westernmost property
line, that abuts residential property, must comply with the minimum
of twenty-foot setback and open space, if the property is redeveloped.
(h)
The Board may waive or modify these dimensional
requirements if it is found that such waiver or modification will
not substantially derogate from the purpose and intent of this bylaw
and that such waiver or modification may be granted without substantial
detriment to the neighborhood or overall public good.
M.
Mixed-use development. Special permits for mixed-use
development may be granted upon a determination by the Planning Board
that the following additional criteria have been met:
(1)
There shall be no less than 33% of the floor area
of the building or buildings dedicated to a commercial use(s). A commercial
use(s) shall be located at the front of the building, facing the street,
and shall be located on the ground level.
(2)
For each mixed-use development, there shall be a minimum
of 5,000 square feet of lot area per residential unit in the Commercial
Village (C-V) District and a minimum of 10,000 square feet of lot
area per residential unit in all other permitted districts. Applications
for mixed-use development shall also comply with the Board of Health
regulations.
[Amended 5-5-2015 STM
by Art. 3]
(4)
There shall be an outdoor landscaped public area provided
as part of the landscaping requirement.
N.
Two-family dwelling. Special permits for two-family
dwellings may be granted upon a determination by the Planning Board
that the following additional criteria have been met:
(1)
The lot area shall contain a minimum of 40,000 square
feet of contiguous upland in all applicable zoning districts; however,
in the Drinking Water Resource Protection District (WR) the minimum
lot area shall be 60,000 square feet of contiguous upland.
(2)
The floor area for each dwelling unit shall be a minimum
of 800 square feet.
(3)
A common roof or a series of roofs shall connect the
dwelling units.
(4)
There shall be two off-street parking spaces per each
unit.
O.
Harwich Center Overlay District.
(1)
Purpose. The Harwich Center Overlay District enables
the development and redevelopment of Harwich Center to be in keeping
with its historic development patterns, including the size and spacing
of structures and provision of open space. The redevelopment of existing
structures will encourage them to come into compliance with current
plumbing, electric and building codes, as well as the latest fire
and handicapped access regulations. Agencies involved with historic
preservation will be encouraged to make recommendations on proposed
development or redevelopment.
(2)
Scope.
(a)
Within the Harwich Center Overlay District,
only property that is currently within the Commercial - Village (CV)
Zoning District in Harwich Center is permitted to utilize this section,
with the following two exceptions: property located on the southeast
corner of the intersection of Sisson Road and Parallel Street just
east of Forest Street, currently shown on Assessor's Map 40 as Parcel
Z5, and the parcel located at the southwest corner of the intersection
of Bank Street and Parallel Street, currently shown on Assessor's
Map 41 as Parcel N4, are also permitted to utilize this section. All
property owners, including the Town of Harwich, are required to locate
the majority of structures on the street frontage portion of the property
and to locate parking, septic and open space to the rear of the property.
(b)
The dimensional requirements, including building setbacks, maximum site coverage and heights of these structures, are outlined in Subsection O(5) of this section.
(c)
This bylaw is intended to be used in conjunction
with other regulations of the Town, including site plan review and
other bylaws designed to encourage appropriate and consistent patterns
of village development.
(d)
Applicants, with the approval of the Board of
Health, and other agencies as required are encouraged to utilize new
and improved technologies for septic treatment and stormwater drainage
purposes.
(3)
Location. The Harwich Center Overlay District is shown
on the following map: Harwich Center Overlay District, October 2003,
prepared by the Town of Harwich Planning Department. The Harwich Center
Overlay District is bounded on the south by Parallel Street from Bank
Street to Sisson Road, but including the parcel on the south side
of Parallel Street at Bank Street (also shown on Harwich Assessor's
Map 41 as Parcel N4) and the parcel on the south side of Parallel
Street at Sisson Road (also shown on Harwich Assessor's Map 40 as
Parcel Z5); the district is bounded on the west by Sisson Road, Route
39 (Main Street) and Route 124 (Pleasant Lake Avenue); the district
is bounded on the north by Old Colony Way to the west boundary line
of Parcel C4-B, on Assessor's Map 41; the district is bound on the
east by the west boundary line of Parcel C4-B, on Assessor's Map 41,
and the east boundary line of the Town of Harwich owned land (Parcel
C302 and C5, on Assessor's Map 41) and Bank Street to the southeast
corner of Parcel N4 at Bank Street.
(4)
Procedure.
(a)
The Planning Board shall serve as the special
permit granting authority for developments within the Harwich Center
Overlay District.
(b)
Prior to the submission of an application for
special permit under this bylaw, the applicant may meet with the Planning
Board at a public meeting for a preapplication conference to discuss
the proposed development in general terms and establish the plan filing
requirements. The Planning Board shall schedule a meeting for a preapplication
conference following a written request from the applicant, inviting
preliminary comments from the Board of Health, Conservation Commission,
and any other interested officials or agencies. The purpose of this
preapplication conference is to inform the Planning Board as to the
nature of the proposed project. As such, no formal filings are required
for the preapplication conference. However, the applicant is encouraged
to prepare sufficient preliminary architectural and/or engineering
drawings to inform the Planning Board of the scale and overall concept
of the proposed project and its relationship to abutting properties.
(5)
Dimensional requirements.
(b)
Parking shall be permitted at the side or rear
of the property.
(c)
Maximum site coverage shall not exceed 80%.
(d)
The maximum permitted height for new constructions
shall not exceed 30 feet or 2 1/2 stories.
(f)
The Board may waive or modify these dimensional
requirements if it finds that such waiver or modification will not
substantially derogate from the purpose and intent of this bylaw and
that such waiver or modification may be granted without substantial
detriment to the neighborhood or overall public good.
P.
Certification of dwelling units.
(1)
An accessory apartment or any dwellings in existence
on the effective date of this bylaw that were not in compliance with
existing zoning when constructed may be granted a special permit from
the Board of Appeals to allow the use to continue, provided that any
unit (either the main or accessory unit or a number of units equal
to the number not permitted) is deed restricted to remain affordable
as defined by the Department of Housing and Community Development
for a period of 20 years and that the Board of Appeals finds that
the issuance of the special permit will not be detrimental to the
neighborhood. Prior to appearance before the Board of Appeals, the
dwelling in question must be inspected and found to comply with all
building codes and Board of Health regulations.
(2)
For the purpose of this section, any accessory apartment or dwelling being brought up to code within 60 days of the discovery of the violations will remain eligible for a special permit. Once the violations are corrected, if zoning violations are also present, an application for a special permit to the Board of Appeals is required, pursuant to Subsection I above.
Q.
Multifamily
special permit.
[Added 9-26-2020 ATM by Art. 22]
(1)
The Planning Board shall serve as the special permit granting authority
for multifamily developments, including conversion of existing structures/uses
to multifamily and/or new construction.
(3)
All multifamily dwellings must be connected to a municipal water
system.
(4)
A habitable room in a multifamily dwelling unit shall have a minimum
floor area of not less than 120 square feet and shall have no major
width or length dimension less than 10 feet. Closets, storage spaces,
bathrooms and kitchens are not habitable rooms for the purpose of
these minimum area and dimension requirements.
(5)
The number of multifamily dwelling units shall be determined by the ability to place an adequately size septic system for the number of bedrooms; and required parking per number of units and landscaping on the site pursuant to Article IX, Off-Street Parking and Loading Requirements.
(6)
All outside entrances to multifamily dwellings shall provide protection
to the immediate area in front of said entrance from the weather.
(7)
Whenever the land upon which a multifamily dwelling is to be erected
is located partially within a Drinking Water Resource Protection District,
maximum possible use of the area outside the Drinking Water Resource
Protection District will be made for the disposal of stormwater runoff
and sewage.
(8)
Recreation areas. Where appropriate to the topography and natural
features of the site, the Planning Board may require that at least
10% of the open space or two acres (whichever is less) shall be of
a shape, slope, location and condition to provide an informal field
for group recreation or community gardens for the residents of the
multifamily development.
The Board of Appeals shall have the power to
hear and decide applications for variances from the provisions of
the protective bylaws, including the power to grant a variance authorizing
a use or activity not otherwise permitted in the district in which
the land or structure is located, except that no variance shall be
granted to allow food sales with drive-up or drive-through facilities.
Variances may be granted by the Board only after a public hearing
and only after the Board has made the finding required by the Zoning
Act.[1]
[1]
Editor's Note: See MGL c. 40A.
The granting of any appeal by a permit granting
authority shall not exempt the applicant from compliance with any
applicable provisions of the Zoning Bylaw not specifically varied
by the Board of Appeals.
A.
Nonconforming structures.
(1)
Alteration or extension of single- or two-family residential
structure.
(a)
A preexisting nonconforming single- or two-family
residential structure may be altered or extended by right if the Building
Official determines that it meets the following criteria:
[1]
The proposed addition/extension will conform
to current setbacks and coverage for the zoning district in which
the existing structure and addition/extension are located; and
[2]
The nonconformance concerns the size of the
lot in question and/or the frontage of said lot and/or an encroachment
of the existing structure.
(b)
In addition, a preexisting nonconforming single-
or two-family structure may be altered by right through the addition
of a dormer or dormers if the Building Official determines that it
meets the following criteria:
(c)
In making such determination, the Building Official,
after identifying the particular respect or respects in which the
structure or lot does not presently conform to the Zoning Bylaw, shall
consider whether the proposed addition/extension meets the criteria
stated above. If the Building Official determines that the addition/extension
meets the criteria stated above, the Building Official may allow the
addition/extension or rebuild by right.
(2)
If the Building Official determines that a proposed
addition/extension to a nonconforming single- or two-family residential
structure increases the nonconforming nature of the structure, the
applicant may seek a new determination from the Board of Appeals.
If the Board of Appeals determines that the alteration or extension
will increase the nonconforming nature of the structure, no such alteration
or extension may occur unless the Board of Appeals issues a special
permit for alteration or extension after finding that the alteration
or extension will not be substantially more detrimental to the neighborhood
than the existing nonconformity. An addition/extension that increases
the nonconforming nature of the structure would include:
(4)
A lawfully preexisting nonconforming single- or two-family
residential structure may, by right, be demolished and replaced with
a new structure on the same site, provided that:
(5)
A lawfully preexisting nonconforming single- or two-family
residential structure may, by special permit, be demolished and replaced
with a new structure on the same site, provided that it is determined
by the Board of Appeals that:
(a)
The replacement of the structure will not be
substantially more detrimental to the neighborhood than the existing
structure;
(b)
The replacement of the structure will not cause
or contribute to any undue nuisance, hazard or congestion in the neighborhood,
zoning district or Town;
(c)
The replacement structure will not increase
any of the following existing nonconformances: building coverage,
site coverage, or setback encroachment;
(d)
The replacement structure will reduce at least
one of the following existing nonconformances: building coverage,
site coverage, or setback encroachment; and
(e)
The replacement structure may not increase the
habitable square footage of the structure by more than 25% over the
habitable square footage of the existing structure over a ten-year
period beginning on the date of the issuance of the special permit
by the Board of Appeals.
(6)
A proposal to demolish and replace a single- or two-family
residential structure which will increase the nonconforming nature
of the structure will require a variance from the Board of Appeals
pursuant to MGL c. 40A, § 10.
(7)
Alteration or extension of other structures.
(a)
A preexisting nonconforming structure other
than a single- or two-family residential structure may be altered
or extended by right if the Building Official determines that it meets
the following criteria:
[1]
The proposed addition/extension will conform
to current setbacks and coverage for the zoning district in which
the existing structure and addition/extension are located; and
[2]
The nonconformance concerns the size of the
lot in question and/or the frontage of said lot and/or an encroachment
of the existing structure.
(b)
All other nonconforming structures shall require
a variance from the Board of Appeals pursuant to MGL c. 40A , § 10
for any alteration/extension or reconstruction.
B.
Nonconforming uses.
(1)
Except for single- and two-family dwellings provided for in Subsection A(5) of this section, a lawfully preexisting structure, whether conforming or not, used for a lawfully nonconforming use may, by special permit, be changed, altered, or razed and replaced with a new structure on the same site, provided that it is determined by the Board of Appeals that:
(a)
The replacement, alteration or change of the
structure will not be substantially more detrimental to the neighborhood
than the existing structure;
(b)
The replacement, alteration or change of the
structure will not cause or contribute to any undue nuisance, hazard
or congestion in the neighborhood, zoning district or Town; and
(c)
The replacement, altered or changed structure
will be used for the same use or for a conforming use.
(2)
In no case shall a nonconforming use be changed to
another nonconforming use.
(3)
Notwithstanding the provisions hereof, nonconforming
uses, actual use of which has been discontinued for a period of two
consecutive years, shall be conclusively presumed to be abandoned
and thereafter shall not be reestablished, changed (except to a conforming
use), or extended without a variance from the Board of Appeals.
A.
Purpose. The purpose of this section is to protect
the safety, public health, convenience and general welfare of the
inhabitants of the Town of Harwich by providing detailed review of
the design and layout of certain developments which have a substantial
impact upon the character of the Town and upon traffic, utilities
and services therein.
B.
Powers. The Planning Board is hereby designated the special permit granting authority for site plan approval regarding activities which are set forth in Subsection C.
C.
Applicability. In addition to any special permit or
variance required under the Table of Use Regulations, the following
development activities shall require a site plan special permit from
the Planning Board:
[Amended 5-4-2010 STM by Art. 9]
(1)
Any floor area expansion of any structure or expansion
of exterior space, other than parking, serving any of the following:
a commercial, industrial, multifamily, educational or municipal use,
or personal wireless service facility; or the creation of a drive-up
or drive-through window.
(2)
Expansion or reconfiguration of an existing parking
lot and/or driveway(s) in connection with a commercial, industrial,
multifamily, educational or municipal use, or personal wireless service
facility.
(3)
Establishment of any new commercial, industrial, multifamily,
educational, municipal, fast-food/takeout restaurant or personal wireless
service facility.
(4)
Establishment of any new retail use(s) in the Industrial
(IL) Zone.
D.
Required submission. The submission of an application
and plans for site plan approval shall conform to the Planning Board
Rules and Regulations Governing Subdivision of Land and Site Plan
Review, as amended.[1] The Planning Board shall consider all applications at
a public hearing according to the procedure set forth in MGL c. 40A.
[1]
Editor's Note: See Ch. 400, Subdivision of
Land and Site Plan Special Permits.
E.
Conditions of approval.
(1)
If the site plan meets the requirements of this bylaw
and the Planning Board Rules and Regulations Governing Subdivision
of Land and Site Plan Review, as amended, the Planning Board shall
approve it. Notwithstanding the foregoing, such approval may include
reasonable conditions to ensure that:
(a)
Reasonable measures are implemented to provide
for screening of parking areas or other parts of the premises, for
adjoining premises or from the street, by walls, fences, plantings
or other devices.
(b)
The convenience and safety of vehicular and
pedestrian traffic are enhanced.
(c)
Surface water from parking areas and driveways
will be efficiently and safely disposed of by means of a proper drainage
system as specified in the Board's approval.
(2)
However, the Board cannot deny approval of a site
plan for a use which is allowed by right (not by special permit) in
the district but may impose reasonable conditions on the proposed
use. The Board may not impose conditions on the grant of a special
permit the implementation of which would be contrary to any requirement
of this bylaw or require a variance from it or any other applicable
provision of law.
F.
Waivers. When in the opinion of the Planning Board the requirements of Subsection C, Applicability, do not substantially change the relationship of the structure to the site and to abutting properties and structures, the Planning Board may determine, without a public hearing, that submission of a site plan for special permit approval is not required. Upon application consistent with the Planning Board Rules and Regulations Governing Site Plan Review, such a determination may be made by an affirmative vote of a majority of the Planning Board present, and in no event fewer than four members, in a manner consistent with the Planning Board Rules and Regulations Governing Site Plan Review.
Conversion of any nonconforming motel, hotel, multifamily dwelling, two-family dwelling or two or more buildings designated for human habitation on one lot to a condominium form of ownership, cooperative form of ownership, time-sharing or similar usage, if such conversion changes, extends, or alters the existing usage, shall require a permit from the Board of Appeals to change or extend such nonconforming use in accordance with § 325-54 of the Harwich Zoning Bylaw.
