[Amended 5-1-1995 ATM by Art. 40; 5-6-2019 ATM by Art. 26]
All available special permits are set forth
in this Bylaw. If more than one special permit is required, and one
of those is a special permit for site plan approval, the special permit
for site plan approval must be obtained before other special permits
are granted unless the Town Planner determines otherwise in writing.
For a particular project, conditions imposed on special permits for
site plan approval must be incorporated into other special permits.
The Board of Appeals shall be the special permit granting authority
unless otherwise set forth herein.
A.
Filing for special permits.
[Amended 5-1-1995 ATM by Art. 41; 5-6-2019 ATM by Art. 26]
(1)
Applications:
Filing for all special permit applications shall be filed with the
appropriate Board at the office of the Town Engineer. (See rules and
regulations of each special permit granting authority for fees and
procedures.)
(2)
Fees.
The special permit granting authority may adopt reasonable administrative
fees and technical review fees for applications for special permits.
Fees for projects containing publicly-assisted low or moderate income
housing may be reduced or waived at the discretion of the special
permit granting authority.
B.
Public review. The Planning Board shall, within 14
days after receipt of an application, deliver one copy of the application
to the Building Commissioner, Town Engineer, Board of Health and Conservation
Commission who or which may, at their or its discretion, investigate
the application and report in writing their recommendations to the
board that required the application. The Planning Board shall not
take final action on the application until it has received a report
from the foregoing boards and departments, or until 35 days have elapsed
after distribution of such application without a submission of a report.
Notice of the filing of the application shall be given to other Town
boards and departments as deemed appropriate by the Planning Board.
C.
Public hearing. Pursuant to G.L. c. 40A, sec. 9, the
Board of Appeals or Planning Board shall give public notice and hold
a hearing within 65 days after the filing of an application for a
special permit. Failure of the Board of Appeals or Planning Board
to take final action within 90 days following the date the public
hearing closes shall be deemed to be a grant of the special permit.
[Amended 5-1-1995 ATM by Art. 40; 5-6-2019 ATM by Art. 26]
D.
Board decision.
[Amended 5-6-2019 ATM by Art. 26]
(1)
Board of Appeals. After holding a public hearing and after giving due consideration to the standards set forth in § 200-36F or other applicable standards set forth herein, the Board of Appeals, by a vote of at least four of its members present, may approve the application or approve with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees as the Board of Appeals may determine. The Board of Appeals may also deny the application.
(2)
Planning Board. After holding a public hearing and after giving due consideration to the standards set forth in § 200-38C or 200-39G or other applicable standards set forth herein, the Planning Board, by a vote of at least four of its members present, may approve the application or approve with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees as the Planning Board may determine. The Planning Board may also deny (§ 200-39) an application.
E.
Performance and compliance.
(1)
Covenant may be required. As part of the approval
by the special permit granting authority, that board may require the
applicant to execute a covenant or require another form of security
acceptable to the special permit granting authority, to perform and
comply with all conditions and requirements of the decision. This
covenant shall be recorded with the Registry of Deeds. Said covenant
shall constitute a covenant running with the land and shall act as
a lien on the premises. The covenant shall be released upon the recording
of a certificate of performance and compliance executed by a majority
of the Board. The Board may require a public hearing to determine
performance and compliance. The costs of recording the covenant and,
where applicable, advertising the public hearing shall be borne by
the applicant.
[Amended 5-6-2019 ATM by Art. 26]
(2)
Accessory special permit uses. The granting of special
permits shall encompass the right to customary accessory uses to the
principal use unless otherwise specified.
(3)
Lapse of special permit. A special permit shall lapse
if a substantial use in accord with the permit is not commenced within
one year from the issuance of the permit, or in the case of a permit
for construction, if construction has not begun within one year from
the issuance of the permit, except for good cause shown.
[Amended 5-6-2019 ATM by Art. 26]
F.
General special permit criteria. Special permits shall be granted
by the special permit granting authority, unless otherwise specified
herein, only upon its written determination that the adverse effects
of the proposed use will not outweigh its beneficial impacts to the
Town or the neighborhood, in view of the particular characteristics
of the site, and of the proposal in relation to that site. In addition
to any other specific factors that may be set forth in this Bylaw,
the determination shall include consideration of each of the following:
[Added 5-6-2019 ATM by Art. 26]
(1)
The
general purpose and intent of this Bylaw, and whether
(2)
The
specific site is an appropriate location for such use or building;
and
(3)
The
use as developed will not adversely affect the neighborhood; and
(4)
There
will be no nuisance or serious hazard to vehicles or pedestrians;
(5)
Adequate
and appropriate facilities will be provided for the proper operation
of the proposed use.
A.
Applicability.
(1)
The Board of Appeals shall determine whether to grant,
grant with conditions or deny a special permit for use and dimension
for the special permit uses listed in Table 1, and for any use listed
in Table 1 the Board of Appeals may alter the dimensional requirements
in Table 2 by special permit.[1]
[1]
Editor's Note: Table 1 and Table 2 are included
at the end of this chapter.
(2)
The Board of Appeals shall determine whether to grant,
grant with conditions or deny other special permit(s) for use and
dimension that are required within this Bylaw including but not limited
to the following:
[Amended 5-1-2000 ATM by Art. 46; 5-6-2019 ATM by Art. 26]
(a)
Canopy which exceed 150 square feet in gross
area and/or seven feet in height.
(d)
Restaurant [see § 200-11A(4)(d)].
(e)
Fast-food establishment [see § 200-11A(4)(c)].
(f)
New steps within minimum yard [see § 200-15B(1)].
(o)
(Reserved)
B.
Conditions for special permit for use and dimension.
The Board of Appeals may impose any conditions deemed necessary to
achieve the purpose of this Bylaw, including but not limited to the
following:
[Amended 5-6-2019 ATM by Art. 26[2]]
(1)
Greater than minimum yard requirements;
(2)
Modification of exterior appearance; limitation of
size, or extent of facilities;
(3)
Regulation of traffic and site plan features including
additional off-street parking;
(4)
Screening of parking areas or other premises from
view by use of appropriate wall, fence, or planting;
(5)
Control of the number, location, size, and lighting
of signs;
(6)
An increase in the applicable minimum requirements
of zoning compliance set forth elsewhere in this Bylaw.
(7)
Additional design and siting modifications where appropriate.
[Amended 5-5-1997 ATM by Art. 19; 5-1-2000 ATM by Art. 45; 5-6-2019 ATM by Art. 26]
An applicant for site plan approval shall not
be issued a building permit unless and until site plan approval has
been granted by the Planning Board. No building permit may be issued
unless in conformance with an approved site plan.
A.
Applicability. The Planning Board shall be the special
permit granting authority for site plan approval and shall determine
whether to grant, grant with conditions, or deny if the submission
is incomplete, a special permit. A special permit for site plan approval
shall be required for the following cases:
(1)
New construction or external addition exceeding 700
square feet in nonresidential or combined nonresidential and residential
gross floor area, including both proposed construction and the cumulative
construction which has taken place over the previous five years, and
to hotels, motels, and rooming houses having a capacity of three or
more guests.
(2)
New construction or external addition exceeding 1,000
square feet in gross floor area for a building containing three or
more dwelling units.
(3)
Any new construction or external addition provided
that the addition exceeds 500 square feet in gross floor area in any
of the five Shoreline Districts or in the Harborfront District.
(4)
In the case of accessory buildings within any Harborfront
or Shoreline District, the Planning Board may determine that site
plan approval is not required.
(5)
Any subdivision resulting in an additional three or
more lots. If the subdivision is an "approval not required" plan under
G.L. c. 41 Sections 81K - 81GG, the subdivision as defined in this
Bylaw,[1] resulting in an additional three lots or more is subject
to the site plan approval process prior to the issuance of a building
permit.
B.
Submission requirements.
(1)
Each site plan approval special permit application
shall be accompanied by the following information:
(a)
Five copies of a certified plot plan at a minimum
scale of one inch equals 40 feet and a maximum scale of one inch equals
20 feet. The site plan shall contain:
[1]
Date of site plan with all revisions noted and
dated. Title of development; North arrow; scale; map and lot number;
name and address of record owner; name and address of person preparing
the site plan.
[2]
The names of all owners of record of adjacent
properties, and the map and lot number of the properties and all buildings.
[3]
Zoning district boundaries and flood zone boundaries
shall be shown as they affect the property.
[4]
Boundaries of the property and lines of existing
street, lots, easements and areas dedicated to public use, including
rights-of-way.
[5]
A locus map showing the location of the property
with reference to surrounding area.
[6]
A table indicating all calculations necessary
to determine conformance to Bylaw regulations including current required
and proposed regulations.
[7]
Square footage of property to the nearest 10
square feet.
[8]
Location of existing and proposed buildings,
walls, fences, culverts, parking areas, loading areas, walkways and
driveways.
[9]
Location and dimensions of utilities, gas, telephone,
electrical, communications, water drainage, sewer and other waste
disposal.
[10]
Location, type and dimensions
of landscaping and screening.
[11]
Location of existing rock outcroppings,
high points, vistas, ponds, depressions, wetlands, major trees (twelve-inch
caliper and over) and any other significant existing features.
[12]
Two-foot contours where slopes
are less than 15% and five-foot contours when 15% or more. Existing
contours shall be indicated by dashed line. Proposed contours shall
be indicated by solid line.
(b)
Five copies of dimensioned schematic drawings
of all proposed buildings. Scale shall not exceed 1/4 inch equals
one foot nor less than 1/8 inch equals one foot.
(c)
A narrative describing the proposal and addressing
the foregoing requirements.
(d)
Location of street numbers indicated on the
schematic drawings and/or site plan.
(e)
A completed application form and application
fee.
(2)
The Town Planner at a preapplication meeting may waive
certain site plan requirements if the Planner determines that the
information will not aid the Board in its deliberations.
(3)
The Planning Board may require the applicant to submit
the following additional materials no later than 40 days prior to
the final date that a decision must be rendered on the application:
(a)
Surface and water pollution. A report on the
impact of stormwater runoff on adjacent and downstream surface water
bodies, subsurface groundwater and the water table.
(b)
Soils. The potential dangers of erosion and
sedimentation caused by the operation and maintenance of the proposed
development.
(c)
General environmental impact. A report on the
relationship of the proposed development to the major botanical, zoological,
geological and hydrological resources of the site, and compatibility
of the proposed development with adjacent or surrounding land uses
and neighborhoods.
(d)
Traffic impact. A report on existing street
capacities, estimated average daily traffic generation, composition,
peak hour levels and directional flows resulting from the proposed
development, proposed methods to mitigate the estimated traffic impact
and methodology and sources used to derive existing data and estimations.
(e)
Story poles installed and location certified
at the property at each corner and at the ridge line indicating actual
height of proposed building.
(f)
Sample board. Identification of all major exterior
materials, colors and finishes.
(g)
Renderings showing the proposed project in relationship to its
surroundings.
C.
Standards for special permit for site plan approval.
The Planning Board shall consider the following standards:
(1)
The general purpose and intent of this Bylaw;
(2)
The technical requirements of this section; and
(3)
The extent to which:
(a)
The architectural and design features are in
harmony with the prevailing character and scale of buildings in the
neighborhood and Town (such as but not limited to: building materials,
screening, breaks in roof and wall lines, adequate light, air, circulation
and separation between buildings).
(b)
The character of the site is preserved (such
as but not limited to: protection of historical and natural resources
and existing terrain, minimization of grade changes, tree and soil
removal).
(c)
Vehicular and pedestrian movement within the
site are convenient and safe (such as but not limited to: traffic
patterns, circulation, location of driveway openings, parking, loading,
access by emergency vehicles, and visibility of and identity of street
address numbers).
(d)
External emissions from the site are minimized
or eliminated (such as but not limited to: erosion, surface water
runoff, pollution, sewage, disposal of refuse, odors, noise, glare,
light and any other environmental impacts).
(e)
The adverse effects on abutting lots, the immediate
neighborhood and the Town of Marblehead are minimized including (such
as but not limited to: conflicts between residential, commercial and
industrial uses, obstructions of views, increases in use of Town services
and impact on Town infrastructure).
D.
Conditions for special permit for site plan approval.
The Planning Board may impose any conditions deemed necessary to achieve
the purposes of this Bylaw.
E.
Special permit for site plan approval for public/private
schools and places of worship. Lots and buildings occupied by religious
or nonprofit educational uses shall be subject to the special permit
for site plan approval process, provided that the requirements, standards
and conditions with respect thereto shall be modified upon a showing
by the school or place of worship that strict application of them
to the lot or building is unreasonable and would substantially diminish
or impair the religious or educational use of the lot or building
without advancing the purposes of the Bylaw. The Planning Board, in
implementing the Bylaw shall not take any action, impose any conditions,
or make any decisions, which would contravene or be inconsistent with
the provisions of Massachusetts General Laws Chapter 40A, Section
3.
[Amended 5-6-2019 ATM by Art. 26]
An applicant may seek a special permit for incentive
zoning to increase density or intensity of use to a level greater
than that allowed by right in the zoning district in which the residential
development is located or may grant an exception to vary minimum lot
and yard dimensions in accordance with the following provisions.
A.
Applicability. The Planning Board shall determine
whether to grant, grant with conditions or deny special permits for
incentive zoning to any residential development containing 10 or more
dwelling units allowed as a matter of right to the following residential
uses:
B.
Purpose. The purpose of this section is to promote
the general purposes and intent of this Bylaw and to:
(1)
Encourage a greater diversity of housing accommodations;
and
(2)
Promote a reasonable mix and distribution of housing
opportunities in residential neighborhoods throughout the Town; and
(3)
Increase the supply of housing in the Town that is
available to and affordable by low- and moderate-income households;
and
(4)
Ensure that such housing is affordable over the long
term.
C.
General requirements. The maximum density in any project
shall not exceed 12 units per acre including housing units created
by new construction or by conversion of a nonresidential structure
to housing use.
D.
Target group is low and moderate income. For purposes
of this article, "area" shall mean the Salem-Gloucester Standard Metropolitan
Statistical Area and "low, moderate, and upper-moderate income" shall
mean:
E.
Affordable units.
(1)
Applicants are required to set aside 10% of the units
in the development as affordable units, based on the following:
(a)
Of the affordable units, 25% shall serve low-income
households, 50% shall serve moderate-income households, and 25% serve
upper-moderate-income households.
(b)
Except as otherwise provided by the Planning
Board, affordable units shall contain two or more bedrooms and shall
be suitable in type and design for families with children.
(c)
When located in the same development with market-rate
housing units, affordable units shall be compatible with, and indistinguishable
from, the market-rate units with regard to exterior appearance, interior
size and design, and basic amenities.
(d)
Affordable units shall be affordable in perpetuity
or in a duration to the extent allowed by law and as approved by the
Planning Board.
(2)
At the discretion of the Planning Board, applicants
may be allowed to set aside a lower percentage of units, under the
following conditions:
(a)
A higher percentage of units are targeted toward
low-income households;
(b)
A higher percentage of units are multi-bedroom
units suitable for large families;
(c)
A percentage of units are designed and constructed
to accommodate persons with special needs; and/or
(d)
No public subsidies are available and the Planning
Board determines a lower percentage of units is necessary to make
the project economically feasible.
(4)
Nothing in this section shall preclude a petitioner
from setting aside more than the required number of affordable units
or from setting aside additional units for higher but limited income
groups.
(5)
In determining the total number of affordable units
required, a fractional unit of 0.5 or more shall be regarded as a
whole unit.
(6)
Alternative contribution methods. At the option of
the Planning Board, the requirements of this section may be met through
one or more of the methods below or through a combination of these
methods and on-site units, provided that the alternative proposed
is found by the Planning Board to be advantageous to the Town in creating
or preserving affordable housing, and does not result in undue concentration
of affordable units. Affordable units provided through the alternative
methods below shall comply in all respects other than on-site location
with the requirements of this section.
(a)
Off-site location. Some or all of the affordable
units may be located on an alternative site or sites suitable for
housing use in Marblehead, preferably in the same neighborhood as
provided that such units are at least equal in number to the affordable
units that would have been provided on site and further that said
units shall be created commensurate with the proposed development.
(b)
Cash payment. Petitioner may provide a cash
payment to the Town of Marblehead or its designee in an amount that
is at least equivalent to the cost of providing the required affordable
units on site. Such payments shall be used for the sole purpose of
providing or preserving housing targeted to income groups identified
in this section and shall be paid prior to the issuance of the first
building permit for the proposed development.
F.
Submission requirements:
(2)
Plans defining the locations and numbers of affordable
housing units;
(3)
The sales or rental price of each inclusionary housing
unit as defined by this article, according to the current guidelines
established by MHFA and EOCD;
(4)
List of all other special permit(s) or variances requested;
(5)
In instances where affordable units are being subsidized
by a state or federal agency, a letter of commitment, to the extent
possible.
G.
Standards for special permits for incentive zoning. The Planning Board shall, in reviewing an application for a special permit under this article, consider the standards listed in §§ 200-36F and 300-37B.
H.
Conditions for special permits for incentive zoning.
The Planning Board may impose any conditions deemed necessary to achieve
the purposes of this Bylaw.
[Added 5-5-1997 ATM by Art. 24]
A.
Applicability. An applicant for a WCF may not be issued
a building permit unless or until a WCF special permit has been issued
by the Planning Board. The Planning Board shall approve, or approve
with conditions, if the petitioner can fulfill the requirements of
this section. An application for a WCF special permit may be denied
if the petitioner cannot fulfill the requirements of this section.
[Amended 5-6-2019 ATM by Art. 26]
B.
Purpose. The purpose of these regulations include:
minimizing adverse impacts of WCF's and antennas on adjacent properties
and residential neighborhoods, including but not limited to: minimizing
the overall number and height of such facilities to only what is essential,
and promoting shared use of existing facilities to reduce the need
for new facilities.
C.
General requirements.
(1)
Only monopoles shall be issued WCF special permits.
Lattice-style towers with legs and/or guy wires for support are not
allowed.
(2)
To the extent feasible, all service providers shall
locate all WCF's on a single facility. WCF's shall be designed to
accommodate the maximum number of users technologically practical.
The intent of this requirement is to reduce the number of facilities
which will be required to be located within the community.
(3)
WCF structures shall be removed by the landowner at
the owner's expense within one year of cessation of use for the particular
purpose for which the applicable special permit or any other permit
was originally issued for such WCF.
D.
Submission requirements. All applications for WCF
special permit shall be made and filed with the Planning Board. For
an application to be considered complete, five copies of the following
must be submitted:
(1)
A locus plan of the proposed area at a scale of no
greater than one inch equals 200 feet which shows property lines,
the exact location of the proposed structure(s), streets, residential
dwellings and all building within 700 feet of the property.
(2)
A color photograph or rendition of the proposed facility
with its antennas or panels. A rendition shall also be prepared illustrating
a view of the monopole, dish or antenna from the nearest street or
streets.
(3)
The following information must be submitted and prepared
in written form by a knowledgeable registered professional engineer:
(a)
A description of the facility.
(b)
The technical, economic and other reasons why the proposed location, height and design fulfills the purposes set forth in Subsection B.
(c)
Confirmation that the facility complies with
all applicable federal and state rules, regulations, laws and standards.
(d)
A description of the capacity of the facility
including the number and type of panels, antennas and/or transmitter's
receivers that it can accommodate and the basis for these calculations.
(e)
Confirmation to the Building Commissioner from
a knowledgeable registered professional engineer that the proposed
facility complies with, or is exempt from applicable regulations administered
by the Federal Aviation Administration (FAA), the Federal Communications
Commission (FCC), Massachusetts Aeronautics Commission and the Massachusetts
Department of Public Health. This confirmation will be provided to
the Building Commissioner by the tower's then current owner every
two years after issuance of the original building permit.
(f)
The applicable review and advertising fees as
noted in the application guidelines.
E.
Design guidelines. The following guidelines shall
be used when preparing plans for the siting and construction of all
wireless communication facilities.
(1)
No facility shall exceed 65 feet in height as measured
from ground level at the base of the facility. A special permit for
use and dimension from the Board of Appeals may be granted for heights
which exceed 65 feet in addition to obtaining a WCF special permit.
(2)
All facilities and antennas shall be painted or otherwise
colored to blend in with the landscape or the structure on which they
are located.
(3)
Wireless communication facilities and antennas shall
be suitably screened from abutters and residential neighborhoods.
(4)
Fencing shall be provided to control access to wireless
communications facilities and shall be compatible with the scenic
character of the Town.
(5)
Existing on-site vegetation shall be preserved to
the maximum extent possible.
(6)
There shall be no signs, except for announcement signs,
no trespassing signs, required safety signs and a required sign giving
a phone number where the owner can be reached on a twenty-four-hour
basis. All signs shall conform with the Town of Marblehead Sign Bylaw.[2]
(7)
A facility shall not be erected nearer to any property
line than a distance equal to a minimum of 75 feet measured from the
lowest point of the base of the facility.
(8)
A facility shall be located a minimum of 500 feet
from the nearest residential structure.
[Amended 5-6-2019 ATM by Art. 26]
(9)
Night lighting of towers shall be prohibited unless
required by the Federal Aviation Administration. Lighting shall be
limited to that needed for emergencies and/or required by FAA.
(10)
(Reserved)[3]
[3]
Editor's Note: Former Subsection E(10), which limited the height of wireless communications antennas, was repealed 5-6-2019 ATM by Art. 26. For current provisions, see § 200-14A(9).
(11)
(Reserved)[4]
[4]
Editor's Note: Former Subsection E(11), which required that the visibility of wireless communication antennas be minimized, was repealed 5-6-2019 ATM by Art. 26. For current provisions, see § 200-14A(8).
(12)
Equipment boxes mounted on the ground must meet the setback requirements for the district in which they are located and shall either be screened by fencing or landscaping. Wireless communication antennas associated equipment boxes are permitted as a matter of right. Buildings (see definition of "building" in § 200-7) housing associated equipment must obtain a special permit from the Board of Appeals.
[Amended 5-5-1998 ATM by Art. 28]
(13)
All antennas shall be flush mounted to the monopole
in order to minimize their visibility.
[Added 5-3-1999 ATM by Art. 38]
[Added 5-3-1999 ATM by Art. 36]
An applicant may seek a special permit for nursing
homes and assisted living facilities to increase the density or intensity
of use to a greater level than that allowed by right in the zoning
district in which the facility is located in accordance with Subsection
C.
A.
Applicability. The Board of Appeals shall determine whether to grant, grant with conditions or deny special permits for nursing homes and assisted living facilities to allow a facility on a parcel of land, in any district, which can accommodate 10 or more residential dwelling units allowed as a matter of right and complies with the minimum dimensional requirements listed in Subsection C.
B.
Purpose. The purpose of this section is to promote
the general purposes and intent of this Bylaw and to:
C.
D.
Submission requirements.
(2)
Plans defining the number of units; and a description
of the units including number of beds per unit, size and layout.
(3)
A narrative describing the number of employees, hours
of shifts, etc.
(4)
A plan showing the by-right scenario (number of lots
allowable as a matter of right).
(5)
A traffic impact report on existing street capacities,
estimated average daily traffic generation, composition, peak hour
levels and directional flows resulting from the proposed development.
E.
Standards for special permit for nursing homes and
assisted living facilities.
(1)
Architectural and design features are compatible with
the existing neighborhood.
(2)
Vehicular and pedestrian movement within the site
are convenient and safe, such as but not limited to, traffic patterns,
circulation, location of driveway openings, parking, loading, visibility
of identification of street address, and access by emergency vehicles.
[Amended 5-6-2019 ATM by Art. 26]
(3)
Adverse effects on abutting lots, the immediate neighborhood
and the Town are minimized.
(4)
External emissions from the site are minimized or
eliminated including erosion, surface water runoff, pollution, sewage,
disposal of refuse, odors, noise, glare, light and other environmental
impacts.
F.
Conditions for special permits for nursing homes and
assisted living facilities. The permit granting authority may impose
conditions deemed necessary to achieve the purposes of this Bylaw.
