Town of Harvard, MA Permitted Uses by District

Concussion, vibration, noise, or other mechanical disturbance;

Smoke, dust, odor, fumes, or other air pollution;

Glare, fluctuating light, or electrical interference;

Danger of fire, explosion, radioactivity, or other danger; or

Wastes or refuse (except at the Town Transfer Station);

[Amended 12-3-2002 STM by Art. 19]

(6)

Likelihood of substantial increase in volume or rate of surface water runoff to neighboring properties and streets, or substantial danger of pollution or contamination of the groundwater supply, a groundwater absorption area, or a well, pond, stream, watercourse, W District, or inland wetland; or

(7)

Other characteristics.

The customary character of normal farm operations permitted in the Bylaw is not considered detrimental.

The collection or open storage of junk or abandoned autos, the commercial raising of swine or fur animals, the manufacture or commercial storage of explosives, a fertilizer plant, a slaughterhouse, an airport, a heliport or a race track is specifically prohibited.

[Amended 3-28-1992 ATM by Art. 34]

Development shall provide water supply and sewage disposal approved by the Board of Health.

Drive-through facilities, except where such facilities are accessory to banks or financial institutions or pharmacies, are specifically prohibited. A drive-through facility which is accessory to a bank or financial institution or pharmacy may be established upon the issuance of a special permit from the Planning Board, provided that:

[Added 5-1-2010 ATM by Art. 2]

Not more than one drive-through facility for a principal use shall be permitted.

There are no residential uses within 500 feet of the drive-through facility, except for residential uses which are located within a mixed-use development.

There are no other drive-through facilities within 300 feet of the proposed facility except as may be otherwise determined by the Planning Board based on public safety and traffic circulation considerations as set forth in its special permit decision.

With respect to off-site effects, the drive-through facility shall not result in an increase in congestion, an impediment to parking areas, an impediment to pedestrian traffic, overflow into a street, double parking on a street or conflict with turning movements at intersections.

With respect to on-site effects, the drive-through facility shall not result in an impairment of the parking areas, an impairment of parking circulation, an impediment to trash storage or an impediment to loading or service areas.

(6)

The drive-through facility shall have not more than one stacking lane which shall have:

A minimum of nine vehicle spaces with a minimum length of 20 feet, one of which shall be at the window or transaction station;

A minimum width of 11 feet straight;

A minimum width of 12 feet on a curve; and

A curb separating the lane and parking area.

(7)

Landscaping must obscure the drive-through facility from residential properties as set forth in § 125-39D, Screening.

(8)

One sign shall be provided which:

Directs vehicular traffic in and out of the stacking lane;

Limits the direction of travel in the lane to one way;

Limits speed in the lane to 10 miles per hour; and

Directs pedestrian traffic around or through the lane.

(9)

Speakers, intercoms and vehicular traffic at the drive-through facility shall not be audible from adjacent properties.

(10)

Lighting of the drive-through facility shall not exceed one footcandle at adjacent properties and shall not be illuminated between 11:00 p.m. and 6:00 a.m. except as set forth in § 125-40D.

(11)

The drive-through facility complies with the site standards set forth in § 125-39, except where such standards are inconsistent with any provision of this Subsection E.

§ 125-21 Permitted uses in AR Districts.

[Added 3-6-1965 ATM by Art. 29; amended 3-7-1970 ATM by Arts. 46 and 47; 3-6-1971 ATM by Art. 34; 3-4-1972 ATM by Art. 45]

It is the intent to provide a district primarily for compatible agriculture and single-family residence.

Permitted uses are:

As provided in § 125-8, Single residence use.

As provided in § 125-7, Agricultural uses.

As provided in § 125-10, Conversion for multiple residence, § 125-11, Conversion of seasonal residence, § 125-15, Earthmoving, and § 125-16, Institutional uses.

[Amended 3-3-1973 ATM by Art. 34]

Uses by special permit (see § 125-46, Special permits) authorized by the Board of Appeals as follows:

[Added 3-25-1978 ATM by Art. 23][1]

As provided in § 125-18.1A(1), accessory dwelling unit (ADU) use.

[Added 3-27-1982 ATM by Art. 37; amended 4-5-1986 ATM by Art. 33; 3-28-1992 ATM by Art. 35; 10-16-2021 ATM by Art. 4]

Editor's Note: Original Sec. 5.2d, which immediately followed this subsection and listed nursery school, kindergarten, or day-care center for preschool children, was deleted 3-30-1996 ATM by Art. 30.

Uses by special permit (see § 125-46, Special permits) authorized by the Board of Appeals as follows provided that such uses may be authorized only where special protective isolation for neighboring property is provided; in particular, the lot boundary setbacks of § 125-30, Land-structure relations, and the buffer strip width of § 125-39, Site standards, shall be at least twice those specified therein:

[Added 3-3-1973 ATM by Art. 37; amended 3-25-1978 ATM by Art. 23; 3-27-1982 ATM by Art. 41; 3-31-1984 ATM by Art. 25]

As provided in § 125-17, Off-site uses.

Use by special permit authorized by the Planning Board:[2]

Golf course (not driving range, novelty or miniature), and subject to § 125-39, Site standards, provided that a special permit be required only after August 21, 1989.

[Amended 2-5-1990 STM by Art. 10]

As provided in § 125-34, Mini-subdivision.

[Added 3-31-1990 ATM by Art. 18][3]

Editor's Note: Original Sec. 5.2i, reading "a medical practice; a dental practice," and the introductory text thereto, as added 3-26-1983 STM by Art. 1, was deleted 4-6-1991 ATM by Art. 21.

As provided in § 125-35, Cluster development for open space conservation.

[Added 3-31-1990 ATM by Art. 18]

Wireless communications services as provided by the installation of wireless communications equipment in any permanent structure existing prior to June 1, 1999. The wireless communications equipment shall not alter the exterior appearance of the structure. For structures in existence prior to June 1, 1999, no portion of the structure which was or will be created by the enlargement in either volume or height of the structure after June 1, 1999, may be used for the purposes of providing wireless communications services unless, in the opinion of the Planning Board, the provision of wireless communications services in this portion of the structure is in harmony with the purposes defined in § 125-1 of this Bylaw.

[Added 3-25-2000 ATM by Art. 33]

Marijuana cultivation, which shall comply with the following requirements:

[Added 5-5-2018 ATM by Art. 33]

Cultivation areas shall be set back from property lines a minimum distance of 200 feet;

The cultivated area shall not be visible from a public place without the use of binoculars, aircraft or other optical aids; the Planning Board may require landscaping, a solid fence, or other measures to achieve adequate screening;

Cultivation areas shall comply with the security and alarm requirements of 935 CMR 500 and other stipulations that the Planning Board may require;

Marijuana cultivation is limited to 10,000 square feet of canopy as defined in 935 CMR 500;

No overhead lights shall be used with the exception of reasonable lighting for security purposes and in compliance with lighting bylaw § 125-40;

(f)

The applicant shall negotiate a host community agreement and impact fee with the Select Board prior to opening; and as part of site plan review, applicant must get approval of the security plan from the Chief of Police;

[Amended 10-22-2018 STM by Art. 2]

(g)

On-site sales are prohibited;

(h)

Marijuana cultivator, an entity licensed to cultivate, process and package marijuana, to deliver marijuana to marijuana establishments and to transfer marijuana to other marijuana establishments, but not to consumers.

Note: See § 125-46, Special permits.

§ 125-22 Permitted Uses in B District.

[Added 3-6-1965 ATM by Art. 32]

Permitted uses are:

Uses as permitted in the district surrounding the B District.

Subject to § 125-39, Site standards:

[Added 3-6-1971 ATM by Art. 34]

Store, showroom, salesroom for the conduct of retail business, including a grocery, hardware, clothing, drug, or general store, a florist's, gift, stationery, or antiques shop, a photographer's studio.

Personal service establishment such as a barbershop or beauty parlor, collection agency for utilities, pickup for laundry or dry cleaning.

[Amended 12-3-2002 STM by Art. 19]

Indoor eating establishment.

Bank or similar financial institution.

Real estate, professional, or similar offices.

The tracts as they existed March 6, 1965, defining the B District may be used as lots for uses in Subsection A(2)(a) through (e) as if conforming.

[Amended 3-22-1969 ATM by Art. 40]

§ 125-23 Permitted uses in C Districts.

[Added 3-6-1965 ATM by Art. 29; amended 3-6-1971 ATM by Art. 34; 3-4-1972 ATM by Art. 44; 3-3-1973 ATM by Art. 35; 3-26-1977 ATM by Art. 35; 4-5-1986 ATM by Art. 39; 11-16-1987 STM by Art. 10; 3-28-1998 ATM by Art. 29; 12-8-1998 STM by Art. 14; 3-27-2004 ATM by Art. 39]

The intent of the C District is to permit shopping and business services type land uses that meet the needs of the local community rather than the region, and to encourage uses that, when established, result in a traditional New England village form of development of appropriate scale, character, vernacular architecture, design, and detail. It is also the intent of the C District to provide for an array of uses consistent with the Master Plan adopted by the Planning Board, as may be amended, including opportunities for mixed use development, pedestrian interaction, and a vibrant village atmosphere.

Permitted uses are:

As provided in § 125-12, Small-scale commercial uses.

As provided in § 125-7, Agricultural uses, § 125-10, Conversion for multiple residence, § 125-15, Earthmoving, § 125-16, Institutional uses, and § 125-41J, Other off-site signs.

As provided in § 125-8, Single residence use, on lots as they existed February 1, 1972.

As provided in § 125-13, Medium-scale commercial uses, with the exception of Subsections M, T, U and V (laboratory for engineering, research, experimental, or testing activities; landscaping services involving equipment parking; kennel and/or veterinary services; mortuary), however, for § 125-13, Medium-scale commercial uses, Subsection Y permitted uses, only in building(s) existing on October 16, 1998. As provided in § 125-53, Large-Scale Ground Mounted Solar Photovoltaic Facilities Overlay District.

[Amended 8-29-2012 STM by Art. 1]

Uses by special permit (see § 125-46, Special permits) issued by the Planning Board as follows:

As provided in § 125-13, Medium-scale commercial uses, Subsections M, S, T, U, V, Z (inn or bed-and-breakfast establishment, eating establishments with live musical entertainment; laboratory for engineering, research, experimental, or testing activities; shops and sales of supplies for plumbing, electrical, carpentry and other building trades; landscaping services involving equipment parking; kennel and/or veterinary services; mortuary; mixed use village development).

As provided in § 125-14, Large-scale commercial uses, except that no special permit shall be issued pursuant to Subsection F thereof for an automobile body shop.

§ 125-24 Permitted uses in MR Districts.

[Added 3-7-1970 ATM by Art. 46; amended 3-6-1971 ATM by Art. 34; 3-3-1973 ATM by Art. 37; 2-5-1990 STM by Art. 7]

It is the intent to provide a district primarily for multiple residence use, having access to supporting shopping areas and to major streets, and characterized by land and soil types compatible with such increased intensity of residential use. Permitted uses are:

As provided in § 125-9, Multiple residence use, including subsidized multiple residence.

As provided in § 125-15, Earthmoving, and § 125-16, Institutional uses.[1]

Editor's Note: Original Sec. 5.5, Permitted uses in I Districts, as amended, was deleted 2-5-1990 STM by Art. 8.

§ 125-25 Permitted uses in W Districts.

[Added 4-13-1968 ATM by Art. 36; amended 3-22-1969 ATM by Art. 39]

Permitted uses are as in an AR District, provided:

Any construction or any landfilling, excavation, moving of earth material, or other grading shall not reduce high-water storage capacity or groundwater absorption or otherwise significantly affect the drainage or natural flow pattern in the watercourse except as required for flood-control works by an authorized public agency. Minor effects necessarily incidental to agricultural use of the land are not considered grading.

Any construction or grading shall be only by special permit authorized by the Planning Board, except:

[Amended 3-3-1973 ATM by Art. 37; 3-25-1978 ATM by Art. 23; 3-30-1996 ATM by Art. 31]

A driveway, or a way in an approved subdivision, of length in the W District less than 25 feet, or a foot, bicycle, or horse path; or

A bridge, fence, sign, wildlife management shelter, or waterfront structure, which is firmly secured to the earth; or

A water hole for fire protection approved as part of a subdivision plan, or required by § 125-39, Site standards, and approved under § 125-38, Site plans.

No building for human occupancy and no sewage disposal system or other potential source of substantial contamination is permitted. However, if an applicant proves satisfactorily that his land is in fact not subject to inundation and not unsuitable for residential use because of drainage conditions and not an inland wetland under Chapter 131 G.L., the Planning Board may authorize by special permit (see § 125-46, Special permits) the use of such land as if in an AR District or, if such land does not abut an AR District but does abut a district other than a W District, as if in the other district.

[Amended 3-6-1971 ATM by Art. 34; 3-30-1996 ATM by Art. 31]

§ 125-26 Permitted uses in WFH Districts.

[Added 3-29-1975 ATM by Art. 34; amended 3-30-1996 ATM by Art. 31]

It is the intent to provide for overlay districts representing wetland areas and/or areas subject to flood hazard. Permitted uses are those of the underlying district, subject to provisions the same as Subsections A, B and C of § 125-25, Permitted uses in W Districts, except modified:

In Subsection B(1) to substitute WFH for W and to substitute 50 feet for 25 feet; and

In Subsection C to substitute for "as if in an AR district... other district" the phrase "as if the land were not in a WFH District."

§ 125-27 Wireless Communications Towers Overlay District.

[Added 6-19-1997 STM by Art. 6[1]]

Purpose and definition.

The purpose of the Wireless Communications Towers Overlay District is to establish a district in which wireless communications towers may be permitted with minimal impact upon the public health, safety and general welfare. Specifically, the Wireless Communications Towers Overlay District has been created to regulate the siting of wireless communications towers in order to further the purposes of this Protective Bylaw and in order to minimize the visual impact of wireless communications towers within the Town of Harvard.

Definition. For purposes of this § 125-27, "viewshed" shall mean the visual impact of the site and the area surrounding the site from all locations within the Town of Harvard.

District delineation. The Wireless Communications Towers Overlay District (WCTOD) shall include all land in the Town of Harvard with the following exceptions:

[Amended 3-25-2000 ATM by Art. 32]

All land that lies within a W District;

All land within Historic Districts as delineated under Section 3 of the Historic Districts and Historical Commission Bylaw of the Town of Harvard;[2]

Editor's Note: See Ch. 48, Historic Districts, § 48-3.

All land subject to an agricultural preservation restriction.

Underlying zoning requirements. The Wireless Communications Towers Overlay District shall be construed as an overlay district with regard to said locations. All requirements of the underlying zoning district shall remain in full force and effect, except as may be specifically provided herein.

Special permit requirements and use restrictions. A wireless communications tower may be erected on land located in the Wireless Communications Towers Overlay District upon the issuance of a special permit by the Planning Board pursuant to § 125-46 of this Bylaw, subject to site plan approval by the Planning Board as set forth in § 125-38, as they may be amended.

Any extension of or addition to a wireless communications tower, or the construction of replacement towers, shall be subject to a modification of the special permit following the same procedure as for an original application for a special permit. Addition of a co-locator to an existing wireless communications tower granted under this § 125-27 shall be by a separate special permit, which may modify the conditions of the special permit granting the tower. No special permit authorizing the location of wireless communications equipment on a lawfully existing tower or authorizing a tower or other structure for the provision of wireless communication services granted under any section other than § 125-27 of the Protective (Zoning) Bylaw of the Town of Harvard may be renewed or extended upon its expiration.

[Amended 3-25-2000 ATM by Art. 32]

A special permit under this section may be granted only if the Planning Board finds:

There are no existing, approved or proposed wireless communications towers or other structures which are reasonably available to accommodate the wireless communications equipment planned for the proposed tower in order to provide the service which the proposed tower would provide.

The size and height of the tower are the minimum necessary for the purpose;

[Amended 3-25-2000 ATM by Art. 32]

Provided, however, that:

The tower height, including any appurtenant equipment and devices, shall not exceed 75 feet above the average grade of the existing terrain at the tower's base unless the applicant demonstrates to the satisfaction of the Planning Board that:

[i]

The granting of a tower less than or equal to 75 feet in height shall have the effect of prohibiting the provision of personal wireless services or shall unreasonably discriminate among providers of functionally equivalent services; or

[ii]

A taller tower will permit multiple users without detrimental impact upon the viewshed.

In no event shall the tower height, including appurtenant equipment and devices, exceed 105 feet

[c]

In no event shall the tower, including appurtenant equipment and devices, be of such height as to require nonemergency lighting.

In making a determination under Subsection D(2)(b)[1][a][i] the Planning Board must find that the services proposed are reasonable and technically feasible using the applicant's technology, are consistent with generally accepted industry standards for the provision of such services, and cannot be reasonably provided by a different type, location, or height of tower, or configuration of towers, or alternate installation of wireless communications equipment, which is technically feasible, permitted under this Bylaw, and is in greater harmony with the purposes of the Bylaw.

The tower and its accessory structures have been designed in all respects to accommodate multiple users to the extent which it can be done without impact on the viewshed, and the applicant has agreed to permit other service providers to co-locate on the tower with commercially reasonable terms.

There is no wireless communications tower located within two miles of the proposed tower, unless:

The applicant demonstrates to the satisfaction of the Planning Board that the applicant cannot co-locate on existing towers for technical reasons or because co-location would not further the purposes of this section; or

The applicant demonstrates to the satisfaction of the Planning Board that the proposed placement is critical to the provision of services.

The tower has been sited so as to minimize the effect of the tower upon the viewshed from all residences and from all areas of the Town of Harvard. In support of this finding, the Board shall find:

That the tower has been sited so as to make use of natural vegetative screening and is in compliance with § 125-39D, Screening; and

That the applicant has been denied the use of federal or state lands, which are consistent with the operation of its system but offer better protection for the viewshed of Harvard.

(f)

The tower and its accessory buildings comply with the following setback requirements:

The tower shall be set back from any property line, other than a property line bordering Route 495 or Route 2, no less than a distance equal to the height of the tower (including any appurtenant equipment and devices) measured at the average finished grade of the tower base.

The tower shall be set back from the center of a street no less than 500 feet, except:

There shall be no setback requirement from the center line of Route 495 and Route 2.

Where, in the judgment of the Planning Board, sufficient screening is provided to protect the viewshed as assessed from the street.

The tower shall be set back from any residence which has been built, or from a residence for which a building permit has been granted at the time of the application, or from the site of any residence shown on a plan approved by the Town of Harvard or under consideration for approval by the Town of Harvard, no less than 500 feet or a distance equal to six times the height of the tower, whichever is greater. The tower and its accessory structures shall not be required to be sited on its own lot as required in the provisions of § 125-30A, Number of structures on a lot, of this Bylaw.

(g)

The improved access shall be subject to driveway site plan approval as set forth in this Bylaw.

(h)

The applicant's proposal includes provision for clearing to be performed in a manner which will preserve existing on-site vegetation to the maximum extent practicable, and for any disturbed areas to be restored after construction of the tower is completed. The proposal provides for the replacement of any trees applicant intends to clear which provide a noise buffer to neighboring properties.

(i)

The granting of the special permit is in compliance with § 125-46C of this Bylaw, as it may be amended.

(j)

The tower has been designed, using the best available technology, to blend into the surrounding environment through the use of color, camouflaging techniques, or other architectural treatments. Monopole construction is preferred. In any decision granting a special permit under this § 125-27 the Planning Board shall impose conditions and limitations on the exercise of the special permit specifying the maximum height and specific camouflaging techniques for the wireless communications tower and equipment which are needed to minimize the visual impact of the tower.

[Amended 3-25-2000 ATM by Art. 32]

(k)

Lighting shall be limited to that needed for emergencies.

(l)

The tower and its accessory buildings have been designed to be as unobtrusive as possible, with all utility lines serving them installed underground and the use of the best available technology to minimize the noise emitted from the site.

(m)

The tower has been designed to be fenced so as to control access to the facility. The fence has been designed so as to be as unobtrusive as possible.

(n)

The applicant's proposal includes the posting of an announcement sign, a no trespassing sign, and a sign giving a phone number where the owner or operator can be reached on a twenty-four-hour basis. These signs shall be of size and location approved by the Planning Board. No other signs will be permitted.

(o)

The tower is approved for a defined and specific use and intensity of use, including the number, type, and location of transmitters.

For new towers, or modifications to existing towers that require grant of a special permit by the Planning Board, the tower owner shall allow the installation of municipal public safety communications equipment provided such equipment does not interfere with the service of other carriers on the tower. The Town shall bear the cost of the equipment and its installation.

[Added 4-1-2014 ATM by Art. 41]

Application review. An application for a special permit (10 copies) shall be filed in accordance with the requirements of this Bylaw. An application for a special permit shall include the following:

A site plan prepared by a professional engineer at a scale of 1:40 which complies with all requirements of § 125-38D of this Bylaw, as it may be amended, and which shows the following:

Tower location, including guy wires, if any, and tower height;

Accessory buildings and/or housings for switching equipment;

Topography of the lot on which the proposed tower will be constructed;

Underlying zoning districts;

Fencing and landscaping;

Access and parking;

Lighting;

Limits of clearing;

Site boundaries;

Abutters;

Utilities.

Elevation drawings of the proposed tower, showing all details of its appearance, including height, shape, materials, antennas, wires, and accessory buildings.

The proponent will be required to conduct a visual impact analysis of the proposed structures.

This analysis includes:

Delineation of the viewshed, or area within which the structure can be viewed;

Identification of key viewpoints based on consultation with the Planning Board;

Analysis of the views of the structure from key viewpoints; and

[4]

Presentation of the findings in the application package.

The viewshed will be identified through review of topographic contours to determine lines of sight surrounding the structure, under the assumption that existing vegetation and structures do not exist.

[Amended 12-3-2002 STM by Art. 19]

Key viewpoints will be identified initially by the proponents based on:

Presentation of a site locus map displaying land uses within the viewshed;

Review of Assessors' maps to determine the nearest residences;

Identification of the following important sensitive receptors and scenic resources:

Residences and proposed residences in the viewshed, highlighting nearest residences;

Noteworthy and distinctive scenic resources (as defined and mapped by the Massachusetts Department of Environmental Management in the Massachusetts Scenic Landscapes Inventory, 1982);

[c]

Other scenic resources including but not limited to: orchards, cropland and pastures, open spaces, recreational land, institutional lands; conservation and other protected lands, and other rural landscapes;

[d]

Historic and archaeological resources, including those listed, or eligible for listing in the National and State Registers of Historic Places; and

[e]

Town roads, including scenic roads as identified by Town bylaw.[3]

Editor's Note: See Ch. 90, Scenic Roads.

These viewpoints will be presented to the Planning board for consultation. The Planning Board may accept the viewpoints as identified or modify the list, as it sees appropriate.

Once viewpoints have been approved by the Planning Board, the proponent will take photographs of the view from each key viewpoint to provide a baseline and render to scale the view (preferably by splicing the proposed structure into the photograph) with and without the proposed structure.

The locus map at a scale of 1:1000 which shall show all streets, bodies of water, landscape features, historic sites, and all buildings and property owners within 1,000 feet of the tower and all accessory buildings.

A locus map with a radius of two miles showing all commercially zoned land and all land owned by the federal government and the Commonwealth of Massachusetts within that locus.

(6)

Reports prepared by one or more professional engineers, or other appropriate professionals, which shall:

Describe the tower, including the technical, economic and other reasons for the height, design and location of the proposed tower.

Demonstrate that the tower, and the emissions therefrom, comply with all applicable standards of the federal and state governments, and include any certifications relevant thereto.

Describe the capacity of the tower including the number and type of transmitters and/or receivers that it can accommodate and the basis for the calculation of capacity.

Demonstrate that the tower and the site comply with all of the provisions of this section and of this Protective Bylaw.

(7)

A copy of the applicant's FCC license to operate the proposed system.

(8)

A copy of the applicant's "coverage map" detailing the applicant's plans for providing wireless communications services to the Town of Harvard and neighboring communities.

(9)

A certification from the applicant that it is in compliance with the National Environmental Protection Act (NEPA) and the Massachusetts Environmental Protection Act (MEPA).

(10)

A determination of applicability from the Harvard Conservation Commission.

(11)

The applicant shall demonstrate that there is no existing, approved or proposed tower which can accommodate the wireless communications equipment planned for the applicant's tower. For the purposes of this subsection, a proposed tower shall mean any tower for which an application for a special permit has been filed with the Planning Board, even if filed after the applicant's application.

(12)

The applicant shall demonstrate that the proposed site for the tower will minimize the effect of the tower upon the viewshed from all residences, and from all areas of the Town of Harvard. The applicant must further demonstrate that the services proposed are reasonable and technically feasible using the applicant's technology, are consistent with generally accepted industry standards for the provision of such services, and cannot be reasonably provided by a different type or height of tower, or configuration of towers, or alternate installation of wireless communications equipment, which is technically feasible, permitted under this Bylaw, and is in greater harmony with the purposes of the Bylaw and the specific requirements of § 125-27D. As a part of these demonstrations, the applicant shall show that there is no federal or state land which would better protect the viewshed, or provide documentation that such sites are not available to the applicant. Failure of a federal or state agency, or instrument thereof, to make available lands or structures for the siting of a wireless communications tower or wireless communications equipment in such a way which would better protect the viewshed from all residences and from all areas of the Town of Harvard, in violation of applicable federal and state laws governing the siting of these facilities, shall not relieve the applicant of the obligation to seek such siting to the maximum extent permitted under the law.

[Amended 3-25-2000 ATM by Art. 32]

(13)

Proof of ownership of the proposed site, or proof of a contract or lease with the owner of the site establishing the applicant's right to construct a tower on the site. The application must be signed by the owner of the property and the company(s) proposing to erect the tower.

(14)

In addition to the application fee, which shall be determined by the rules for special permits of the Planning Board, the applicant shall pay a project review fee if so required by the Planning Board in accordance with said rules.

(15)

Between submittal of the application and the date of the public hearing on the special permit application, the applicant shall, on two different dates, place a balloon or crane at the location and height of the proposed tower, in accordance with the following requirements:

The balloon or crane shall be of a size and color that accurately reflect the appearance of the proposed tower to the extent possible.

The balloon or crane shall remain in place for at least eight hours.

One of the trials shall take place on a weekday. The other trial shall take place on a Saturday. The trials shall begin at 8:00 a.m.

Prior to each trial, the applicant shall post notices of the time and place of the trials at the Town Hall at least two weeks prior to the first trial, and shall publish the notice in a local newspaper of general circulation. The notices shall be published for two consecutive weeks immediately preceding the trials, and shall be at least two columns wide and two columns long. The notice shall set a "rain date" in the event weather delays the trial.

Expiration. Any special permit granted or renewed under this section shall expire five years after the date of the decision of the Planning Board granting the special permit, unless sooner renewed.

Nonuse. All unused towers or parts thereof, including accessory structures, shall be removed within one year of cessation of use, and the property shall be restored to substantially the same condition as it was in prior to the erection of the tower. All unused towers or parts thereof, including accessory structures, which have not been used for two years and have not been removed may be dismantled and removed and the site may be restored by the Town of Harvard, and the cost of such removal and restoration shall be payable by the owner of the property.

Compliance.

Failure to comply with the provisions of this section or a special permit granted under this section shall be grounds for nonrenewal of a special permit.

A bond to cover the cost of dismantling and removing the tower in accordance with Subsection G shall be posted in an amount approved by the Planning Board.

Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission, Federal Aviation Administration, the American National Standards Institute, and the regulations of the Massachusetts Department of Public Health shall be filed with the Building Commissioner by the special permit holder.

The holder of the special permit shall provide written notice to the Building Commissioner and the Planning Board in the event of a change or increase of use of the tower, change of ownership of the tower, or a cessation of use of the tower.

Exemptions.

The following types of wireless communications towers are exempt from this § 125-27:

Amateur radio tower. An amateur radio tower defined as a tower used solely in accordance with the terms of amateur radio service license(s) issued by the Federal Communications Commission (FCC) to members of the family(ies) residing on the premises. In order to qualify for this exception, the tower:

Must not be used or licensed for any commercial purposes; and

Must be taken down if the amateur radio use is discontinued.

Lawfully existing radio tower.

For the purpose of this exception, a lawfully existing radio tower is one which either:

Was erected before March 30, 1965, and is maintained at a height no greater than on March 30, 1965, including antennas or accessory devices; or

Was erected pursuant to a building permit issued before January 8, 1987, and has been in continued nonamateur use licensed by the FCC since that date; or

[c]

Was erected in accordance with a building permit issued between January 8, 1987 and January 8, 1993, provided the tower has been used solely for such radio transmissions or such other uses as were specified in the building permit, or in a subsequent modification thereof by the Board of Appeals.

Such towers may not be erected or otherwise modified, including any antennas thereon, except in accordance with a building permit conforming to any approved site plan and conforming to the terms and conditions of any applicable special permit.

A tower erected for educational or religious purposes as described in the second paragraph of Section 3 of the Zoning Act. Except for amateur radio use as permitted under Subsection I(1)(a) of this section, the use of such a tower under this exception may not be combined with any other use.

[Amended 3-25-2000 ATM by Art. 32]

A tower erected to serve communication between farm vehicles and/or farm units incidental to the use of the land for farming. Except for amateur radio use as permitted under Subsection I(1)(a) of this section, the use of such a tower under this exception may not be combined with any other use.

[Amended 3-25-2000 ATM by Art. 32]

A tower or antenna erected by the Town of Harvard for municipal public safety communications purposes.

The exemptions contained in this Subsection I shall apply only to wireless communications towers which are actually in use for purposes of providing wireless communications services. In the event such services are no longer provided, the tower must be removed within one year of cessation of use.