Town of Newbury, MA SPECIAL PERMITS GENERAL

Requirements. After an initial Public Hearing and with a special permit granted from the Board of Selectmen, to be renewed annually, an owner-occupied and operated dwelling of residential character may be used as a Bed and Breakfast for the lodging of overnight guests provided such dwelling and the operation thereof meets all of the following conditions:

Said Bed and Breakfast shall not have more than four bedrooms (excluding the owner's private quarters).

Guest rooms shall contain no individual cooking facilities.

Breakfast may be provided to guests from a central kitchen and shall be limited to those who are permanent residents and paying overnight guests.

The use of said Bed and Breakfast shall be clearly incidental to the primary residential use of the dwelling.

The purpose of this By-Law is to allow the use of larger homes as a Bed and Breakfast, but the intent is not to allow structural or appearance changes to facilitate this use.

The applicant must demonstrate that no visible exterior alterations will occur: that adequate parking can be provided: and that the structure and use conform to all pertinent Board of Health and Board of Fire Engineers Regulations, and to the Regulations of any other body that may have jurisdiction

Open Space Residential Development.

[Added 4-24-2001 ATM, Art. 27; amended 4-22-2003 ATM Art. 6; 6-24-2004 STM, Art. 7; 5-25-2010 ATM, Art. 15]

Purpose and intent.

The Primary Purposes for the Open Space Residential Development (OSRD) By-Law are the following:

To allow for greater flexibility and creativity in the design of residential developments;

To encourage the permanent preservation of open space, agricultural land, forestry land, wildlife habitat, other natural resources including aquifers, water bodies and wetlands, and historical and archaeological resources in a manner that is consistent with Newbury's open space plan;

To encourage a less sprawling and more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional or grid subdivision;

To minimize the total amount of disturbance on the site;

To further the goals and policies of the open space plans;

To facilitate the construction and maintenance of housing, streets, utilities, and the provision of public services in a more economical and efficient manner.

The Secondary Purposes for OSRD are the following:

To preserve and enhance the community character;

To protect the value of real property;

To provide for a diversified housing stock;

To provide affordable housing to persons of low and moderate income;

To provide open space lands managed for passive recreation which are accessible to the public.

Definitions.

Basic maximum number: the number of lots/dwelling units that would be allowed on the site using Newbury Zoning By-Law provisions and/or Subdivision Rules and Regulations as determined by a Yield Plan. Requirements for contents of the Yield Plan are to be found in the OSRD Rules and Regulations; see § 97-5.C. (3) and § 97-5.C. (7) below.

Conventional subdivision: a development of land subject to and governed by Chapter 117, Planning Board's Rules and Regulations for the Subdivision of Land and any and all rules and regulations established by the Planning Board under said Chapter 117.

Low and moderate income: income levels as defined by the Commonwealth's Department of Housing and Community Development for the Town of Newbury, based on the formulas for its currently assigned geographic area.

Authority. The Planning Board shall act as the Special Permit Granting Authority for OSRD applications. The Planning Board may adopt, and from time to time amend, Rules and Regulations consistent with the provisions of this By-Law and G.L.c.40A and other provisions of the General Laws, and shall file a copy of said Rules and Regulations with the Town Clerk.

Applicability.

Any subdivision of land or development that will create more than four lots or units shall submit an application for OSRD to the Planning Board. The applicant shall have the option of development under the subdivision process as found in Chapter 117, Planning Board's Rules and Regulations for the Subdivision of Land, or under the OSRD.

Contiguous Parcels. To be eligible for consideration as an OSRD, the tract shall consist of a parcel or set of contiguous parcels.

Land Division. To be eligible for consideration as an OSRD, the tract may be a subdivision, provided, however, that an OSRD may also be permitted where intended as a condominium on land not so divided or subdivided.

Special permit required. The Planning Board may authorize an OSRD pursuant to the grant of a special permit. Such special permits shall be acted upon in accordance with the following provisions.

Segmentation. It is the intent of this By-Law to prohibit the subdivision or phasing of development which is planned in order to avoid the application of this section. It shall be presumed that the land held in common ownership at the time of enactment of this By-Law should be included for the purposes of calculating the number of lots. It shall also be presumed that phased development of land held in common ownership shall be considered in its totality rather than as separate projects. These presumptions are rebuttable only upon credible evidence to the contrary. Where division of land appears to be phased, a covenant may be placed upon the remaining land requiring compliance with this By-Law.

Application Procedure and Requirements. Applicants shall submit applications for an OSRD special permit in accordance with the Rules and Regulations Governing Open Space Residential Development as adopted and amended by the Planning Board.

Design process. At the time of the application for a special permit for OSRD, applicants are required to demonstrate to the Planning Board that the following Design Process was performed by a multidisciplinary team of which one member must be a certified Landscape Architect and was considered in determining the layout of proposed streets, house lots, and unit placement if treated as a condominium, including designation of all common areas and open space.

Step One: Identifying Conservation Areas. Identify preservation land by two steps. First, Primary Conservation Areas (such as wetlands, riverfront areas, and floodplains regulated by state or federal law) and Secondary Conservation Areas (including unprotected elements of the natural landscape such as steep slopes, mature woodlands, prime farmland, meadows, wildlife habitats and cultural features such as historic and archaeological sites and scenic views) shall be identified and delineated. Second, the Potentially Developable Area shall consist of land outside identified Primary and Secondary Conservation Areas;

Step Two: Locating House Sites. Locate the approximate sites of individual houses within the Potentially Developable Area and include the delineation of private yards and shared amenities, so as to reflect an integrated community, with emphasis on the goals of the current Master Plan for Newbury. The number of homes, or units, if a condominium proposal, enjoying the open space character of the amenities of the development should be maximized;

Step Three: Aligning the Streets and Trails. Align streets in order to access the house lots or units. Additionally, new trails should be laid out to create internal and external connections to existing and/or potential future streets, sidewalks, and trails. Points of proposed public access to the conservation areas should be clearly delineated;

Step Four: Draw in the lot lines, if not treated as a condominium.

Design standards. The following Generic and Site Specific Design Standards shall apply to all OSRDs and shall govern the development and design process.

Generic Design Standards:

The landscape shall be preserved in its natural state, insofar as practicable, by minimizing tree and soil removal. Any grade changes shall be in keeping with the general appearance of the neighboring developed areas. The orientation of individual building sites shall be such as to maintain maximum natural topography and cover. Topography, tree cover, and natural drainage ways shall be treated as fixed determinants of road and lot configuration rather than as malleable elements that can be changed to follow a preferred development scheme;

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

Mixed-use development shall be related harmoniously to the terrain and the use, scale, and architecture of existing buildings in the vicinity that have functional or visual relationship to the proposed buildings. Proposed buildings shall be related to their surroundings;

All open space (landscaped and usable) shall be designed to add to the visual amenities of the area by maximizing its visibility for persons passing the site or overlooking it from nearby properties;

The removal or disruption of historic, traditional or significant uses, structures, or architectural elements shall be minimized insofar as practicable, whether these exist on the site or on adjacent properties.

Site Specific Design Standards.

Mix of Housing Types. The OSRD may consist of any combination of single-family and two-family structures. Multifamily structures of not more than four (4) units may also be permitted by the Planning Board if they serve the purpose and intent of the Open Space Residential Development By-Law, as stated in section § 97-5C.(1).;

Parking. Each dwelling unit shall be served by two (2) off-street parking spaces. Parking spaces in front of garages may count in this computation;

Drainage. Stormwater management shall be in compliance with Chapter 87, "Stormwater Management and Illicit Discharge and Erosion Control" of the Code of the Town of Newbury where applicable. The Planning Board shall encourage the use of low impact design (nonstructural) stormwater management techniques (such as swales, filter strips, constructed wetlands and bioretention cells) and other drainage techniques that reduce impervious surface and enable infiltration to the greatest degree permitted by soil types and conditions at the site;

Screening and Landscaping. All structural surface stormwater management facilities shall be accompanied by a conceptual landscape plan;

On-site Pedestrian and Bicycle Circulation. Walkways, trails and bicycle paths shall be provided to link residences with recreation facilities (including parkland and open space) and adjacent land uses where appropriate;

Disturbed Areas. Every effort shall be made to minimize the area of disturbed areas on the tract. A disturbed area is any land not left in its natural vegetated state.

Reduction of dimensional requirements. The Planning Board encourages applicants to modify lot size, unit placement, shape, and other dimensional requirements for lots within an OSRD, subject to the following limitations:

Lots having reduced area or frontage shall not have frontage on a street other than a street created by the OSRD; provided, however, that the Planning Board may waive this requirement where it is determined that such reduced lot(s) will further the goals of this By-Law;

At least 50% of the required setbacks for the district shall be maintained in the OSRD unless a reduction is otherwise authorized by the Planning Board. Where structures containing three to four dwelling units are being proposed, the side lot lines between units may be 0 feet, however the distance between structures shall be a minimum of 20 feet;

Minimum Frontage: The minimum frontage may be reduced from the frontage otherwise required in the zoning district; provided, however, that no lot shall have less than 50 feet of frontage;

Setbacks: Every dwelling fronting on the proposed roadways shall be set back a minimum of 20 feet from the roadway right-of-way, and 10 feet from any rear or side lot line. In the event that dwellings are located on exclusive use areas or contain no interior lot lines, a minimum distance of 20 feet between single and two-family dwellings shall be required.

(11)

Increases in permissible density. The Planning Board may award a density bonus to increase the number of dwelling units beyond the Basic Maximum Number. The density bonus for the OSRD shall not, in the aggregate, exceed fifty percent (50%) of the Basic Maximum Number. Computations shall be rounded to the lowest number. A density bonus may be awarded in the following circumstances:

For each additional ten percent (10%) of the site (over and above the required 50%) set aside as open space, a bonus of one additional unit or five percent (5%) of the Basic Maximum Number, whichever is greater, may be awarded.

For every one (1) dwelling unit restricted to occupancy for a period in perpetuity by persons or families who qualify as low or moderate income, two (2) dwelling units may be added as a density bonus for each low income unit, one (1) dwelling unit as a bonus for each moderate income unit.

For every historic structure preserved and subject to a historic preservation restriction, one (1) dwelling unit may be added as a density bonus.

(12)

Open space requirements.

Open Space. A minimum of fifty percent (50%) of the upland shown on the development plan shall be open space. Any proposed open space, unless conveyed to the Town or its Conservation Commission, shall be subject to a permanent conservation or agricultural preservation restriction in accordance with G.L. c. 184 § 31, approved by the Planning Board and Board of Selectmen/Town Counsel and enforceable by the Town, conforming to the standards of the Massachusetts Executive Office of Environmental Affairs, Division of Conservation Services, providing that such land shall be perpetually kept in an open state, that it shall be preserved exclusively for the purposes set forth herein, and that it shall be maintained in a manner which will ensure its suitability for its intended purposes. Any proposed open space that does not qualify for inclusion in the Conservation Restriction or that is rejected from inclusion in the Conservation Restriction by the Commonwealth of Massachusetts will be subject to a Restrictive Covenant, that shall be approved by the Planning Board and Board of Selectmen/Town Counsel and enforceable by the Town.

The open space shall be contiguous. Contiguous shall be defined as being connected. Open Space will still be considered connected if it is separated by a roadway or an accessory amenity. The Planning Bard may waive this requirement for all or part of the required open space where it is determined that allowing noncontiguous open space will promote the goals of this By-Law and/or protect identified primary and secondary conservation areas.

The open space shall be used for wildlife habitat and conservation and the following additional purposes: historic preservation, outdoor education, passive recreation, agriculture, horticulture, together with suitable access for such purposes. The Planning Board may permit a small portion of the open space to be paved or built upon for structures accessory to the dedicated use or uses of such open space (i.e., pedestrian walks and bike paths) so long as it supports the primary and secondary purposes of the OSRD.

Wastewater and stormwater management systems serving the OSRD may be located within the open space. Surface systems, such as retention and detention ponds, shall not qualify towards the minimum open space required.

Ownership of the Open Space. The open space shall, at the Planning Board's election, be conveyed to:

A nonprofit organization, the principal purpose of which is the conservation of open space and any of the purposes for such open space set forth above;

The Town or its Conservation Commission;

A corporation, homeowners association or trust owned jointly or in common by the owners of lots or units within the OSRD. If such corporation or trust is utilized, ownership thereof shall pass with conveyance of the lots in perpetuity. Maintenance of such open space and facilities shall be permanently guaranteed by such corporation or trust which shall provide for mandatory assessments for maintenance expenses to each lot and unit. Each individual deed, and the deed or trust or articles of incorporation, shall include provisions designed to effect these provisions. Documents creating such homeowners association, trust or corporation shall be submitted to the Planning Board for approval, and shall thereafter be recorded;

A private owner for agricultural, horticultural or forestry uses.

Maintenance and Monitoring of Open Space.

In any case where open space is not conveyed to the Town, the Town shall be granted an easement over such land sufficient to ensure its perpetual maintenance as conservation or recreation land. Such easement shall provide that in the event the trust or other owner fails to maintain the open space in reasonable condition, the Town may, after notice to the lot owners and public hearing, enter upon such land to maintain it in order to prevent or abate a nuisance. The cost of such maintenance by the Town shall be assessed against the properties within the development and/or to the owner of the open space. The Town may file a lien against the lot or lots to ensure payment of such maintenance.

An endowment fund shall be created, to be held by either the owner of the open space or by the holder of the conservation covenant, to provide for the cost of annual monitoring of the condition and management of the open space, said monitoring to be performed by an established nonprofit conservation organization and reports provided to the Newbury Conservation Commission.

(13)

Decision of the Planning Board.

The Planning Board may grant a special permit for an OSRD if it determines that the proposed OSRD has less detrimental impact on the tract than a conventional development proposed for the tract, after considering the following factors:

Whether the OSRD achieves greater flexibility and creativity in the design of residential or unit developments than a conventional plan;

Whether the OSRD promotes permanent preservation of open space, agricultural land, forestry land, other natural resources including water bodies and wetlands, and historical and archaeological resources;

Whether the OSRD promotes a less sprawling and more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional subdivision;

Whether the OSRD reduces the total amount of disturbance on the site;

Whether the OSRD furthers the goals and policies of the open space and master plans;

Whether the OSRD facilitates the construction and maintenance of streets, utilities, and public services in a more economical and efficient manner;

Whether the Concept Plan and its supporting narrative documentation complies with all sections of this zoning By-Law.

The special permit for the OSRD Concept Plan shall be reconsidered if there is substantial variation between the Open Space Definitive Subdivision Plan and the Concept Plan. If the Planning Board finds that a substantial variation exists, it shall hold a public hearing on the modifications to the Concept Plan. A substantial variation shall be any of the following:

An increase in the number of building lots and/or units;

A significant decrease in the open space acreage;

A significant change in the lot layout or unit placement;

A significant change in the general development pattern which adversely affects natural landscape features and open space preservation;

Significant changes to the stormwater management facilities; and/or

Significant changes in the wastewater management systems.

The Planning Board approval of a special permit hereunder shall not substitute for compliance with the Subdivision Control Law, nor oblige the Planning Board to approve a related definitive plan for subdivision, nor reduce any time periods for Board consideration under the law. However, in order to facilitate processing, the Planning Board shall, insofar as practical under law, adopt regulations establishing procedures for submission of a combined plan and application which shall satisfy this section and the Board's regulations under the Subdivision Control Law. To the extent permitted by law, the Planning Board shall coordinate the public hearing required for any application for a special permit for an OSRD with the public hearing required for approval of a definitive subdivision plan.

Common Driveways – By special permit only.

[Added 4-22-2003 ATM, Art. 7; amended 5-26-2009 ATM, Art. 34]

Purpose and intent. The purpose of the Common Driveway by-law is to provide an alternative to individual driveways that would allow the preservation and protection of natural features, the reduction of impacts to wet lands and the retention of the rural quality of Newbury while providing safe vehicular travel from the access point of the public way, reducing curb cuts, improving sighting distances and providing adequate access for emergency vehicles. It is not the intent of this by-law to subvert the subdivision regulations, but to offer an option to the installation of individual driveways.

Eligibility. Up to three single-family lots or two duplex lots or one duplex lot and on single-family lot are eligible under the provisions of this by- law. All lots are required to have adequate and viable frontage, which complies with the Newbury Protective Zoning By-law, and shall be located on a public way.

Special Permit required. The Planning Board shall make the following findings relative to the common driveway special permit:

The use requested is noted in the Zoning By-law as a special permit in the district for which the application is made;

The requested use is essential and/or desirable to public convenience or welfare;

The requested use will not create undue traffic congestion or unduly impair pedestrian safety;

The requested use will not overload public water, drainage, sewer systems or any municipal systems to such an extent that the requested use or any developed use in the immediate area or any other area of the town will be unduly subjected to hazards affecting the health, safety and general welfare of the community;

Any special requirements for use set forth are fulfilled; and

The requested use will not impair the integrity or character of the district or adjoining districts nor be detrimental to the health, safety or welfare of the immediate residents or the residents of the community.

Design standards.

Application requirements:

Application fee in accordance with the Planning Board fee schedule;

Overall plan showing all lots involved and abutting lots; abutters' names; wetlands; topography (two-foot contour interval); edge of pavements (proposed and existing); conceptual or existing location of dwellings and septic systems; natural features of the land including large trees, rock outcroppings, stone walls and other features;

Plan of Land prepared by a Registered Land Surveyor, showing easements and property lines, suitable for recording at the Registry;

Grading plan and profile at 40 scale, prepared by a Professional Engineer, showing drainage, proposed and existing contours, with a common driveway cross section;

Proposed signage and proposed location of signs;

Certified list of abutters;

Legal documentation of easements and other legal instruments prepared by an attorney.

Common Driveway Specifications:

Minimum width shall be 16 feet and shall provide adequate access for emergency vehicles;

Materials: A minimum of 12 inches compacted gravel base;

Maximum center line slope shall be 15%;

Driveway shall be crowned, so drainage is not crossing driveway surface. When drainage must cross drive, it shall be done in a closed culvert minimum 12-inch diameter under the road. Drainage for drive and lots shall be controlled on site (or adequate provisions and easements made for off-site control of drainage);

The minimum width of easement shall be 30 feet;

The acute angle of the intersection of the driveway and the street shall not be less than 60 degrees;

The general layout and alignment shall blend with the existing topography and landscaping of the area.

Easements and maintenance agreements. Prior to Planning Board endorsement of the plan and issuance of the Common Driveway Permit, Town Counsel shall review and approve the following:

Deed requirements. All deeds of ownership of lots served by a common driveway shall require that the owners of said lots shall be members of an association or homeowners agreement, whose purpose is to provide for the maintenance of the common driveway in order to perpetually provide safe continuous access for the owners of said lots and the Town in case of an emergency. Each lot served by the common driveway must have permanent access to the common driveway by easements recorded at the registry of deeds. Such easements shall include the rights for motor vehicles to freely pass and re-pass. Such easements shall include the right to install, repair and maintain drains, culverts, roadway surface and other utilities located under, across and/or along the common driveway. The deed shall state that the common driveway is not a Town road and shall not be considered a Town road in the future; therefore, Town maintenance is not an obligation of the Town;

Owners and/or Association Agreement. The Owners/Association Agreement must impose upon the members the obligation of repair, maintenance and snow removal so as to cause the driveway, including the drainage serving the driveway and the sight lines to the intersecting public way, to be repaired or maintained in such a manner as to insure the continuous year-round access to each lot by the owners of said lots, fire, police, ambulance and other vehicles, the adequate delivery of public and private utilities to the lots served by the driveway, and so that the initial specifications (or improved specifications) of the common driveway are maintained.

Procedures and decision of the Planning Board.

Common driveway permitting process. The Newbury Planning Board shall follow the procedures noted in § 97-11C of the Newbury Zoning By-law. Three copies of the application package and plans shall be submitted to the Planning Board at a regularly scheduled meeting;

Decision of the Planning Board. The Newbury Planning Board may condition the special permit decision so as to meet the intent of the by-law and to insure the health, safety and welfare of the applicants as well as the residents of the community. As a condition of the approval, the Planning Board may condition the special permits so that no certificate of occupancy shall be issued until the common driveway has been constructed in accordance with these rules and regulations as deemed by the Newbury Planning Board. No certificate of occupancy shall be issued until plans and association documents are properly recorded.

Large Wind Energy Facilities.

[Added 5-26-2009 ATM, Art. 32]

Purpose. The purpose of this Article is to provide by special permit for the construction and operation of on-site and utility-scale wind facilities and to provide standards for the placement, design, construction, monitoring, modification and removal of wind facilities that address public safety, give consideration to impacts on scenic, natural and historic resources of the town and provide adequate financial assurance for decommissioning.

Applicability: This section applies to wind energy facilities greater than 60 kilowatts of rated name plate capacity. It does not apply to small wind energy systems that fall under the requirements of § 97-10.E. Small Wind Energy Systems of Newbury's zoning by-laws.

General Requirements:

Special Permit Granting Authority: The Planning Board is hereby established as the Special Permit Granting Authority (SPGA) for the issuance of special permits to construct and operate wind facilities. No wind facility shall be erected, constructed, installed or modified as provided in this section without first obtaining a permit from the SPGA. The construction of a wind facility shall be permitted in any zoning district subject to the issuance of a Special Permit and provided that the use complies with all requirements set forth in Sections 3, 4, 5 and 6 herein. All such wind facilities shall be constructed and operated in a manner that minimizes any adverse visual, safety, and environmental impacts. No special permit shall be granted unless the SPGA finds in writing that:

the proposed use is in harmony with the purpose and intent of this By-Law;

the proposed location is appropriate on the site;

the use will be sited, designed, and operated in a manner that adequately addresses the potential impacts to the neighborhood and the community;

the use will not pose a significant adverse impact to the health or public safety of the neighborhood and the surrounding area; and

(v)

there is not expected to be any significant hazard to pedestrians or vehicles from the use.

Wind monitoring or meteorological towers shall be permitted in all zoning districts subject to issuance of a building permit for a temporary structure and subject to reasonable regulations concerning the bulk and height of structures and determining yard-size, lot area, setbacks, open space, parking, and building coverage requirements

Compliance with Laws, By-laws and Regulations: The construction and operation of all such proposed wind facilities shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable safety, construction, environmental, electrical, communications and aviation requirements.

Proof of Liability Insurance: The applicant shall be required to provide evidence of liability insurance in an amount and for a duration sufficient to cover loss or damage to persons and structures occasioned by the failure of the facility as determined by the SPGA

Site Control: At the time of its application for a special permit, the applicant shall submit documentation of actual or prospective control of the project site sufficient to allow for installation and use of the proposed facility. Documentation shall also include proof of control over setback areas and access roads, if required. Control shall mean the legal authority to prevent the use or construction of any structure for human habitation within the setback areas.

General Siting Standards:

Height: Wind facilities shall be no higher than 400 feet above the current grade of the land, provided that wind facilities may exceed 400 feet if:

the applicant demonstrates by substantial evidence that such height reflects industry standards for a similarly sited wind facility;

such excess height is necessary to prevent financial hardship to the applicant

the additional benefits of the higher tower outweigh any increased adverse impacts; and

the facility satisfies all other criteria for the granting of a special permit under the provisions of this section.

Setbacks:

The minimum distance from the base of any wind turbine tower to any property line and private or public way shall be 1.5 times the overall blade tip height of the wind turbine.

Design Standards:

Visual Impact. The proponent shall demonstrate through project siting and proposed mitigation that the wind facility adequately addresses impacts on the visual character of surrounding neighborhoods and the community. This may include, but not be limited to, information regarding site selection, turbine design, buffering, lighting and cable layout.

Color and Finish: The wind facility shall be a neutral, non-reflective exterior color designed to blend with the surrounding environment.

Lighting:

Wind turbines shall be lighted only if required by the Federal Aviation Administration (FAA). The proponent shall provide a copy of the FAA's determination to establish the required markings and/or lights for the structure.

Lighting of other parts of the wind facility, such as appurtenant structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties.

Signage: Signs on the wind facility shall comply with the requirements of the Town's sign regulations, and shall be limited to:

Those necessary to identify the property and the owner, provide a 24-hour emergency contact phone number, and warn of any danger.

Educational signs providing information about the facility and the benefits of renewable energy.

All signs shall comply with the plans approved and incorporated by reference in the special permit granted under this section.

Advertising: Wind turbines shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the wind energy facility.

Utility Connections: Reasonable efforts shall be made to locate utility connections from the wind facility underground, depending on appropriate soil conditions, shape, and topography of the site and any requirements of the utility provider. Electrical transformers for utility interconnections may be above ground if required by the utility provider.

Appurtenant Structures: All appurtenant structures to such wind facilities shall be subject to regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. All such appurtenant structures, including but not limited to, equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other and shall be contained within the turbine tower whenever technically and economically feasible. Structures shall only be used for housing of equipment for this particular site. To the extent practicable, structures should be shielded from view by vegetation and/or located in an underground vault and joined or clustered to avoid adverse visual impacts.

Support Towers: Monopole towers are the only allowable form of support for the Wind Energy Facilities.

Safety, Aesthetic and Environmental Standards:

Emergency Services: The applicant shall provide a copy of the project summary and site plan to the local fire and police departments, as designated by the SPGA. Upon request the applicant shall cooperate with local police and fire in developing an emergency response plan.

Unauthorized Access: Wind turbines or other structures part of a wind facility shall be designed to prevent unauthorized access.

Wetlands: Wind facility shall be located in a manner consistent with all applicable local and state wetland regulations.

Stormwater: Stormwater run-off and erosion control shall be managed in a manner consistent with applicable state and local regulations.

Shadow/Flicker: Wind facilities shall be sited in a manner that minimizes shadowing or flicker impacts. The applicant must demonstrate that this effect will not have any significant adverse impact on neighboring or adjacent uses through either siting or mitigation.

Noise: Wind Energy Facilities and associated equipment shall conform to the provisions of the Department of Environmental Protection's, Division of Air Quality Noise Regulations (310 CMR 7.10). A source of sound will be considered to be in violation of these regulations if the source:

Increases the broadband sound level by more than 3 dB(A) above ambient, or

Produces a "pure tone" condition – when an octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.

These criteria are measured both at the property line and at the nearest inhabited off-site residence. Ambient is defined as the background A-weighted sound level that is exceeded 90% of the time.

Land Clearing, Soil Erosion and Habitat Impacts: Clearing of natural vegetation shall be limited to that which is necessary for the construction, operation and maintenance of the wind facility and is otherwise prescribed by applicable laws, regulations, and by-laws.

Hazardous Materials: No hazardous materials or waste shall be discharged on the site of any wind facility. If any hazardous materials or wastes are to be used on site, there shall be provisions for full containment of such materials or waste. An enclosed containment area, designed to contain at least 110 percent of the volume of the hazardous materials or waste stored or used on the site may be required to meet this requirement.

Monitoring and Maintenance

Facility Conditions: The applicant shall maintain the wind facility in good condition. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief and Emergency Medical Services. The project owner shall be responsible for the cost of maintaining the wind facility and any access road, unless accepted as a public way, and the cost of repairing any damage occurring as a result of operation and construction.

Modifications: All material modifications to a wind facility made after issuance of the special permit shall require approval by the SPGA as provided in this section.

Contact Person: The applicant or facility owner shall maintain a phone number and identify a responsible person for the public to contact with inquiries and complaints throughout the life of the project.

Change of Ownership: Notice shall be provided to the Town of any change in ownership of the facility.

Abandonment or Decommissioning

Removal Requirements: Any above ground components of a wind energy facility which has reached the end of its useful life or has been abandoned shall be removed. When the wind energy facility is scheduled to be decommissioned, the applicant shall notify the Town by certified mail of the proposed date of discontinued operations and plans for removal. The owner/operator shall physically remove the wind facility no more than 150 days after the date of discontinued operations. At the time of removal, the wind facility site shall be restored to the state it was in before the facility was constructed or any other legally authorized use. More specifically, decommissioning shall consist of:

Physical removal of all above-ground components from the site, including, but not limited to, wind turbines, structures, equipment, security barriers and transmission lines.

Disposal of all solid and hazardous waste in accordance with local and state waste disposal regulations.

Stabilization or re-vegetation of the site as necessary to minimize erosion. The SPGA may allow the owner to leave landscaping or designated below-grade foundations in order to minimize erosion and disruption to vegetation.

Abandonment: Absent notice of a proposed date of decommissioning, the wind facility shall be considered abandoned when the facility fails to operate for more than one year without the written consent of the SPGA. The SPGA shall determine in its decision what proportion of the facility is inoperable for the facility to be considered abandoned. If the applicant fails to remove the wind facility in accordance with the requirements of this section within 150 days of abandonment or the proposed date of decommissioning, the Town shall have the authority to enter the property and physically remove the facility.

Financial Surety: The SPGA shall require the applicant for large wind energy facilities to provide a form of surety, either through escrow account, bond or otherwise, to cover the cost of removal in the event the town must remove the facility, of an amount and form determined to be reasonable by the SPGA, but in no event to exceed more than 125 percent of the cost of removal and compliance with the additional requirements set forth herein, as determined by the SPGA. Such surety will not be required for municipally or state-owned facilities. The applicant shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a mechanism for Cost of Living Adjustment.

Application Process & Requirements

Application Procedures

General: The application for a wind energy facility shall be filed in accordance with the rules and regulations of the SPGA concerning special permits.

Application: Each application for a special permit shall be filed by the applicant with the city or town clerk pursuant to Section 9 of Chapter 40A of the Massachusetts General Laws.

Required Documents

General: The applicant shall provide the SPGA with 9 copies of the application. All plans and maps shall be prepared, stamped and signed by a professional engineer licensed to practice in Massachusetts. Included in the application shall be:

Name, address, phone number and original signature of the applicant and any co-applicants. Co-applicants may include the landowner of the subject property or the operator of the wind facility.

If the applicant or co-applicant will be represented by an agent, the name, address, and telephone number of the agent, as well as a written document with original signature of the applicant and co-applicant(s) authorizing the agent to represent them;

Documentation of the legal right to use the wind facility site, including the requirements set forth in (9)(c)(ii)(a) of this section.

Siting and Design: The applicant shall provide the SPGA with a description of the property which shall include:

Location Map: Copy of a portion of the most recent USGS Quadrangle Map, at a scale of 1:25,000, showing the proposed facility site, including turbine sites, and the area within at least two miles from the facility. Zoning district designation for the subject parcel should be included; however a copy of a zoning map with the parcel identified is suitable.

Site Plan: A one inch equals 40 feet plan of the proposed wind facility site, with contour intervals of no more than 10 feet, signed and sealed by a Registered Professional Engineer or Licensed Land Surveyor showing the following:

Street address and tax map and parcel number of the subject property;

Zoning district designation for the subject property;

Property lines for the site parcel and adjacent parcels within 300 feet.

Outline of all existing buildings, including purpose (e.g. residence, garage, etc.) on site parcel and all adjacent parcels within 500 feet. Include distances from the wind facility to each building shown.

Location of all roads, public and private on the site parcel and adjacent parcels within 300 feet, and proposed roads or driveways, either temporary or permanent.

Existing areas of tree cover, including average height of trees, on the site parcel and adjacent parcels within 300 feet.

Proposed location and design of wind facility, including all turbines, ground equipment, appurtenant structures, transmission infrastructure, access, fencing, exterior lighting, etc.

Location of viewpoints referenced below in 10.3.3 of this section.[1]

[1]

Editor's Note: So in original.

Visualizations: The SPGA shall select between three and six sight lines, including from the nearest building with a view of the wind facility, for pre- and post-construction view representations. Sites for the view representations shall be selected from populated areas or public ways within a 2-mile radius of the wind facility. View representations shall have the following characteristics:

A sight-line representation shall be drawn from representative locations that show the lowest point of the turbine tower visible from each location. Each sight line shall be depicted in profile, drawn at one inch equals 40 feet. The profiles shall show all intervening trees and buildings, both existing and proposed. There shall be at least two sight line representations illustrating the visibility of the facility from surrounding areas such as the closets habitable structures or nearby public roads or areas.

Existing (before) condition photographs. A color photograph of the current view shall be submitted from at least two locations to show the existing situation.

Proposed (after) condition. Each of the existing condition photographs shall have the proposed wind facility superimposed on it to accurately simulate the proposed wind facility when built and illustrate its total height, width, and breadth.

Representations shall include a description of the technical procedures followed in producing the photographs and the visualization (distances, angles, lens, etc.).

Landscape Plan: A plan indicating all proposed changes to the landscape of the site, including temporary or permanent roads or driveways, grading, vegetation clearing and planting, exterior lighting, other than FAA lights, screening vegetation or structures. Lighting shall be designed to minimize glare on abutting properties and, except as required by the FAA, shall be directed downward with full cut-off fixtures to reduce light pollution.

Elevations: Siting elevations, or views at-grade from the north, south, east, and west for a 50-foot radius around the proposed wind facility. Elevations shall be at one quarter inch equals one foot and show the following:

Wind facility and, if applicable, the security barrier and associated equipment, with total elevation dimensions of all parts of the facility.

Security barrier. If the security barrier will block views of the wind facility, the barrier drawing shall be cut away to show the view behind the barrier.

Any and all structures on the subject property.

Existing trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation, with approximate elevations dimensioned.

(v)

Grade changes, or cuts and fills, to be shown as original grade and new grade line, with two-foot contours above mean sea level.

Materials:

Specifications for the proposed wind facility shall be provided for all equipment and attendant facilities.

Materials of the proposed wind facility specified by type and specific treatment. These shall be provided for the wind turbine tower and all other proposed equipment/facilities.

Colors of the proposed wind facility represented by a color board showing actual colors proposed.

Lighting Plan: If lighting of the site or turbine is proposed (other than FAA lights), the applicant shall submit a manufacturer's computer-generated point-to-point printout, indicating the horizontal foot-candle levels at grade, within the property to be developed and 25 feet beyond the property lines. The printout shall indicate the locations and types of luminaires proposed.

Noise Filing Requirements: The applicant shall provide a statement from a qualified acoustical engineer listing the existing noise levels and the maximum future projected noise levels from the proposed wind facility, measured in decibels, for the following:

Existing, or ambient: The measurement of existing noise at the property boundaries, building of abutters and nearest inhabited residence.

Existing plus proposed wind facility: Maximum estimate of noise from the proposed wind facility plus existing noise environment. Such statement shall be certified and signed by a qualified engineer, stating that noise projections are accurate and meet the noise standards of this By-Law and applicable state requirements.

Operation & Maintenance Plan: The applicant shall submit a plan for maintenance of access roads and storm water controls, as well as general procedures for operational maintenance of the wind facility.

(j)

Compliance Documents: If required under previous sections of this By-Law, the applicant will provide with the application:

description of financial surety that satisfies 8(c) of this section,

proof of liability insurance that satisfies Section 3(c) of this section,

certification of height approval from the FAA,

a statement that satisfies Section 6(f), listing existing and maximum projected noise levels from the wind facility.

(k)

Independent Consultants: Upon submission of an application for a special permit, the SPGA will be authorized to hire an outside technical expert/consultant to review and verify information presented by the applicant. The cost for such a technical expert/consultant will be at the expense of the applicant(s), pursuant to Massachusetts General Laws, Chapter 40A, Section 9, and Massachusetts General Laws, Chapter 44, Section 53G.

Ground-Mounted Solar Photovoltaic Installations:

[Added 5-21-2013 ATM, Art. 28; amended 10-22-2013 STM, Art. 9]

Purpose. The purpose of this By-Law is to provide a permitting process for ground-mounted solar photovoltaic installations and standards with respect to the placement, design, construction, operation, monitoring, modification and removal of such installations. These standards are designed to: a) address public health, safety, and welfare concerns; b) minimize impacts on scenic, natural, agricultural, and historic resources; and c) provide adequate financial assurance for the eventual decommissioning of such installations if necessary.

Applicability. This section applies to all ground-mounted solar photovoltaic installations proposed to be constructed after the effective date of this section. This section also pertains to physical modifications that materially alter the type, configuration, or size of these installations or related equipment.

As-of-Right Siting: Solar photovoltaic installations that are ground-mounted and that occupy less than 1/4 acre of land are allowed As-of-Right in all zoning districts upon issuance of a building permit by the Building Inspector.

As-of-Right Siting with Site Plan Review: Solar photovoltaic installations that are ground-mounted and that occupy at least 1/4 acre of land but less than two (2) acres of land are allowed As-of-Right subject to Site Plan Review by the Planning Board and upon issuance of a building permit by the Building Inspector.

Special Permit Siting: Any ground-mounted solar photovoltaic installation occupying two (2) acres of land or more on one or more adjacent parcels either in common ownership or included in one solar photovoltaic project application, including parcels separated by a roadway, shall require a Special Permit in accordance with the Zoning By-Laws of the Town of Newbury prior to obtaining a building permit. For purposes of this By-Law, the Planning Board is the Special Permit Granting Authority.

[Amended 5-19-2015 ATM, Art. 25]

Definitions.

As-of-Right Siting: As-of-Right Siting shall mean that development may proceed without the need for a special permit, variance, amendment, waiver, or other discretionary approval. As-of-right development may be subject to Site Plan Review to determine conformance with local zoning ordinances or by-laws. Such projects cannot be prohibited, but can be reasonably regulated by the Building Inspector and the Planning Board.

Ground-Mounted Solar Photovoltaic Installation: A solar photovoltaic system that is structurally mounted on the ground and is not roof-mounted.

Net Metered Solar Photovoltaic Installation: A solar photovoltaic installation of 60kW or less for the primary purpose of providing electricity on-site that is interconnected with the electric grid, which allows the owner/operator to feed surplus electricity into the electric grid.

Rated Nameplate Capacity: The maximum rated output of electric power production of the Photovoltaic system in Kilowatts (DC).

Solar Photovoltaic Array: An arrangement of solar photovoltaic panels.

Solar Photovoltaic Installation: A device, structure, or structural design feature, a substantial purpose of which is to provide for the collection, storage, and distribution of solar energy for space heating or cooling, generation of electricity, or water heating. This includes appurtenant equipment for the collection, storage, and distribution of electricity to buildings or to the electric grid.

General Requirements. The following requirements are common to all ground-mounted solar photovoltaic installations permitted under this By-Law, unless otherwise noted:

Project Siting: The Massachusetts Department of Energy Resources (DOER) discourages applicants from selecting locations for ground-mounted solar photovoltaic installations which require significant tree cutting, due to the important water management, cooling, and climate benefits that trees provide. Applicants are therefore encouraged to site installations on vacant, disturbed land in a manner which will minimize tree cutting to the greatest extent reasonably possible.

Compliance with Laws, Ordinances and Regulations: The construction and operation of all ground-mounted solar photovoltaic installations shall be consistent with all applicable local, state and federal requirements, including, but not limited to, all applicable safety, construction, electrical, communications, and environmental requirements, including stormwater management. All buildings and fixtures forming part of a ground-mounted solar photovoltaic installation shall be constructed in accordance with the State Building Code.

Building Permit and Fees: No ground-mounted solar photovoltaic installation shall be constructed, installed or modified as provided in this section without first obtaining a building permit. The application for such a permit shall be accompanied by the required building permit fee.

Installations Requiring Site Plan Review.

Applicability: Ground-mounted solar photovoltaic installations occupying at least ¼ acre of land but less than two (2) acres of land shall undergo Site Plan Review by the Planning Board prior to the issuance of a building permit for construction, installation or modification.

Procedure: An application for Site Plan Review of an applicable ground-mounted solar photovoltaic installation shall be submitted and will be reviewed in accordance with the provisions of § 97-9.A. Site Plan Review of Newbury’s Zoning By-Law.

Submission Requirements: The applicant and any co- applicant(s) shall submit a site plan containing all data, detail, and supporting information listed below in Paragraph (6)(c)02)d) "Site Plan Contents" under Special Permit. The Planning Board may waive one or more of the Site Plan Contents requirements upon written request by the applicant and any co-applicant(s) if the small scale or simplicity of the project or other considerations warrant such a waiver. Such determination to waive one or more of the requirements shall be in the sole discretion of the Planning Board.

Pre-application Review: Prior to submission of an application for a Site Plan Review for a ground-mounted solar photovoltaic installation in accordance with Paragraph (5)(a) above, the applicant and any co-applicant(s) shall request a pre-application review with the Planning Board. The Planning Board shall invite the Conservation Agent, the Health Agent, the Building Inspector, the Director of Public Works, the Fire Chief, the Police Chief, and representatives from the Board of Selectmen, the Open Space Committee, the Historical Commission, and the Agricultural Commission. The purpose of a pre-application review is to clarify and expedite the permitting process for the applicant and any co-applicant(s) and to minimize for the applicant and any co-applicant(s) the costs of engineering and other technical experts.

Decision: The Planning Board’s final decision in writing shall consist of one of the following actions based on a simple majority vote:

Approval of the site plan based upon determination that the proposed plan will constitute a suitable development and is in compliance with the standards set forth in the Zoning By-Law;

Approval of the site plan subject to any conditions, modifications, or restrictions as required by the Board which will ensure that the project meets the standards set forth in the Zoning By-Law.

Installations Requiring a Special Permit:

Applicability: Ground-mounted solar photovoltaic installations occupying two (2) or more acres of land shall require a Special Permit in accordance with the provisions of § 97-11.C. Special Permit Procedures – Public Hearing of Newbury’s Zoning By-Law.

Special Permit General Requirements:

Ground-mounted solar photovoltaic installations that require a special permit must obtain such special permit prior to the issuance of a building permit, as provided in this section.

Special Permit Granting Authority: The Planning Board is hereby established as the Special Permit Granting Authority (SPGA) for the issuance of special permits to construct and operate ground-mounted solar photovoltaic installations occupying two (2) or more acres of land. No ground-mounted solar photovoltaic installation of this size shall be erected, constructed, installed, or modified as provided in this section without first obtaining a permit from the SPGA. The construction of a ground-mounted solar photovoltaic installation of two acres or more shall be permitted subject to the issuance of a Special Permit and provided that the use complies with all requirements set forth herein. All such solar photovoltaic installations shall be constructed and operated in a manner that minimizes any adverse visual, safety, and environmental impacts. No special permit shall be granted unless the SPGA finds in writing that the criteria listed in Section (06)(d) below have been met.

[Amended 5-19-2015 ATM, Art. 25]

Pre-Application Review: Prior to submission of an application for a Special Permit for a ground-mounted solar photovoltaic installation of two or more acres, the applicant and any co-applicant(s) shall request a pre-application review meeting with the SPGA. The review meeting shall include the Town Planner, the Conservation Agent, the Health Agent, the Building Inspector, the Director of Public Works, the Police Chief, the Fire Chief, and representatives from the Board of Selectmen, the Planning Board, the Open Space Committee, the Historical Commission, and the Agricultural Commission. The purpose of a pre-application review is to clarify and expedite the permitting process for the applicant and any co-applicant(s) and to minimize for the applicant and any co-applicant(s) the cost of engineering and other technical experts.

Submission Requirements:

General:

The application for a ground-mounted solar photovoltaic installation of two (2) acres or more shall be filed in accordance with the rules and regulations of the Planning Board as the SPGA.

[Amended 5-19-2015 ATM, Art. 25]

Each application for a special permit shall be filed by the applicant and any co-applicant(s) with the Town Clerk pursuant to Section 9 of Chapter 40A of the Massachusetts General Laws.

Required Documents: The applicant and any co-applicant(s) shall provide the SPGA with nine (9) copies of the application. All plans and maps shall be prepared, stamped, and signed by a professional engineer licensed to practice in Massachusetts. Included in the application shall be:

Name, address, phone number, and original signature of the applicant and any co-applicant(s). Co-applicants may include the landowner of the subject property and the operator of the solar installation.

If the applicant and any co-applicant(s) will be represented by an agent, the name, address, and telephone number of the agent, as well as a written document with original signature of the applicant and any co-applicant(s) authorizing the agent to represent them;

Documentation of the legal right of the applicant and any co-applicant(s) to use the proposed site, including the requirements set forth in Paragraph (7) below.

A site plan showing:

Property lines and physical features, including roads, for the project site;

Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, screening vegetation or structures;

Blueprints or drawings of the solar photovoltaic installation signed by a Professional Engineer licensed to practice in the Commonwealth of Massachusetts showing the proposed layout of the system and any potential shading from nearby structures and any pruning of existing vegetation required to prevent shading;

One or three line electrical diagram detailing the solar photovoltaic installation, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and overcurrent devices;

(v)

Documentation in the form of shop drawings or catalogue cuts of the major system components to be used, including the PV panels, mounting system, and inverter;

(vi)

Name, address, and contact information for proposed system installer;

(vii)

Name, address, and phone number of the project applicant, as well as all co-applicants or property owners, if any;

(viii)

An operation and maintenance plan (see also paragraph (8) below);

(ix)

Zoning district designation for the parcel(s) of land comprising the project site (submission of a copy of a zoning map with the parcel(s) identified is suitable for this purpose);

Proof of liability insurance acceptable to the Town;

Description of financial surety that satisfies Section (14)(c) below.

A public outreach plan, including a project development timeline, which indicates how the project applicant and any co-applicant(s) will meet the required Special Permit notification procedures and otherwise inform abutters and the community.

Plans and documents as required by the Town’s Stormwater Management and Illicit Discharge and Erosion Control By-Law and Rules and Regulations.

Special Permit Review Criteria:

Open Space and Agricultural Impact: Consistent with the Town’s open space preservation goals, the owner of the land on which a large-scale ground-mounted solar photovoltaic installation is proposed to be situated must submit to the SPGA a report on the open space impacts of the installation, including but not limited to:

A general description of the installation site, including proximate natural features, flora, fauna, wetlands, and waterways;

Any trees or wildlife to be displaced by the installation;

Any efforts to mitigate groundwater management issues caused by increase in impervious surface;

The suitability of the installation location for agriculture, including information about soil grade and any history of agriculture uses on the site within ten (10) years prior to special permit or site plan review; and

Any environmental remediation efforts that the owner or operator anticipates will be necessary for installation, maintenance, or removal of the installation.

In determining whether to issue a special permit, the SPGA shall consider the Open Space and Agricultural Impact report and the corresponding impacts.

Land Clearing, Soil Erosion and Habitat Impacts: Clearing of natural vegetation shall be limited to what is necessary for the construction, operation, and maintenance of the ground-mounted solar photovoltaic installation or otherwise proscribed by applicable laws, regulations, and by-laws, including the Code of the Town of Newbury, Chapter 87, Stormwater Management and Illicit Discharge and Erosion Control. In determining whether to issue a special permit, the SPGA shall consider such impacts and efforts to mitigate them. The applicant and any co-applicant(s) may be required to replace up to 100% of any and all trees with a caliper six (6) inches or over that are removed for the project.

Operation and Maintenance Plan: The applicant and any co-applicant(s) shall submit a plan for the operation and maintenance of ground-mounted solar photovoltaic installation as called for in paragraph (8) below.

Site Condition Suitability: All appurtenant structures, including but not limited to equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. Structures shall be screened from view by means of vegetation, fencing, or physical topography to the extent reasonable and practical considering the characteristics of the individual site. In determining whether to issue a special permit, the SPGA shall consider the sufficiency of the architectural compatibility of the structures and efforts to screen the structures from view.

The SPGA may grant a Special Permit only upon finding that the proposed use meetings the standards specified in in § 97-11.C. of Newbury’s Zoning By-Law and the following general standards:

The proposed use and development will not have a substantial or undue adverse effect upon adjacent property, the character of the area, or the public health, safety, and general welfare;

The nature and intensity of the intended operations will not discourage the appropriate development and use of adjacent land and buildings nor impair the value thereof;

All proposed traffic access ways shall be adequate (but not excessive) in number, adequate in width, grade, alignment and visibility, sufficiently separated from street intersections and places of public assembly, and shall meet similar safety considerations;

Adequate safe and accessible off-street parking and loading spaces shall be provided to avoid parking in public streets of vehicles belonging to persons connected with or visiting the site, including, at a minimum, parking for three (3) trucks and two (2) automobiles;

Adequate access to each structure for fire and emergency service equipment shall be provided; keys for access to all portions of the project shall be provided to the Fire Department and the Police Department.

The proposed use and development will not result in the destruction, loss, or damage of any natural, scenic, or historic feature of significant importance;

The entire project site shall be screened at all seasons of the year from the view of adjacent residential lots and streets or roadways and the general landscaping of the site shall be in character with that generally prevailing in the neighborhood;

The volume of cut and fill, the number of removed trees that are six (6) inches or more in caliper, the area of wetland vegetation displaced, soil erosion, and threat of air and water pollution shall be held to a minimum set by the SPGA after consultation with the Conservation Commission;

Adequate provisions shall be provided for stormwater management and other utilities consistent with the functional requirements of the Newbury Stormwater Rules and Regulations, the Department of Environmental Protection, and the Massachusetts Stormwater Management Handbook (as revised);

Obstruction of scenic views from publicly accessible locations shall be minimized;

Glare from site lighting shall be minimized;

Sound impacts from transformers, inverters, and other electrical equipment shall be mitigated with the use of enclosures, shielding, and placement of the sound-generating equipment on the site.

Unreasonable departure from the character, materials, and scale of buildings in the vicinity, as viewed from public ways and places, shall be minimized; and

The proposed development of the site shall be in compliance with the provisions of Newbury’s Zoning By-Law, including parking, signs, landscaping, environmental standards and other pertinent sections.

Final Action: A Special Permit shall be granted by the SPGA after it finds in writing that all conditions described in (6)(d)02) items a) through n) have been satisfied.

Site Control: The project applicant and any co-applicant(s) shall submit documentation of actual or prospective access and control of the project site sufficient to allow for construction and operation of the proposed solar photovoltaic installation.

Operation & Maintenance Plan: The project applicant and any co-applicant(s) shall submit a plan for the operation and maintenance of the ground-mounted solar photovoltaic installation, which shall include measures for maintaining safe access to the installation, stormwater controls, as well as general procedures for operational maintenance of the installation.

Notification: No ground-mounted solar photovoltaic installation shall be constructed until evidence has been given to the Town that the owner or operator of said installation has notified the utility company that operates the electrical grid where the installation is to be located of his or her intent to install an interconnected customer-owned generator. Off-grid systems shall be exempt from this requirement.

Dimension and Density Requirements.

Setbacks:

For ground-mounted solar photovoltaic installations which occupy less than ¼ acre of land, setbacks shall be in accordance with the minimum setback requirements for the zoning district in which the installation is located.

For ground-mounted solar photovoltaic installations occupying at least 1/4 acre of land, but less than 10 acres, setbacks shall be at least 25 feet from all lot lines:

For ground-mounted solar photovoltaic installations occupying 10 acres of land or more, setbacks shall be at least 50 feet from all lot lines.

Height: No ground-mounted solar photovoltaic installation or structure appurtenant thereto shall be more than 15 feet in height measured from the adjacent grade.

Appurtenant Structures: All appurtenant structures to ground-mounted solar photovoltaic installations shall be subject to reasonable regulations concerning the bulk and height of structures, lot area, setbacks, open space, parking and building coverage requirements. All such appurtenant structures, including but not limited to, equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. Whenever reasonable, structures should be screened from view by means of vegetation, fencing, or physical topography to the greatest extent reasonable and/or joined or clustered to avoid adverse visual impacts.

(11)

Design Standards:

Lighting: Lighting of solar photovoltaic installations shall be consistent with local, state and federal law. Lighting of other parts of the installation, such as appurtenant structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties. Where feasible, lighting of the solar photovoltaic installation shall be directed downward and shall incorporate full cut-off fixtures to reduce light pollution.

Signage: Signs on ground-mounted solar photovoltaic installations shall comply with the Town of Newbury’s Sign By-Law. A sign consistent with Newbury’s sign by-law shall be required to identify the owner and provide a 24-hour emergency contact phone number. Solar photovoltaic installations shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the solar photovoltaic installation.

Utility Connections: Reasonable efforts, as determined by the Building Inspector and, for installations of two (2) acres or more, the SPGA, shall be made to place all utility connections from the solar photovoltaic installation underground, depending on appropriate soil conditions, shape, and topography of the site and any requirements of the utility provider. Electrical transformers for utility interconnections may be above ground if required by the utility provider.

Noise: Transformers, inverters, and other noise-producing electrical equipment shall be located on the site, shielded, and/or enclosed to minimize sound impacts at the property line and on sensitive receptors. All noise sources shall be in compliance with the Massachusetts Department of Environmental Protection’s noise regulation (310 CMR 7.10). A noise source will be considered to be violating 310 CMR 7.10 if the source:

Increases the broadband sound level by more than 10 dB(A) above ambient, or

Produces a "pure tone" condition – when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.

These criteria shall be measured both at the property line and at the nearest inhabited residence.

(12)

Safety and Environmental Standards:

Emergency Services: The ground-mounted solar photovoltaic installation owner or operator shall provide a copy of the project summary, electrical schematic, and site plan to the local Fire Chief and Police Chief. The owner or operator shall cooperate with local emergency services in developing an emergency response plan. All means of shutting down the solar photovoltaic installation shall be clearly marked. The owner or operator of the installation shall identify a responsible person for public inquiries throughout the life of the installation.

Safety Disconnect: The solar photovoltaic installation shall be designed to disconnect automatically from the electrical utility’s system in the event that the grid experiences a power failure.

Land Clearing, Soil Erosion and Habitat Impacts: Clearing of natural vegetation shall be limited to what is necessary for the construction, operation and maintenance of the ground-mounted solar photovoltaic installation or otherwise prescribed by applicable laws, regulations, and by-laws.

Security Fencing: Black vinyl-coated chain link fencing a minimum of 8 feet high with lockable gates shall be installed around the perimeter of the installation to prevent access by unauthorized individuals. Keys shall be provided to Newbury’s Fire Chief and Police Chief.

(13)

Monitoring and Maintenance:

Solar Photovoltaic Installation Conditions: The ground-mounted solar photovoltaic installation owner or operator shall maintain the facility in good condition. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief, Police Chief, and Emergency Medical Services. The owner or operator shall be responsible for the cost of maintaining the solar photovoltaic installation and any access road(s), except for any accepted public way.

Modifications: All material modifications to a solar photovoltaic installation made after issuance of the required building permit shall require approval by the Building Inspector and, where appropriate, the SPGA.

(14)

Abandonment or Decommissioning:

Removal Requirements: Any ground-mounted solar photovoltaic installation which has reached the end of its useful life or has been abandoned consistent with Section (14)(b) of this By-Law shall be removed. The owner or operator shall physically remove the installation no more than 150 days after the date of discontinued operations. The owner or operator shall notify the Building Inspector by certified mail of the proposed date of discontinued operations and plans for removal. Decommissioning shall consist of:

Physical removal of all ground-mounted solar photovoltaic installations, structures, equipment, security barriers and transmission lines from the site;

Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations;

Stabilization or re-vegetation of the site as necessary to minimize erosion. The Building Inspector may allow the owner or operator to leave landscaping or designated below-grade foundations in order to minimize erosion and disruption to vegetation.

Abandonment: Absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the solar photovoltaic installation shall be considered abandoned when it fails to operate for more than one year without the written consent of the Building Inspector and, for installations of two (2) acres or more, the SPGA. If the owner or operator of the ground-mounted solar photovoltaic installation fails to remove the installation in accordance with the requirements of this section within 150 days of abandonment or the proposed date of decommissioning, the Town may enter the property and physically remove the installation.

Financial Surety: To enable the Town, if necessary, to remove the installation and remediate the landscape, the following conditions shall apply:

Within thirty (30) days following the issuance of the Special Permit, or before construction of the ground-mounted solar photovoltaic installation begins or is planned to being, whichever first occurs, the applicant and any co-applicants together, or the owner(s) of the ground-mounted solar photovoltaic installation to be constructed, as the case may be, shall provide a form of surety, either through escrow account, bond or otherwise, to cover the costs to the Town of such removal and remediation;

The surety shall be in the form and principal amount as determined to be reasonable by, and satisfactory to, the Town, but in no event will such principal amount exceed more than one hundred twenty-five percent (125%) of the then-estimated costs of such removal and remediation;

The applicant and any co-applicant(s) together, or owners(s) as above so described, as the case may be, shall submit a fully inclusive estimate of such then-estimated costs, as prepared by a professional estimator reasonably acceptable to the Town;

The surety shall include a process for calculating the increased costs of such removal and remediation as a result of inflation, with inflation to be determined by reference to the United States Department of Labor Consumer Price Index;

The principal amount of the surety will be adjusted for inflation every five years for so long as the surety is in force and effect;

Upon subsequent conveyance of said ground-mounted solar photovoltaic installation, any subsequent owner(s) of the facility shall provide a replacement surety in a form and principal amount determined to be reasonable by, and satisfactory to, the Town calculated, based on a submitted fully inclusive estimate of such then-estimated costs of such removal and remediation, as prepared by a professional estimator reasonably acceptable to the Town, but in no event will such principal amount exceed more than one hundred twenty-five percent (125%) of the said estimate of such then-estimated costs, all in accordance with, and subject to, the preceding terms and conditions;

Only one such surety will be required to be in force and effect at any time; and

08)

No such surety will be required for municipal or state-owned facilities

(15)

Invalidity or Unenforceability: If any provision(s) of this By-Law is (are) determined by operation of law or a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this By-Law shall remain in full force and effect. If the Special Permit provisions of this By-Law are deemed invalid or unenforceable, then the Site Plan Review provisions contained herein shall apply to all proposed installations occupying one-quarter acre or more.

Registered Marijuana Dispensaries/Medical Marijuana Treatment Centers:

[Amended 5-20-2014 ATM, Art. 20]

Purpose:

To provide a permitting process for the placement of Registered Marijuana Dispensaries (RMDs), also known as Medical Marijuana Treatment Centers, in accordance with the Humanitarian Medical Use of Marijuana Act, G.L. c.94C, App. § 1-1, et seq., and the Department of Public Health Regulations promulgated thereunder, 105 CMR 725.000, as the same may be amended from time-to-time, in locations suitable for lawful RMD facilities;

To minimize adverse impacts of RMDs on adjacent properties, residential neighborhoods, historic districts, schools, playgrounds and other locations where minors congregate by regulating the siting, design, and placement of RMDs.

Definitions:

Definition of Registered Marijuana Dispensary:

Registered Marijuana Dispensary, also known as a Medical Marijuana Treatment Center or RMD: a not-for-profit entity registered under 105 CMR 725.100, to be known as a registered marijuana dispensary (RMD), that acquires, cultivates, possesses, processes (including development of related products such as edible marijuana-infused products (MIPs), tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to registered qualifying patients or their personal caregivers. Unless otherwise specified, RMD refers to the site(s) of dispensing, cultivation, and preparation of marijuana.

Definition of other terms used in this section: Where not expressly defined in the Code of the Town of Newbury, Chapter 97, Zoning, terms used in this Section shall be interpreted as defined in the Humanitarian Medical Use of Marijuana Act, G.L. c.94C, App. § 1-1, et seq. and the Department of Public Health Regulations promulgated thereunder, 105 CMR 725.000, et seq., as the same may be amended from time-to-time, and otherwise by their plain language.

General Requirements:

A Special Permit shall be required for the establishment of an RMD. For the purposes of this Section, the Special Permit Granting Authority (SPGA) shall be the Planning Board.

All permitted RMDs shall be properly registered with the Massachusetts Department of Public Health (DPH) pursuant to 105 CMR 725.100 and shall comply with all applicable state and local public health regulations and all other applicable state and local laws, rules and regulations at all times. No Building Permit or Certificate of Occupancy shall be issued for an RMD that is not properly registered with the Massachusetts Department of Public Health.

The Special Permit shall be valid only for the Applicant and shall become invalid if the Applicant ceases operating the permitted RMD.

The Special Permit shall become invalid upon the expiration or termination of the RMD's Certificate of Registration.

Parking and loading for an RMD shall be in accordance with § 97-7. Off Street Parking, Access, and Loading of Newbury's Zoning By-Law. However, the SPGA may require a greater number of parking spaces and/or loading bays if it finds, based on the application materials submitted to the Board regarding operation of the RMD, that the minimum requirements are not sufficient.

All signage shall conform to the requirements of § 97-8. Sign Regulations of Newbury's Zoning By-Law, and the SPGA may impose additional restrictions on signage as appropriate for the site, provided such regulations and restrictions do not conflict with any DPH regulation.

Location:

The Zoning Districts in which RMDs may be located are the Business & Light Industrial District and the Commercial Highway District, excluding that area of the Commercial Highway District at the Northwestern Junction of the right-of-way of I-95 and Central Street.

No RMD may be located within 1,000 feet of the real property comprising any of the following:

A public or private elementary, vocational, or secondary school or a public or private college, junior college, or university;

A playground; or

A housing facility owned by a public housing authority.

No RMD may be located within 500 feet of the real property comprising any of the following:

Public or private youth center;

A public swimming pool;

A video arcade facility;

Child Care Facility;

Library;

Public Park; or

A similar facility in which minors commonly congregate.

No RMD may be located within 300 feet of the real property comprising a residence.

The distance under this section is measured in a straight line from the nearest point of the property line of the protected uses identified in Section (5)(b), (5)(c), or (5)(d) to the nearest point of the property line of the proposed RMD.

The distance requirements set forth in paragraphs (5)(c) and (5)(d) above may be reduced by twenty-five percent or less, but only if:

The applicant demonstrates that the RMD would otherwise be effectively prohibited within the municipality; and

The applicant demonstrates to the satisfaction of the Planning Board that the RMD will employ adequate security measures to prevent diversion of medical marijuana to minors who are not qualifying patients pursuant to 105 CMR 725.004.

Application Process and Requirements:

Application Procedures: The application for a Special Permit for an RMD shall be filed at a regularly scheduled Planning Board meeting and with the Town Clerk in accordance with § 97-11.C.(1) of Newbury's Zoning By-Law and with G.L. c. 40A § 9. The application shall be signed by a duly authorized officer of the Applicant.

Required Documents: The Applicant shall provide the SPGA with 15 copies of the application and the required fees. All plans and maps shall be prepared, stamped, and signed by a professional engineer or architect licensed to practice in Massachusetts. An application to the SPGA shall include, at a minimum, the following information:

The Applicant's name, address, telephone number, and email address;

Documentation of the legal right to use the proposed site (e.g. lease, purchase and sale agreement, or similar);

A certified copy of the Certificate of Registration issued by the DPH to the Applicant, along with copies of all other materials issued by the DPH to the Applicant, except for those materials that are deemed by the DPH to be confidential and therefore subject to the public records exemption;

A narrative providing information about the type and scale of all activities that will take place on the proposed site, including but not limited to cultivating and processing of marijuana or marijuana-infused products (MIPs), on-site sales, off-site deliveries, distribution of educational materials, and other programs or activities;

A map depicting all properties and land uses within a one thousand-foot (1,000') radius (minimum) of the project site, whether such uses are located in Newbury or within surrounding communities, including, but not limited to, all educational uses, daycare, preschool and afterschool programs, playgrounds, libraries, public parks, and housing facilities owned by a public housing authorities;

A plan or plans depicting all proposed development on the property, including the dimensions of the building, the layout of parking, the location of pedestrian and vehicular points of access and egress, the location and design of all loading, refuse and service facilities, the location, type, and direction of all outdoor light on the site and any landscape design;

A plan or plans showing any proposed stormwater management system, which plan(s) shall meet the submission requirements of Newbury's Stormwater Management Rules and Regulations;

08)

Architectural drawings of all exterior building facades and all proposed signage, specifying materials and colors to be used. Perspective drawings and illustrations of the site from public ways and abutting properties are recommended, but not required;

09)

A description of waivers, if any, from the DPH regulations issued for the RMD.

Within five business days of the receipt of the application, the SPGA shall refer copies of the application to the Building Commissioner, the Conservation Commission, the Board of Health, the Fire Department, and the Police Department. These boards/departments shall review the application and shall submit their written recommendations. Failure to make recommendations within 30 days of referral of the application shall be deemed lack of opposition.

After notice and public hearing and consideration of application materials, public comments, and the recommendations of other Town boards and departments, the SPGA shall act upon the application.

Exemptions:

Hardship Cultivation: There may be instances where the DPH determines that a qualifying patient is eligible for a hardship cultivation registration that would allow the cultivation of medical marijuana by the qualifying patient or his or her personal caregiver, only at the location specified in the application approved by DPH. In such instances, a special permit shall not be required and the provisions of this § 97-5.G. shall not apply.

Agriculture: RMDs that demonstrate that they are protected pursuant to the agricultural exemption under G.L. c. 40A § 3 are not required to obtain a Special Permit, but shall apply for Site Plan Approval pursuant to § 97-9 of the Zoning By-Law.

Decision Criteria: The SPGA shall issue a special permit for an RMD only if it finds that the Applicant has submitted sufficient information from which it can conclude that:

The RMD is located in accordance with the distance requirements in § 97-5.G(5)(b), (5)(c), and (5)(d) above and will be sufficiently buffered so that abutting properties will not be adversely impacted by the operation of the RMD, except to the extent that any part of such buffering is contrary to 105 CMR 725.110(A)(11);

The RMD is designed to minimize any adverse visual impacts on abutters and other parties in interest, as defined in G.L. c. 40A, § 11;

The site is designed to provide convenient, safe, and secure access and egress for clients and employees arriving to and leaving from the site;

Loading, refuse, and service areas are designed to be secure and shielded from abutters and from the street;

The building and site have been designed to be compatible with other buildings in the area;

The RMD is properly registered with the DPH as required in (3)(b) above and complies with all applicable state and local laws, regulations, and requirements, including, but not limited to, health and safety regulations, and construction and environmental requirements;

The Applicant has satisfied all of the conditions and requirements of Newbury's Zoning By-Law.

Special Permit Conditions: The SPGA shall impose conditions reasonably appropriate to improve siting, design, placement, traffic flow, and public safety; protect water quality, air quality, and significant environmental resources; preserve the character of the surrounding area; and otherwise serve the purpose of this By-Law. In addition to any specific conditions applicable to the RMD, the SPGA shall include the following conditions in any special permit granted under this By-Law:

The permit holder shall file a copy of any Incident Report required under 105 CMR 725.110(F) with the Board of Selectmen, with copies to the Zoning Enforcement Officer and the SPGA, within 24 hours of creation by the RMD. Such reports may be redacted as necessary to comply with any and all applicable laws and regulations;

The permit holder shall file a copy of any summary cease and desist order, cease and desist order, quarantine order, summary suspension order, order limiting sales, notice of a hearing, or final action issued by DPH or the Division of Administrative Law Appeals, as applicable, regarding the RMD with the Board of Selectmen, with copies to the Zoning Enforcement Officer and the SPGA, within 48 hours of receipt by the RMD;

The permit holder shall provide to the Board of Selectmen, the Zoning Enforcement Officer, the SPGA, the Police Chief, and the Fire Chief the name, telephone number and email address of a contact person in the event that such person needs to be contacted after regular business hours to address an urgent issue. Such contact information shall be kept updated by the permit holder;

The permit holder shall be required annually to provide the Board of Selectmen with a copy of its DPH registration renewal. If the permit holder wishes to renew the Special Permit, a renewal application must be submitted to the Board of Selectmen at least 120 days prior to the expiration of the Special Permit. The Board of Selectmen shall refer it to the SPGA for review and recommendation. Such Special Permit renewal shall not require the technical submission of the original application, provided that conditions of the site and facility have not changed materially from the original application.

The Special Permit shall be limited to the current applicant and shall become invalid if the permit holder ceases operating the RMD;

The special permit shall become invalid upon the expiration or termination of the applicant's registration by DPH;

The permit holder shall notify the Board of Selectmen in writing, with copies to the Zoning Enforcement Officer, the Police Department, and SPGA, within 48 hours of the cessation of operation of the RMD or the expiration or termination of the permit holder's registration with DPH;

In the event that the DPH revokes, fails or refuses to issue a Certificate of Registration for the RMD, a Special Permit issued by the Town for the RMD shall be deemed null and void;

Prohibition against Nuisances: The RMD shall not create a nuisance to abutters or to the surrounding area, or create any hazard, including, but not limited to, fire, explosion, fumes, gas, smoke, odors, obnoxious dust, vapors, offensive noise or vibration, flashes, glare, objectionable effluent, or electrical interference, which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area.

Conflicts with State Law and Regulations: If any provision, paragraph, sentence, or clause of this By-Law shall be determined to be in conflict with applicable State Law or Regulations, the provisions of said State Law or Regulations shall prevail.

(11)

Severability: The provisions of this By-Law are severable. If any provision, paragraph, sentence, or clause of this By-Law or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this By-Law.

Marijuana Establishments:

[Added 4-24-2018 ATM, Art. 19]

Purpose:

To provide a permitting process for the placement of Marijuana Establishments, in accordance with the Regulation and Taxation of Marijuana Act, as amended, and as codified in G.L. c.94G, § 1, et seq. (hereinafter G.L. c. 94G), and the Cannabis Control Commission (hereinafter CCC) Regulations promulgated thereunder, 935 CMR 500.000, as the same may be amended from time-to-time, in locations suitable for lawful Marijuana Establishments;

To minimize and mitigate adverse impacts of Marijuana Establishments on adjacent properties, public ways, residential neighborhoods, historic districts, schools, playgrounds and other locations where minors congregate, and other land uses potentially incompatible with said facilities, by regulating the siting, design, and placement of Marijuana Establishments.

Definitions:

Definition of Marijuana and Marijuana Establishments:

	*Craft Marijuana Cultivator Cooperative* is a marijuana cultivator comprised of residents of the Commonwealth organized as a limited liability company or limited liability partnership under the laws of the Commonwealth, or an appropriate business structure as determined by the CCC, and that is licensed to cultivate, obtain, manufacture, process, package, and brand marijuana and marijuana products to deliver marijuana to Marijuana Establishments, but not to consumers, as defined in G.L. c. 94G.
	*Marijuana or Marihuana* is all parts of any plant of the genus Cannabis, not excepted below and whether growing or not; the seeds thereof; and resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin including tetrahydrocannabinol as defined in section 1 of chapter 94C of the General Laws; provided that "Marijuana'' shall not include:
	01)	The mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, fiber, oil, or cake made from the seeds of the plant or the sterilized seed of the plant that is incapable of germination;
	02)	Hemp; or
	03)	The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink or other products.
	*Marijuana Cultivator* is 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, as defined in G.L. c. 94G.
	Marijuana Establishment is considered a cultivator, marijuana testing facility, marijuana product manufacturer, marijuana retailer or any other type of licensed marijuana-related business, all as defined in G.L. c. 94G. Said Marijuana Establishment shall be deemed independent of any other definition in this by-law and not a subset or subcategory of any other category. Said Marijuana Establishment may never be considered an accessory use.
	*Marijuana Product Manufacturer* is an entity licensed to obtain, manufacture, process and package marijuana and marijuana products, to deliver marijuana and marijuana products to Marijuana Establishments and to transfer marijuana and marijuana products to other Marijuana Establishments, but not to consumers, as defined in G.L. c. 94G.
	*Marijuana Products* are products that have been manufactured and contain marijuana or an extract from marijuana, including concentrated forms of marijuana and products composed of marijuana and other ingredients that are intended for use or consumption, including edible products, beverages, topical products, ointments, oils, and tinctures, as defined in G.L. c. 94G.
	*Marijuana Retailer* is an entity licensed to purchase and deliver marijuana and marijuana products from Marijuana Establishments and to deliver, sell or otherwise transfer marijuana and marijuana products to Marijuana Establishments and to consumers, as defined in G.L. c. 94G, further provided that a Marijuana Retailer may not be considered a Retail Business in any other context.
	*Marijuana Testing Facility* is an entity licensed to test marijuana and marijuana products, including certification for potency and the presence of contaminants, as defined in G.L. c. 94G.

Definition of other terms used in this section: Where not expressly defined in the Code of the Town of Newbury, Chapter 97, Zoning, terms used in this Section shall be interpreted as defined in The Regulation and Taxation Of Marijuana Act, as amended, and as codified in G.L. c.94G, and the CCC Regulations promulgated thereunder, 935 CMR 500.000, et seq., as the same may be amended from time-to-time, and otherwise by their plain language.

General Requirements:

A Special Permit shall be required for the establishment of a Marijuana Establishment. For the purposes of this Section, the Special Permit Granting Authority (SPGA) shall be the Planning Board.

All permitted Marijuana Establishments shall have received a provisional license from the CCC and shall comply with all applicable state and local public health regulations and all other applicable state and local laws, rules and regulations at all times. Failure to obtain a final license from the CCC shall result in automatic rescission of the special permit as more fully described in 7(e) below. No Building Permit or Certificate of Occupancy shall be issued for a Marijuana Establishment that has not received a provisional license from the CCC.

The Special Permit shall be valid only for the Applicant(s) (hereinafter Applicant), shall become invalid if the Applicant ceases operating the licensed Marijuana Establishment, and shall not transfer with a change in ownership of the business and/or property.

The Special Permit shall become invalid if the Applicant fails to obtain a final license from the CCC or upon the expiration or termination of the Marijuana Establishment's CCC license.

Parking and loading for a Marijuana Establishment shall be in accordance with § 97-7. Off Street Parking, Access, and Loading of Newbury's Zoning By-Law. However, the SPGA may require a greater number of parking spaces and/or loading bays if it finds, based on the application materials submitted to the SPGA regarding operation of the Marijuana Establishment, that the minimum requirements are not sufficient.

All signage shall conform to the requirements of § 97-8. Sign Regulations of Newbury's Zoning By-Law. Any exterior sign may identify the Establishment, but shall not contain any other advertisement. The SPGA may impose additional restrictions on signage as appropriate for the site, provided such regulations and restrictions do not conflict with state law or any CCC regulation.

All Marijuana Establishments shall operate within a fully enclosed building that is monitored by surveillance cameras, alarm systems, and all other security measures in accordance with CCC Regulations deemed appropriate to ensure patron and community safety and deter unauthorized access to the premises.

No products shall be displayed in the Marijuana Establishment's windows or visible from any street or parking lot.

Industry Best Management Practices shall be utilized to control odors inside and outside all types of Marijuana Establishments. No odors from marijuana or its processing shall be detectable by a person with an unimpaired and otherwise normal sense of smell at the exterior of the Marijuana Establishment or at any adjoining property or use.

(j)

Waste disposal shall be in accordance with the CCC Regulations and State and local regulations. No composting of waste materials may occur at the Marijuana Establishment. Outside storage of general solid waste not containing any usable marijuana shall be screened with a locked fence. Solid waste containing any usable marijuana shall be stored inside a designated locked, limited-access area located inside the main structure. Liquid waste from processing or disposal of marijuana shall not be discharged to surface waters or groundwater or septic systems. Liquid waste must be stored pending disposal in an industrial wastewater holding tank in accordance with 314 CMR 18.00: Industrial Wastewater Holding Tanks and Containers.

Location:

The Zoning Districts in which Craft Marijuana Cultivator Cooperatives, Marijuana Cultivators, Marijuana Product Manufacturers, and Marijuana Testing Facilities may be located are the Business & Light Industrial District and the Commercial Highway District, excluding that area of the Commercial Highway District at the Northwestern Junction of the right-of-way of I-95 and Central Street.

The Zoning District in which Marijuana Retailers may be located is the Business & Light Industrial District.

No Marijuana Retailer may be located within 1,000 feet of the real property comprising any of the following:

A public or private school;

Daycare center; or

A similar facility in which minors commonly congregate (e.g. library, playground, etc.).

No Craft Marijuana Cultivator Cooperatives, Marijuana Cultivators, Marijuana Product Manufacturers, and Marijuana Testing Facilities may be located within 500 feet of the real property comprising any of the following:

A public or private school;

Daycare center; or

A similar facility in which minors commonly congregate (e.g. library, playground, etc.).

No Marijuana Establishment may be located within 300 feet of the real property comprising a residence.

The distance under this section is measured in a straight line from the nearest point of the property line of the protected uses identified in Section (4)(c), (4)(d), or (4)(e) above to the nearest point of the property line of the proposed Marijuana Establishment.

Application Process and Requirements:

Application Procedures: The application for a Special Permit for a Marijuana Establishment shall be filed at a regularly scheduled Planning Board meeting and with the Town Clerk in accordance with § 97-11.C.(1) of Newbury's Zoning By- Law and with G.L. c. 40A § 9. The application shall be signed by a duly authorized officer of the Applicant.

The Applicant's name, address, telephone number, and email address;

Evidence that the Applicant has site control and the right to use the site for a facility in the form of a deed or valid purchase and sale agreement, or, in the case of a lease, a notarized statement from the property owner and a copy of the lease agreement;

A certified copy of the provisional license issued by the CCC to the Applicant, along with copies of all other materials issued by the CCC to the Applicant, except for those materials that are deemed by the CCC to be confidential and therefore subject to the public records exemption;

A narrative providing information about the type and scale of all activities that will take place on the proposed site, including but not limited to, cultivating and processing of marijuana or marijuana products as defined in G.L. c. 94G, § 1, on-site sales, off-site deliveries, distribution of educational materials, and other programs or activities;

A map depicting all properties and land uses within a one thousand-foot (1,000') radius (minimum) of the project site, whether such uses are located in Newbury or within surrounding communities, including, but not limited to, all educational uses, daycare, preschool and afterschool programs, playgrounds, libraries, public parks, houses of worship, and housing facilities owned by a public housing authority;

A plan or plans showing any proposed stormwater management system, which plan(s) shall meet the submission requirements of Newbury's Stormwater Management Rules and Regulations;

08)

09)

A written Energy Use/Environmental Plan demonstrating best practices for energy conservation to ensure that there are no undue impacts on the natural environment; the plan shall include proposed energy and water conservation measures, including use of energy efficient lighting where appropriate, measures for controlling odors and effluent, and measures for disposal of solid waste.

10)

Traffic Impact Report;

11)

A Security Plan, to be submitted to the Newbury Police Department only, including all security measures for the site and for transportation of marijuana and marijuana products to and from off-site premises. The Security Plan shall include a site plan showing all exterior proposed security measures for the premises, including lighting, fencing, gates and alarms, etc., which seek to ensure the safety of employees and patrons and to protect the premises from theft or other criminal activity;

12)

A description of waivers, if any, from the CCC Regulations issued for the Marijuana Establishment.

After notice and public hearing and consideration of application materials, public comments, and the recommendations of other Town boards and departments, the SPGA shall act upon the application.

Decision Criteria: The SPGA shall issue a special permit for a Marijuana Establishment only if it finds that the Applicant has submitted sufficient information from which it can conclude that:

The Marijuana Establishment has received a provisional license CCC as required in (3)(b) above and complies with all applicable state and local laws, regulations, and requirements, including, but not limited to, health and safety regulations, and construction and environmental requirements;

The building and site have been designed to be reasonably compatible with other buildings in the area;

The siting of the Marijuana Establishment will be accomplished so as to minimize any adverse impacts on abutters and other parties in interest, as defined in G.L. c. 40A, § 11, including but not limited to compliance with the following:

proper location in accordance with the distance and location requirements in § 97-5.H (4) above

design which ensures sufficient buffering, except to the extent that any part of such buffering is contrary to state law and the CCC Regulations;

design which minimizes visual impacts, noise, odors, and light pollution or other undue nuisance;

design which creates no hazard or congestion;

design which shields loading and service areas;

design which ensures adequate waste disposal of products containing usable marijuana that does not adversely impact the environment or water resources.

The Marijuana Establishment will create no substantial harm to the established or future character of the neighborhood or town.

With due consideration to aesthetics, the Marijuana Establishment is designed to ensure convenient, safe and secure access as follows:

personal safety of those working at or utilizing the facility;

personal safety for clients and invitees; and

loading and service areas are designed to be secure;

protection of the premises from theft.

The Applicant has not provided materially false documents or testimony.

The Applicant has satisfied all of the conditions and requirements of Newbury's Zoning By-Law.

Special Permit Conditions: The SPGA shall impose conditions reasonably appropriate to improve siting, design, placement, traffic flow, and public safety; protect water quality, air quality, and significant environmental resources; preserve the character of the surrounding area; and otherwise serve the purpose of this By-Law. In addition to any specific conditions applicable to the Marijuana Establishment, the SPGA shall include the following conditions in any special permit granted under this By-Law:

Within 24 hours of creating an Incident Report required by the CCC Regulations, the permit holder shall file a copy of said Incident Report with the Board of Selectmen, with copies to the Zoning Enforcement Officer and the SPGA. Such reports may be redacted as necessary to comply with any and all applicable laws and regulations;

The permit holder shall file a copy of any summary cease and desist order, cease and desist order, quarantine order, summary suspension order, order limiting sales, notice of a hearing, or final action issued by the CCC or the Division of Administrative Law Appeals, as applicable, regarding the Marijuana Establishment with the Board of Selectmen, with copies to the Zoning Enforcement Officer and the SPGA, within 48 hours of receipt by the Marijuana Establishment;

The Special Permit shall be limited to the current Applicant, shall become invalid if the permit holder ceases operating the Marijuana Establishment, and shall not transfer with a change in ownership of the business and/or property;

The Special Permit shall become invalid upon the expiration or termination of the Applicant's CCC license or the failure of the Applicant to receive a final license from the CCC;

The permit holder shall notify the Board of Selectmen in writing, with copies to the Zoning Enforcement Officer, the Police Department, and the SPGA, within 48 hours of the cessation of operation of the Marijuana Establishment, notice by the CCC of denial of a final license, or the expiration or termination of the permit holder's CCC license;

In the event that the CCC revokes, fails or refuses to issue a final license to the Marijuana Establishment, a Special Permit issued by the Town for the Marijuana Establishment shall be deemed null and void;

Prohibition against Nuisances: The Marijuana Establishment shall not create a nuisance to abutters or to the surrounding area, or create any hazard, including, but not limited to, fire, explosion, fumes, gas, smoke, odors, obnoxious dust, vapors, offensive noise or vibration, flashes, glare, objectionable effluent, or electrical interference, which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area.