[Amended 4-26-2021 ATM by Art. 31, AG 12-2-2021, eff. 4-26-2021]
8.1.1.
Purpose. The purpose of the Floodplain Overlay
District is to:
1.
Ensure public safety through reducing the threats to life and
personal injury;
2.
Eliminate new hazards to emergency response officials;
3.
Prevent the occurrence of public emergencies resulting from
water quality, contamination, and pollution due to flooding;
4.
Avoid the loss of utility services which if damaged by flooding
would disrupt or shut down the utility network and impact regions
of the community beyond the site of flooding;
5.
Eliminate costs associated with the response and cleanup of
flooding conditions;
6.
Reduce damage to public and private property resulting from
flooding waters;
7.
Discourage individuals from purchasing lands which are unsuitable
for intended purposes because of flood hazard;
8.
Control filling, grading and mineral extraction which may increase
flood damage;
9.
Regulate the construction of levees, jetties and other works,
which may increase flood damage to lands, which may be subject to
flooding.
8.1.2.
Location of Floodplain District. The Floodplain District is herein established as an overlay district. The District includes all special flood hazard areas within Middleborough designated on the Plymouth County Flood Insurance Rate Map (FIRM) dated July 6, 2021, issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program. The exact boundaries of the District shall be defined by the 1%-chance base flood elevations shown on the FIRM and further defined by the Plymouth County Flood Insurance Study (FIS) report dated July 6, 2021. The FIRM and FIS report are incorporated herein by reference and are on file with the Town Clerk, Planning Board, Building Inspector and Conservation Commission, and are hereby made a part of the Zoning Map and are incorporated herein by reference.
8.1.3.
Regulations. A Floodplain District shall be considered
to be superimposed over any other district established by this bylaw.
Land in a Floodplain District may be used for any purpose otherwise
permitted in the underlying district except:
1.
No building or structure may be erected in a Floodplain District;
provided that the Zoning Board of Appeals may grant a special permit
in accordance with the provisions of Section 9.4 for the construction
or use of a building or structure which:
2.
No dumping, filling, dredging, excavation, transfer or removal
of any material which will reduce the natural flood water storage
capacity of the land or will interfere with the natural flow of water
over the land shall be permitted;
3.
If any land included in a Floodplain District is found by the
Zoning Board of Appeals not in fact to be subject to seasonal or periodic
flooding, the Zoning Board of Appeals may grant a special permit in
accordance with the provisions of Section 9.4 for the use of such
land for any purpose permitted in the underlying district. The Zoning
Board of Appeals may consider the elevation of the particular land,
Letter of Map Amendment (LOMA), its history of flooding and any other
relevant evidence. The Zoning Board of Appeals may request and consider
information on the application from any other public official, board
or agency;
4.
When an application is made for a building permit and the Building
Inspector determines that said use of land is within the Floodplain
District, the Building Inspector shall require the applicant for such
permit to provide, as part of the application, a plan of the lot on
which such building is intended to be built showing the land contours
in two-foot intervals, related to elevations above mean sea level,
indicating the benchmarks used and certified by a registered land
surveyor.
5.
The provisions of Section 8.1 shall not apply to any building
or structure in a Floodplain District that was in existence at the
time of the adoption of Section 8.1 and notwithstanding the provisions
of Section 3.3, such buildings may be repaired, restored, altered,
enlarged or rebuilt in compliance with all other zoning laws and applicable
state and municipal laws and regulations, provided that any such altered,
enlarged or rebuilt building shall not affect the natural flow patterns
of any watercourse.
8.1.4.
Requirement to Submit New Technical Data. If the
Town acquires data that changes the base flood elevation in the FEMA
mapped Special Flood Hazard Areas, the Floodplain Administrator will,
within six (6) months, notify FEMA of these changes by submitting
the technical or scientific data that supports the change(s). Notification
shall be submitted to:
FEMA Region I Risk Analysis Branch Chief
99 High Street, 6th Floor, Boston, MA 02110
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And copy of notification to:
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Massachusetts NFIP State Coordinator
MA Dept. of Conservation & Recreation, 251 Causeway Street,
Boston, MA 02114
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8.1.5.
Variances to Building Code Floodplain Standards. The Floodplain Administrator will request from the State Building
Code Appeals Board a written and/or audible copy of the portion of
the hearing related to the variance, and will maintain this record
in the community's files.
The Floodplain Administrator shall also issue a letter to the
property owner regarding potential impacts to the annual premiums
for the flood insurance policy covering that property, in writing
over the signature of a community official that (i) the issuance of
a variance to construct a structure below the base flood level will
result in increased premium rates for flood insurance up to amounts
as high as $25 for $100 of insurance coverage and (ii) such construction
below the base flood level increases risks to life and property.
Such notification shall be maintained with the record of all
variance actions for the referenced development in the floodplain
overlay district.
8.1.6.
Variances to Local Zoning Bylaws Related to Community
Compliance with the National Flood Insurance Program (NFIP). A variance from theses floodplain bylaws must meet the requirements
set out by State law, and may only be granted if: 1) Good and sufficient
cause and exceptional non-financial hardship exist; 2) the variance
will not result in additional threats to public safety, extraordinary
public expense, or fraud or victimization of the public; and 3) the
variance is the minimum action necessary to afford relief.
8.1.7.
Permitted Uses. The following uses of low flood
damage potential and causing no obstructions to flood flows are allowed,
provided they are permitted in the underlying district and they do
not require structures, fill or storage of materials or equipment:
1.
Agricultural uses such as farming, grazing, truck farming and
horticulture;
2.
Forestry and nursery uses;
3.
Outdoor recreational uses, including fishing, boating, hunting
and play areas;
4.
Conservation of water, plants and wildlife;
5.
Wildlife management areas, foot, bicycle and/or horse paths;
6.
Temporary non-residential structures used in connection with
fishing, growing, harvesting, storage, or sale of crops raised on
the premises;
7.
Recreational Vehicles. In A1 - A30, AH, AE Zones, V1-V30, and
V Zones, all recreational vehicles to be placed on a site must be
elevated and anchored in accordance with the zone's regulations
for foundation and elevation requirements or be on the site for less
than 180 consecutive days or be fully licensed and highway ready.
8.1.8.
Permits are Required for all Proposed Development in the
Floodplain Overlay District. The Town of Middleborough requires
a permit for all proposed construction or other development within
the floodplain overlay district, including new construction or changes
to existing building, placement of manufactured homes, placement of
agricultural facilities, fences, sheds, storage facilities or drilling,
mining, paving and any other development that might increase flooding
or adversely impact flood risks to other properties.
8.1.9.
Assure that All Necessary Permits Are Obtained. Middleborough's permit review process includes the use of a
checklist of all local, state and federal permits that will be necessary
in order to carry out the proposed development in the floodplain overlay
district. The proponent must acquire all necessary permits, and must
submit the completed checklist demonstrating that all necessary permits
have been acquired.
8.1.10.
Subdivision Proposals. All subdivision proposals and development proposals in the floodplain
overlay district shall be reviewed to assure that:
8.1.11.
Base Flood Elevation Data for Subdivision Proposals. When proposing subdivision or other developments greater than 50
lots or 5 acres (whichever is less), the proponent must provide technical
data to determine base flood elevations for each developable parcel
shown on the design plans.
8.1.12.
Unnumbered A Zones. In A Zones, in the absence
of FEMA BFE data and floodway data, the Building Department will obtain,
review and reasonably utilize base flood elevation and floodway data
available from a Federal, State, or other source as criteria for requiring
new construction, substantial improvements, or other development in
Zone A as the basis for elevating residential structures to or above
base flood level, for flood proofing or elevating nonresidential structures
to or above base flood level, and for prohibiting encroachments in
floodways.
8.1.13.
Floodway Encroachment. In Zones A, A1 - A30, and
AE, along watercourses that have not had a regulatory floodway designated,
the best available Federal, State, local, or other floodway data shall
be used to prohibit encroachments in floodways, which would result
in any increase in flood levels within the community during the occurrence
of the base flood discharge.
In Zones A1 - A30 and AE, along watercourses that have a regulatory
floodway designed on the Town's FIRM encroachments are prohibited
in the regulatory floodway, which would result in any increase in
flood levels within the community during the occurrence of the base
flood discharge.
8.1.14.
Watercourse Alterations or Relocations in Riverine Areas. In a riverine situation, the Conservation Agent shall notify the
following of any alteration or relocation of a watercourse:
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Adjacent Communities, especially upstream and downstream
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Bordering States, if affected
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NFIP State Coordinator
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Massachusetts Department of Conservation and Recreation
251 Causeway Street, 8th floor
Boston, MA 02114
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NFIP Program Specialist
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Federal Emergency Management Agency, Region I
99 High Street, 6th floor
Boston, MA 02110
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8.1.15.
AO and AH Zones Drainage Requirements. Within Zones
AO and AH on the FIRM, adequate drainage paths must be provided around
structures on slopes, to guide floodwaters around and away from proposed
structures.
8.1.16.
Local Enforcement. All building permits and proposed
development projects shall be reviewed with respect to proper identification
of known or possible flood risk as mapped on the FEMA Flood Insurance
Rate Map, or as otherwise defined within this bylaw through submittal
of any required information, prior to issuance of a building or development
permit, so that sufficient information is available to the permitting
agent(s) with respect to meeting the requirements of this bylaw and
compliance with applicable codes and regulations associated with the
proposed development or activity as they relate to the flood risk.
All work proposed shall meet the requirements of this bylaw as described
herein.
8.1.17.
Administration.
1)
Abrogation and Greater Restrictions. The floodplain management
regulations found in this Floodplain Overlay District section shall
take precedence over any less restrictive conflicting local laws,
ordinances or codes.
2)
Disclaimer of Liability. The degree of flood protection required
by this bylaw is considered reasonable but does not imply total flood
protection.
3)
Severability. If any section, provision or portion of this bylaw
is deemed to be unconstitutional or invalid by a court, the remainder
of the bylaw shall be effective.
4)
Designation of Community Floodplain Administrator. The Town
of Middleborough hereby designates the position of Town Planner to
be the official floodplain administrator for the Town.
8.2.1.
Purpose. The purpose of the Water Resource Protection
Districts (WRPD) is to:
1.
Promote the health, safety and general welfare of the community
by ensuring an adequate quality and quantity of drinking water for
the residents, institutions and businesses of the Town of Middleborough;
2.
Preserve and protect existing and potential sources of drinking
water supplies;
3.
Prevent temporary and permanent contamination of the environment;
and,
4.
Protect, preserve, conserve and maintain the water and natural
resources of the Town and to prevent their pollution.
8.2.2.
Overlay District. The Water Resource Protection
Districts shall be considered as overlying other zoning districts.
Any use prohibited under existing Zoning Bylaws applicable to the
portions of the district so overlaid shall continue to be prohibited
under this WRPD Bylaw.
8.2.3.
Special Permit Required. The Board of Selectmen
shall be the Special Permit Granting Authority.
8.2.4.
Establishment and Delineation. For the purposes of this Section, there are hereby established within the Town Water Protection Districts, Z1, Z2, Z3 and Z4 which are delineated on Middleborough's Zoning Map as set forth in Section 2.4.
8.2.5.
Definitions. For definitions applicable in the
WRPD, see Section 10.1.2.
8.2.6.
WRPD Z1 Use Regulations.
1.
Public water supply uses are permitted in WRPD Z1 as defined
in 310 Code of Massachusetts Regulations (CMR) 22.00. No other uses
are allowed in this Zone.
8.2.7.
WRPD Z2 Use Regulations.
1.
WRPD Z2 - Permitted Uses: The following uses are permitted within
WRPD Z2, provided that all necessary permits, orders or approvals
required by local, state or federal law are also obtained:
a.
Conservation of soil, water, plants and wildlife.
b.
Foot, bicycle and/or horse paths and bridges.
c.
Outdoor recreation, nature study, boating, fishing and hunting
where otherwise legally permitted.
d.
Normal operation and maintenance of existing water bodies and
dams, splash boards and other water control, supply and conservation
devices.
e.
Maintenance, repair and reconstruction of any existing structure,
except uses subject to Section 8.2.7.2 (Prohibited uses) or Section
8.2.7.3 (Special Permit Uses).
f.
Residential development except uses subject to Section 8.2.7.2
(Prohibited uses) or Section 8.2.7.3 (Special Permit Uses).
g.
Farming, gardening, nursery, conservation, forestry, harvesting
and grazing, except uses subject to Section 8.2.7.2 (Prohibited uses)
or Section 8.2.7.3 (Special Permit Uses).
h.
Construction, maintenance, repair and enlargement of drinking
water supply related facilities such as, but not limited to, wells,
pipelines, aqueducts, clear wells and tunnels. Underground storage
tanks related to these activities are not permitted with the exception
of propane storage tanks.
i.
Storage of petroleum products within a freestanding container
or storage tank either of which must be on an impervious surface within
buildings it will heat.
2.
WRPD Z2 - Prohibited Uses - the following uses are prohibited
in WRPD Z2:
a.
Landfills and open dumps as defined in 310 CMR 19.006 Solid
Waste Management and disposal of solid wastes as defined herein.
c.
The removal of soil, loam, sand, gravel or any other mineral
substance within four (4) feet of historical, high groundwater as
determined from monitoring wells and historical water table fluctuation
data compiled by the United States Geological Survey or by Title V
Soil Evaluation, defined by 310 CMR 15.00, witnessed by the Middleborough
Health Department, except for excavations necessary for building foundations
or utility works.
d.
Facilities that generate, treat, store or dispose of hazardous
waste subject to MGL Chapter 21C and 310 CMR 30.000 - Hazardous Waste
Regulations as amended, except for
i.
Very small quantity generators as defined under 310 CMR 30.000
- Hazardous Waste Regulations;
ii.
Household hazardous waste centers and events under
310 CMR 30.390 - Hazardous Waste Regulations;
iii.
Waste oil retention facilities required by MGL
Chapter 21 Section 52A - Hazardous Waste; or,
iv.
Water remediation treatment works approved by DEP
in accordance with 314 CMR 5.00 - Ground Water Discharge Permits for
treatment of contaminated ground or surface waters.
e.
Automobile graveyards, junkyards and salvage yards, as defined
in MGL Chapter 140B Section 1 - Control of Certain Junkyards.
f.
Stockpiling and disposal of snow or ice removed from highways
and streets outside of WRPD Z2 that contain sodium chloride, chemically
treated abrasives or other chemicals used for snow and ice removal.
g.
Individual sewage disposal systems that are designed in accordance
with 310 CMR 15.00 to receive more than one hundred ten (110) gallons
of sewage per ten thousand (10,000) square feet of lot area per day,
except the replacement or repair of an existing system that will not
result in an increase in design capacity above the original design.
h.
Petroleum, fuel oil and heating oil bulk stations and terminals
such as gas stations, including but not limited to those listed under
Standard Industrial Codes 5171 and 5983.
i.
All lots in WRPD Z2 not connected to the Town's sewer system,
having an area less than 60,000 square feet.
j.
Notwithstanding the provisions of subsections (g.) and (i.)
above, any development that is the subject of an Open Space and Resource
Preservation Development District Special Permit issued pursuant to
Section 8.2 of this Zoning Bylaw, may use the "aggregate lot size"
to meet the conditions of (g.) and (i.) above for each lot. The term
"aggregate lot size" shall be defined as the total square footage
of the Open Space and Resource Preservation Development divided by
the number of building lots allowed by the Planning Board.
3.
WRPD Z2 Special Permit Uses - Except as specified in Section
8.2.7.1 - Permitted Uses or Section 8.2.7.2 - Prohibited Uses, those
principal and accessory uses authorized in the underlying district
are permitted in WRPD Z2 only upon issuance of Special Permit by the
Special Permit Granting Authority (SPGA) in conformance with the requirements
stated below. The following uses and activities are prohibited and
may only be allowed upon the issuance of a Special Permit by the SPGA
if the use or activity is in conformance with the specific requirements
stated below and under such other conditions as the SPGA may require:
a.
Enlargement or alteration of existing uses and structures that
do not conform to the Water Resource Protection District are prohibited,
but may be allowed by Special Permit provided that the enlargement
or alteration of all uses and structures with the exception of single
and two-family uses and structures does not increase the non-conformity
or create a new non-conformity. Enlargement of existing structures
shall not be permitted by a Special Permit if a variance from Title
5 of the State Sanitary Code is necessary.
b.
Storage of sludge and septage, as defined by 310 CMR 32.05-Land
Application of Sludge and Sewage is prohibited, but may be allowed
by Special Permit, when such storage is in compliance with 310 CMR
32.30 and 310 CMR 32.31.
c.
Storage of deicing chemicals is prohibited, but may be allowed
by Special Permit when such storage, including loading areas, is within
a structure designed to prevent the generation and escape of contaminated
runoff or leachate.
d.
Storage of animal manure is prohibited, but may be allowed by
Special Permit, when such storage is covered or contained in accordance
with the specifications of the Natural Resource Conservation Service.
e.
Storage of commercial fertilizers, as defined in MGL Chapter
128 Section 64 - Agriculture is prohibited, but may be allowed by
Special Permit, when such storage is within a structure designated
to prevent the generation and escape of contaminated runoff or leachate.
f.
Storage of liquid hazardous materials, as defined in MGL Chapter
21E or storage of liquid petroleum products except that specified
in 8.2.7.1.I above is prohibited, but may be allowed by Special Permit,
only when such storage is above ground level and on an impervious
surface; and,
i.
In a free standing container or above ground tank(s) within
a building;
ii.
Outdoors in covered container(s) or above ground
tank(s) in an area that has a containment system designed and operated
to hold either 10% of the total possible storage capacity of all containers
or 110% of the largest container's storage capacity, whichever is
greater; or,
iii.
Within a vehicle which is used to transport and
store bulk amount of liquid hazardous material or liquid petroleum
products within a building or if outdoors, in an area that has a containment
system designed and operated to hold either 10% of the total possible
storage capacity of the truck(s) or 110% of the largest truck's storage
capacity, whichever is greater.
g.
Treatment or disposal works subject to 314 CMR 5.00 Ground Water
Discharge Permits for wastewater other than sanitary sewage are prohibited,
including, but not limited to, treatment or disposal works related
to activities under Standard Industrial Classification (SIC), Codes
set forth in 310 CMR 15.004(5) (Title V) but may be allowed by Special
Permit for the following uses only:
i.
The replacement or repair of an existing system(s) that will
not result in a design capacity greater than the design capacity of
the existing system(s);
ii.
Treatment works approved by the Massachusetts Department
of Environmental Protection designed for the treatment of contaminated
groundwater or surface water and operated in compliance with 314 CMR
5.05(3) or 5.05(13);
iii.
Publicly owned treatment works.
h.
Automobile service and repair shops including those accessory
to new and used car dealerships are prohibited, but may be allowed
by Special Permit.
i.
Any building, structure, excavation or other land disturbing
activities within one hundred (100') feet of a "fresh water wetland"
as defined by MGL Chapter 131 Section 40 Massachusetts Wetlands Protection
Act or a "wetland" as defined by 33 CFR 328.3 and 40 CFR 230.3, the
regulations promulgated under Section 404 of the Federal Clean Water
Act, as of the effective date of this Bylaw are prohibited, but may
be allowed by Special Permit if said buildings, structures, excavation
or other land disturbing activities are necessary for:
i.
Limited projects as defined by 310 CMR 10.53 (3);
ii.
Creation of wetland replacement or flood storage
mitigation;
iii.
Installation of drainage structures such as detention/retention
basins, berms, water quality swales, where no practical alternative
is available and disturbs less than 15% of the one hundred (100')
foot area;
iv.
Maintenance and construction of trails, creation
of public parks or resource improvements projects such as the cleaning
of streams;
A primary use or use necessary but incidental thereto, provided
that the majority of the disturbed area is located outside the one
hundred (100') foot area and there are no reasonable alternatives,
disturbs less than 15% of the one hundred (100') foot area within
that portion of any lot and does not involve any building, structure
or land disturbing activity within twenty-five (25') feet of a freshwater
wetland except for those activities necessary for (i) through (iv)
above with the issuance of a Special Permit. No part of a subsurface
sewerage disposal system shall be located within one hundred (100')
feet of any fresh water wetland.
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The SPGA shall consider the report and recommendations of the
Board of Health, Planning Board and Conservation Commission. Such
Special Permit may be conditional upon safeguards and requirements
to protect water resources, health, safety and welfare and shall be
in compliance with the provisions of Section 8.2.11 below. A lot shall
be deemed to be that lot described by deed to shown on a plan duly
recorded at Plymouth County Registry of Deeds at the time that any
such land disturbing activity shall first occur after May 1, 1992.
The SPGA shall determine to its satisfaction that any land disturbing
activity or activities shall be in compliance with this provision
and to that end may reasonably require any of the following:
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a.
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Determination of Applicability by the Conservation Commission;
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b.
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A plan certified by a Registered Land Surveyor which shows the
location of all wetlands as set forth above, the area which is within
twenty-five (25) feet of the wetland, the total area and location
of that portion of any lot within one hundred (100) feet of any wetland
and the land disturbing activity or activities proposed within the
one hundred (100) and twenty-five (25) foot zones.
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j.
Any use that will render any lot more than 25% impervious is
prohibited. Alterations resulting in more than 15% but less than 25%
impervious area may be allowed by Special Permit provided that a system
for groundwater recharge is provided to recharge the amount of water
that was naturally recharged prior to development from the land area
made impervious greater than 15% and which does not degrade groundwater
quality. Pre-development run-off rates from a lot shall not exceed
post-development runoff rates for storms up to and including the one
hundred (100) year storm. Except for single or two (2) family residential
uses, all parking areas shall be impervious and be equipped with oil,
grease and sediment traps to facilitate removal of contamination and
these devices shall precede any infiltration structure or drainage
outfalls. Stormwater from parking areas if recharged, shall be via
infiltration basins or similar above ground vegetated systems and
dry wells/leaching structures shall be used only where other methods
are infeasible. The owner shall permanently maintain any and all recharge
areas in full working order. Not less than 50% of any lot area shall
be maintained as a Natural Vegetation Area.
8.2.8.
WRPD Z3 Use Regulations.
1.
WRPD Z3 - Permitted Uses: Except as specified in 8.2.8.2 Prohibited
Uses and 8.2.8.3 Special Permitted Uses below, those principal and
accessory uses authorized in the underlying district are permitted
in WRPD Z3.
2.
WRPD Z3 - Prohibited Uses - The following uses are prohibited
in WRPD Z3:
a.
Landfills and open dumps as defined in 310 CMR 19.006 —
Solid Waste Management and disposal of solid wastes as defined herein.
c.
The removal of soil, loam, sand, gravel or any other mineral
substances to within two (2') feet of historical high groundwater
as detailed from monitoring wells and historical water table fluctuation
data compiled by the United States Geological Survey or by Title 5
Soil Evaluation, defined by 310 CMR 15.00, witnessed by the Middleborough
Health Department, except for excavations necessary for building foundations,
utility works, agricultural uses or repairs allowed under Title 5,
310 CMR 15.00.
d.
Facilities that generate, treat, store or dispose of hazardous
waste subject to MGL Chapter 21C and 310 CMR 30.000 - Hazardous Waster
Regulations as amended, except for:
i.
Very small quantity generators as defined under 310 CMR 30.000-Hazardous
Waste Regulations;
ii.
Household hazardous waste centers and events under
310 CMR 30.390-Hazardous Waste Regulations;
iii.
Waste oil retention, facilities required by MGL
Chapter 21 Section 52A - Hazardous Waste; or
iv.
Water remediation treatment works approved by DEP
in accordance with 314 CMR 5.00 - Ground Water Discharge Permits for
treatment of contaminated ground or surface waters.
e.
Automobile graveyards, junkyards and salvage yards, as defined
in MGL Chapter 140B Section 1 - Control of Certain Junkyards.
f.
Individual sewage disposal systems that are designed in accordance
with 310 CMR 15.00 to receive more than 440 gallons of sewage per
20,000 square feet under one ownership per day, except the replacement
or repair of an existing system that will not result in an increase
in design capacity above the original design.
g.
Stockpiling and disposal of snow or ice removed from highways
and streets outside of WRPD Z3 that contains sodium chloride, chemically
treated abrasives or other chemicals used for snow and ice removal.
h.
All lots in WRPD Z3 not connected to the Town's sewer system
having an area less than 20,000 square feet.
i.
Notwithstanding the provisions of (f) and (h) above any development
that is the subject of an Open Space and Resource Preservation Development
District Special Permit issued pursuant to Section 8.2 of this Zoning
Bylaw, may use the "aggregate lot size" to meet the conditions of
(f) and (h) above for each lot. The term "aggregate lot size" shall
be defined as the total square footage of the Open Space and Resource
Preservation Development divided by the number of building lots allowed
by the Planning Board.
3.
WRPD Z3 - Special Permit Uses - The following uses and activities
are prohibited and may only be allowed upon the issuance of a Special
Permit by the SPGA if the use or activity is in conformance with the
specific requirements stated below and under such other conditions
as the SPGA may require:
a.
Enlargement or alteration of existing uses and structures that
do not conform to the Water Resource Protection District are prohibited,
but may be allowed by Special Permit provided the enlargement or alteration
does not increase the existing non-conformity or create a new non-conformity
with the exception of single and two-family uses and structures. Enlargement
of existing structure shall not be permitted by Special Permit if
a variance from Title V of the State Sanitary Code is necessary.
b.
Storage of sludge and septage, as defined by 310 CMR 32.05-Land
Application of Sludge and Sewage is prohibited, but may be allowed
by Special Permit, when such storage is in compliance with 310 CMR
32.30 and 310 CMR 32.31.
c.
Storage of deicing chemicals is prohibited, but may be allowed
by Special Permit when such storage, including loading areas, is within
a structure designed to prevent the generation and escape of contaminated
runoff or leachate.
d.
Storage of commercial fertilizers, as defined in MGL Chapter
128 Section 64 - Agriculture is prohibited, but may be allowed by
Special Permit, when such storage is within a structure designated
to prevent the generation and escape of contaminated runoff or leachate.
e.
Automobile service and repair shops including those accessory
to new and used car dealerships are prohibited, but may be allowed
by Special Permit.
f.
Petroleum, fuel oil and heating oil bulk stations and terminals
such as gas stations, including but not limited to those listed under
Standard Industrial Codes 5171 and 5983 are prohibited, but may be
allowed by Special Permit.
g.
Storage of liquid hazardous materials, as defined in MGL Chapter
21E or storage of liquid petroleum products, except that specified
in Section 8.2.8.3.f above is prohibited, but may be allowed by Special
Permit, only when such storage is above ground level and on an impervious
surface; and,
i.
In a free standing container or above ground tank(s) within
a building;
ii.
Outdoors in covered container(s) or above ground
tank(s) in an area that has a containment system designed and operated
to hold either 10% of the total possible storage capacity of all containers
or 110% of the largest container's storage capacity, whichever is
greater; or,
iii.
Within a vehicle which is used to transport and
store bulk amounts of liquid hazardous material or liquid petroleum
products within a building or if outdoors, in an area that has a containment
system designed and operated to hold either 10% of the total possible
storage capacity of the truck(s) or 110% of the largest truck's storage
capacity, whichever is greater.
This provision shall not apply to storage of petroleum products
within a freestanding container or storage tank on an impervious surface
within buildings it will heat.
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h.
Treatment or disposal works subject to 314 CMR 5.00 Ground Water
Discharge Permits for wastewater other than sanitary sewage are prohibited,
including, but not limited to, treatment or disposal works related
to activities under Standard Industrial Classification (SIC) Codes
set forth in 314 CMR 15.004(5) (Title 5) but may be allowed by Special
Permit for the following uses only:
i.
The replacement or repair of an existing system(s) that will
not result in a design capacity greater than the design capacity of
the existing system(s);
ii.
Treatment works approved by the Massachusetts Department
of Environmental Protection designed for the treatment of contaminated
groundwater or surface water and operated in compliance with 314 CMR
5.05(3) or 5.05(13); or,
iii.
Publicly owned treatment works.
i.
Any building, structure, excavation or other land disturbing
activities within twenty-five (25) feet of a "fresh water wetland"
as defined by MGL Chapter 131 Section 40 - Massachusetts Wetlands
Protection Act or a "wetland" as defined by 33 CFR 328.3 and 40 CFR
230.3 the regulations under Section 404 of the Federal Clean Water
Act, as of the effective date of this Bylaw are prohibited, but may
be allowed by Special Permit if said buildings, structures, excavation
or other land disturbing activities are necessary for:
i.
Limited projects as defined by 310 CMR 10.53(3);
ii.
Creation of wetland replacement or flood storage
mitigation;
iii.
Installation of drainage outfalls or outlet swales
where no alterative is feasible due to elevation or hydraulic connection
but not including primary drainage structures such as detention/retention
basins, berms, water quality swales, etc; or,
iv.
Maintenance and construction of trails, creation
of public parks or resource improvement projects such as the cleaning
of streams.
The SPGA shall consider the report and recommendations of the
Board of Health, Planning Board and Conservation Commission. Such
Special Permit may be conditioned upon safeguards and requirements
to protect water resources, health, safety and welfare and shall be
in compliance with the provisions of Section 8.2.11 below. The SPGA
shall determine to its satisfaction that any land disturbing activity
or activities shall be in compliance with this provision and to that
end may reasonably require any of the following:
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a.
|
Determination of Applicability by the Conservation Commission;
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b.
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A plan certified by a Registered Land Surveyor which shows the
location of all wetlands as set forth above and the area which is
within twenty-five (25) feet of the wetland.
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j.
Any use that will render any lot more than 40% impervious is
prohibited. Alterations resulting in more than 25% but less than 40%
impervious area may be allowed by Special Permit provided that post-development
runoff rates from a lot shall not exceed pre-development runoff rates
for storms up to and including the one hundred (100) year storm. Except
for single or two family residential uses, all parking areas shall
be impervious and equipped with oil, grease and sediment traps to
facilitate removal of contamination and these devices shall precede
any infiltration structure or drainage outfalls. Stormwater from parking
areas, if recharged, shall be via infiltration basins or similar above
ground vegetated systems and dry wells/leaching structures shall be
used only where other methods are infeasible. The owner shall permanently
maintain any and all recharge areas in full working order. Not less
than 35% of any lot area shall be maintained as a Natural Vegetation
Area. This provision does not apply to lots within the Business District.
8.2.9.
WRPD Z4 Use Regulations.
1.
WRPD Z4 - Permitted Uses: Except as specified in 8.2.9.2 Prohibited
Uses and 8.2.9.3 Special Permit Uses below, those principal and accessory
uses authorized in the underlying district are permitted in WRPD Z4.
2.
WRPD Z4 - Prohibited Uses: The following are prohibited in WRPD
Z4:
a.
Facilities that treat, store or dispose of hazardous waste subject
to MGL Chapter 21C and 310 CMR 30.000 - Hazardous Waste Regulations
as amended but do not generate said hazardous waste are prohibited,
except for:
i.
Very small quantity generators as defined under 310 CMR 30.000
Hazardous Waste Regulations;
ii.
Household hazardous waste centers and events under
310 CMR 30.390 Hazardous Waste Regulations;
iii.
Waste oil retention facilities required by MGL
Chapter 21 Section 52A - Hazardous Waste; or,
iv.
Water remediation treatment works approved by DEP
for treatment of contaminated ground or surface water.
b.
Landfills and open dumps as defined in 310 CMR 19.006- Solid
Waste Management are prohibited except as provided in Section 8.2.9.3.c
below.
3.
WRPD Z4 - Special Permit uses - The following uses and activities
are prohibited and may only be allowed upon the issuance of a Special
Permit by the SPGA if the use or activity is in conformance with the
specific requirements stated below and under such conditions as the
SPGA may require:
a.
Landfilling of sludge or septage as defined in 310 CMR 32.05
- Land Application of Sludge and Sewage is prohibited but may be allowed
by Special Permit when such storage is in compliance with 310 CMR
32.30 and 310 CMR 32.31 - Land Application of Sludge and Sewage.
b.
Storage of sludge and septage is prohibited but may be allowed
by Special Permit, when such storage is in compliance with 310 CMR
32.30 and 310 CMR 32.31 - Land Application of Sludge and Sewage.
c.
Municipal Sanitary Landfill is prohibited but may be allowed
by Special Permit.
d.
Any building, structure, excavation or other land disturbing
activities within twenty-five (25) feet of a fresh water wetland"
as defined by MGL Chapter 131 Section 40 - Massachusetts Wetlands
Protection Act or a "wetland" as defined by 33 CFR 328.3 and 40 CFR
230.3, the regulations promulgated under Section 404 of the Federal
Clean Water Act as of the effective date of this Bylaw are prohibited,
but may be allowed by Special Permit if said buildings, structures,
excavation or other land disturbing activities are necessary for:
i.
Limited projects as defined by 310 CMR 10.53(3);
ii.
Creation of wetland replacement or flood storage
mitigation;
iii.
Installation of drainage outfalls or outlet swales
where no alternative is feasible due to elevation and hydraulic connection
but not including primary drainage structures such as detention/retention
basins, berms, water quality swales, etc; or,
iv.
Maintenance and construction of trails, creation
of public parks or resource improvement projects such as the cleaning
of streams.
The SPGA shall consider the report and recommendations of the
Board of Health, Planning Board and Conservation Commission. Such
Special Permit may be conditional upon safeguards and requirements
to protect water resources, health, safety and welfare and shall be
in compliance with the provisions of Section 8.2.11 below. The SPGA
shall determine to its satisfaction that any land disturbing activity
or activities shall be in compliance with this provision and may reasonably
require any of the following:
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a.
|
Determination of Applicability by the Conservation Commission;
and,
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b.
|
A plan certified by a Registered Land Surveyor which shows the
location of all wetlands as set forth above and the area which is
within twenty-five (25) feet of the wetland.
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e.
Facilities that generate and also treat, store or dispose of
hazardous waste subject to MGL Chapter 21C and 310 CMR 30.000 - Hazardous
Waste Regulations as amended are prohibited, but may be allowed by
Special Permit.
f.
Automobile service and repair shops including those accessory
to new and used car dealerships are prohibited, but may be allowed
by Special Permit.
g.
Automobile graveyards, junkyards and salvage yards, as defined
in MGL Chapter 140B, Section 1 - Control of Certain Junkyards are
prohibited, but may be allowed by Special Permit.
h.
Storage of liquid hazardous materials, as defined in MGL Chapter
21E or storage of liquid petroleum products, except that specified
in Section 8.2.9.3.j below is prohibited, but may be allowed by Special
Permit, only when such storage is above ground level and on an impervious
surface and:
i.
In a free standing container or above ground tank(s) within
a building;
ii.
Outdoors in covered containers or above ground
tanks within a building or has a containment system designed and operated
to hold either 10% of the total possible storage capacity of all containers
or 110% of the largest container's storage capacity, whichever is
greater; or,
iii.
Within a vehicle which is used to transport and
store bulk amounts of liquid hazardous material or liquid petroleum
products within a building or if outdoors, in an area that has a containment
system designed and operated to hold either 10% of the total possible
storage capacity of the truck(s) or 110% of the largest truck's storage
capacity, whichever is greater.
This provision shall not apply to the storage of petroleum products
within a freestanding container or storage tank on an impervious surface
within buildings it will heat.
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i.
Non-sanitary treatment works which discharge to the ground and
that are subject to 314 CMR 5.00 - Ground Water Discharge Permits
are prohibited, but may be allowed by Special Permit.
j.
Petroleum, fuel oil and heating oil bulk stations and terminals
such as gas station, including but not limited to those listed under
Standard Industrial Codes 5171 and 5983 are prohibited, but may be
allowed by Special Permit.
8.2.10.
Administration and Procedures.
1.
The SPGA shall adopt rules and regulations relative to the issuance
of special permits.
2.
Upon receipt of the application, including plans, related information
and calculations, the SPGA shall transmit one copy of all submitted
materials to the Planning Board, Health Department, Building Department,
Conservation Commission and Department of Public Works for their written
recommendations. Boards, Commissions and Departments shall have thirty
(30) days to comment to the SPGA.
3.
Where applicable the following information shall be submitted
with every application for Special Permit:
a.
Site plan prepared specifically for a WRPD Special Permit stamped
by both a Registered Land Surveyor and Professional Engineer including
but not limited to: existing and proposed topography, the extent of
impervious areas, extent and area of natural vegetated areas, existing
and proposed drainage facilities, layout and design of sewage disposal
facilities.
b.
Pre and post development drainage characteristics for surface
run off and groundwater recharge, including calculations for all drainage
designs;
c.
Location of and distance to the public supply wells affected
by the subject site;
d.
Soil characteristics underlying the site and within the area
between the site and the public supply wells;
e.
Provisions and conditions designed to prevent and correct conditions
detrimental to public and private water supply, health, safety and
welfare;
f.
A stormwater management plan as outlined by DEP Stormwater Management
Standards and any additional requirements of the Town of Middleborough;
g.
A plan with calculations for any spill containment structures
required herein;
h.
Evidence adequate to demonstrate that the project in no way,
during construction or thereafter, will adversely affect the existing
or potential quality or quantity of water that is available in the
Water Resource Protection Districts or otherwise impact the water
resources of the Town;
i.
Evidence that the project has been designed to avoid substantial
disturbance of the soils, topography, drainage, vegetation, and other
water-related natural characteristics of the site;
j.
Methods to prevent against loss of recharge including but not
limited to preservation of ground cover, infiltration of runoff, alternative
drainage designs, minimization of lawn areas, and preservation and
creation of natural vegetation areas; and,
k.
The SPGA may require additional information including but not
limited to calculations, on-site testing, groundwater monitoring,
groundwater modeling etc. necessary to evaluate impacts from the proposed
project.
The SPGA shall not grant a Special Permit under this section
unless the application materials include, in the SPGA opinion, sufficiently
detailed, definite and credible information to show compliance with
the requirements, purpose and intent of this Bylaw and information
to support positive findings in relation to the standards set forth
in this section.
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8.2.11.
Decision. After notice and public hearings and
after due consideration of the reports and recommendations from the
town boards/departments, the SPGA may grant a Special Permit provided
that the proposed use meets the standards specified in this Bylaw
and any regulations or guidelines adopted by the SPGA and provided
that the SPGA finds that the proposed use:
1.
Is in harmony with the purpose and intent of the WRPD Bylaw
and will promote the purposes of the Water Resource Protection Districts;
2.
Is appropriate to the natural topography, soils and other characteristics
of the site to be developed;
3.
Will not, during construction or thereafter, have an adverse
environmental impact on the aquifer, recharge areas or water resources
of the Town; and,
4.
Will not adversely affect existing or potential water supply.
The SPGA shall document the basis for any departures from the
recommendations of the town boards or agencies in its decision.
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8.2.12.
Limit of Authority. This Section does not limit
the existing authority of the Conservation Commission pursuant to
MGL Chapter 131 Section 40.
8.2.13.
Exemption. Middleborough's Business District shall
be exempt from the provisions of Section 8.2.7.3.j.
8.3.1.
Purpose. The purpose of the Development Opportunities
(DO) District is to authorize the innovative use of certain portions
of a defined overlay district for activities appropriate to large
land areas by the issuance of a special permit with safeguards and
conditions to prevent detrimental effects and impact upon neighboring
properties and upon the Town of Middleborough as a whole. The intent
of the DO District is to provide opportunities for economic development
expansion in a planned multi-use district.
8.3.2.
Overlay District. The Development Opportunities District is an overlay district superimposed over underlying districts as shown on the Zoning Map of the Town of Middleborough. The provisions of the underlying district remain in full force and effect; provided, however, exercise of rights set forth in the underlying district after the issuance of a DOD special permit shall conform to Section 8.3.6.3, below.
8.3.3.
Special Permit Required. The Planning Board shall
be the Special Permit Granting Authority (SPGA).
8.3.4.
Uses. The following uses shall be permitted by
special permit in the DO District:
1.
Manufacturing and industrial uses including processing, fabrication
and assembly;
2.
High technology activities;
3.
Warehouses, wholesale distribution centers;
4.
Municipal and public service facilities;
5.
Transportation terminal;
6.
Hotel or motel;
7.
Office building;
8.
Medical center;
9.
Trade or professional school;
10.
Country club;
11.
Two or more of the aforesaid uses.
8.3.5.
Uses Accessory to Special Permit Uses. Uses deemed
by the SPGA to be accessory to uses allowed by special permit may
be authorized as conditions to special permit. Accessory uses may
include retail sales facilities, which are directly related but subordinate
to one of the above listed uses, allowed by special permit. The accessory
uses must be subordinate in use and importance to the primary use.
Any retail sales facility may only sell the same product line that
is either stored or produced in regard to the primary use, except
that wholesale food distributor may also sell alcoholic beverages
in a retail sales facility provided that the sales of such alcoholic
beverages do not generate revenues in excess of fifteen (15%) percent
of the total gross revenues generated by the entire retail sales facility
and provided further that the area where the alcoholic beverages are
displayed in the retail sales facility does not exceed ten percent
(10%) of the total floor area of the retail sales facilities.
8.3.6.
General Regulations.
1.
The Planning Board may grant a special permit for any use(s)
allowed by special permit in the DO District.
2.
No special permit shall be granted unless the total land area
including streets which is the subject of a proposed special permit
consists of ten or more acres.
3.
Any of the following matters shall require authorization to
revise a special permit from the Planning Board. The procedure, standards
and requirements to obtain revision of authorization shall be the
same as that for issuance of a special permit:
a.
Any change in the exterior boundaries of the land or the size
of the area which is the subject of a special permit;
b.
Any change in the boundary or boundaries of any lot within the
land area which is the subject of a special permit;
c.
Relocation or grade alteration of a street;
d.
Construction of a building or structure or any addition to,
alteration of or change in the exterior of any building or structure;
e.
Any change in use(s) allowed by the special permit or commencement
of a use which is permitted as of right or by special permit in the
underlying district.
4.
Subsection 3, above, shall not be construed to require revision
authorization in the event all or a part of the land which is the
subject of a special permit is sold or conveyed unless such sale or
conveyance creates a new lot boundary or boundaries within the area
which is the subject of a special permit different from a boundary
or boundaries existing prior to such sale or conveyance.
8.3.7.
Procedures. The SPGA for this District shall be
subject to the provisions of Section 9.4 applicable to the granting
of special permits, including without limitation the requirement to
make the affirmative findings of Section 9.4.2. The SPGA shall also
make the following affirmative findings:
1.
That water and sewerage facilities will be adequate to service
the activities without a detrimental effect upon municipal services
in any other area of the town.
2.
That the activities are consistent with the comprehensive plans
of the Planning Board for the general development of the Town of Middleborough
as a whole as well as for the DO District.
3.
That the activities are compatible with or separated by sufficient
space or topographical features from adjacent areas.
4.
That resources of open space, surface and groundwater are protected
and preserved.
5.
That public health and safety are secured.
8.3.8.
Construction. Streets and utilities to be constructed
pursuant to a special permit shall be designed and installed in accordance
with the Rules and Regulations Governing the Subdivision of Land of
the Planning Board in effect at the time of the filing of an application
for a special permit or revision authorization as the case may be.
8.3.9.
Rules and Regulations. The SPGA shall adopt rules
and regulations relative to the procedures to be followed, and the
criteria and performance standards for the evaluation of special permit
applications and may provide for informal pre-application hearings
for the consideration of preliminary plans. All special permits shall
be exercised in conformity with such rules and regulations. Within
fourteen (14) days of the receipt of an application, the SPGA shall
refer applications and information, data and testing results to the
Board of Selectmen, the Board of Health, the Town Manager, the Water
and Sewer Commissioners, the Chiefs of Police and Fire Departments,
the Conservation Commission, the Industrial Development Commission
and to other Municipal Boards and Officials as the SPGA shall deem
appropriate. Such regulations may include, but need not be limited
to the following provisions:
1.
Site Plans: The applicant for a special permit
shall submit a site plan prepared by a registered Professional Engineer
in the quantities and scale required, oriented to true north and showing
boundaries of the district, of the lots in question, names of abutting
owners, natural and manmade features, including any wetlands and the
boundaries of a wetlands district and the location of existing and
proposed structures and means of access, roadways, parking areas,
buffer strips, landscaped areas and such other requirements as the
SPGA shall adopt in its rules and regulations.
2.
Potential Hazardous Uses: The SPGA may adopt
criteria in its regulations to be used to evaluate dangerous or objectionable
elements at the point of origin or at any point beyond for fire and
explosion hazard, radioactivity, electrical disturbance, smoke, fly
ash, fumes, other sources of air pollution and liquid and solid wastes;
and, to evaluate noise and vibration at the lot lines and at specified
points, both for daytime and nighttime use.
3.
Traffic Impact Study: To assist the SPGA in
the evaluation of the effect of a proposed activity requiring a special
permit, the SPGA may require the applicant for a special permit to
furnish information relative to proposed access routes and the relation
to existing public ways; an analysis of existing traffic conditions
using data relative to road widths and capacities, traffic volumes
and conditions at critical intersections. Traffic counts will include
average daily volumes and the peak hour AM and PM volumes. Projected
future traffic information shall include volume and distribution estimates,
critical hour turning patterns at the intersection of access ways
with public ways and pertinent information on traffic volume and distribution
related to major land development and within two miles of the proposed
site. The SPGA may require the applicant to provide a traffic impact
analysis of the operating levels of roadways and intersections both
before and after the proposed development and including the associated
cost to the town necessary to meet the impact of development related
traffic; and, also an analysis of the impact of heavy trucking upon
roadways and bridges on proposed access routes, together with recommendations
for improvements to cope with anticipated traffic impact.
4.
Phased Development: The SPGA may require that
development under a special permit may be authorized in phases, that
certain uses shall be commenced within twelve months after the grant
of the special permit and that other uses shall be commenced only
when a specified proportion of the initial phases have been substantially
completed.
5.
Dimensional Provisions: The SPGA may adopt
regulations relative to densities of land use, the bulk and height
of structures, yard sizes, lot areas, setbacks, open spaces, parking,
use of signs and other dimensional criteria.
6.
The SPGA may require an applicant to pay reasonable fees to
meet the cost of hearings, notices, publication and other costs of
administration.
8.3.10.
Waiver. The SPGA may waive strict compliance with
its regulations when in the judgment of the SPGA such action is in
the public interest and consistent with the intent and purposes of
the Zoning Bylaws.
8.4.1.
Purpose. The purpose of the SOLAR Districts is:
to promote the creation of new large scale ground mounted solar
photovoltaic installations by providing standards for the placement,
design, construction, operation, monitoring, modification and removal
of such installations through the issuance of a Special Permit or
by right with safeguards and conditions as prescribed in this Bylaw
that address public safety, prevent detrimental effects upon neighboring
residential and commercial properties, minimize impacts on scenic,
natural and historic resources and to provide adequate financial assurance
for the eventual decommissioning of such installations.
The provisions set forth in this section shall apply to the
construction, operation and/or repair of large-scale ground-mounted
solar photovoltaic installations.
8.4.2.
Establishment of Overlay Districts. There shall be two
(2) SOLAR Districts. The SOLAR-R District shall overlay the
[Amended 4-25-2022 ATM by Art. 19, AG 11-4-2022, eff. 4-25-2022]
Residence A
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Residence B
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Residence Rural
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Districts, and the SOLAR-G district shall overlay the
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Industrial
| |
General Use
| |
General Use A
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General Use X
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Commercial Development*
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Districts, as delineated on Middleborough's Zoning Map as set forth in Section 2.4.
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NOTES:
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* Large scale ground mounted solar photovoltaic installations
is allowed in the Commercial Development District provided that at
least 65% of the electricity generated by the installation/system
is used to supply the buildings authorized by Section 6.5 of the Zoning
Bylaws.
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8.4.3.
Special Permit for SOLAR-R District Required. A Special
Permit is required for a large scale ground mounted solar photovoltaic
installation in the SOLAR-R District. The Zoning Board of Appeals
shall be the Special Permit Granting Authority (SPGA) and may grant
a Special Permit for a large scale ground mounted solar photovoltaic
installation in said district. Large scale ground mounted solar photovoltaic
installations in the SOLAR-G District are permitted as-of-right.
8.4.4.
Accessory Use. A solar photovoltaic installation/system
with a nameplate capacity of less than 50kw, whether ground mounted
or roof mounted, shall be an allowed accessory use/structure in the
SOLAR Districts and allowed in the Business (B) District by special
permit from the Board of Appeals, provided that at least 65% of the
electricity generated by the installation/system is used by the principal
residential or commercial/industrial use on the lot where the installation/system
is located.
[Amended 4-23-2018 ATM by Art.
34, AG 8-10-2018, eff. 4-23-2018]
8.4.5.
Definitions. For definitions applicable in the SOLAR
Districts, see Section 10.1.3.
8.4.6.
Application. The application for a Special Permit in
the SOLAR-R District or application for a building permit in the SOLAR-G
District shall include the following documents:
1.
Site Plan showing:
a.
Property lines and existing physical features, including roads, topography
on 2' contour intervals, limit of vegetative clearing, location and
height of abutting homes, and location of wetlands or priority or
Estimated Habitat Areas, as defined by the Natural Heritage and Endangered
Species Program (NHESP) located on or adjacent to the property;
b.
Proposed changes to the landscape of the site including but not limited
to proposed grading, limits of vegetation clearing, storm water management
structures, exterior lighting, vegetative planting, berms and screening,
fencing and solar photovoltaic installation, building, roadway and
other structure locations;
c.
Zoning district designation for the parcel(s) of land comprising
the project site and all setbacks required by the Zoning Bylaw.
d.
Site plan to be prepared and stamped by a Professional Civil Engineer
and Registered Land Surveyor; Landscape plan shall be prepared by
a Registered Landscape Architect.
2.
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;
3.
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;
4.
Documentation of the major system components to be used, including
the PV panels, mounting system, and inverter;
5.
Name, address, and contact information for proposed system installer;
6.
Name, address, phone number and signature of the owner/operator,
as well as all co-owner/operators and property owners;
7.
The name, contact information and signature of any agents representing
the project's owner/operator;
8.
Documentation of actual or prospective access and control of the
project site by the owner/operator;
9.
Noise Study performed by an Acoustical Engineer for large scale solar
photovoltaic installation greater than 500 KW, documenting increase
in noise levels from transformers or other components of facility
and proposed mitigation.
10.
An operation and maintenance plan (see also Section 8.4.7);
11.
A list of any hazardous materials proposed to be located on the site,
during construction or operation, in excess of household quantities,
and a plan to prevent their release to the environment. This list
should include the material safety data sheets (MSDS) for any listed
materials.
12.
Proof of owner/operator liability insurance;
13.
Plan for decommissioning and cost estimate for system removal; and,
14.
Description of financial surety that satisfies Section 8.4.26.
8.4.7.
Operation & Maintenance Plan. The owner/operator
shall submit a plan for the operation and maintenance of the large
scale ground mounted solar photovoltaic installation, which shall
include measures for maintaining safe access to the installation,
storm water controls, vegetation and ground cover maintenance as well
as general procedures for operational maintenance and upkeep of the
installation.
8.4.8.
Utility Notification. No large scale ground mounted
solar photovoltaic installation shall be constructed until evidence
has been given to the Building Commissioner that the photovoltaic
installation owner/operator has executed an Interconnection Agreement
for the installation with the utility company that operates the electrical
grid where the installation is to be located. Off-grid systems shall
be exempt from this requirement.
8.4.9.
Setbacks and Other Dimensional Requirements. For large
scale ground mounted solar photovoltaic installations and all appurtenant
structures, front, side and rear setbacks (front, side and rear yards)
shall be at least 50 feet. The minimum lot frontage for large scale
ground mounted solar photovoltaic installations shall be 50'. Other
dimensional requirements not set forth in Section 8.4 affecting solar
photovoltaic installations and all appurtenant structures shall be
in compliance with the underlying Zoning District in which the large
scale ground mounted solar photovoltaic installation is located.
8.4.10.
Buffer Zones/Visual Screening in All Districts. The
50' setback area around the perimeter of the project shall have a
vegetated buffer; the vegetated buffer shall screen the view of the
large scale ground mounted solar photovoltaic installation and all
appurtenant structures from abutters and streets. The buffer shall
provide attractive landscaping but shall be sufficiently dense and
with vegetation of a size to effectively block the view of the project
from any abutting property or the passing public at the time of planting.
Submittals shall include a project landscaping plan prepared and stamped
by a Registered Landscape Architect that includes visual screening
using a combination of vegetation and earth berms, as well as security
fencing appropriate to the project. Earth berms shall vary in width
and height throughout their length in order to achieve topographical
relief and to appear to be naturally occurring. Landscaping plan shall
include the location of plantings, size, spacing and species.
8.4.11.
Fencing. The perimeter of the project shall be protected
with an appropriate fence of at least 6 feet in height, with a locked
gate and be placed 6" above the ground to allow small animal migration.
It is not the intent of this Bylaw that fencing extend to the property
boundary, but only to ensure that the power generating equipment is
enclosed.
8.4.12.
Appurtenant Structures. All appurtenant structures,
which includes but is not limited to equipment, equipment shelters,
storage facilities, transformers, and substations, shall be architecturally
compatible with each other. Whenever reasonable, structures should
be screened from view by vegetation, berms, and/or joined or clustered
to avoid adverse visual impacts.
8.4.13.
Sound Levels. Any large scale ground mounted solar photovoltaic
installation, including but not limited to appurtenant structures
such as transformers, inverters, switching gear, etc. within the SOLAR-R
District; or, in the SOLAR-G District abutting a residential property,
shall not increase noise levels greater than 10 dB above the existing
ambient levels as described in Massachusetts Department of Environmental
Protection (DEP) Regulation 310 CMR 7.10. An Acoustical Study performed
by a certified acoustical engineer, shall be submitted with the application
for Special Permit or building permits for solar photovoltaic installations
greater than 500 KW, as applicable, accompanied by a plan for noise
mitigation addressing impacts to nearby properties.
For all other large scale ground mounted solar photovoltaic
installations in the SOLAR-G District greater than 500 KW, an acoustic
study shall demonstrate that sound levels at the property boundary
of the facility including any appurtenant structures comply with the
National Noise Control Act of 1972.
8.4.14.
Lighting. Lighting of solar photovoltaic installations
shall be consistent with local, state and federal law and shall be
limited to that required for safety and operational purposes. All
lighting of the solar photovoltaic installation shall be directed
downward and shall incorporate full cut-off fixtures to reduce light
pollution and spread to adjacent properties.
8.4.15.
Signage. Signs on large-scale ground-mounted solar photovoltaic
installations shall comply with the sign regulations for the underlying
zoning district. A sign consistent with the sign regulations for the
underlying zoning district shall be required to identify the owner/operator
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 owner/operator of the solar photovoltaic installation.
8.4.16.
Utility Connections. Reasonable efforts, as determined
by the SPGA and/or Building Commissioner, 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.
8.4.17.
Emergency Services. The large scale solar photovoltaic
installation owner or operator shall provide a copy of the project
summary, electrical schematic, and site plan to the local fire chief.
The owner/operator shall develop an emergency response plan satisfactory
to the Town's Emergency Management Director (Fire Chief). All means
of shutting down the solar photovoltaic installation shall be clearly
marked. The owner/operator shall identify a responsible person for
public inquiries throughout the life of the installation and be consistent
with individual identified under Section 8.4.15.
8.4.18.
As-built plans. Professional Engineer and/or Registered
Land Surveyor stamped as-built plans shall be submitted to the Building
Commissioner before a certificate of completion or occupancy may be
issued.
8.4.19.
Time for Completion. Construction of a large scale ground
mounted solar photovoltaic Installation shall be completed within
1 year of issuance of a building permit. An extension may be granted
by the Building Commissioner, if alternative financial surety is provided
as set forth in Section 8.4.26.
8.4.20.
Changes in Ownership.
The Building Commissioner shall be notified at least 30 days
in advance of any proposed change in the owner/operator of a large
scale ground mounted solar photovoltaic installation, which notice
shall include the contact information of the proposed new owner/operator.
8.4.21.
Land Clearing and Soil Erosion. Clearing of natural
vegetation shall be limited to what is necessary for the construction,
operation and maintenance of the large scale ground mounted solar
photovoltaic installation or otherwise prescribed by applicable laws,
regulations, and bylaws. Soil erosion and sedimentation shall be prevented
through the use of erosion control techniques and devices in conformance
with federal, state and local standards. The project shall comply
with the National Pollutant Discharge Elimination System (NPDES) standards
including but not limited to the filing of all required applications
and receipt of permits and maintenance of a Surface Water Pollution
Prevention Plan (SWPPP). The project, including but not limited to
land clearing and vegetation removal, shall not commence until a Special
Permit has been issued by the SPGA in the SOLAR-R District or Building
Permit in the SOLAR-G District and has become effective and all other
required Federal, State and Local permits have been received.
8.4.22.
Maintenance and other Conditions. The large scale 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, debris and trash removal,
vegetation maintenance, storm water system maintenance and sediment
removal and integrity of security measures. Site access shall be maintained
to a level acceptable to the local Fire 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), unless accepted as a public way.
8.4.23.
Modifications. All material modifications to a solar
photovoltaic installation made after issuance of the required building
permit shall require approval by the SPGA in the SOLAR-R District
or Building Commissioner in the SOLAR-G District.
8.4.24.
Decommissioning; Removal Requirements. Any large scale
ground mounted solar photovoltaic installation which has reached the
end of its useful life or has been abandoned consistent with Section
8.4.25 of this bylaw shall be removed. The owner/operator shall physically
remove the installation no more than 150 days after the date of discontinued
operations. The owner/operator shall notify the SPGA for an installation
in the SOLAR-R District or Building Commissioner for an installation
in the SOLAR-G District by certified mail of the proposed date of
discontinued operations and plans for removal.
Decommissioning shall consist of:
Physical removal of all large scale ground mounted solar photovoltaic
installations, structures, equipment, security barriers and transmission
lines from the site.
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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
SPGA or Building Commissioner, in conformance with the applicable
District may allow the owner or operator to leave existing landscaping
or specifically designated below-grade foundations in place in order
to minimize erosion and disruption to vegetation.
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8.4.25.
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 SPGA or
Building Commissioner, dependent on the applicable District. If the
owner/operator of the large scale ground mounted solar photovoltaic
installation fails to remove the installation in accordance with the
requirements of Section 8.4.24 within 150 days of abandonment or the
proposed date of decommissioning, the town may enter the property
and physically remove the installation.
8.4.26.
Financial Surety. The owner/operator of large scale
ground mounted solar photovoltaic projects shall provide to the Town
of Middleborough a form of surety, either through interest bearing
escrow account, bond or otherwise, to cover the cost of removal in
the event the installation is not removed as required under Section
8.4.24, in an amount and form determined satisfactory to Building
Commissioner prior to building permit issuance, but in no event to
exceed more than 125% of the cost of removal and compliance with the
additional requirements set forth herein. Such surety may be divided
into two phases; one to cover the one (1) year construction period,
and permanent surety to replace it. The form of surety may be varied
from time to time with the approval of the Building Commissioner.
The owner/operator shall submit a fully inclusive estimate for the
costs associated with removal by the Town, prepared by a qualified
engineer. The amount may include a mechanism for calculating increased
removal costs due to inflation. Surety will not be required for municipally-
or state-owned facilities.
[Added 10-1-2018 STM
by Art. 24, AG 2-22-2019, eff. 10-1-2018]
8.5.1.
Purpose. The purpose of the Cannabis Business District
(CBD) is to provide for the placement and regulation of Adult Use
Marijuana Establishments as authorized pursuant to State law and regulations
with the goal of minimizing potential adverse impacts on adjacent
property owners, neighborhoods and the Town in general.
8.5.2.
Applicability. The Cannabis Business District is
hereby established as an Overlay District which shall consist of lots
as they existed as of January 1, 2018 within the GU, GUA, GUX and
CD, with frontage on Route 28 and Route 44 west of the rotary.
8.5.3.
Definitions. For definitions applicable to the
Cannabis Business District, see Section 10.0.
8.5.4.
General Provisions.
1.
Special Permit. A Special Permit shall be required for the operation
of a Marijuana Establishment, as defined by G.L. c.94G, § 1.
For the purposes of this Section, the Special Permit Granting Authority
(SPGA) shall be the Planning Board.
2.
CCC License. All permitted Marijuana Establishments shall have
a provisional license from the Cannabis Control Commission (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. No Special Permit shall be issued for a Marijuana Establishment
that has not received a provisional license from the CCC.
3.
Cessation of Operation. The Special Permit shall be valid only
for the Applicant and shall become void if the Applicant ceases operating
the licensed Marijuana Establishment for a period of three (3) consecutive
months, except where such cessation is the result of natural disaster,
act of terrorism, riot, or other criminal acts of third parties, strike
or other force majeure event determined by the SPGA to constitute
good cause.
4.
Loss of CCC License; Failure to Obtain Final License. The Special
Permit shall become void if a Final License is not issued by the CCC
or upon the expiration or termination of the Marijuana Establishment's
CCC license.
5.
Parking and Loading. Parking and loading for a Marijuana Establishment
shall be in accordance with Section 5.3 -
Off Street Parking and Loading of Middleborough'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, plans and documents
submitted to the SPGA regarding operation of the Marijuana Establishment,
that the minimum requirements are not sufficient.
6.
Signs. The SPGA may impose restrictions on signage as appropriate
for the site. If additional sign restrictions are not specified within
the Special Permit, the Marijuana Establishment shall abide by 935
CMR 500.105(4).
7.
Enclosed Building. All Marijuana Establishments, with the exception
of licensed Marijuana Transporters, as defined in 935 CMR 500.002,
shall operate within a fully enclosed building and shall not operate
within any mobile facility. A minimum separation of seven hundred
fifty (750) feet is required between Marijuana Retail Establishments.
The distance under this section is measured in a straight line from
the nearest point of each structure containing a marijuana establishment
to the structure proposed to contain the Marijuana Establishment.
8.
Hours of Operation may be set by the Planning Board but, if
none are specified in the Special Permit, hours of operation shall
be limited to 8:00 a.m. to 6:00 p.m. Monday through Saturday and 12:00
p.m. to 6:00 p.m. on Sunday.
8.5.5.
Location.
1.
Overlay. Marijuana Establishments shall be located in the Cannabis
Business Overlay District;
2.
Proximity to other Uses.
a.
No Marijuana Establishment shall be located within five hundred
(500') feet of any public or private school or daycare center;
b.
In determining whether to issue a Special Permit, and what conditions
to impose, the SPGA shall evaluate (in addition to any criteria set
forth elsewhere in this bylaw) proximity of other land uses that may
be adversely affected by the proposed Marijuana Establishment, including
without limitation, libraries, playgrounds, parks, martial arts and
dance studios, houses of worship, pediatric medical offices, toy stores,
and comic book stores.
3.
Measurement. The distance under this section is measured in
a straight line from the nearest point of any structure, in existence
as of the passage of this bylaw, October 1, 2018, and continuing to
be in existence as of the date of SPGA's decision, containing one
or more of the protected uses identified in Section 8.5.5.1(a) and
(b) above, to the nearest point of the structure proposed to contain
the Marijuana Establishment.
8.5.6.
Application Process and Requirements:
1.
Application Procedures. The application for a Special Permit
for a Marijuana Establishment shall be filed with the Planning Board
and with the Town Clerk in accordance with G.L. c. 40A § 9.
The application shall be signed by a duly authorized officer of the
Applicant and the property owner, if the Applicant is not the owner
of the subject property.
2.
Fees. The Special Permit Fee shall be established by the Special
Permit Granting Authority.
3.
Required Documents. The Applicant shall provide the SPGA with
fifteen (15) paper copies of the application and plans, an electronic
copy of the application and plans, and 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:
a.
The Applicant's name, address, telephone number, and email address;
b.
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;
c.
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;
d.
A notarized statement signed by the organization's Chief Executive
Officer and corporate attorney disclosing all of its designated representatives,
including officers and directors, shareholders, partners, members,
managers, directors, officers, or other similarly-situated individuals
and entities and their addresses. If any of the above are entities
rather than persons, the Applicant must disclose the identity of all
individual persons associated with the entity as set forth above;
e.
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;
f.
A map depicting all properties and land uses within a five hundred
foot (500') radius (minimum) of the project site, whether such uses
are located in Middleborough or within surrounding communities, including,
but not limited to, libraries, playgrounds, parks, martial arts and
dance studios, houses of worship, pediatric medical offices, toy stores,
and comic book stores;
g.
A plan or plans depicting all proposed development on the property,
including the dimensions of all existing and proposed structures,
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
lighting on the site, and any landscape design;
h.
A plan or plans showing any proposed stormwater management system,
which plan(s) shall meet the submission requirements of MassDEP's
Stormwater Management Regulations;
i.
Architectural drawings of all exterior building facades and
all proposed signage, specifying materials and colors to be used.
Prospective drawings and illustrations of the site from public ways
and abutting properties is required;
j.
Completed FCR Inspections Checklist, to be submitted to the
SPGA and the Middleborough Police Department prior to commencement
of operations by the Marijuana Establishment;
k.
Traffic Impact Report;
l.
All Marijuana Establishments shall comply with Chapter 38 -
Marijuana Growing, Processing, or Extraction Facilities of the National
Fire Protection Association's (NFPA) Codes and Standards, if said
establishment is a grow, cultivation, processing or extraction facility;
m.
Provide detailed information on all chemicals, fertilizers,
etc. being used within or on the same property as the Marijuana Establishment;
n.
As required for Medical Marijuana Facilities, organic practices
for adult use marijuana cultivation are required. Provide narrative
of organic pest control being used;
o.
Provide plans and narrative of odor mitigation;
p.
A list of waivers, if any, which were requested by the Marijuana
Establishment and granted by the CCC to any section of the regulations,
935 CMR 500.00.
4.
Department, Commission and Board Review. 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.
5.
Decision. 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.
6.
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:
a.
The Marijuana Establishment has received a provisional license
from the CCC 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;
b.
The building and site have been designed to be reasonably compatible
with other buildings and sites in the area;
c.
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;
d.
The Marijuana Establishment will create no substantial harm
to the established or future character of the neighborhood or town;
e.
With due consideration to aesthetics, the Marijuana Establishment
is designed to ensure convenient, safe and secure access as follows:
f.
The Applicant has not provided materially false documents or
testimony;
g.
The Applicant has demonstrated the availability and provision
of adequate access, utilities and other infrastructure and that the
operation of the Marijuana Establishment will not adversely affect
such access, utilities and infrastructure;
h.
The Applicant has satisfied all of the conditions and requirements
of Middleborough's Zoning By-Law, including without limitation the
provisions of Section 9.4 - Special Permits.
7.
Special Permit Conditions. The SPGA shall impose those conditions
it deems appropriate in its opinion 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, but not be limited to, the
following conditions in any Special Permit granted under this By-Law:
a.
The permit holder shall file a copy of any Incident Report required
under the CCC Regulations with the Board of Selectmen, with copies
to the Zoning Enforcement Officer and the SPGA, within 24 hours of
creation by the Marijuana Establishment. Such reports may be redacted
as necessary to comply with any and all applicable laws and regulations;
b.
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;
c.
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 the Police Department, Zoning Enforcement Officer
or other Town official determines it necessary to contact the Applicant
after regular business hours. Such contact information shall be kept
updated by the permit holder;
d.
The Special Permit shall be limited to the current applicant
and shall become void if the permit holder ceases operating the Marijuana
Establishment or transfers greater than fifty-one (51%) percent ownership;
e.
The Special Permit shall become void if the CCC refuses to issue
a final license or upon the expiration or termination of the applicant's
CCC license;
f.
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 Marijuana
Establishment, notice from the CCC of a denial of a final license,
transfer or sale of interest, enforcement action taken by the CCC
or the expiration or termination of the permit holder's CCC license;
g.
The permit holder shall not operate, and the Special Permit
will not take effect, until the Applicant has entered into a Host
Community Agreement, specific to the adult use Marijuana Establishment,
with the Town. The Special Permit shall become void upon the expiration
or termination of the Host Community Agreement. However, the Applicant
may apply to renew on the same terms and conditions if the HCA is
renewed on the same terms and conditions;
h.
In the event that the CCC revokes, fails or refuses to issue
a final license to the Marijuana Establishment, a Special Permit issued
for the Marijuana Establishment shall be deemed null and void;
i.
The Applicant/Owner agrees to provide the SPGA with any and
all documents related to the Marijuana Establishment if and when requested
to do so.
8.5.7.
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. Violation of this
Bylaw or the conditions of any Special Permit issued hereunder shall
entitle the Planning Board to notice a public hearing to consider
the modification, suspension or revocation of the Special Permit or
any orders or conditions relating thereto.
8.5.8.
Waivers.
1.
Waivers from the requirements of this Section may be requested
in writing to the Planning Board. A waiver may be granted by the SPGA
if it determines that:
2.
The Planning Board may impose any conditions, safeguards and
other limitations on a waiver when it deems it appropriate to protect
the public health, public safety or the environment.
8.5.9.
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.
8.5.10.
Definition of terms used in this section. Where
not expressly defined in the Middleborough Zoning Bylaw, 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.
8.5.11.
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.
[Added 10-4-2021 STM
by Art. 28, AG 1-27-2022, eff. 10-4-2021]
A.
General Regulations that apply to the Smart Growth Zoning
Overlay District
(1)
Purposes — The purposes of the Smart Growth
Zoning Overlay District are:
(a)
To provide an opportunity for residential development
and to especially encourage mixed-use smart growth development, including
both new construction and renovation of existing buildings, within
a distinctive, attractive and livable environment that supports the
commercial revitalization of Middleborough and is consistent with
the purposes of the Governing Laws.
(b)
To promote continuing development and redevelopment
in Middleborough that is pedestrian friendly and consistent with Middleborough's
history and architecture.
(c)
To ensure high quality site planning, architecture
and landscape design that enhances the distinct visual character and
identity of Middleborough and provides an environment with safety,
convenience, and amenity.
(d)
To provide, in ways that meet the needs of the
town's population, for a diversified housing stock at a variety
of costs within walking distance of services and public transportation,
including affordable housing and other housing types.
(e)
To the extent not in conflict with the purposes
of M.G.L. c. 40S, the Governing Laws, and provisions for As-Of-Right
Development herein, to generate positive tax revenue for the Town,
and to benefit from the financial incentives provided by Massachusetts
General Law Chapter 40R, while providing the opportunity for new business
growth and additional local jobs.
(f)
To encourage preservation and rehabilitation of
historic structures and buildings.
(g)
To promote efficient use of land and existing parking
supply and limit the expansion of surface parking within the district
by encouraging shared parking.
(h)
To encourage adoption of energy efficient building
practices and sustainable construction methods.
(i)
To ensure compliance with the Massachusetts Department
of Environmental Protection stormwater management policies and practices.
(2)
Definitions — Terms and words not defined
herein but defined in Section 10.0 of the Middleborough Zoning Bylaw
shall have the meaning given therein. For the purposes of 40R
program eligibility, to the extent there is any conflict between
such terms, any of the terms defined herein, or their application
herein and the Governing Laws, the requirements of the Governing Laws
shall govern unless otherwise specifically approved by DHCD. Subject
to the limitations of the preceding sentence, as used in this Section,
the following terms shall have the meanings set forth below:
ACCESSORY BUILDING OR STRUCTURE: A subordinate
building or structure located on the same lot as the main or principal
building or principal use, the use of which is customarily incidental
to that of the principal building or use of the land.
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ACCESSORY USE: A use customarily incidental to
that of the main or principal building or use of the land.
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ADMINISTERING/MONITORING AGENT: An entity designated
by the Middleborough Board of Selectmen, which may be the Middleborough
Housing Authority or other qualified housing entity, with the power
to monitor and to enforce compliance with the provisions of this section
related to Affordable Units, including but not limited to computation
of rental and sales prices; income eligibility of households applying
for Affordable Units; administration of an approved housing marketing
and resident selection plan; and recording and enforcement of an Affordable
Housing Restriction for each Affordable Unit in the SGO (See Section
A (8)).
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ADMINISTRATIVE REGULATIONS or PAA REGULATIONS: Administrative
rules and provisions relative to Plan Approval that are adopted by
the Planning Board pursuant to 40R and in its capacity as the 40R
Plan Approval Authority under Section A (9). Such rules and regulations,
Project application form(s), any other application requirements and
any subsequent amendments thereof must be approved by the Department
of Housing and Community Development.
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AFFORDABLE HOMEOWNERSHIP UNIT: A Dwelling Unit
required to be sold to an Eligible Household per the requirements
of this Section.
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AFFORDABLE HOUSING: Housing that is affordable
to and occupied by Eligible Households.
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AFFORDABLE HOUSING RESTRICTION: A deed restriction
of an Affordable Unit meeting statutory requirements in Massachusetts
General Law Chapter 184 Section 31 and the requirements of Section
A (8) of this bylaw.
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AFFORDABLE RENTAL UNIT: A Dwelling Unit required
to be rented to an Eligible Household per the requirements of Section
A (8).
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AFFORDABLE UNIT: The collective reference to Affordable
Homeownership Units and Affordable Rental Units.
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ALLOWED USE: A Principal, Accessory or other permitted
Use listed under Section 8.6 (B). A Use that is not prohibited under
Section 8.6 (B).
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ANNUAL UPDATE: A list of all approved and currently
proposed Smart Growth Zoning Overlay Districts within the Town of
Middleborough and other associated information, to be filed on or
before July 31st of each year with the Massachusetts Department of
Housing and Community Development pursuant to Massachusetts General
Law Chapter 40R and applicable regulations (760 CMR 59.07 (1)).
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APPLICANT: A landowner or other petitioner who
files a plan for a Development Project subject to the provisions of
this Section.
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AREA-WIDE MEDIAN INCOME: The median income, adjusted
for household size, as reported by the most recent information from,
or calculated from regulations promulgated by, the United States Department
of Housing and Urban Development (HUD).
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AS-OF-RIGHT DEVELOPMENT: A use or Development Project
allowable under this Section without recourse to a special permit,
variance, zoning amendment, or other form of zoning relief. A Development
Project that is subject to the Plan Review requirement of this Section
shall be considered an As-Of-Right Development.
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BUILDING: A structure enclosed within exterior
walls or firewalls, built, erected, and framed of a combination of
any materials, whether portable or fixed, having a roof, to form a
structure for the shelter of persons, animals, or property. For the
purposes of this definition, "roof" shall include an awning or any
similar covering, whether or not permanent in nature.
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BUILDING, PRINCIPAL: A building in which is conducted
the main or principal use of the lot on which said building is situated.
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BUILDING HEIGHT: As per the State Building Code,
this term shall mean the distance between the average grade of the
ground at the front of the building and the roof of the building;
excluding roof structures (such as heating, ventilating and air conditioning
equipment) normally located on or built above the roof and not devoted
to human occupancy.
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BUSINESS OR PROFESSIONAL OFFICE: A building or
part thereof, for the transaction of business or the provision of
services exclusive of the receipt, sale, storage or processing of
merchandise.
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CONDOMINIUM: A system of ownership of real estate,
including commercial, industrial, and attached and detached residential
dwelling units, established pursuant to the Condominium Act of the
Commonwealth of Massachusetts, Chapter 183A of the Massachusetts General
Laws, in which the apartments or dwelling units are individually owned
and the land and common areas are owned in common. A condominium is
not a use or a building type; rather it is a form of ownership that
can apply to any use or building type.
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DENSITY: The number of dwelling units per acre
of land.
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DEPARTMENT or DHCD: The Massachusetts Department
of Housing and Community Development, or any successor agency.
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DESIGN STANDARDS: Provisions adopted in accordance
with Section B. shall be applicable to all Development Projects within
the SGO.
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DEVELOPMENT PROJECT or PROJECT: A residential or
mixed-use development undertaken under this Section. A Development
Project shall be identified as such on the Plan which is submitted
to the Planning Board for Plan Review.
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DWELLING UNIT: Habitable room or group of habitable
rooms, containing cooking facilities, sanitary facilities, providing
facilities for living, sleeping, and eating for one family.
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ELIGIBLE HOUSEHOLD: An individual or household
whose annual income is less than or equal to eighty percent (80%)
of the Area-wide Median Income as determined by the United States
Department of Housing and Urban Development (HUD), adjusted for household
size, with income computed using HUD's rules for attribution
of income to assets.
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FAMILY OR HOUSEHOLD: One or more persons related
by blood, marriage or adoption and sharing cooking, storage, bathroom,
living and sleeping facilities in a dwelling as a single housekeeping
unit. In addition, a family may include any of the following:
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a.
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Domestic partners.
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b.
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Foster children.
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c.
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Domestic employees.
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d.
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Not more than two boarders.
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e.
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Not more than four additional persons not related to the others
by blood, marriage, or adoption.
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FLOOR AREA (GROSS): The sum of the areas of the
several floors of a building, measured from the exterior faces of
the outside walls. It does not include cellars, unenclosed porches
or attics not used for human occupancy or any floor space in accessory
buildings or in the main building intended and designed for the parking
of motor vehicles in order to meet the parking requirements of Section
5.3 of the Middleborough Zoning Bylaw or any such floor space intended
and designed for accessory heating and ventilating equipment.
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GOVERNING LAWS: M.G.L. Chapter 40R and 760 CMR
59.00
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INSTITUTIONAL USE: A non-profit or quasi-public
use or institution, such as a church, library, public or private school,
municipally owned or operated Building, Structure or land, used for
public purpose.
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LOADING SPACE: Off-street space logically and conveniently
located for bulk pickups and deliveries by truck, scaled to delivery
vehicles expected to be used, and accessible to such vehicles when
required off-street parking spaces are filled. Required off-street
loading space is not to be included as off-street parking space in
computation of required off-street parking space.
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LOT: An area of land held in one ownership, with
definite boundaries, used or available for use, as the site of one
or more buildings under this Zoning Bylaw.
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LOT FRONTAGE: The frontage of a lot on a public
or private street.
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MIXED-USE DEVELOPMENT PROJECT: A Development Project
containing a mix of Residential Uses and Non-Residential Uses as specified
in Section 8.6(5) and subject to all provisions of this Section 8.6.
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NON-RESIDENTIAL USE: Office, Retail, Restaurant,
Service or Institutional Use, inclusive, or some combination of the
same.
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OFFICE: A workplace used for the transaction of
business or non-profit functions, excluding as principal uses manufacturing,
retail construction, and warehousing and including, but not limited
to, professional offices and offices that support or manage on-site
or off-site manufacturing, retailing, construction, and warehousing,
as well as research laboratories and other facilities in which research
activities are conducted. An office that is operated as part of another
primary use on the use table shall be considered accessory to that
primary use and not a separate use.
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OPEN SPACE: Land not covered by buildings, roads,
driveways, sidewalks, parking areas, loading areas, service yards
or other improvements. Open space shall include, without limitation,
(a) the buffer zones provided herein, (b) any wetlands, marshes, meadows,
swamps, creeks, streams and ponds as defined in Mass. General Laws,
Chapter 131, Section 40 (provided that the applicant is not hereby
prevented from doing any work in such areas as is permitted by the
Middleborough Conservation Commission pursuant to said act) and (c)
any other protected natural areas.
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PARKING (OFF-STREET): For purposes of this Section
8.6(6), an off-street parking space shall consist of an area for parking
an automobile with room for opening the doors on both sides, together
with properly related access to a street and sufficient maneuvering
room, but shall be located totally outside of any street or alley
right-of-way.
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PARKING STALL OR SPACE: An area dedicated to the
parking of a single vehicle within a parking area. Dimensional requirements
are set forth in Section 5.3 of the Middleborough Zoning Bylaw.
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PERSONAL SERVICE ESTABLISHMENT: A facility providing
personal services such as hair salon, barber shop, tanning beds, dry
cleaning, print shop, photography studio and the like.
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PLAN: A plan depicting a proposed Development Project
for all or a portion of the SGO and which is submitted to the Planning
Board for its review and approval in accordance with the provisions
of this Section 8.6.
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PLAN APPROVAL: The Planning Board's authorization,
acting as the Plan Approval Authority (PAA) per the Governing Laws
for a proposed Development Project based on a finding of compliance
with this Section and Design Standards after the conduct of a Plan
Review.
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PLAN APPROVAL AUTHORITY (PAA): The Middleborough
Planning Board authorized under Section 8.6 to conduct the Plan Approval
process for purposes of reviewing Project applications and issuing
Plan Approval decisions with the SGO.
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PLAN REVIEW: The review procedure established by
this bylaw and administered by the Town of Middleborough Planning
Board acting as PAA.
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PRINCIPAL USE: The primary use to which the premises
are devoted, and the main purpose for which the premises exist.
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RECREATIONAL AREA: A parcel(s) of land or an area(s)
of water, or a combination of land and water within the site which
is designated, maintained and preserved for active or passive recreational
uses (such as a park, tennis courts, ball fields, walking/biking trails,
swimming pools, golf courses, etc.) or for buffer areas, and designed
and intended for the use or enjoyment of occupants of the site and,
in certain circumstances, the general public. Recreational Areas may
contain such Structures and improvements as are appropriate under
the provisions of this Section.
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RESIDENTIAL PROJECT: A Project that consists solely
of residential, parking and accessory uses as defined in Section 8.6(B).
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RESIDENTIAL USE: A Building or part of a Building
containing Dwelling Units as defined herein above and parking that
is Accessory to the Dwelling Units.
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RESTAURANT: A building or portion thereof, containing
tables and/or booths for at least two-thirds (2/3) of its legal capacity,
which is designed, intended and used for the indoor sales and consumption
of food prepared on the premises, except that food may be consumed
outdoors in landscaped terraces, designed for dining purposes, which
are adjuncts to the main indoor restaurant facility. The term "restaurant"
shall not include "fast food restaurant."
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RESTAURANT, FAST FOOD: An establishment whose primary
business is the sale of food for consumption on or off the premises
which is: primarily intended for immediate consumption rather than
for use as an ingredient or component of meals; available upon a short
waiting time; and packaged or presented in such manner that it can
be readily eaten outside the premises where it is sold. Drive-in Food
Service Establishment is a fast food restaurant which provides convenient
vehicular access and may provide service to customers while in their
vehicles.
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RETAIL: A facility selling goods to the public
in an enclosed building but not specifically listed in the Table of
Use Regulations.
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SCHOOL: A Building devoted to the instruction or
education in primary, secondary, high school, or post-high school
grades.
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SERVICE: The performance of any act for the benefit
of another with a view to profit or for a livelihood.
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SMART GROWTH ZONING OVERLAY DISTRICT (SGO): An
Overlay Zoning District adopted pursuant to Massachusetts General
Law Chapter 40R, in accordance with the procedures for zoning adoption
and amendment as set forth in Massachusetts General Law Chapter 40A
and approved by the Department of Housing and Community Development
pursuant to Massachusetts General Law Chapter 40R and applicable regulations.
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STREET: (1) A public way (other than a non-access
highway) or a way which the Town Clerk certifies is maintained and
used as a public way; or, (2) A way shown on a plan approved and endorsed
in accordance with the Subdivision Control Law (MGL Chapter 41 Section
81K et seq); or, (3) A way in existence when the Subdivision Control
Law became effective in Middleborough, having, in the opinion of the
Planning Board, sufficient width, suitable grades and adequate construction
to provide for the needs of vehicular traffic in relation to the proposed
use of the land abutting thereon or served thereby and for the installation
of the municipal services to serve such land and the buildings erected
or to be erected thereon.
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STRUCTURE: A combination of materials assembled
at a fixed location to give support or shelter, including but not
limited to a building, framework, retaining wall, tent, reviewing
stand, platform, bin, fence, sign, flagpole, recreational tramway,
mast for radio antenna or the like. Fences, signs and flagpoles shall
be exempt from setback requirements for structures, but subject to
other requirements set forth herein.
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UNDERLYING ZONING: The zoning requirements adopted
pursuant to Massachusetts General Law Chapter 40A that are otherwise
applicable to the geographic area in which the SGO is located, as
said requirements may be amended from time to time.
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UNRESTRICTED UNIT: A Dwelling Unit that is not
restricted as to rent, price or eligibility of occupants.
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USE: The purpose for which land or a Building or
Structure is arranged, designed, intended or erected, or for which
land or a Building or Structure is or may be occupied.
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YARD: A space open to the sky, located between
a building or structure and a lot line, unoccupied except by fences,
walls, poles, paving and other customary yard accessories.
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YARD, FRONT: The area of a lot lying between the
right of way sideline of a public or private road on which the lot
has frontage and the nearest building on the lot. In the case of corner
lots or lots otherwise having frontage on more than one road, all
fronting yards shall be considered front yards.
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YARD, REAR: The area of a lot between the rear
most building on the lot and the rear lot line. The rear yard shall
extend across the full width of the lot.
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YARD, SIDE: The area on a lot between the side
lot line and the building or buildings on the lot, extending between
the front yard and rear yard.
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(3)
Scope and Authority: The Smart Growth Zoning Overlay District is established pursuant to the Governing Laws and shall be deemed to overlay the parcels as shown on the Zoning Map of the Town of Middleborough, as amended herein. The Underlying Zoning shall remain in effect, and the Applicant shall have the option of applying for Plan Approval pursuant to the Zoning controls set forth in this Section 8.6 or complying with all applicable zoning controls set forth in the Zoning Bylaw of the Town of Middleborough for the underlying district(s) or for other overlay zoning that may be therein defined.
(4)
Performance Standards: All permitted Uses must
comply with the following:
(a)
Does not regularly emit noxious odors, noises,
or dust particles, or smoke, or pose danger, such as manufacture of
acids, gases, fertilizers and glue, petroleum refining, reduction
of animal matter, and manufacture of cement, gypsum, or explosives.
(b)
Does not present a danger to persons within or
outside the SGO by reason of emission of odor, fumes, gases, particulate
matter, smoke, noise, vibration, glare, radiation, electrical interference,
threat of fire or explosion, or any other reason.
(5)
Mixed-Use Development: Development Projects may
include a portion not to exceed 50% of the total gross floor area
to be used for Non-Residential Uses including Office, Retail, Restaurant,
Service or Institutional Uses. Residential units generally must be
located above the first-floor but may be permitted in first floor
portions of the Building. Where a first-floor residential portion
of the Building fronts on a public way, the Planning Board then must
determine that the public way is principally a residential Street
or that such first floor Residential Use would be in keeping with
the character of the adjoining land Uses.
(6)
Off-Street Parking and Loading
(a)
Off-Street Parking: Retail Stores, Offices and
Consumer Service establishments located within one hundred (100) feet
of a public off-street parking facility shall be exempt from off-street
parking requirements. In all other cases, off-street parking shall
be provided to meet the following minimum and maximum requirements:
Use
|
Minimum & Maximum Number of Parking Spaces
|
---|---|
Retail
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1 per 300 sq. ft. of gross floor area
|
Restaurant
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1 for each 3 seats
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Office
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3 per 1,000 square feet
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Institutional
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1 for each 3 seats
|
Residential
|
1.25 per unit
|
Other Non-Residential, more than 2,000 square feet
|
3 per 1,000 square feet
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(b)
Off-Street Loading & Delivery: All loading
shall take place on-site in a specified area designed for this purpose.
Loading shall not block streets, access ways, driveways, parking or
pedestrian areas.
Off-street loading facilities shall be provided. The PAA shall
determine the adequacy of loading facilities based on the nature of
use. Off-street loading facilities shall be screened from public use
areas.
(c)
Location of Parking: Any surface parking lot shall,
at the sole discretion of the Planning Board, be located at the side
or rear of a Building, relative to any public right-of-way, public
open space, or pedestrian way. In no case shall surface parking for
new construction be permitted within any applicable restricted Front
Setback area.
(d)
Waiver of Parking and Loading Requirements: The
Planning Board may grant a Plan Approval providing such relief from
the standards or prescribe safeguards and conditions as it shall warrant
appropriate, provided that it finds that it is impractical to meet
the standards and that such modifications are appropriate by reason
of the proposed Use and will not result in or worsen parking or traffic
problems in the SGO. The Planning Board may impose conditions of Use
or occupancy appropriate to such modifications, provided that the
particular use and occupancy were voluntarily proposed by the applicant
and any such conditions are expressly approved in writing by DHCD
and would not impair the development of housing within the District
which is appropriate for diverse populations, including households
with children, other households, individuals, households including
individuals with disabilities, and the elderly.
(e)
Shared Use of Required Parking: Shared use may
be made of required parking spaces by intermittent Use establishments,
for example, churches, assembly halls or theaters, whose peak parking
demand is only at night or on specific days of the week may be shared
with other Uses whose peak demand is only during the day, or in public
parking lots, subject to the paragraph below. At the time of application,
a formal agreement shall be made in recordable form and recorded at
the Registry of Deeds by the owners of the Uses involved concerning
the number of spaces involved, substantiation of the fact that such
shared use is not overlapping or in conflict, and the duration of
the agreement.
The applicant shall demonstrate to the satisfaction of the Planning
Board that shared spaces will meet parking demands by using accepted
methodologies (e.g., the Urban Land Institute Shared Parking Report,
ITE Shared Parking Guidelines, or other industry established studies
on shared parking).
(f)
Cooperative Establishment and Operation of Parking
Areas: Required spaces for any number of Uses may be provided in a
combined Lot or Lots (public or private), provided that the number
of spaces in the combined facility shall not be less than the sum
of those required of the individual Uses, with allowances made, upon
formal designation, for night use or for separate and distinct working
shifts, and provided also that such Lot or Lots shall be within 150
feet of the Principal Buildings served.
(g)
Parking Design: Parking shall be designed and constructed
to comply with all applicable state and federal disability access
requirements including but not limited to the Americans with Disabilities
Act (ADA) and 521 CMR.
(7)
Open Spaces and Recreational Areas: The site design
for Development Projects shall include a minimum of 20% of total acreage
in common open space and recreational areas. The Plans and any necessary
supporting documents submitted with an application for Plan Approval
within the SGO shall show the general location, size, character, and
general area within which common open space or facilities will be
located. The plans and documentation submitted to the Planning Board
shall include a description of proposed ownership and maintenance
provisions of all common open space and facilities and, if requested
by the Planning Board, any necessary restrictions or easements designed
to preserve the open space and recreational areas from future development.
Upon consideration of the above information, the Planning Board may,
in its sole discretion, approve a waiver as provided for in Section
8.6 (10) for a Front Setback to allow for common open space and recreational
areas.
(8)
Affordable Housing
(a)
Affordable Units shall comply with the following
requirements:
(1)
The monthly rent payment for an Affordable Rental
Unit, including utilities and parking, shall not exceed thirty percent
(30%) of the maximum monthly income permissible for an Eligible Household,
assuming a household size equal to the number of bedrooms in the unit
plus one, unless another methodology for determining the target household
size has been approved by DHCD.
(2)
For an Affordable Homeownership Unit the monthly
housing payment, including mortgage principal and interest, private
mortgage insurance, property taxes, condominium and/or homeowner's
association fees, insurance, and parking, shall not exceed thirty
percent (30%) of the maximum monthly income permissible for an Eligible
Household, assuming a household size equal to the number of bedrooms
in the unit plus one.
(3)
Affordable Units required to be offered for rent or sale shall
be rented or sold to and occupied only by Eligible Households.
(b)
Number of Affordable Units: Not less than twenty
percent (20%) of all Dwelling Units and not less than twenty-five
percent (25%) of all rental Dwelling Units constructed in a Development
Project shall be Affordable Units. Provided however, for Development
Projects in which all of the Dwelling Units are limited to occupancy
by elderly persons and/or by persons with disabilities, not less than
twenty-five percent (25%) of the Dwelling Units shall be Affordable
Units, whether the Dwelling Units are rental units or ownership units.
(c)
Fractional Units: When the application of the percentages
specified in Section A(8)(a) results in a number that includes a fraction,
the fraction shall be rounded up to the next whole number.
(d)
Design and Construction: Affordable Units must
be dispersed equitably and proportionately throughout a Development
Project, including, where applicable, across all Buildings, floors
and unit types in accordance with the affordable housing restriction
and marketing and tenant selection plan approved by DHCD. Affordable
Units must be comparable in initial construction quality and exterior
design to the Unrestricted Units. However, nothing in this section
is intended to limit a homebuyer's rights to renovate a Dwelling
Unit under applicable law. The Affordable Units must have access to
all on-site amenities. Affordable Units shall be finished housing
units. All Affordable Units must be constructed and occupied not later
than concurrently with construction and occupancy of Unrestricted
Units. In Development Projects that are constructed in phases, Affordable
Units must be constructed and occupied in proportion to the number
of units in each phase of the Development Project.
(e)
Unit Mix: The total number of bedrooms in the Affordable
Units shall be at least proportionate to the total number of bedrooms
in all units of the Project of which the Affordable Units are a part.
(f)
Affordable Housing Restriction: Each Affordable
Unit shall be subject to an Affordable Housing Restriction approved
by DHCD, pursuant to 40R, and recorded with the County Registry of
Deeds or Land Court Registry District of the County. All Affordable
Housing Restrictions must include, at minimum, the following:
(1)
A description of the Affordable Homeownership Unit,
if any, by address and number of bedrooms; and a description of the
overall quantity, initial unit designations, number of bedrooms and
number of bedroom types of Affordable Rental Units in a Development
or portion of a Development which are rental. Such restrictions shall
apply individually to the specifically identified Affordable Homeownership
Unit and shall apply to a percentage of rental units of a rental Development
Project or the rental portion of a Development Project with the designated
Affordable Rental Units initially identified in the corresponding
Affirmative Fair Housing Marketing Plan (AFHMP) and able to float
on a limited basis, as necessary, subject to specific approval by
DHCD in accordance with the AFHMP and DHCDs AFHMP guidelines.
(2)
The term of the Affordable Housing Restriction
which shall be in perpetuity or for the longest period customarily
allowed by law, as further specified in the PAA's Plan Approval
decision, but shall be no less than thirty (30) years.
(3)
The name and address of the Monitoring Agent with
a designation of its power to monitor and enforce the Affordable Housing
Restriction.
(4)
Reference to a housing marketing and resident selection
plan, to which the Affordable Unit is subject, and which includes
an affirmative fair housing marketing program, including public notice
and a fair resident selection process. If approved by DHCD, pursuant
to 40R for the corresponding Project or phase(s) therein, the housing
marketing and selection plan may provide for local preferences in
resident selection. The plan shall designate the minimum household
size appropriate for a unit with respect to bedroom size and provide
that preference for such unit shall be given to a household of the
appropriate size based on need for the number of bedrooms in the unit.
(5)
A requirement that buyers or tenants will be selected
at the initial sale or initial rental and upon all subsequent sales
and rentals from a list of Eligible Households compiled in accordance
with the housing marketing and selection plan.
(6)
Reference to the formula pursuant to which rent
of a rental unit or the maximum resale price of a homeownership unit
will be set.
(7)
A requirement that only an Eligible Household may
reside in an Affordable Unit and that notice of any lease or sublease
of any Affordable Unit shall be given to the Monitoring Agent.
(8)
Provision for effective monitoring and enforcement
of the terms and provisions of the Affordable Housing Restriction
by the Monitoring Agent.
(9)
Provision that the restriction on an Affordable
Homeownership Unit shall run in favor of the Monitoring Agent and
the Town of Middleborough, in a form approved by municipal counsel
and DHCD pursuant to the Governing Laws and shall limit initial sale
and re-sale to and occupancy by an Eligible Household.
(10)
Provision that the owner(s) or manager(s) of Affordable
Rental Unit(s) shall file an annual report to the Monitoring Agent,
in a form specified by that agent certifying compliance with the provisions
of this Section 8.6(A(8)) and containing such other information as
may be reasonably requested in order to ensure compliance with the
Affordable Housing Restriction and AFHMP.
(11)
Provision that the restriction on Affordable Rental
Units in a rental Project or rental portion of a Project shall run
with the rental Project or rental portion of a Project and shall run
in favor of the Monitoring Agent and the Town of Middleborough, in
a form approved by municipal counsel and DHCD pursuant to the Governing
Laws and shall limit rental and occupancy to an Eligible Household.
(12)
A requirement that residents in Affordable Units
provide such information as the Monitoring Agent may reasonably request
in order to ensure compliance with the Affordable Housing Restriction
and AFHMP.
(13)
Designation of the priority of the Affordable
Housing Restriction over other mortgages and restrictions.
(g)
Administration: The Monitoring Agent shall ensure
the following (See Section 8.6 (A) (2) Definitions):
(1)
Prices of Affordable Homeownership-Units are properly
computed; rental amounts of Affordable Rental Units are properly computed.
(2)
Income eligibility of households applying for Affordable
Units is properly and reliably determined.
(3)
The housing marketing and resident selection plan
has been approved by DHCD pursuant to the Governing Laws, conforms
to all requirements and is properly administered.
(4)
Sales and rentals are made to Eligible Households
chosen in accordance with the housing marketing and resident selection
plan with appropriate unit size for each household being properly
determined and proper preference being given.
(5)
Affordable Housing Restrictions meeting the requirements
of this Section are recorded with the Plymouth County Registry of
Deeds or Land Court. In the case where the Monitoring Agent cannot
adequately carry out its administrative duties, upon certification
of this fact by the Planning Board or by the Department of Housing
and Community Development, the administrative duties shall devolve
to and thereafter be administered by a qualified housing entity designated
by the Middleborough Board of Selectmen.
(h)
Costs of Housing Marketing and Selection Plan:
The housing marketing and selection plan shall make provision for
payment by the owner of reasonable costs to the Monitoring Agent and
the owner shall pay reasonable costs to the Monitoring Agent to develop,
advertise, and maintain the list of Eligible Households and to monitor
and enforce compliance with affordability requirements under this
Section 8.6 and the Governing Laws.
In combination, the various documentation required under Section
A(8), to be submitted with an application for Plan Approval, shall
include details about construction related to the provision, within
the Development Project, of units that are accessible to the disabled
and appropriate for diverse populations, including households with
children, other households, individuals, households including individuals
with disabilities, and the elderly.
(i)
Age Restrictions: Nothing in this Section 8.6 shall
permit the imposition of restrictions on age upon Projects unless
proposed or agreed to voluntarily by the Applicant.
(9)
Plan Approval Procedures: The Planning Board shall
adopt and file with the Town Clerk Administrative Regulations relative
to the application requirements and contents for Plan Review, subject
to approval by the Massachusetts Department of Housing and Community
Development. Plan approval procedures shall be as follows:
(a)
Pre-Application Requirements: Prior to the submittal
of a Plan for Plan Approval, a "Concept Plan" may be submitted to
help guide the development of the definitive submission for project
build out. Such Concept Plan shall reflect the following:
(1)
Overall building envelope areas.
(2)
Open space and natural resource areas.
(3)
General site improvements, drainage plans, groupings
of Buildings and proposed land Uses.
(4)
Anticipated parking spaces and locations.
(5)
Site vehicular access.
The Concept Plan is intended to be used as a tool for both the
Applicant and the Planning Board to ensure that the proposed Project
design will be consistent with the Design Standards and other requirements
of the SGO.
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(b)
Application Procedures: All Projects
are subject to Plan Approval.
(1)
Submittal.
(a)
An application for Plan Approval shall be submitted
in accordance with the requirements herein and further specified in
the SGO Administrative Regulations, on the form provided by the PAA
along with the application fees set forth in the Administrative Regulations.
The application shall be accompanied by such plans and other documents
as required by the Administrative Regulations required to verify compliance
with any of the provisions of this Section in a manner that, as defined
in 760 CMR 59.02, does not Unduly Restrict development within the
SGO. In addition to the submission requirements of Administrative
Regulations, an application for Plan Approval shall also include all
of the following:
•
|
Development narrative including all Uses, breakdown of square
footage for each Use, number of housing units and zoning summary.
|
•
|
Photos of adjacent properties and other properties impacted
by the Development Project.
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(b)
All plans shall be prepared by certified architects
or engineers as required by the Massachusetts Building Code and shall
include all of the following:
•
|
Building plans - all levels including roof
|
•
|
Building elevations - all sides including courtyards and interior
Lot elevations
|
•
|
Massing perspective sketches or renderings illustrating the
key elements of the proposed Development Project within its context.
|
•
|
Proposed exterior lighting plan with photometric information.
|
•
|
The documents shall clearly differentiate between existing and
proposed work by Use of screened lines of color. Changes and revisions
to subsequent submittals shall be prominently noted.
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(c)
An application for Plan Approval shall be filed
by the Applicant with the Town Clerk. A copy of the application, including
the date of filing certified by the Town Clerk, as well as the required
number of copies of the application, shall be filed forthwith by the
Applicant with the Planning Board. Application submissions must include
a hard copy as well as an electronic copy in PDF or CAD format. Said
filing shall include any required forms provided by the Planning Board
and approved by DHCD as part of the Administrative Regulations. As
part of any application for Plan Approval for a Development Project,
the Applicant must submit the following documents to the Planning
Board and the Monitoring Agent:
•
|
Evidence that the Development Project complies with the cost
and eligibility requirements of Section A.(8);
|
•
|
Development Project plans that demonstrate compliance with the
design and construction standards of Section A.(8)(d); and
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•
|
A form of Affordable Housing Restriction that satisfies the
requirements of Section A.(8)(f).
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•
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Review Fees: The Applicant shall be required to pay for reasonable
consulting fees to provide peer review of the application for the
benefit of the Planning Board, pursuant to M.G.L. Chapter 40R, Section
11(a). Such fees shall be held by the Town of Middleborough in an
interest-bearing escrow account, and shall be used only for expenses
associated with the use of outside consultants employed by the Planning
Board in reviewing the Plan application. Any surplus funds remaining
after the completion of such review, including any interest accrued,
shall be returned to the Applicant forthwith.
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(2)
Circulation to Other Boards: In accordance with
the Administrative Regulations the Planning Board shall provide a
copy of the application materials to all relevant municipal Boards,
Departments, Commissions and Officials as determined by the Planning
Board and to the Monitoring Agent. Subject to the requirements under
9(b)[4] below, these entities shall provide any written comments within
60 days of the filing of the Plan and application with the Town Clerk.
(3)
Public Hearing and Time Limits: The Planning Board
shall hold a public hearing and review all applications according
to the procedure specified in Massachusetts General Law Chapter 40A
Section 11.
(4)
The decision of the Planning Board shall require
a majority vote of the board's members and be made, and written
notice of the decision filed with the Town Clerk, within 120 days
of receipt of the application by the Town Clerk. This time may be
extended by mutual agreement between the Planning Board and the Applicant
by written agreement filed with the Town Clerk. Failure of the Planning
Board to take action within said 120 days or the extended time shall
be deemed an approval of the Plan Approval application.
(5)
Criteria for Plan Approval: The Planning Board
shall approve the Development Project upon all of the following findings:
(a)
The Applicant has submitted the required fees and
information as set forth in the SGO Administrative Regulations.
(b)
The proposed Development Project as described in
the application meets all of the requirements and standards set forth
in this Section 8.6, applicable Design Standards and the SGO Administrative
Regulations, or a waiver has been granted there from, and shall also
include written confirmation by the Monitoring Agent that all Affordable
Housing requirements have been satisfied.
(c)
Any extraordinary adverse potential impacts of
the Project on nearby properties have been adequately mitigated.
(6)
Criteria for Plan Denial: A Plan Approval application
may be disapproved only where the Planning Board finds that:
(a)
The applicant has not submitted the required fees
and information as set forth in the SGO Administrative Regulations;
or
(b)
The Project as described in the application does
not meet all the requirements and standards set forth in this Section
8.6, applicable Design Standards and the SGO Administrative Regulations,
or that a required waiver there from has not been granted; or
(c)
It is not possible to adequately mitigate extraordinary
Project impacts on nearby properties by means of suitable conditions.
(10)
Waivers: Upon request of the Applicant,
the Planning Board may waive dimensional and other requirements, including
Design Standards, with conditions, in the interests of design flexibility
and overall Project quality, and upon a finding of consistency of
such variation with the overall purpose and objectives of the SGO,
and if it finds that such waiver will allow the Project to achieve
the density, affordability, mix of uses and/or physical character
allowed under this Section. Notwithstanding anything to the contrary
in this Section 8.6 or the Zoning Bylaw of Middleborough, the Affordable
Housing provisions that comprise Section A (8) shall not be waived
without the express written approval of DHCD. The Planning Board will
take into consideration the following items when considering a waiver:
(a)
High performance energy efficient buildings and
construction methods.
(b)
Projects with publicly accessible open space.
(c)
Projects that include retail and restaurants located
on Street level.
(d)
A demonstrated shared parking initiative that makes
efficient use of land and existing parking supply.
(e)
The preservation or rehabilitation of historic
properties or other buildings considered significant to the Town.
(11)
Plan Changes After Approval by Planning
Board
(a)
Minor Plan Changes: After Plan Approval, an Applicant
may apply to make minor changes in a Development Project that do not
affect the overall build out or Building envelope of the site, or
provision of open space, number of housing units, or housing need
or Affordable Housing features. Such minor changes must be submitted
to the Planning Board on redlined prints of the approved Plan, reflecting
the proposed change, and on application forms provided by the Planning
Board. The Planning Board may, in its sole discretion, authorize such
changes at any regularly scheduled meeting, without the need to hold
a public hearing. The Planning Board shall set forth any decision
to approve or deny such minor change by motion and written decision
and provide a copy to the Applicant for filing with the Town Clerk.
(b)
Major Plan Changes: Those changes deemed by the
Planning Board to constitute a major change in a Development Project
because of the nature of the change in relation to the prior approved
Plan, or because such change cannot be appropriately characterized
as a minor change as described above, shall be processed by the Planning
Board as a new application for Plan Approval pursuant to this Section.
(12)
Fair Housing Requirement: All Development
Projects within the SGO shall comply with applicable federal, state
and local fair housing laws.
(13)
Project Phasing: The Planning Board
may allow a Project to be phased at the request of the Applicant or
to mitigate any extraordinary adverse impacts on nearby properties
and provided that the submission shows the full build-out of the Project
and all associated impacts as of the completion of the final phase
and subject to approval of the Planning Board. For Projects that are
approved and developed in phases, the proportion of Affordable Units
shall be no less than the minimum percentage required for the Project
as a whole under Section A(8)(b).
(14)
Decisions: The Planning Board shall
issue to the Applicant a copy of its decision containing the name
and address of the owner, identifying the land affected and the Plans
that were the subject of the decision and certifying that a copy of
the decision has been filed with the Town Clerk. If 20 days have elapsed
after the decision has been filed with the Town Clerk without an appeal
having been filed, or if such appeal having been filed is dismissed
or denied, or if a Plan is approved by reason of the failure of the
Planning Board to timely act, the Town Clerk shall so certify on a
copy of the decision. A copy of said decision shall be filed with
the Registry of Deeds.
A Plan Approval shall remain valid and run with the land indefinitely,
provided that substantial construction has commenced and continued
within two years after the decision is issued, which time shall be
extended by the time required to adjudicate an appeal and which time
shall be extended if the Project proponent is actively pursuing other
required permits or there is excusable neglect for failure to commence.
The Planning Board may require the posting of a performance
bond to secure and/or screen a Development Project site in the event
that demolition is undertaken but subsequent work lapses, for any
reason within or outside the Applicant's control, for a period
longer than one year.
(15)
Date of Effect: The effective date of this SGO Bylaw shall be the date on which such adoption is voted upon by Town Meeting pursuant to the requirements of Section 5 of Chapter 40A of the General Laws and Chapter 40R of the General Laws; provided, however, that an Applicant may not proceed with construction pursuant to this Bylaw (Section 8.6) prior to the receipt of final approval of this Bylaw (Section 8.6) and accompanying Zoning Map by both the Department of Housing and Community Development and the Office of the Massachusetts Attorney General.
(16)
Design Standards: The Planning Board
may adopt and amend, by simple majority vote, Design Standards which
shall be applicable to all Projects. Such Design Standards must be
objective and not subjective and may only address the scale and proportions
of buildings, the alignment, width, and grade of streets and sidewalks,
the type and location of infrastructure, the location of Building
and garage entrances, off street parking, the protection of significant
natural site features, the location and design of on-site open spaces,
exterior signs, and buffering in relation to adjacent properties.
DHCD may, at its discretion, require Design Standards to contain graphics
illustrating a particular standard or definition in order to make
such standard or definition clear and understandable.
Before adopting any Design Standards, the Planning Board shall
submit the proposed Design Standards to DHCD for approval. Any amendment
to the Design Standards shall not take effect until approved by DHCD
and filed with the Town Clerk.
An application for Plan Approval that has been submitted to
the Town Clerk pursuant to this Section shall not be subject to any
Design Standard that has not been approved by DHCD and filed with
the Town Clerk.
(17)
Severability: If any provision of
this Bylaw is found to be invalid by a court of competent jurisdiction,
the remainder of this Section shall not be affected but remain in
full force. The invalidity of any provision of this Section shall
not affect the validity of the remainder of the Town's Zoning
Bylaw.
B.
Establishment and Delineation of the Smart Growth Zoning Overlay
Sub-Districts
(1)
Middleborough Smart Growth Zoning Overlay Sub-District
(MSGO)
(a)
Establishment and Delineation of the MSGO — The Middleborough Smart Growth Zoning Overlay Sub-District (MSGO) is an overlay district that is superimposed over the Underlying District. The boundaries are delineated as the "Middleborough Smart Growth Zoning Overlay Sub-District" on the Official Zoning Map of the Town of Middleborough on file in the office of the Town Clerk, said map hereby made a part of the Middleborough Zoning Bylaw.
(1)
Allowed Uses The following Uses shall
be permitted As-of-Right in the MSGO upon Plan Approval pursuant to
the provisions of this Section 8.6:
(a)
Multi-family Residential
(b)
Only as part of a Mixed-Use Development Project
(see Section 8.6(A)(5)):
i.
Office
ii.
Retail
iii.
Restaurant (excludes drive-through windows)
iv.
Institutional
v.
Consumer Service
In addition to the Allowed Uses listed above, the
following Uses are permitted As-of-Right for Development Projects
within the MSGO subject to the requirements of this Section 8.6:
|
(a)
|
Parking accessory to any of the above Allowed Uses, including
surface, garage-under, and structured parking
|
(b)
|
Accessory Uses customarily incidental to any of the above permitted
Allowed Uses
|
(2)
Prohibited Uses Any use not listed
herein as an Allowed Use is deemed prohibited.
(b)
Dimensional and Other Requirements Applications for Plan Approval shall be governed by this Section
8.6 and the MSGO Design Standards.
Dimensional Requirements
| |
---|---|
Maximum Floor Area Ratio (FAR) (Gross Floor Area/Lot Size)
|
4
|
Maximum Building Height
|
45 Feet
|
Minimum Lot Frontage
|
50 Feet
|
Maximum Lot Coverage
|
N/A***
|
Minimum Lot Area
|
N/A***
|
Number of Buildings per Lot
|
N/A***
|
Maximum Building Frontage
|
300 Feet
|
Minimum Front Setback*
|
0 Feet
|
Maximum Front Setback*
|
10 Feet
|
Minimum Side/Rear Setback** abutting a Residential Zone
|
15 Feet
|
Minimum Side/Rear Setback** in MSGO or abutting Business-B
|
0 Feet
|
Interior Setback (between Buildings on same Lot)
|
15 Feet
|
*Design Standards will include for front facade Setback requirements
| |
**Design Standards will include Building step-back requirements
| |
***No requirement or limitation applies
|
(1)
Residential Density Allowances The
following residential densities shall be allowed on all Lots and within
all Buildings within the MSGO pursuant to the requirements of this
Section 8.6: Multifamily Residential 20 Units per acre.
(2)
Contiguous Lots In the MSGO, where
two or more Lots are contiguous or are separated by a right-of-way,
such Lots may be considered as one Lot for the purpose of calculating
maximum Lot coverage; parking requirements; minimum useable open space;
and Dwelling Units per acre.
(3)
Age-Restricted Housing Units An Applicant
may propose a Residential or Mixed-Use Development Project in which
all Dwelling Units are designed for or are accessible to the elderly
or the handicapped under all applicable laws and regulations, provided
that not less than twenty-five percent (25%) of the housing units
in any such Development Project shall be Affordable Units. All such
Development Projects shall be governed by the requirements of this
Section 8.6 and the Design Standards.
(2)
John Glass Square Smart Growth Zoning Overlay Sub-District
(a)
Establishment and Delineation of the JGSGO- The John Glass Square Smart Growth Zoning Overlay Sub-District (JGSGO) is an overlay district that is superimposed over the Underlying District. The boundaries are delineated as the "John Glass Square Smart Growth Zoning Overlay Sub-District" on the Official Zoning Map of the Town of Middleborough on file in the office of the Town Clerk, said map hereby made a part of the Middleborough Zoning Bylaw.
(1)
Allowed Uses The following Uses shall
be permitted As-of-Right in the JGSGO upon Plan Approval pursuant
to the provisions of this Section 8.6:
(a)
Two- and/or Three-Family Residential
(b)
Only as part of a Mixed-Use Development Project
(see Section 8.6(A)(5)):
i.
Office
ii.
Retail
iii.
Restaurant (excludes drive-through windows)
iv.
Institutional
v.
Consumer Service
In addition to the Allowed Uses listed above, the
following Uses are permitted As-of-Right for Development Projects
within the JGSGO subject to the requirements of this Section 8.6:
|
(a)
|
Parking accessory to any of the above Allowed Uses, including
surface, garage-under, and structured parking
|
(b)
|
Accessory Uses customarily incidental to any of the above permitted
Allowed Uses
|
(2)
Prohibited Uses Any use not listed
herein as an Allowed Use is deemed prohibited.
(b)
Dimensional and Other Requirements Applications for Plan Approval shall be governed by this Section
8.6 and the JGSGO, Design Standards.
Dimensional Requirements
| |
---|---|
Maximum Floor Area Ratio (FAR) (Gross Floor Area/Lot Size)
|
3
|
Maximum Building Height
|
35 Feet
|
Minimum Lot Frontage
|
50 Feet
|
Maximum Lot Coverage
|
N/A***
|
Minimum Lot Area
|
N/A***
|
Number of Buildings per Lot
|
N/A***
|
Maximum Building Frontage
|
300 Feet
|
Minimum Front Setback*
|
0 Feet
|
Maximum Front Setback*
|
10 Feet
|
Minimum Side/Rear Setback** abutting a Residential Zone
|
15 Feet
|
Minimum Side/Rear Setback** in JGSGO or abutting Business-B
|
0 Feet
|
Interior Setback (between Buildings on same Lot)
|
15 Feet
|
*Design Standards will include for front facade Setback requirements
| |
**Design Standards will include Building step-back requirements
| |
***No requirement or limitation applies
|
(1)
Residential Density Allowances The
following residential densities shall be allowed on all Lots and within
all Buildings within the JGSGO pursuant to the requirements of this
Section 8.6: Single-Family Residential 12 Units per acre.
(2)
Contiguous Lots In the JGSGO, where
two or more Lots are contiguous or are separated by a right-of-way,
such Lots may be considered as one Lot for the purpose of calculating
maximum Lot coverage; parking requirements; minimum useable open space;
and Dwelling Units per acre.
(3)
Age-Restricted Housing Units An Applicant
may propose a Residential or Mixed-Use Development Project in which
all Dwelling Units are designed for or are accessible to the elderly
or the handicapped under all applicable laws and regulations, provided
that not less than twenty-five percent (25%) of the housing units
in any such Development Project shall be Affordable Units. All such
Development Projects shall be governed by the requirements of this
Section 8.6 and the Design Standards.