SECTION 8.0 OVERLAY DISTRICT REGULATIONS

[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:

Ensure public safety through reducing the threats to life and personal injury;

Eliminate new hazards to emergency response officials;

Prevent the occurrence of public emergencies resulting from water quality, contamination, and pollution due to flooding;

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;

Eliminate costs associated with the response and cleanup of flooding conditions;

Reduce damage to public and private property resulting from flooding waters;

Discourage individuals from purchasing lands which are unsuitable for intended purposes because of flood hazard;

Control filling, grading and mineral extraction which may increase flood damage;

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:

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:

(a)

Will not be used for sustained human occupancy;

(b)

Will not substantially interfere with the natural water storage capacity of the land or the natural flow of water;

(c)

Will not constitute a danger to the public health or safety; and

(d)

Will not cause any increase in the 100-year floodplain.

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;

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;

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.

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

And copy of notification to:

Massachusetts NFIP State Coordinator

MA Dept. of Conservation & Recreation, 251 Causeway Street, Boston, MA 02114

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:

Agricultural uses such as farming, grazing, truck farming and horticulture;

Forestry and nursery uses;

Outdoor recreational uses, including fishing, boating, hunting and play areas;

Conservation of water, plants and wildlife;

Wildlife management areas, foot, bicycle and/or horse paths;

Temporary non-residential structures used in connection with fishing, growing, harvesting, storage, or sale of crops raised on the premises;

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:

(a)

Such proposals minimize flood damage;

(b)

Public utilities and facilities are located and constructed so as to minimize flood damage;

(c)

Adequate drainage is provided.

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:

•	Adjacent Communities, especially upstream and downstream
•	Bordering States, if affected
•	NFIP State Coordinator
	Massachusetts Department of Conservation and Recreation 251 Causeway Street, 8th floor Boston, MA 02114
•	NFIP Program Specialist
	Federal Emergency Management Agency, Region I 99 High Street, 6th floor Boston, MA 02110

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.

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.

Disclaimer of Liability. The degree of flood protection required by this bylaw is considered reasonable but does not imply total flood protection.

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.

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 WATER RESOURCE PROTECTION DISTRICT (WRPD)

8.2.1.

Purpose. The purpose of the Water Resource Protection Districts (WRPD) is to:

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;

Preserve and protect existing and potential sources of drinking water supplies;

Prevent temporary and permanent contamination of the environment; and,

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.

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.

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:

Conservation of soil, water, plants and wildlife.

Foot, bicycle and/or horse paths and bridges.

Outdoor recreation, nature study, boating, fishing and hunting where otherwise legally permitted.

Normal operation and maintenance of existing water bodies and dams, splash boards and other water control, supply and conservation devices.

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).

Residential development except uses subject to Section 8.2.7.2 (Prohibited uses) or Section 8.2.7.3 (Special Permit Uses).

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).

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.

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.

WRPD Z2 - Prohibited Uses - the following uses are prohibited in WRPD Z2:

Landfills and open dumps as defined in 310 CMR 19.006 Solid Waste Management and disposal of solid wastes as defined herein.

Landfills receiving wastewater residuals and/or septage (wastewater residuals "monofills") pursuant to MGL Chapter 21 Sections 26-53 Hazardous Waste; MGL Chapter 111 Section 17 - Public Health; and, MGL Chapter 83 Sections 6-7 - Sewers, Drains and Sidewalks and regulations promulgated there under.

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.

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

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.

Automobile graveyards, junkyards and salvage yards, as defined in MGL Chapter 140B Section 1 - Control of Certain Junkyards.

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.

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.

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.

All lots in WRPD Z2 not connected to the Town's sewer system, having an area less than 60,000 square feet.

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.

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:

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.

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.

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.

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.

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.

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,

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.

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:

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.

Automobile service and repair shops including those accessory to new and used car dealerships are prohibited, but may be allowed by Special Permit.

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:

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.
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:
	a.	Determination of Applicability by the Conservation Commission;
	b.	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.

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.

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.

WRPD Z3 - Prohibited Uses - The following uses are prohibited in WRPD Z3:

Landfills and open dumps as defined in 310 CMR 19.006 — Solid Waste Management and disposal of solid wastes as defined herein.

Landfills receiving wastewater residuals and/or septage (wastewater residuals "monofills") pursuant to MGL Chapter 21 Sections 26-53 - Hazardous Waste; MGL Chapter 111 Section 17 - Public Health; and, MGL Chapter 83 Section 6-7 - Sewers Drains and Sidewalks and regulations promulgated there under.

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.

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:

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.

Automobile graveyards, junkyards and salvage yards, as defined in MGL Chapter 140B Section 1 - Control of Certain Junkyards.

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.

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.

All lots in WRPD Z3 not connected to the Town's sewer system having an area less than 20,000 square feet.

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.

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:

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.

Automobile service and repair shops including those accessory to new and used car dealerships are prohibited, but may be allowed by Special Permit.

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.

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,

In a free standing container or above ground tank(s) within a building;

ii.

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.

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:

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.

iii.

Publicly owned treatment works.

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:

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:
	a.	Determination of Applicability by the Conservation Commission;
	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.

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.

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.

WRPD Z4 - Prohibited Uses: The following are prohibited in WRPD Z4:

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:

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.

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.

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:

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.

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.

Municipal Sanitary Landfill is prohibited but may be allowed by Special Permit.

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:

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:
	a.	Determination of Applicability by the Conservation Commission; and,
	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.

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.

Automobile service and repair shops including those accessory to new and used car dealerships are prohibited, but may be allowed by Special Permit.

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.

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:

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.

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.

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.

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.

The SPGA shall adopt rules and regulations relative to the issuance of special permits.

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.

Where applicable the following information shall be submitted with every application for Special Permit:

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.

Pre and post development drainage characteristics for surface run off and groundwater recharge, including calculations for all drainage designs;

Location of and distance to the public supply wells affected by the subject site;

Soil characteristics underlying the site and within the area between the site and the public supply wells;

Provisions and conditions designed to prevent and correct conditions detrimental to public and private water supply, health, safety and welfare;

A stormwater management plan as outlined by DEP Stormwater Management Standards and any additional requirements of the Town of Middleborough;

A plan with calculations for any spill containment structures required herein;

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;

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;

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,

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.

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:

Is in harmony with the purpose and intent of the WRPD Bylaw and will promote the purposes of the Water Resource Protection Districts;

Is appropriate to the natural topography, soils and other characteristics of the site to be developed;

Will not, during construction or thereafter, have an adverse environmental impact on the aquifer, recharge areas or water resources of the Town; and,

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.

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 DEVELOPMENT OPPORTUNITIES DISTRICT (DOD)

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:

Manufacturing and industrial uses including processing, fabrication and assembly;

High technology activities;

Warehouses, wholesale distribution centers;

Municipal and public service facilities;

Transportation terminal;

Hotel or motel;

Office building;

Medical center;

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.

The Planning Board may grant a special permit for any use(s) allowed by special permit in the DO District.

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.

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:

Any change in the exterior boundaries of the land or the size of the area which is the subject of a special permit;

Any change in the boundary or boundaries of any lot within the land area which is the subject of a special permit;

Relocation or grade alteration of a street;

Construction of a building or structure or any addition to, alteration of or change in the exterior of any building or structure;

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.

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:

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.

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.

That the activities are compatible with or separated by sufficient space or topographical features from adjacent areas.

That resources of open space, surface and groundwater are protected and preserved.

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:

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.

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.

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.

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.

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.

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 LARGE SCALE GROUND MOUNTED SOLAR PHOTOVOLTAIC INSTALLATION DISTRICTS (SOLAR DISTRICTS)

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
	Residence B
	Residence Rural
Districts, and the SOLAR-G district shall overlay the
	Industrial
	General Use
	General Use A
	General Use X
	Commercial Development*
Districts, as delineated on Middleborough's Zoning Map as set forth in Section 2.4.

NOTES:

* 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.

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:

Site Plan showing:

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;

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;

Zoning district designation for the parcel(s) of land comprising the project site and all setbacks required by the Zoning Bylaw.

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.

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;

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;

Documentation of the major system components to be used, including the PV panels, mounting system, and inverter;

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

Name, address, phone number and signature of the owner/operator, as well as all co-owner/operators and property owners;

The name, contact information and signature of any agents representing the project's owner/operator;

Documentation of actual or prospective access and control of the project site by the owner/operator;

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.

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.

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.

8.5 CANNABIS BUSINESS DISTRICT (CBD).

[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.

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.

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.

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.

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.

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.

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).

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.

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.

Overlay. Marijuana Establishments shall be located in the Cannabis Business Overlay District;

Proximity to other Uses.

No Marijuana Establishment shall be located within five hundred (500') feet of any public or private school or daycare center;

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.

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:

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.

Fees. The Special Permit Fee shall be established by the Special Permit Granting Authority.

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:

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

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

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

A 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;

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

A map depicting all properties and land uses within a 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;

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;

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

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;

Completed FCR Inspections Checklist, to be submitted to the SPGA and the Middleborough Police Department prior to commencement of operations by the Marijuana Establishment;

Traffic Impact Report;

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;

Provide detailed information on all chemicals, fertilizers, etc. being used within or on the same property as the Marijuana Establishment;

As required for Medical Marijuana Facilities, organic practices for adult use marijuana cultivation are required. Provide narrative of organic pest control being used;

Provide plans and narrative of odor mitigation;

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.

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.

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.

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

The Marijuana Establishment has received a provisional license 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;

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

The siting of the Marijuana Establishment will be accomplished so as to minimize any adverse impacts on abutters and other parties in interest, as defined in G.L. c. 40A, § 11;

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

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

personal safety of those working at or utilizing the facility;

ii.

personal safety for clients and invitees;

iii.

loading and service areas are designed to be secure; and

iv.

protection of the premises from theft.

The Applicant has not provided materially false documents or testimony;

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;

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.

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:

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;

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

The 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;

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;

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;

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;

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;

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;

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.

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:

Strict enforcement of this Bylaw would do manifest injustice;

Any alleged hardship is not self-created; and

The granting of a waiver shall not in any way impair the public health, public safety or the environment.

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.

8.6 SMART GROWTH ZONING OVERLAY DISTRICT (SGO)

[Added 10-4-2021 STM by Art. 28, AG 1-27-2022, eff. 10-4-2021]

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.
ACCESSORY USE: A use customarily incidental to that of the main or principal building or use of the land.
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)).
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.
AFFORDABLE HOMEOWNERSHIP UNIT: A Dwelling Unit required to be sold to an Eligible Household per the requirements of this Section.
AFFORDABLE HOUSING: Housing that is affordable to and occupied by Eligible Households.
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.
AFFORDABLE RENTAL UNIT: A Dwelling Unit required to be rented to an Eligible Household per the requirements of Section A (8).
AFFORDABLE UNIT: The collective reference to Affordable Homeownership Units and Affordable Rental Units.
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).
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)).
APPLICANT: A landowner or other petitioner who files a plan for a Development Project subject to the provisions of this Section.
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).
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.
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.
BUILDING, PRINCIPAL: A building in which is conducted the main or principal use of the lot on which said building is situated.
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.
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.
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.
DENSITY: The number of dwelling units per acre of land.
DEPARTMENT or DHCD: The Massachusetts Department of Housing and Community Development, or any successor agency.
DESIGN STANDARDS: Provisions adopted in accordance with Section B. shall be applicable to all Development Projects within the SGO.
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.
DWELLING UNIT: Habitable room or group of habitable rooms, containing cooking facilities, sanitary facilities, providing facilities for living, sleeping, and eating for one family.
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.
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:
a.	Domestic partners.
b.	Foster children.
c.	Domestic employees.
d.	Not more than two boarders.
e.	Not more than four additional persons not related to the others by blood, marriage, or adoption.
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.
GOVERNING LAWS: M.G.L. Chapter 40R and 760 CMR 59.00
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.
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.
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.
LOT FRONTAGE: The frontage of a lot on a public or private street.
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.
NON-RESIDENTIAL USE: Office, Retail, Restaurant, Service or Institutional Use, inclusive, or some combination of the same.
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.
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.
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.
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.
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.
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.
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.
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.
PLAN REVIEW: The review procedure established by this bylaw and administered by the Town of Middleborough Planning Board acting as PAA.
PRINCIPAL USE: The primary use to which the premises are devoted, and the main purpose for which the premises exist.
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.
RESIDENTIAL PROJECT: A Project that consists solely of residential, parking and accessory uses as defined in Section 8.6(B).
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.
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."
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.
RETAIL: A facility selling goods to the public in an enclosed building but not specifically listed in the Table of Use Regulations.
SCHOOL: A Building devoted to the instruction or education in primary, secondary, high school, or post-high school grades.
SERVICE: The performance of any act for the benefit of another with a view to profit or for a livelihood.
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.
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.
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.
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.
UNRESTRICTED UNIT: A Dwelling Unit that is not restricted as to rent, price or eligibility of occupants.
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.
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.
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.
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.
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.

(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	1 per 300 sq. ft. of gross floor area
Restaurant	1 for each 3 seats
Office	3 per 1,000 square feet
Institutional	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

(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.

(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.

(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.

(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
•	A form of Affordable Housing Restriction that satisfies the requirements of Section A.(8)(f).
•	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.

(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.

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)):

Office

ii.

Retail

iii.

Restaurant (excludes drive-through windows)

iv.

Institutional

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.

(a)

The Planning Board may provide a waiver as specified in Section A (10) to allow a density in excess of that stated above.

(b)

The Planning Board may provide a waiver as specified in Section A(10) to promote the renovation or adaptive reuse of existing buildings.

(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)):

Office

ii.

Retail

iii.

Restaurant (excludes drive-through windows)

iv.

Institutional

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.

(a)

The Planning Board may provide a waiver as specified in Section A (10) to allow a density in excess of that stated above.

(b)

The Planning Board may provide a waiver as specified in Section A (10) to promote the renovation or adaptive reuse of existing buildings.

(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)

Middleborough Smart Growth Zoning Overlay Sub-District & John Glass Square Smart Growth Zoning Overlay Sub-District