Town of Wenham, MA Article 12 Overlay and Special Districts

§ 255-12.1 Aquifer Protection Overlay District (APOD).

A. Purpose. The purpose of the Aquifer Protection Overlay District (APOD) is to promote the public health by protecting, preserving, and maintaining the quality and quantity of the existing and potential groundwater supplies, aquifers, and recharge areas of the Town of Wenham as present and potential sources of public water supply.

B. Applicable definitions. For the purposes of this section, the following terms shall be defined as set forth below:

ANIMAL FEEDLOT

A plot of land on which 25 or more livestock per acre are kept for the purpose of feeding.

AQUIFER

Geologic formation composed of rock or sand and gravel that contains significant amounts of potentially recoverable water.

GROUNDWATER

Slowly moving subsurface water present in aquifers and recharge areas.

IMPERVIOUS SURFACES

Material on the ground that does not allow surface water to penetrate into the soil, such as asphalt or granite.

LEACHABLE WASTES

Waste materials, including solid wastes, sewage, sludge, and agricultural wastes, that are capable of releasing waterborne contaminants into the surrounding environment.

MINING OF LAND

The removal or relocation of geologic materials such as topsoil, sand, gravel, metallic ores, or bedrock.

RECHARGE AREAS

Areas composed of permeable, stratified sand and gravel and certain wetlands that collect precipitation or surface water and convey it to the aquifers.

SOLID WASTE

Useless, unwanted, or discarded solid materials with insufficient liquid content to be free-flowing, including but not limited to rubbish, garbage, scrap materials, junk refuse, inert fill material and landscape refuse.

UNDERLYING ZONING

The zoning regulations which apply to the development project, with the exception of those contained in the APOD.

WETLANDS

As defined in MGL c. 131, § 40, and the implementing regulations enacted thereunder and the bylaws of the Town of Wenham.

C. Overlay district. The APOD is an overlay district. The regulations of the underlying district shall remain in full force and effect, provided that, where conflicts between the APOD and the underlying district exist, the provisions of the APOD shall govern unless the underlying district is more restrictive, in which case it will govern.

D. Location. The APOD shall be comprised of the areas shown on a map on file in the office of the Town Clerk entitled "Aquifer Protection District Map Town of Wenham," dated March 1990 and prepared by Hancock Associates ("APD Map"). The APOD comprises areas in the Town lying within the aquifer recharge areas which now or may in the future provide public water supply. For data, standards and procedures by which the boundary of the APOD was established see "Report on Aquifer Planning Study, Wenham, Massachusetts" by Haley & Aldrich, Inc., dated September 1987.

E. Boundary disputes. Where the applicant disputes the boundaries delineated on the APOD Map, the burden of proof shall be on the applicant to show where the boundaries should properly be located. In the event such a dispute arises, at the request of the Zoning Board of Appeals the applicant shall make available to the Zoning Board of Appeals funds sufficient to cover expenses connected with engaging a consultant on behalf of the Zoning Board of Appeals to determine more accurately the location and extent of an aquifer or recharge area, or a watershed. Consultants hired by the applicant or the Town shall be limited to registered professional hydrologists, certified professional geologic scientists, registered professional engineers, certified groundwater professionals, and certified professional soil scientists. The provisions of the APOD shall not apply to any portion of a parcel where the applicant has shown to the satisfaction of the Zoning Board of Appeals that there is no hydrological basis for including the parcel in the APOD.

F. Permitted uses. The following uses are permitted in the APOD where also permitted by the underlying district:

(1) Conservation of soil, water, plants, and wildlife.

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

(3) Footpaths, bicycle and/or horse paths, boat docks, and bridges.

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

(5) Uses rendering impervious less than 20% of a lot (exclusive of wetlands and land in the Floodplain Overlay District).

(6) Farming, gardening, nursery, forestry, harvesting, and grazing, provided that fertilizers, herbicides, pesticides, and other leachable materials are not stored outdoors and are applied in accordance with local, state and federal regulations.

G. Design and operation requirements and guidelines. Applications made under this section of the bylaw shall include proposed methods, as described below, for preventing or minimizing harmful effects on the quality or quantity of ground or surface water in the APOD.

(1) Location. Where the premises are partially outside the APOD, potential sources of pollution, if permitted, shall be located outside the APOD to the extent feasible.

(2) Drainage. All runoff from impervious surfaces shall be recharged on the site to the maximum extent possible. The preferred method is diversion toward vegetated areas for surface infiltration. Underground leaching facilities shall only be used where other methods are not feasible for reasons other than cost, and shall be preceded by oil, grease, and sediment traps to facilitate removal of contaminants.

(3) Monitoring. Periodic monitoring may be required by the Zoning Board of Appeals, including sampling of wastewater disposed to on-site systems or dry wells and sampling from groundwater monitoring wells to be located and constructed as specified in the special permit with reports to the Zoning Board of Appeals, the Board of Health, the Conservation Commission, and the Water Department. The costs of monitoring, including sampling and analysis, shall be borne by the applicant.

(4) Erosion and sedimentation control. Erosion and sedimentation measures approved by the Zoning Board of Appeals or its agent shall be in place before the commencement of any operation which will expose the erodible materials to the elements. Filter fabric shall be used for sediment retention. Such control measures shall remain in place until the Zoning Board of Appeals or its agent determines that the danger of erosion or sedimentation no longer exists.

H. Prohibited uses. The following uses are prohibited in the APOD:

(1) Disposal of solid wastes, other than brush, stumps, and other organic material generated on the site.

(2) Storage of petroleum or other refined petroleum products (except propane and natural gas) unless secondary containment of the tank and piping is provided, with the exception of such storage tanks in existence as of the effective date of this bylaw, in which case if replaced and not enlarged, this provision shall not apply.

(3) The disposal of liquid or leachable wastes, except through residential septic systems. The repair and/or expansion of septic systems existing as of the effective date of this bylaw is permitted, provided they comply with Title 5, 310 CMR 15.00 et seq., and Wenham Board of Health regulations.

(4) New commercial and industrial uses which discharge wastewater on site.

(5) Storage of road salt except in confined and covered areas.

(6) Dumping of snow containing deicing chemicals which is brought in from outside the APOD.

(7) Animal feedlots.

(8) The storage of uncovered manure in quantities greater than residential landscape or gardening use.

(9) Mining of land except as incidental to a permitted use.

(10) Storage or disposal of hazardous wastes, as defined by the Hazardous Waste Regulations promulgated by the Division of Hazardous Waste of the Department of Environmental Protection, the Water Resources Commission, and the Division of Water Pollution Control under the provisions of MGL c. 21, § 27(8).

[Amended 10-17-2020 STM by Art. 4]

(11) Automotive service and repair shops, trucking and bus terminals, and junk and salvage yards.

I. Uses requiring special permit. The following uses may be authorized by special permit in the APOD subject to the approval of the Zoning Board of Appeals which may impose such conditions as it deems necessary to further the purposes set forth in this section:

(1) The application of fertilizers for nondomestic or nonagricultural uses, provided that such application shall be made in such a manner as to minimize the adverse impacts on groundwater due to nutrient transport and deposition and sedimentation.

(2) Golf courses.

J. Permit procedure. The Zoning Board of Appeals shall be the special permit granting authority for special permits in the APOD. The special permit procedures in § 255-13.4, but not the criteria, shall apply to the review of special permit uses in the APOD. A special permit in the APOD shall not be made personal to the applicant and shall instead run with the land.

(1) Ten copies of the application shall be filed with the Town Clerk and certified as to date of receipt. The Zoning Board of Appeals shall refer copies of the application to the Board of Health, Planning Board, Conservation Commission, Water Department and Department of Public Works, so each board may review, either jointly or separately, the application and submit comments in writing to the ZBA within 45 days of its receipt of the application. Failure to do so shall be deemed lack of opposition.

[Amended 10-17-2020 STM by Art. 4]

(2) Applicants shall provide a site plan prepared by a professional engineer or a professional land surveyor, showing existing and proposed structures and a narrative description of the measures proposed to comply with the requirements of Subsection K.

K. Standards and criteria for special permit review. In determining whether to approve, approve with conditions, or deny a special permit in the APOD the Zoning Board of Appeals shall consider whether the use:

(1) Is consistent with the purpose set forth in Subsection A;

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

(3) Will not, during construction or thereafter, have an adverse impact on the aquifer or recharge area.

L. Lapse. Special permits issued under this section shall lapse within two years (not including the duration of an appeal made under MGL c. 40A) from the grant thereof, if a substantial use has not commenced sooner except for good cause, or in the case of a permit for construction, if construction has not begun by such date except for good cause as determined by the Zoning Board of Appeals.

M. Rules and regulations. The Zoning Board of Appeals may enact rules and regulations to implement the provisions of this section of the bylaw.

§ 255-12.2 Floodplain Overlay District (FPOD).

[Amended 10-17-2020 STM by Art. 4; 4-5-2025 ATM by Art. 21]

A. Purpose. The purpose of the Floodplain Overlay District (FPOD) is to:

(1) Protect the public health, safety and general welfare;

(2) Protect human life and property from the hazards of periodic flooding; and

(3) Preserve the natural flood control characteristics and the flood storage capacity of the floodplains in Wenham.

B. Overlay district. The FPOD is established as an overlay district to all other districts. Any development within the FPOD, whether structural or nonstructural, shall be subject to all otherwise applicable requirements of the underlying zoning district in which it is located, including the usual use and dimensional requirements.

C. The Floodplain District is herein established as an overlay district. The District includes all special flood hazard areas within Wenham designated as Zone A, AE, AH on the Essex County Flood Insurance Rate Map (FIRM) dated July 8, 2025, 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 Essex County Flood Insurance Study (FIS) report dated July 8, 2025. The effective FIRM and FIS report are incorporated herein by reference and are on file with the Town Clerk, Planning Board, Building Official, Conservation Commission and Zoning Board of Appeals.

D. The Town of Wenham hereby designates the position of Land Use Director to be the official Floodplain Administrator for the Town. The Floodplain Administrator will issue all permits except for special permits which shall be issued by the Planning Board as referenced below.

E. The Town of Wenham requires a permit for all proposed construction or other development in the Floodplain Overlay District, including new construction or changes to existing buildings, 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.

F. The Town's permit review process includes the requirement that the proponent obtain 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 demonstrate that all necessary permits have been acquired.

G. 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 and as the basis for elevating residential structures to or above base flood level, for floodproofing or elevating nonresidential structures to or above base flood level, and for prohibiting encroachments in floodways.

H. In A, AH, AE 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.

I. If the Town of Wenham acquires data that changes the base flood elevation in the FEMA mapped special flood hazard areas, the Town will, within six months, notify FEMA of these changes by submitting the technical or scientific data that supports the change(s.) Notification shall be submitted to:

•	NFIP State Coordinator- Massachusetts Department of Conservation and Recreation
•	NFIP Program Specialist- Federal Emergency Management Agency, Region I

J. Variances to Building Code floodplain standards.

The Town 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 Town 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.

K. A variance from these 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.

L. The floodplain management regulations found in this Floodplain Overlay District section shall take precedence over any less restrictive conflicting local laws, ordinances or codes.

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

N. Uses permitted by right. The following uses of low flood damage potential and uses causing no obstructions of flood flows shall be allowed, provided they are permitted in the underlying district and they do not require structures, fill, alteration in topography or existing soil and surface water levels, or storage of materials and equipment:

(1) Agricultural uses, including farming, grazing, horticulture, and similar activities.

(2) Forestry and nursery uses.

(3) Outdoor recreational uses, including fishing, boating, play areas, and similar activities.

(4) Conservation of water, plants, and wildlife.

(5) Wildlife management areas and foot, bicycle, and horse paths.

(6) Temporary nonresidential structures used in connection with fishing, growing, harvesting, storage, or sale of crops raised on the premises.

(7) Buildings lawfully existing prior to the adoption of these provisions which shall not hereafter be enlarged or extended, nor shall such buildings be adapted for sustained human occupation unless otherwise already in use for such purposes on May 13, 1989.

O. Uses requiring special permit. Alterations to any land or structure in the Floodplain District, whether structural or non-structural, except for those uses permitted by right, require a special permit issued by the Planning Board.

P. Permit process.

(1) Application. Applications submitted hereunder which propose to alter a portion of the 100-year floodplain shall document on a site plan the extent of the applicable floodplain, as defined in Subsection C above.

(a) For activities proposed in the unnumbered A Zones of the FIRM Map, drainage calculations may further determine the elevation of the 100-year floodplain in the area utilizing actual topography and the methodology set forth in 310 CMR 10.57(2).

(b) For activities proposed in FIRM 100-year floodplain zones for which a letter of map revision or a letter of map amendment has been issued by the Federal Emergency Management Agency, the letter of map amendment or letter of map revision shall be included with any application.

(2) Conditions. Prior to the issuance of any building permit in the FPOD, the applicant shall first present evidence to the satisfaction of the Building Inspector of compliance with the following requirements:

(a) The Massachusetts State Building Code, 780 CMR. (Satisfactory evidence shall consist of a building permit or a determination by the Building Inspector that such building permit is not required for the work proposed.)

(b) The Wetlands Protection Act regulations, 310 CMR 10.00. (Satisfactory evidence shall consist of a determination that no notice of intent is required for the project, an order of conditions for the project, a notification of nonsignificance, or an extension permit from the Conservation Commission or the Massachusetts Department of Environmental Protection.)

(c) The Inland Wetlands Restriction Act, 310 CMR 13.00. (Satisfactory evidence shall consist of any order, as amended, modified, corrected, or repealed, issued by the Massachusetts Department of Environmental Protection.)

(d) Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, 310 CMR 15, Title 5. (Satisfactory evidence shall consist of any permit issued by the Board of Health for the project and/or a written statement from the Board of Health or its agent that no such permit is necessary for the project.)

(e) The Wenham Water Resources Protection Bylaw, General Bylaws Chapter 242, and its accompanying regulations (satisfactory evidence shall consist of a determination that no notice of intent is required for the project, or a permit for the project, or a notification of nonsignificance, or an extension permit), including:

[1] In Zones A1-30 and AE, along watercourses that have a regulatory floodway designated on the Town's FIRM encroachments are prohibited, including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.

In Zones A, A1-30, 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.

[2] In a riverine situation, evidence shall be provided that the following entities have been notified of any alteration or relocation of a watercourse:

[a] Adjacent communities.

NFIP State Coordinator

Massachusetts Department of Conservation and Recreation

[b] NFIP Program Specialist.

Federal Emergency Management Agency, Region I

[3] All subdivision proposal must be designed to assure that:

[a] Such proposals minimize flood damage;

[b] All public utilities and facilities are located and constructed to minimize or eliminate flood damage; and

[c] Adequate drainage is provided to reduce exposure to flood hazards.

[4] Base flood elevation data is required for subdivision proposals or other developments greater than 50 lots or five acres, whichever is the lesser, within unnumbered A Zones.

[5] Within Zone AH on the FIRM, adequate drainage paths must be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

Q. Definitions not found in the State Building Code.

DEVELOPMENT

Means any man-made change to improved or unimproved real estate, including but not limited to building or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. [US Code of Federal Regulations, Title 44, Part 59]

FLOODWAY

The channel of the river, creek or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. [Base Code, Chapter 2, Section 202]

FUNCTIONALLY DEPENDENT USE

Means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities. [US Code of Federal Regulations, Title 44, Part 59] Also [Referenced Standard ASCE 24-14]

HIGHEST ADJACENT GRADE

Means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. [US Code of Federal Regulations, Title 44, Part 59]

HISTORIC STRUCTURE

Means any structure that is:

(1) Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(2) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

(3) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

(4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

(a) By an approved state program as determined by the Secretary of the Interior; or

(b) Directly by the Secretary of the Interior in states without approved programs. [US Code of Federal Regulations, Title 44, Part 59]

NEW CONSTRUCTION

Structures for which the start of construction commenced on or after the effective date of the first floodplain management code, regulation, ordinance, or standard adopted by the authority having jurisdiction, including any subsequent improvements to such structures. New construction includes work determined to be substantial improvement. [Referenced Standard ASCE 24-14]

RECREATIONAL VEHICLE

Means a vehicle which is:

(1) Built on a single chassis;

(2) 400 square feet or less when measured at the largest horizontal projection;

(3) Designed to be self-propelled or permanently towable by a light duty truck; and

(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

[US Code of Federal Regulations, Title 44, Part 59]

REGULATORY FLOODWAY

See "floodway."

SPECIAL FLOOD HAZARD AREA

The land area subject to flood hazards and shown on a Flood Insurance Rate Map or other flood hazard map as Zone A, AE, A1-30, A99, AR, AO, AH, V, VO, VE or V1-30. [Base Code, Chapter 2, Section 202]

START OF CONSTRUCTION

The date of issuance for new construction and substantial improvements to existing structures, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement is within 180 days after the date of issuance. The actual start of construction means the first placement of permanent construction of a building (including a manufactured home) on a site, such as the pouring of a slab or footings, installation of pilings or construction of columns.

Permanent construction does not include land preparation (such as clearing, excavation, grading or filling), the installation of streets or walkways, excavation for a basement, footings, piers or foundations, the erection of temporary forms or the installation of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main building. For a substantial improvement, the actual "start of construction" means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building. [Base Code, Chapter 2, Section 202]

STRUCTURE

Means, for floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home. [US Code of Federal Regulations, Title 44, Part 59]

SUBSTANTIAL REPAIR OF A FOUNDATION

When work to repair or replace a foundation results in the repair or replacement of a portion of the foundation with a perimeter along the base of the foundation that equals or exceeds 50% of the perimeter of the base of the foundation measured in linear feet, or repair or replacement of 50% of the piles, columns or piers of a pile, column or pier supported foundation, the building official shall determine it to be substantial repair of a foundation. Applications determined by the building official to constitute substantial repair of a foundation shall require all existing portions of the entire building or structure to meet the requirements of 780 CMR. [As amended by MA in 9th Edition BC]

VARIANCE

Means a grant of relief by a community from the terms of a floodplain management regulation. [US Code of Federal Regulations, Title 44, Part 59]

VIOLATION

Means the failure of a structure or other development to be fully compliant with the community's flood plain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in § 60.3 is presumed to be in violation until such time as that documentation is provided. [US Code of Federal Regulations, Title 44, Part 59]

§ 255-12.3 Senior Housing Overlay District (SHOD).

A. Purpose. The purpose of the Senior Housing Overlay District (SHOD) is to provide, upon the grant by the Planning Board of a special permit and the approval of site plan, multifamily residences for persons over the age of 55, such housing to be owned and controlled only by a nonprofit organization, or by a cooperative housing corporation, or by the Town or by the Wenham Housing Authority, or jointly by such organizations as permitted by law.

B. Applicable definitions. For the purposes of the SHOD, the following terms shall be defined as set forth below:

COOPERATIVE HOUSING CORPORATION

A corporation formed pursuant to MGL c. 157B, whose articles of organization contain limitations on the transfer value of its stock.

NONPROFIT ORGANIZATION

A corporation, foundation or other organization no part of the net earnings of which inures to the benefit of any private shareholder or individual and which, if appropriate, has been organized pursuant to MGL c. 180, as amended.

C. Overlay district. The SHOD is an overlay district. In order to qualify as an SHOD and for the Town Meeting to rezone the property accordingly, the parcel must contain the following minimum area:

(1) Where land is to be developed solely for multifamily residences the site shall contain not less than 7.5 acres exclusive of any area of land lying in the Floodplain Overlay District.

(2) Where land is to be developed as a housing incentive development, the site shall contain not less than 35 acres exclusive of any area of land lying in the Floodplain Overlay District.

(3) A portion of these total land areas may be within an abutting town.

D. Permitted uses and uses requiring special permit. In an SHOD, no building or land shall be used and no buildings shall be erected or converted except under the following conditions:

(1) Any of the uses permitted, as a matter of right, in the underlying residential district, provided that multifamily residence housing units comply in all respects with requirements of this bylaw that are applicable to the residential district.

(2) A housing incentive development consisting of multifamily residences for the persons over the age of 55 together on the same lot with nonrestricted multifamily residences. The multifamily residences for persons over the age of 55 shall constitute at least 30% of the total number of residences developed on the lot, and such multifamily residences for persons over the age of 55 shall be organized and controlled as provided herein.

E. Affordability requirement. In exchange for an increase in density above that which is permitted as a matter of right in the underlying zone, the applicant shall provide that at least 15% of the residences in the housing incentive development shall be available to low- and moderate-income households in accordance with MGL c. 40B and its implementing regulations as they may from time to time be amended.

F. Local preference. Age-restricted dwelling units within the development shall be available to all persons age 55 or over. However, a plan shall be prepared by the petitioner which shall, to the extent allowable by law, give a preference for age-restricted dwelling units within a development first to Wenham residents, then to immediate family members of Wenham residents and then to the residents of towns with reciprocal agreements with the Town of Wenham.

G. Standards.

(1) All senior housing shall be owned and controlled by a nonprofit organization, or by a cooperative housing corporation, or by the Town, or by the Wenham Housing Authority, or jointly by two or more of such organizations so far as permitted by law.

(2) All newly constructed housing developed in an SHOD shall have not more than seven dwelling units per acre, or portion thereof; provided, however, that the Planning Board may limit development to as few as one dwelling unit per acre. Where an existing building is converted or enlarged, not more than seven units of housing shall be developed for each acre of land, or portion thereof, occupied by the building, its parking and accessory facilities, and those common acres dedicated to the use of the residents. In no case, however, shall the total number of dwelling units in a housing incentive development exceed a total of 3.5 multiplied by the number of acres in the development, excluding wetlands and land lying in the floodplain.

(3) The site shall have frontage on a public or private way, including ways built within the site, which is reasonable and consistent with the overall site plan.

(4) The proposed plan shall provide that there shall be on-site off-street parking containing at least five parking spaces for each three age-restricted dwelling units contained in the development, and at least two parking spaces for each nonrestricted multifamily residence.

(5) Roads within the development shall be constructed in accordance with Planning Board Subdivision Regulations[1] with such waivers, if any, as the Planning Board deems appropriate.

[1] Editor's Note: See Ch. 300, Subdivision of Land.

(6) The entire site shall be a size and shape as shall provide a housing site which will be in harmony with the natural terrain and other features of the site and will preserve natural vistas and the existing rural or other character of the neighborhood.

(7) The site shall be supplied with a water system approved by the Water Department, adequate to meet the needs of the units constructed on the site.

(8) All dwelling units must be served by adequate sewage treatment facilities approved by the Board of Health or an approved on-site sewage disposal system.

(9) No site on a plan for which an approval is granted under this section may be subdivided so as to create additional buildable lots and a notation to that effect shall be shown on the plan.

(10) Age-restricted dwellings constructed under this section shall not be eligible for subsequent conversion to conventional apartments.

(11) Buildings shall be designed to be consistent with the single-family appearance of the Town and shall be complementary in exterior design with each other and, where applicable, with the existing neighborhood in which the development is located.

(12) Sufficient financial surety must be provided to ensure completion of the development and continuing compliance upon its completion with the provisions of the approval.

H. Signs. Signs in the SHOD shall be limited to one sign at each vehicular entrance to the district, provided that such signs do not exceed six square feet. Such sign may be nonflashing white-lighted.

I. Permit process.

(1) Site plan approval. In a SHOD no building shall be constructed, enlarged, or changed to accommodate multifamily residences for persons over the age of 55 or nonrestricted multifamily residences except in conformity to this bylaw and to a special permit granted and a site plan approved by the Planning Board. The Planning Board may, pursuant to the special permit, allow the use, alteration, or enlargement of any existing building or structure for multifamily residences for persons over the age of 55. The Planning Board shall not approve any such special permit and site plan unless the applicable standards in Massachusetts General Laws and the following standards and criteria are met.

(2) Application. The original and seven copies of the application shall be filed with the Planning Board and with the Town Clerk. The Planning Board, acting as the Site Plan Approval Authority and special permit granting authority under this section, shall give notice, conduct public hearing, and render a decision in conformity with MGL c. 40A, § 9, and with §§ 255-13.4 and 255-13.5 of this bylaw. Each application shall include:

[Amended 10-17-2020 STM by Art. 4]

(a) Information required for submission of a definitive plan for standard subdivisions as provided for in the Planning Board's rules and regulations governing the subdivision of land.[2]

[2] Editor's Note: See Ch. 300, Subdivision of Land.

(b) Provisions for privacy and security.

(c) Provisions for parking.

(d) Proposed landscaping, exterior lighting, architectural exterior design and elevations, typical floor plan.

(e) Projected phasing, timing of construction, type of ownership, proposed binding covenants, restrictions and agreements on resale, transfer, leasing and subleasing applicable to owners and occupants of the age-restricted housing units.

(f) Other projected benefits to the Town of the proposed development compared to alternative permitted uses at the same site, including possible increases in the available stock of affordable housing, so as to comply with the provisions of MGL c. 40B and its implementing regulations as they may from time to time be amended.

(g) Projected revenues to the Town in taxes or payments in lieu of taxes.

(3) Decision. The Planning Board shall render its decision after consideration of the following factors, in addition to those set forth in § 255-13.4:

(a) The plan promotes the more efficient use of land in harmony with its natural features, watercourses, scenic areas, natural vistas, existing rural character, and similar community assets within the general intent of the Zoning Bylaw and the long-range plan of the Town.

(b) The plan protects adjoining premises against serious detrimental effects by providing, among other things, surface water drainage, sound and sight barriers, and preservation of views and light.

(c) The plan provides for convenience and safety of vehicular and pedestrian movement within the site, and appropriate location of driveway openings in relation to traffic or to adjacent streets.

(d) The plan provides for adequate methods of disposal of refuse and other wastes.

(e) The plan provides for suitable architectural design and a favorable relationship of structures and open space to the natural landscape, barriers, and preservation of views and light.

(4) Conditions. Dwelling units within the development shall be subject to appropriate conditions to assure their continued use for the purposes for which the special permit is granted. Construction must commence within one year of the granting of the approval. Construction must be completed within two years of its commencement unless otherwise provided for in the special permit or as amended by the Planning Board.

§ 255-12.4 Personal wireless service facilities.

A. Purpose. It is the express purpose of this section to minimize the visual and environmental impacts of a personal wireless service facility (PWSF). This section enables the review and approval of PWSF by the special permit granting authority (SPGA) in keeping with the Town's existing bylaws and historic development patterns, including the size and spacing of structures and open spaces. This section is intended to be used in conjunction with other regulations adopted by the Town, including historic district regulations, site plan review, and other local bylaws designed to encourage appropriate land use, environmental protection, and provision of adequate infrastructure development in Wenham. The regulation of PWSFs is consistent with the purpose of the ongoing planning efforts of the Town to further the conservation and preservation of developed, natural and undeveloped areas, wildlife, flora and habitats for endangered species; balanced economic growth; the provision of adequate capital facilities; the coordination of the provision of adequate capital facilities with the achievement of other goals; and the preservation of historical, cultural, archaeological, architectural and recreational values.

B. Definitions. For the purposes of this section, the following terms shall be defined as set forth below:

ABOVE GROUND LEVEL (AGL)

A measurement of height from the natural grade of a site to the highest point of a structure.

ANTENNA

The surface from which wireless radio signals are sent and received by a personal wireless service facility.

CAMOUFLAGED

A personal wireless service facility that is disguised, hidden, part of an existing or proposed structure or placed within an existing or proposed structure is considered "camouflaged."

CARRIER

A company that provides wireless services.

CO-LOCATION

The use of a single mount on the ground by more than one carrier (vertical co-location) and/or several mounts on an existing building or structure by more than one carrier.

CROSS-POLARIZED (OR DUAL-POLARIZED) ANTENNA

A low mount that has three panels flush-mounted or attached very close to the shaft.

ELEVATION

The measurement of height above sea level.

EQUIPMENT SHELTER

An enclosed structure, cabinet, shed, or box at the base of the mount within which are housed batteries and electrical equipment.

FALL ZONE

The area on the ground within a prescribed radius from the base of a personal wireless service facility. The "fall zone" is the area within which there is a potential hazard from falling debris (such as ice) or collapsing material.

FUNCTIONALLY EQUIVALENT SERVICES

Cellular, personal communication services (PCS), enhanced specialized mobile radio, specialized mobile radio and paging.

GUYED TOWER

A monopole or lattice tower that is tied to the ground or other surface by diagonal cables.

LATTICE TOWER

A type of mount that is self-supporting with multiple legs and cross-bracing of structural steel.

LICENSED CARRIER

A company authorized by the FCC to construct and operate a commercial mobile radio services system.

MONOPOLE

The type of mount that is self-supporting with a single shaft of wood, steel or concrete and a platform (or racks) for panel antennas arrayed at the top.

MOUNT

The structure or surface upon which antennas are mounted, including the following four types of mounts:

(1) Roof-mounted. Mounted on the roof of a building.

(2) Side-mounted. Mounted on the side of a building.

(3) Ground-mounted. Mounted on the ground.

(4) Structure-mounted. Mounted on a structure other than a building.

OMNIDIRECTIONAL (WHIP) ANTENNA

A thin rod that beams and receives a signal in all directions.

PANEL ANTENNA

A flat surface antenna usually developed in multiples.

PERSONAL WIRELESS SERVICE FACILITY

Facility for the provision of personal wireless services, as defined by the Telecommunications Act of 1996.

PERSONAL WIRELESS SERVICES

The three types of services regulated by this section as defined above as functionally equivalent services and as defined by the Telecommunications Act of 1996 as commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

RADIO FREQUENCY (RF) ENGINEER

An engineer specializing in electrical or microwave engineering, especially the study of radio frequencies.

RADIO FREQUENCY RADIATION (RFR)

The emissions from PWSFs.

SECURITY BARRIER

A locked, secure wall, fence, or berm that completely seals an area from unauthorized entry or trespass.

SEPARATION

The distance between one carrier's array of antennas and another carrier's array.

SPECIAL PERMIT GRANTING AUTHORITY (SPGA)

The Planning Board for the purposes of this section.

C. Regulations. A PWSF shall require a building permit in all cases and may be permitted as follows:

(1) A PWSF may locate on any existing guyed tower, lattice tower, monopole, electric utility transmission tower, fire tower or water tower, provided that the installation of the new facility does not increase the height of the existing structure except as provided herein. Such installations shall not require a special permit but shall require site plan approval by the Planning Board.

(2) A PWSF involving construction of one or more ground or building (roof or side) mounts shall require a special permit. Such facilities may locate by special permit in all zoning districts within the Town, provided that the proposed use complies with the height and setback requirements and all of the special permit standards set forth herein.

(3) A PWSF that exceeds the height restrictions of this section may be permitted by special permit in accordance with § 255-12.4E(6) below.

[Amended 4-23-2018 ATM by Art. 24]

D. Location. Applicants seeking approval for a PWSF shall comply with the following:

(1) If feasible, a PWSF shall be located on existing structures, including but not limited to buildings, water towers, existing telecommunications facilities, utility poles and towers, and related facilities, provided that such installation preserves the character and integrity of those structures. In particular, applicants are urged to consider use of existing telephone and electric utility structures as sites for one or more PWSFs. The applicant shall have the burden of proving that there are no feasible existing structures upon which to locate.

(2) If the applicant demonstrates that it is not feasible to locate it on an existing structure, a PWSF shall be designed so as to be camouflaged to the greatest extent possible, including, but not limited to: use of compatible building materials and colors, screening, landscaping and placement within trees.

(3) The applicant shall submit documentation of the legal right to install and use the proposed facility mount at the time of application for a building permit and/or special permit.

E. Height requirements. A PWSF shall comply with the following requirements:

(1) Height, general. Regardless of the type of mount, PWSFs shall be no higher than 10 feet above the average height of buildings within 200 feet of the proposed facility. In addition, the height of a PWSF shall not exceed by more than 10 feet the height limits of the zoning district in which the facility is proposed to be located, unless the facility is completely camouflaged such as within a flagpole, steeple, chimney, or similar structure. A PWSF may locate on a building that is legally nonconforming with respect to height, provided that the facility does not project above the existing building height.

(2) Height, ground-mounted facilities. A ground-mounted PWSF shall not project higher than 10 feet above the average building height of buildings within 200 feet, or, if there are no buildings within 200 feet, these facilities shall not project higher than 10 feet above the average tree canopy height, measured from ground level. If there are no buildings within 200 feet of the proposed site of the facility, all ground-mounted PWSFs shall be surrounded by dense tree growth to screen views of the facility in all directions. These trees may be existing on the subject property or planted on site.

(3) Height, side- and roof-mounted facilities. Side- and roof-mounted PWSFs shall not project more than 10 feet above the height of an existing building nor project more than 10 feet above the height limit of the zoning district within which the facility is located.

(4) Height, existing structures. New antennas located on any of the following structures existing on the effective date of this bylaw shall be exempt from the height restrictions of this bylaw, provided that there is no increase in height of the existing structure as a result of the installation of a PWSF: water towers, guyed towers, lattice towers, fire towers, and monopoles.

(5) Height, existing structures (utility). New antennas located on any of the following existing structures shall be exempt from the height restrictions of this bylaw, provided that there is no more than a twenty-foot increase in the height of the existing structure as a result of the installation of a personal wireless service facility: electric transmission and distribution towers, telephone poles and similar existing utility structures.

(6) Height, wireless facility overlay districts. In the Personal Wireless Services Facility Overlay District (herein designated as the "Personal Wireless Services Facility Overlay District" on the Town Zoning Map), PWSFs of up to 180 feet in height may be permitted by special permit. This district consists of the parcels of property described in "Personal Wireless Services Facility Overlay District Parcels" dated November 14, 2000, attached to and made a part of this bylaw.[1] Monopoles are the preferred type of mount for such taller structures. Such structures shall comply with all setback and special permit regulations set forth in this bylaw.

[Amended 10-17-2020 STM by Art. 4]

[1] Editor's Note: See Appendix B, included as an attachment to this chapter.

F. Other dimensional requirements. All PWSFs and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the following setbacks shall be observed:

(1) In order to ensure public safety, the minimum distance from the base of any ground-mounted personal wireless service facility to any property line, road, habitable dwelling, business or institutional use, or public recreational area shall be at least 1/2 the height of the facility/mount, including any antennas or other appurtenances. This setback is considered a "fall zone."

(2) In the event that an existing structure is proposed as a mount for a personal wireless service facility, a fall zone shall not be required, but the setback provisions of the zoning district shall apply. In the case of preexisting nonconforming structures, PWSFs and their equipment shelters shall not increase any nonconformities.

(3) In addition, no ground-mounted facility shall be located less than 200 feet from a neighboring residential building.

(4) Flexibility. In reviewing a special permit application for a personal wireless service facility, the Planning Board may reduce the required fall zone and/or setback distance of the zoning district by as much as 50% of the required distance, if it finds that a substantially better design will result from such reduction. In making such a finding, the Planning Board shall consider both the visual and safety impacts of the proposed use.

G. Camouflage standards. Personal wireless service facilities will be located so as to have the least visibility and the least impact on community character. A PWSF shall be camouflaged as follows:

(1) Camouflage by existing buildings or structures. When a personal wireless service facility extends above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the facade in order to limit their impact on the building's silhouette.

(2) Camouflage by consistent material. Personal wireless service facilities which are side mounted shall blend with the existing building's architecture and, if over five square feet, shall be painted or shielded with material which is consistent with the design features and materials of the building.

(3) Camouflage by vegetation. If PWSFs are not camouflaged from public viewing areas by existing buildings or structures, they shall be surrounded by buffers of dense tree growth and understory vegetation in all directions to create an effective year-round visual buffer. Ground-mounted PWSFs shall provide a vegetated buffer of sufficient height and depth to effectively screen the facility. Trees and vegetation may be existing on the subject property or installed as part of the proposed facility or a combination of both. The SPGA shall approve the types of trees and plant materials and depth of the needed buffer based on site conditions. Vegetation will be maintained with respect to depth, height, density and species according to the requirements of the SPGA.

[Amended 10-17-2020 STM by Art. 4]

(4) Color.

(a) Personal wireless service facilities which are side-mounted on buildings shall be painted or constructed of materials to match the color of the building material directly behind them.

(b) To the extent that any PWSF extends above the height of the vegetation immediately surrounding it, it shall be painted in a light grey or light blue hue which blends with sky and clouds.

H. Equipment shelters. Equipment shelters for PWSFs shall be designed consistent with one of the following design standards:

(1) Equipment shelters shall be located in underground vaults; or

(2) Equipment shelters shall be designed consistent with local architectural styles and materials; or

(3) Equipment shelters shall be camouflaged behind an effective year-round landscape buffer, equal to the height of the proposed building, and/or a wooden fence. The SPGA shall approve the style of fencing and/or landscape buffer that is compatible with the neighborhood.

I. Lighting, signage and security.

(1) Personal wireless service facilities shall be lighted only if required by the Federal Aviation Administration (FAA). Lighting of equipment structures and any other facilities on site shall be shielded from view from abutting properties. There shall be total cutoff of all light at the property lines of the parcel to be developed.

(2) Signs shall be limited to those needed to identify the property and the owner and warn of any danger. All signs shall comply with the requirements of the Town's sign regulations.[2]

[2] Editor's Note: See Art. 7, Signs, of this bylaw.

(3) Security. All ground-mounted PWSFs shall be surrounded by a security barrier.

J. Historic buildings and districts.

(1) Any PWSFs located on or within an historic structure in the Historic District shall not alter the character-defining features, distinctive construction methods, or original historic materials of the building.

(2) Any alteration made to an historic structure to accommodate a PWSF shall be fully reversible.

(3) Personal wireless service facilities within an historic district shall be concealed within or behind existing architectural features, or shall be located so that they are not visible from public roads and viewing areas within the district.

K. Environmental standards.

(1) Personal wireless service facilities shall not be located in wetlands. Locating of wireless facilities in wetland buffer areas shall be avoided whenever possible and disturbance to wetland buffer areas shall be minimized.

(2) No hazardous waste shall be discharged on the site of any PWSF. If any hazardous materials are to be used on site, there shall be provisions for full containment of such materials. An enclosed containment area shall be provided with a sealed floor, designed to contain at least 110% of the volume of the hazardous materials stored or used on the site.

(3) Stormwater runoff shall be contained on site.

(4) Ground-mounted equipment for PWSFs shall not generate noise in excess of 50 dB at the property line.

(5) Roof-mounted or side-mounted equipment for PWSFs shall not generate noise in excess of 50 dB at ground level at the base of the building on which the antenna is affixed.

(6) Applicants shall certify in writing that should any complaint of electronic or electromagnetic interference with other electronic devices be received, the applicant shall immediately exercise its responsibility to remedy such interference.

(7) The special permit shall remain valid only so long as the structure is maintained in good operating condition as determined by the Building Inspector, and the grounds and natural screening are maintained as required by the SPGA.

L. Safety standards.

(1) Radio frequency radiation (RFR) standards. All equipment proposed for a PWSF shall be authorized per the FCC Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines).

M. Special permit granting authority (SPGA). The special permit granting authority (SPGA) for PWSFs shall be the Planning Board. Where proposed construction is subject to both site plan review and a special permit, the SPGA will attempt to conduct both processes simultaneously, using the time limits of the special permit process to cover both reviews.

N. Preapplication conference. Prior to the submission of an application for a special permit under this regulation, the applicant is strongly encouraged to meet with the Planning Board at a public meeting to discuss the proposed PWSF in general terms and to clarify the filing requirements.

(1) Preapplication filing requirements. The purpose of the conference is to inform the Planning Board as to the preliminary nature of the proposed PWSF. As such, no formal filings are required for the preapplication conference. However, the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the SPGA of the location of the proposed facility, as well as its scale and overall design.

O. Application filing requirements. Applications for a special permit for all PWSFs shall include the items identified in the subsections below. Ten copies of the application for special permit shall be filed with the Planning Board.

(1) General filing requirements.

(a) Application fee for special permit.

(b) An amount of money to be placed in an engineering review escrow account. The Planning Board may enact regulations setting such fees.

(c) Name, address, and telephone number of applicant and any coapplicants as well as any agents for the applicant or coapplicants. Coapplicants may include the landowner of the subject property, licensed carriers, and tenants for the PWSF. A licensed carrier shall either be an applicant or a coapplicant.

(d) Original signatures for the applicant and all coapplicants applying for the special permit. If the applicant or coapplicant will be represented by an agent, original signature authorizing the agent to represent the applicant and/or coapplicant. Photo reproductions of signatures will not be accepted.

(e) A copy of the lease agreement, if any.

(2) Personal wireless service facilities on municipal property. If a freestanding, exterior PWSF is to be placed on municipal property the following conditions must be satisfied:

(a) Certificate of insurance for liability coverage in the amount of $1,000,000 must be provided, naming the Town as an additional insured, such certificate to be presented to the Town annually.

(b) An agreement whereby the user indemnifies and holds the Town harmless against any claims for injury or damage resulting from or arising out of the use or occupancy of the Town owned property by the user.

(c) A surety bond in a reasonable amount determined and approved by the Planning Board shall be in force to cover removal of a PWSF and restoration of the site to the condition that the premises was in at the onset of the lease, when use of said facility becomes discontinued or obsolete. The amount is to be payable to the Town in the event that the user breaches the conditions in § 255-12.4S(2) below.

[Amended 10-17-2020 STM by Art. 4]

(3) Location filing requirements.

(a) Identify the subject property by name of the nearest road or roads, and street address, if any.

(b) Tax Map and parcel number of subject property.

(c) Zoning district designation for the subject parcel (submit copy of Town Zoning Map with parcel identified).

(d) A line map to scale showing the lot lines of the subject property and all properties within 300 feet and the location of all buildings, including accessory structures, on all properties shown.

(e) A Town-wide map showing the other existing PWSFs in the Town and outside the Town within one mile of its corporate limits.

(f) The locations of all existing and proposed future PWSFs in the Town on a Town-wide map for this carrier.

[Amended 10-17-2020 STM by Art. 4]

(4) Siting filing requirements. One inch equals 40 feet (or other if preapproved by the SPGA) vicinity plan showing the following:

(a) Property lines for the subject property.

(b) Tree cover on the subject property and adjacent properties within 300 feet, by predominant species and average height, as measured by or available from a verifiable source.

(c) Outline of all existing buildings, including purpose (e.g., residential buildings, garages, accessory structures, etc.) on subject property and all adjacent properties within 300 feet.

(d) Proposed location of antenna, mount, and equipment shelter(s).

(e) Proposed security barrier, indicating type and extent as well as point of controlled entry.

(f) Location of all roads, public and private, on the subject property and on all adjacent properties within 300 feet, including driveways proposed to serve the PWSF.

(g) Distances, at grade, from the proposed PWSF to each building on the vicinity plan.

(h) Contours at each two feet above mean sea level (AMSL) for the subject property and adjacent properties within 300 feet.

(i) All proposed changes to the existing property, including grading, vegetation removal and temporary or permanent roads and driveways.

(j) Representations, dimensioned and to scale, of the proposed mount, antennas, equipment shelters, cable runs, parking areas and any other construction or development attendant to the PWSF.

(k) Lines representing the sight line showing viewpoint (point from which view is taken) and visible point (point being viewed) from "sight lines" Subsection O(5) immediately below.

(5) Sight lines and photographs as described below.

(a) Sight-line representation. A sight-line representation shall be drawn from any public road within 300 feet and the closest facade of each residential building (viewpoint) within 300 feet to the highest point of the PWSF. Each sight line shall be depicted in profile, drawn at one inch equals 40 feet. The profiles shall show all intervening trees and buildings. In the event there is only one residential building within 300 feet, there shall be at least two sight lines from the closest habitable structures or public roads, if any.

(b) Existing (before condition) photographs. Each sight line shall be illustrated by one four-inch by six-inch color photograph of what can currently be seen from any public road within 300 feet.

(c) Proposed (after condition). Each of the existing condition photographs shall have the proposed PWSF superimposed on it to show what will be seen from public roads if the proposed PWSF is built.

(d) Siting elevations, or views at grade from the north, south, east and west for a fifty-foot radius around the proposed PWSF plus from all existing public and private roads that serve the subject property. Elevations shall be at either 1/4 inch equals one foot or 1/8 inch equals one foot scale and show the following:

[1] Antennas, mounts and equipment shelter(s), with total elevation dimensions and AGL of the highest point.

[2] Security barrier. If the security barrier will block views of the PWSF, the barrier drawing shall be cut away to show the view behind the barrier.

[3] Any and all structures on the subject property.

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

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

(6) Design filing requirements.

(a) Equipment brochures for the proposed PWSF such as manufacturer's specifications or trade journal reprints shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.

(b) Materials of the proposed PWSF specified by generic type and specific treatment (e.g., anodized aluminum, stained wood, painted fiberglass, etc.). These shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.

(c) Colors of the proposed PWSF represented by a color board showing actual colors proposed. Colors shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.

(d) Dimensions of the PWSF specified for all three directions: height, width and breadth. These shall be provided for the antennas, mounts, equipment shelters and security barrier, if any.

(e) Appearance shown by at least two photographic superimpositions of the PWSF within the subject property. The photographic superimpositions shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any, for the total height, width and breadth.

(f) Landscape plan including existing trees and shrubs and those proposed to be added, identified by size of specimen at installation and species.

(g) Within 30 days of the pre-application conference, or within 21 days of filing an application for a special permit, the applicant shall arrange for a balloon or crane test at the proposed site to illustrate the height of the proposed facility. The date, time and location of such test shall be advertised in a newspaper of general circulation in the Town at least 14 days, but not more than 21 days, prior to the test.

(h) If lighting of the site is proposed, the applicant shall submit a manufacturer's computer-generated point-to-point printout, indicating the horizontal footcandle levels at grade, within the property to be developed and 25 feet beyond the property lines. The printout shall indicate the locations and types of luminaires proposed.

(7) Noise filing requirements.

(a) The applicant shall provide a statement listing the existing and maximum future projected measurements of noise from the proposed PWSFs, measured in decibels Ldn (logarithmic scale, accounting for greater sensitivity at night), for the following:

[1] Existing, or ambient: the measurements of existing noise.

[2] Existing plus proposed PWSFs: maximum estimate of noise from the proposed PWSF plus the existing noise environment.

(b) Such statement shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the noise standards of this bylaw.[3]

[3] Editor's Note: See § 255-12.4K(4) and (5).

(8) Radiofrequency radiation (RFR) filing requirements.

(a) The applicant shall provide a statement listing the existing and maximum future projected measurements of RFR from the proposed PWSF, for the following situations:

[1] Existing, or ambient: the measurements of existing RFR.

[2] Existing plus proposed PWSFs: maximum estimate of RFR from the proposed PWSF plus the existing RFR environment.

(b) Certification signed by an RF engineer, stating that RFR measurements are accurate and meet FCC Guidelines as specified in the radio frequency radiation standards subsection of this bylaw.[4]

[4] Editor's Note: See § 255-12.4L(1).

P. Co-location.

(1) Licensed carriers shall share PWSFs and sites where feasible and appropriate, thereby reducing the number of PWSFs that are stand-alone facilities. All applicants for a special permit for a PWSF shall demonstrate a good-faith effort to co-locate with other carriers. Such good faith effort includes:

(a) A survey of all existing structures that may be feasible sites for co-locating PWSFs;

(b) Contact with all the other licensed carriers for commercial mobile radio services operating in the county; and

(c) Sharing information necessary to determine if co-location is feasible under the design configuration most accommodating to co-location.

(2) In the event that co-location is found to be not feasible, a written statement of the reasons for the infeasibility shall be submitted to the SPGA. The SPGA may retain a technical expert in the field of RF engineering to verify if co-location at the site is not feasible or is feasible given the design configuration most accommodating to co-location. The cost for such a technical expert will be at the expense of the applicant. The SPGA may deny a special permit to an applicant that has not demonstrated a good-faith effort to provide for co-location.

(3) If the applicant does intend to co-locate or to permit co-location, the SPGA shall request drawings and studies which show the ultimate appearance and operation of the PWSF at full build-out. If the SPGA approves co-location for a PWSF site, the special permit shall indicate how many facilities of what type shall be permitted on that site. Facilities specified in the special permit approval shall require no further zoning approval. However, the addition of any facilities not specified in the approved special permit shall require a new special permit. Estimates of RFR emissions will be required for all facilities, including proposed and future facilities.

Q. Modifications. A modification of a PWSF may be considered equivalent to an application for a new PWSF and will require a special permit when the applicant and/or coapplicant wants to alter the terms of the special permit by changing the PWSF in one or more of the following ways:

(1) Change in the number of facilities permitted on the site;

(2) Change in technology used for the PWSF;

(3) The applicant and/or coapplicant wants to add any equipment or additional height not specified in the original design filing.

R. Monitoring and maintenance.

(1) After the PWSF is operational, the applicant shall submit, within 90 days of beginning operations, and at annual intervals from the date of issuance of the special permit, existing measurements of RFR from the PWSF. Such measurements shall be signed and certified by an RF engineer, stating that RFR measurements are accurate and meet FCC guidelines as specified in the radio frequency standards section of this bylaw.[5]

[5] Editor's Note: See § 255-12.4L(1).

(2) After the PWSF is operational, the applicant shall submit, within 90 days of the issuance of the special permit, and at annual intervals from the date of issuance of the special permit, existing measurements of noise from the PWSF. Such measurements shall be signed by an acoustical engineer, stating that noise measurements are accurate and meet the noise standards subsection of this bylaw.[6] The applicant and coapplicant shall maintain the entire PWSF in good condition. Such maintenance shall include, but shall not be limited to, painting, structural integrity of the mount and security barrier, and maintenance of the buffer areas and landscaping.

[6] Editor's Note: See § 255-12.4K(4) and (5).

S. Abandonment or discontinuance of use.

(1) At such time that a licensed carrier plans to abandon or discontinue operation of a PWSF, such carrier will notify the SPGA by certified U.S. mail of the proposed date of abandonment or discontinuance of operations. Such notice shall be given no less than 60 days prior to abandonment or discontinuance of operations. In the event that a licensed carrier fails to give such notice, the PWSF shall be considered abandoned upon such discontinuance of operations.

(2) Upon abandonment or discontinuance of use, the carrier shall physically remove the PWSF within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include, but not be limited to: removal of antennas, mount, equipment shelters and security barriers from the subject property; proper disposal of the waste materials from the site in accordance with local and state solid waste disposal regulations; and restoring the location of the PWSF to its natural condition, except that any landscaping and grading shall remain in the after condition. If a carrier fails to remove a PWSF in accordance with this section of this bylaw, the Town shall have the authority to enter the subject property and physically remove the facility. The Planning Board shall require the applicant to post a bond at the time of construction to cover costs for the removal of the PWSF in the event the Town must remove the facility.

T. Construction or replacement of existing towers and monopoles. Except as otherwise allowed herein, guyed towers, lattice towers, utility towers and monopoles in existence at the time of adoption of this bylaw may be reconstructed, altered, extended or replaced on the same site by special permit, provided that the Planning Board finds that such reconstruction, alteration, extension or replacement will not be substantially more detrimental to the neighborhood and/or the Town than the existing structure. In making such a determination, the Planning Board shall consider whether the proposed reconstruction, alteration, extension, or replacement will create public benefits such as opportunities for co-location, improvements in public safety, and/or reduction in visual and environmental impacts. No reconstruction, alteration, extension, or replacement shall exceed the height of the existing facility by more than 20 feet.

§ 255-12.5 Independent Living Overlay District (ILOD).

A. Purpose. The purpose of the Independent Living Overlay District (ILOD) is to provide a mechanism for the approval of:

(1) Independent living facilities (ILF) that offer housing and other services to persons over the age of 55, subject to the age restriction definition in Subsection B below;

(2) The development of ILF in a manner that conserves environmental features, woodlands, wetlands, open space, areas of scenic beauty, views and vistas as well as encouraging the renovation and rehabilitation of older, existing buildings; and

(3) The development of ILF in a manner harmonious with the surrounding land uses while protecting natural resources and open space.

B. Definitions. Within this section, the following terms shall have the following meanings:

ACCESSORY STRUCTURES AND USES

Structures and uses accessory to the ILF may include, but are not limited to, recreational, personal services, hotel rooms, places of assembly, religious, educational, and cultural places, and the like. Such accessory uses and structures shall be designed for the primary use of the residents and staff of the ILF. Such accessory uses may not be designed for or used as a general business by the general public. Such accessory uses shall have no exterior advertising display.

AFFORDABLE DWELLING UNIT

A dwelling unit affordable to persons or families in the area under the applicable guidelines of the Commonwealth's Department of Housing and Community Development (DHCD), earning more than 50% but less than 80% of the median income, adjusted for household size.

AGE RESTRICTION

The ILF shall be subject to an age restriction as follows: 80% of the occupied units shall be occupied by at least one person who is age 55 or older (the "qualified occupant"); provided, however, that in the event of the death of the qualified occupant(s) of a unit or other involuntary transfer of a unit, a one-year exemption shall be allowed to allow for the rental of the unit to another qualified occupant(s) (the "age restriction") so long as the provisions of the Housing Laws (defined below) are not violated by such occupancy. The age restriction is intended to be consistent with, and is set forth in order to comply with, the Fair Housing Act, 42 U.S.C. § 3607(b), as amended, the regulations promulgated thereunder, 24 CFR Subtitle B, Chapter 1, Section 100.300 et seq., and MGL c. 151B, § 4 (the "Housing Laws"). This condition shall be incorporated into the deed riders and association organizational documents. This restriction and any proposed deed shall be subject to review and approval by the Planning Board and approved as to form by Town Counsel prior to the issuance of a certificate of occupancy for any dwelling unit.

APPLICANT

The person or persons, including a corporation or other legal entity, who applies for issuance of a special permit hereunder. The applicant must own, or be the beneficial owner of, all the land included in the proposed site, or have authority from the owner(s) to act for them/it/them or hold an option or contract duly executed by the owner(s) and the applicant, giving the latter the right to acquire the land to be included in the site.

BEDROOM

A separate room intended for, or which customarily could be used for, sleeping.

DWELLING UNIT

A residence, including studio units. Each residence shall contain a living area, bathroom and, except in studio units, one or more bedrooms, and shall contain a kitchen area or combination kitchen/living area.

INDEPENDENT LIVING COMPLEX (ILC)

A structure or structures with a mix of dwelling units, common areas and accessory uses.

INDEPENDENT LIVING FACILITY (ILF)

An independent living complex with or without ancillary buildings, subject to an age restriction.

REGULATIONS

The rules and regulations of the Planning Board relative to subdivisions, special permits and site plans.

WETLANDS

Resource areas subject to the provisions of MGL c. 131, §§ 40 and 40A, and the Wenham Water Resources Protection Bylaw, Chapter 242 of the General Bylaws.

C. Overlay district. The ILOD shall be construed as an overlay district. Within the ILOD, the requirements of the underlying zoning district(s) shall remain in full force and effect until a special permit for an ILF has been granted, except where the requirements herein are more restrictive or provide for uses or structures not otherwise available in the underlying district; in such cases, the requirements herein shall supersede the underlying zoning regulation.

D. Use regulations. An ILF may be constructed, subject to the requirements set forth herein, upon the issuance of a special permit by the Planning Board. No other use or structures shall be permitted, except as specifically provided herein:

(1) An ILF consisting of any combination of at least (one) independent living complex and ancillary buildings.

(2) Accessory structures and uses.

E. Administration. The Planning Board shall serve as the special permit granting authority pursuant to this section. The Planning Board may waive the submittal of technical information or documents otherwise required hereunder where the applicant demonstrates that, due to the simplicity of the proposal, such information is not necessary for or applicable to the Planning Board's decision pursuant to this section. An application for a special permit shall be governed by the following rules.

F. Application. An application for a special permit shall be submitted to the Planning Board on forms furnished by the Planning Board. Each such application shall be accompanied by a filing fee of $1,000 and a technical review fee pursuant to MGL c. 44, § 53G. The application shall be accompanied by all of the information required for site plan review, as set forth in § 255-13.5D and E of the Zoning Bylaw.

G. Standards. In order to be eligible for consideration for a special permit pursuant to this section, the proposed development shall meet all of the following standards:

(1) Parcel size and frontage. Minimum parcel size for an ILF shall be 10 acres, with land underwater being excluded from this computation. Minimum frontage for an ILF shall be 200 feet.

(2) Buffer. A buffer area of 50 feet shall be provided at the perimeter of the property where it abuts existing residentially occupied properties, except for driveways necessary for access and egress to and from the site, or for stormwater retention facilities. No vegetation in this buffer area will be disturbed, destroyed or removed, except for normal maintenance. The Planning Board may waive the buffer requirement where:

(a) The land abutting the site is the subject of a permanent restriction for conservation or recreation; or

(b) The land abutting the site is held for conservation or recreation purposes; or

(c) The Planning Board determines that a smaller buffer will suffice to accomplish the objectives set forth herein.

(3) Removal and replacement of vegetation. Within the site, no clear cutting shall be permitted, except incidental to construction of buildings, roads, trails and parking areas, as approved by the Planning Board.

(4) Roadways. The principal roadway(s) serving the site shall be designed to conform with the standards of the Town where the roadway is or may be ultimately intended for dedication and acceptance by the Town. Private ways shall be adequate for the intended use and vehicular traffic and shall be maintained by an association of unit owners or by the applicant.

(5) Parking. The applicant shall provide adequate parking to serve all anticipated uses on the property, with information detailing the method of computation of parking spaces. Such parking may be underground, in a structure, or on the surface. The minimum number of parking spaces provided on the site shall be 1.25 per dwelling unit in an ILF. The Planning Board may require, when parking is less than 1.5 spaces per dwelling unit, that a reserve area be set aside for additional parking if needed. One parking space shall also be provided for every employee during the largest shift. All parking areas shall be screened from view by a landscaped border at least 50 feet in width from adjacent residentially occupied premises located outside the ILF, including public ways.

(6) Loading. Screening and landscaping shall be provided to block all views of loading areas (except those specifically designated for emergency vehicles) from the public right-of-way and adjacent properties.

(7) Stormwater management. The stormwater management system shall be designed in accordance with Massachusetts Department of Environmental Protection stormwater management regulations.

(8) Utilities. All electric, gas, telephone, and cable lines shall be placed underground, except upon a demonstration of exceptional circumstances such as rock, ledge and wetlands.

(9) Sidewalks and paths. Sidewalks shall be required to connect parking areas and buildings to nearby buildings. Paths for the use of residents shall be attractively designed with proper regard for convenience, separation of vehicular, bicycle and pedestrian traffic, adequate connectivity, completeness of access to the various amenities and facilities on the site and to connect to pathways on adjacent sites or public ways.

(10) Emergency systems. The ILF shall have an integrated emergency call, telephone and other communications system to provide monitoring for its residents. There shall be sufficient site access for public safety vehicles. A plan shall be approved by the Fire Department for the emergency evacuation of the residents with emphasis on ensuring the safety of residents with physical impairments.

(11) Lighting. All exterior lighting shall not produce lighting so as to unreasonably interfere with the use and enjoyment of property within the Town. Lighting practices and systems shall reduce light pollution, light trespass and glare in order to preserve and enhance the natural, scenic, and aesthetic qualities of the Town; conserve energy and decrease lighting cost without decreasing night time safety, security, and productivity; and preserve the night sky as a natural resource to enhance nighttime enjoyment of property within the Town.

(12) Emergency access. When the ILF has a single access road with a length greater than 1,000 feet, a second means of access adequate for emergency vehicles, as determined by the Fire Department, and approved by the Planning Board, shall be provided.

(13) Further subdivision. After a special permit is issued for an ILF, no further subdivision of land shall be permitted.

(14) Density. The aggregate number of dwelling units shall not exceed five times the total number of acres in the ILOD.

(15) Building height. An independent living complex shall have a maximum building height of four stories. Ancillary buildings shall have a maximum height of three stories. Underground or partially underground parking and or building service areas shall not be considered a story. In addition, where a building is designed to accommodate variations in grade, each building segment shall be considered separately in determining the maximum number of stories.

H. Sustainable design. The applicant shall present to the Planning Board a matrix indicating the sustainable design components that shall be achievable as part of the project. The applicant shall complete all of the items indicated on the matrix. Upon completion of the project, the applicant shall provide a report to the Planning Board from its design, engineering and construction team, summarizing how the items were accomplished, and such report will replace any requirement that the applicant obtain a LEED certification for the project.

I. Incentives for conversion of structures. Applicants are encouraged to propose the appropriate reuse of land and buildings that are no longer needed or suitable for their original use, where such conversion is compatible with the character of the neighborhood. In the event of such conversion to an independent living complex, the number of stories of any additions or extensions shall not exceed the number of stories of the existing structure on the premises.

J. Affordable dwelling units.

(1) Not less than 10% of the number of dwelling units in the ILF shall be affordable dwelling units provided on site.

(2) In the alternative, the applicant, or a related entity such as a single-purpose limited liability company under the control or direction of the applicant, may provide off-site homeownership or rental affordable dwelling units equal to 15% of the total number of on-site units.

(3) In the alternative, the applicant, or a related entity such as a single-purpose limited liability company under the control or direction of the applicant, may provide off-site rental housing equal to 15% of the total number of on-site units, provided that 100% of such units shall be counted on the DHCD's Subsidized Housing Inventory.

(4) If the applicant proposes to situate required affordable dwelling units off site, the applicant or such related entity shall demonstrate control of such off-site location(s).

(5) The Planning Board shall require specific deadlines for the provision of the required off-site units and the land on which such units are located.

(6) If the applicant elects to provide affordable dwelling units both on and off the site, the Planning Board shall establish the total number of such affordable dwelling units in the grant of any special permit.

(7) The affordable dwelling units shall meet the standards of the DHCD as to size and location. The applicant shall cooperate with the Town to ensure that all affordable dwelling units are counted on DHCD's Subsidized Housing Inventory.

K. Action by the Planning Board. The Planning Board may grant a special permit for an ILF where it makes the following findings, in addition to those set forth in § 255-13.4C of this bylaw. Except as set forth in Subsection F above, § 255-13.5, governing site plan review, shall not apply in the ILOD.

(1) Proposed facility complies with the requirements of this section; provided, however, the Planning Board may waive a substantive requirement (except the affordable dwelling unit requirement), when the Board determines that the waiver will not result in substantial detriment to the district or the Town.

(2) The proposed facility does not cause substantial detriment to the neighborhood after considering the following potential consequences:

(a) Noise, during the construction and operational phases;

(b) Light pollution;

(c) Visual impact caused by the character and scale of the proposed structure(s).

L. Lapse. Notwithstanding the provisions of § 255-13.4G, a special permit for an ILF shall lapse after 24 months if substantial use or construction as granted under a permit has not commenced without good cause. This time limit excludes the time required to pursue or await the determination of an appeal.