Town of Sunderland, MA Article V Special Regulations

§ 125-V-1 Wireless Communications Facilities.

[Added 5-4-1998 ATM, Art. 42]

A. Purpose - The purpose of this section is to establish a district in which wireless communications services (WCF) may be provided and to minimize the adverse impact of WCFs on properties abutting those on which they are constructed; to limit the number and height of such facilities to the minimum necessary for effective operation; to promote shared use of facilities; and to protect, to the maximum extent practicable, the historic and residential character of the Town of Sunderland, the property values of the community, and the health, safety, and welfare of citizens.

B. Location of District - The Wireless Communications Services District shall be located on all land owned by the Town of Sunderland, on all land owned by the Sunderland Water District, and on all land zoned for commercial and/or industrial purposes. The Wireless Communications Services District shall be construed as an overlay district with regard to said locations. All requirements of the underlying zoning district shall remain in full force and effect, except as may be specifically superseded herein.

[Amended 4-28-2000 ATM, Art. 50]

C. Definitions - As used in this section, the following terms shall have the meanings indicated:

APPLICANT

A landowner, developer, or other person who is required to file an application to comply with any ordinance or bylaw.

COLOCATION

Installation and operation of more than one (1) WCF on a single tower, building, or other structure.

CONSTRUCTION

The construction, reconstruction, renovation, repair, extension, expansion, alteration, or relocation of any structure.

CONVERSION

To change or adapt land or structures to a different use, occupancy, or purpose.

LANDOWNER

The legal or beneficial owner of land, including the holder of an option or contract to purchase (whether or not such option or contract is subject to any condition), a lessee if he or she is authorized under the lease to exercise the rights of a landowner, or other person having a proprietary interest in land.

LATTICE STYLE TOWER

A tower that tapers from base to top, characterized by lattice-work construction.

MONOPOLE TOWER

A tower consisting structurally of a single, round pole similar to a flag pole, tapering slightly from base to top, and usually supported by guy wires.

MUNICIPAL FACILITIES

Structures or land used for offices, garages, storage, parks, playgrounds, or other governmental uses of the Town of Sunderland.

PARK

A tract of land set aside for public use, excluding any commercial use.

PERSON

An individual, partnership, association, corporation, firm, governmental agency or department, or other entity; or, where appropriate, the members, officers, representatives, agents, etc., or any of these.

SCREEN

An obstruction of sufficient height [but not less than six (6) feet] to hide an area being screened from adjoining areas.

SETBACK

The required minimum distance between any structure and an adjacent public way, road, street, right-of-way or lot line.

SPECIALIZED MOBILE RADIO SERVICES

Cellular telephone and other forms of personal communication services requiring wireless communication facilities in order to operate.

STRUCTURE

Anything that is built, of any kind whatsoever, including signs, fences, swimming pools, garages, sheds, towers, etc.

TELECOMMUNICATION TOWER

A lattice-style or monopole tower, possibly including antenna(s), whose purpose is to house and facilitate WCF services.

WIRELESS COMMUNICATION FACILITY (WCF)

Any tower, or any antenna or device placed on a tower or on any other new or existing structure, or any device, wiring, or equipment designed to facilitate, or used in connection with, the provision of specialized mobile radio service, as well as any structure or appurtenance used primarily for the installation and operation of equipment necessary for the provision of such services. Antennas used by federally licensed amateur radio operators, or television antennas or satellite dishes that are accessory to residential uses, are not WCFs.

D. General Requirements and Use Restrictions - A wireless communication tower and facilities (including antennas and accessory structures, if any) may be erected in a Wireless Communications Services District upon the issuance of a special permit by the Planning Board pursuant to § 125-Article VI-3, Special Permits, subject to site plan approval as set forth herein at § 125-Article VI-1-B, Site Plan Review, as may be amended (without exemption due to size of structure), and subject to all of the following conditions:

(1) All WCFs, whether new or modifications of existing structures or facilities, shall be constructed, installed, and operated in compliance with the provisions of this section. Applications for permits for new or modified facilities shall meet the requirements described herein.

(2) All telecommunication towers must be engineered to fall at a predetermined height, enabling the entire structure to collapse and be contained within the lot area of the lot on which it is located.

(3) The setback of a telecommunication tower from every lot line of the lot on which it is located shall be at least equal, in every case, to the length of the tower from the engineered fault described in Subsection D(2) above, to the top of the tower.

(4) Telecommunication towers shall be located at least two hundred (200) feet from the nearest residential structure and seven hundred fifty (750) feet from any historic district.

(5) No WCF, or part thereof, shall exceed eighty-five (85) feet in height measured from ground level at the base of the tower to the top of the WCF or, if located on another structure, be more than eighty-five (85) feet above ground level measured from the ground to the top of the WCF.

(6) WCFs must be sited to minimize the view of the facilities from abutters and other areas of the Town, and colors and construction materials must minimize the visual impact of the facilities, which must blend with the landscape and structures where they are located.

(7) WCFs must be designed to accommodate the maximum number of users technologically practical.

(8) Whenever possible, collocation of WCFs is mandatory. New WCFs will be permitted only in cases where applicants provide engineering data demonstrating conclusively that existing or approved WCFs cannot adequately fulfill service requirements or accommodate proposed equipment.

(9) Fencing must be provided to control access to WCFs. It must be compatible with the scenic character of the Town and of abutting properties, and may not be of barbed wire or razor wire. A landscape screen of evergreen shrubs or trees must be provided and maintained on the outside of the fencing. The shrubs or trees must be at least four (4) feet tall and no more than three (3) feet apart when planted, and must mature to a height greater than the fence height.

(10) Existing on-site vegetation must be preserved to the maximum extent practicable. Clearing of land must be performed in a manner that will maximize preservation of natural beauty and conservation of natural resources, and that will minimize marring and scarring of the landscape and silting of streams and wetlands.

(11) No signs are permitted except one (1) sign identifying the facility, owner, and operator, and including an emergency telephone number where the owner can be reached on a twenty-four-hour basis; one (1) no trespassing sign; one (1) sign displaying the FCC registration number; and any signs required to warn of danger. All signs must comply with the requirements of the Sunderland Zoning Bylaw (See § 125-Article III-2, Signs).

(12) No WCF installed within seven hundred fifty (750) feet of a residential structure may exceed the maximum height limit established by the Federal Aviation Administration (FAA) for required night lighting. Telecommunication tower lighting must be limited to that needed for emergencies. Building and ground lighting may be provided to ensure safety and security. All lighting must be shielded to prevent undue impact on surrounding properties.

(13) A minimum of one (1) parking space must be provided for each WCF, to be used in connection with maintenance of the site, and not be used for the permanent storage of vehicles or other equipment. See also § 125-Article III-1, Parking and Loading Requirements.

(14) To the extent feasible, all network interconnections from the WCF site must be via land lines.

(15) Applicants proposing to install WCFs on municipal facilities must provide evidence of contractual authorization from the Town of Sunderland.

(16) Owners of WCFs must report to the Building Inspector any interruption of the operation of any WCF that exceeds thirty (30) days. Any facility in which operation is permanently terminated must be removed at the owner's expense within one (1) year of such termination.

(17) Applicants must file an environmental assessment if the proposed location of the WCF is in an environmentally sensitive area such as:

(a) Officially designated wilderness areas;

(b) Officially designated wildlife preserves;

(c) Situations which may affect listed threatened or endangered species or critical habitats;

(d) Situations which may affect historical sites listed or eligible for listing in the National Register of Historic Places;

(e) Indian religious sites;

(f) One-hundred-year floodplain [as determined by the Federal Emergency Management Agency (FEMA) flood insurance rate maps];

(g) Situations which may cause significant change in surface features, such as wetland fills, deforestation or water diversion;

(h) Situations that may affect Town wells or water supplies; and

(i) Proposed use of high intensity white lights in residential neighborhoods.

(18) Traffic associated with the tower and accessory facilities and structures shall not adversely affect abutting ways.

E. Application Procedure.

(1) Special Permits for WCFs will be issued by the Planning Board upon approval of applications. Applications, including the required fee, if any, must be made in writing to the Planning Board, on the applicable application forms for site plan review and special permits. In addition to the requirements for site plan review under § 125-Article VI-1-B, Site Plan Review, of the Town of Sunderland Zoning Bylaw, special permit requirements under § 125-Article VI-3, Special Permits, of the Town of Sunderland Zoning Bylaw and this section, five (5) copies of the following information must be submitted for an application to be considered complete.

(2) Applications must include, at a minimum:

(a) A color photograph or rendition of the proposed WCF, including, but not limited to, any proposed tower with all attached facilities, and views of the proposed WCF from the nearest roads and from such critical view areas as Mount Sugarloaf.

(b) A landscape plan showing the proposed site before and after construction, including topography and proposed screening, property lines, location of the proposed structure, street landscape features, residential dwelling and the abutting neighborhoods and all buildings within five hundred (500) feet of the facility.

(c) A description of the WCF, including, but not limited to, the height of any towers and other facilities; access roads and power supplies; the type, size, and number of transmitters; and a technical report that demonstrates that the maximum height of the installation is the minimum feasible to provide the intended service.

(d) The technical and other reasons for the proposed location, height, and design, including, but not limited to, a survey of all sites that are feasible for providing the intended services both within and directly adjacent to the Town of Sunderland, and the reasons that the proposed site was selected over at least one (1) alternate site.

(e) A survey of all existing telecommunication towers or other structures capable of supporting the equipment necessary to provide the intended service, and a technical report that demonstrates why such towers or other structures cannot be used by the applicant.

(f) A description of the capacity of the telecommunication tower, including the number and type of panels, antennas, and transmitter receivers that it can accommodate, and the basis for these calculations.

(g) A statement that the sound levels under normal operating conditions, whether emanating directly from, or as a result of natural wind blowing through, the WCF, measured at the boundary of the lot on which it is located, shall not be greater than would exist if the WCF were not present.

(h) A statement describing the services to be supported by the proposed WCF, and, for both the primary and the alternate site, delineation on the Zoning District Map of all areas in the Town of Sunderland that will not be served by the proposed facility.

(i) A description of special design features used to minimize the visual impact of the proposed WCF.

(j) Certification that the applicant possesses all necessary licenses to operate a WCF, and has complied with all federal and state requirements to provide the service.

(k) Evidence of compliance with all the requirements contained herein.

(3) Within thirty (30) days after the date of the Planning Board meeting at which a complete application is received, the applicant must fly balloons on a weekend day between the hours of noon and 3:00 p.m., at both the primary and alternate sites, at the maximum heights of the proposed installations. Balloons must be of such size and color that they can be seen from every direction for a distance of one (1) mile. The applicant is responsible for posting the date and location of this activity as a legal advertisement at least fourteen (14) days, but not more than twenty-one (21) days, before the flights in at least two (2) different issues of a newspaper with general circulation in the Town of Sunderland.

F. Revocation of Permit.

(1) Any permit for the construction and operation of a WCF is subject to revocation for the violation of any provision of this or any other bylaw of the Town, or of any laws of the Commonwealth of Massachusetts or rules or regulations of any agency thereof having appropriate jurisdiction, or for other cause shown.

(2) If the Building Inspector determines that a violation exists, he or she shall notify the permittee of said violation and the permittee shall thereafter correct the said violation within thirty (30) days of the notice. If the violation is not corrected, then a hearing shall be conducted by the Planning Board upon thirty (30) days' written notice to the permittee. At the hearing, the Building Inspector shall set forth all the facts and evidence for the purpose of determining whether a violation exists. A permittee shall have the right to be represented by counsel and to present such evidence as they may determine appropriate or relevant to show why no violation exists. At the conclusion of the hearing, the Planning Board shall notify the permittee of its decision.

G. Nonuse - All unused towers or parts thereof or accessory facilities and structures which have not been used for one (1) year shall be dismantled and removed at the owner's expense. Prior to issuance of a building permit for a wireless communications tower, the applicant is required to post with the Town Treasurer a bond or other form of financial security acceptable to said Treasurer in an amount set by the Planning Board. The amount shall be suitable to cover demolition in the event that the Building Inspector condemns the tower or parts thereof or accessory facilities and structures or deems it unused for more than a year. The Building Inspector shall give the applicant forty-five (45) days' written notice in advance of any demolition action.

H. Exemptions - The following types of wireless communications towers are exempt from this section:

(1) Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the Federal Communications Commission, provided that:

(a) The tower is not used or licensed for any commercial purpose; and

(b) The tower must be removed if the use is discontinued for six (6) months; and

(2) Satellite dishes and antennas for residential use.

I. Waivers - The Planning Board may (but is not required to) waive strict compliance with the use restriction requirements when, in its judgment, such action is in the public interest and not inconsistent with the intent of this section. Any waiver request must be made in writing at the time of application with documentation relative to site constraints or location difficulties.

§ 125-V-2 Adult-Oriented Business.

[Added 4-29-2002 ATM, Art. 30]

A. Purpose and Intent.

(1) It is the purpose of this section to promote public health, safety and general welfare, to prevent problems of blight and deterioration which accompany and are brought about by the concentration of adult-oriented businesses, and to regulate the locations of adult uses in order to lessen the harmful secondary effects on adjacent areas. These secondary effects, which are documented in various studies of other towns and cities, include an increase in crime, a decline in property values, a flight of existing businesses and gradual blight of residential neighborhoods. Accordingly, the purpose of this Adult-Oriented Business Bylaw is to prevent crime, maintain property values, protect the Town's retail trade and protect and preserve the quality of residential neighborhoods. In addition, the Town desires to promote a positive business and community climate along its main commercial thoroughfares thereby retaining and promoting safe attractive business areas. The Town desires to preserve and protect the safety of children and young people in the vicinity of schools and public parks where they are expected to walk.

(2) It is intended that the provisions of this section have neither the purpose nor the effect of imposing limitations or restrictions on the content of any communicative materials, including sexually oriented materials. It is not the intent nor effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market; and neither is it the intent nor effect of this section to condone or legitimize the distribution of obscene material.

B. Special Permit Granting Authority - The Planning Board shall be the special permit granting authority (SPGA) under this section in accordance with M.G.L. c. 40A, §§ 9 and 9A. Special permits issued by the Planning Board shall require a positive vote by at least four members of the five member board.

C. Definitions of Adult-Oriented Businesses - An adult-oriented business is any place of business at which any of the following activities is conducted:

ADULT BOOKSTORE

An establishment having as a substantial or significant portion of its business sales, inventory, or stock-in-trade, books, magazines, and other matter which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT CABARET

A nightclub, bar, restaurant, or similar establishment which during a substantial portion of the total presentation time features live performances which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL. c. 272, § 31.

ADULT ENCOUNTER CENTER

A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration activities between male and female persons and/or persons of the same sex when one or more persons are in the state of nudity and where the activities are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT MOTEL

A motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions, a substantial portion of the total presentation time of which is distinguished or characterized by its emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT MOTION-PICTURE ARCADE

Any place to which the public is permitted or invited where electronically, electrically or mechanically controlled still or motion-picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and in which a substantial portion of the total presentation time of the images so displayed is devoted to the showing of material which is distinguished or characterized by its emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT MOTION-PICTURE THEATER

An enclosed theater building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT PARAPHERNALIA STORE

An establishment having as a substantial or significant portion of its business sales, inventory, or stock-in-trade, devices, objects, tools, or toys which are distinguished or characterized by their association with sexual activity, including sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT THEATER

A theater, concert hall, auditorium or similar establishment either indoor or outdoor in nature, which, for any form of consideration, regularly features live performances, a substantial portion of the total presentation time of which is distinguished or characterized by its emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

ADULT VIDEO STORE

An establishment having as a substantial or significant portion of its business sales, inventory, or stock-in-trade, videos, movies, or other film material which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL c. 272, § 31.

OBSCENE ENTERTAINMENT

All entertainment which is "obscene" within the meaning of that term as defined by MGL c. 272, § 31 and/or a final adjudication of a court of competent jurisdiction.

SUBSTANTIAL OR SIGNIFICANT PORTION

Shall mean that any one of the following apply: twenty-five percent (25%) or more of the business inventory or stock of merchandise for sale, rental, distribution, or exhibition during any period of time; or twenty-five percent (25%) or more of the annual number of gross sales, rentals, or other business transactions; or twenty-five percent (25%) or more of the annual gross business revenue; or twenty-five percent (25%) or more of the hours during which the establishment is open.

D. Locations - Requirements regarding the allowed locations and location restrictions of adult oriented businesses.

(1) All obscene entertainment, including bookstores and motion-picture theaters that make available obscene materials, are prohibited within the Town of Sunderland.

(2) Adult-oriented businesses, as defined above, shall be permitted only in the C-2 District as shown on the Official Zoning Map of the Town of Sunderland, provided that all other regulations, requirements, and restrictions for the zone in which the adult-oriented business is to be located are met; and no adult-oriented business shall be permitted within:

(a) Five hundred (500) feet of another existing adult oriented business or one for which a building permit has been applied for. The distance between any two (2) adult-oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest property line of each property;

(b) One thousand (1,000) feet of any existing public, parochial, or private school, kindergarten, or state-approved day-care center; this setback shall include the grounds on which said public, parochial, or private school, kindergarten or state-approved day-care center is located on. The distance between any adult-oriented business and any public, parochial, or private school, kindergarten or state-approved day-care center shall be measured in a straight line, without regard to intervening structures, from the closest property line of any existing public, parochial, or private school, kindergarten, or state-approved day-care center to the closest exterior structural wall or parking space associated with the adult oriented business;

(c) Five hundred (500) feet from the Cranberry Pond Recreation area (Assessor's Map 3-3). The distance between any adult-oriented business and the Cranberry Pond Recreation area (Assessor's Map 3-3) shall be measured in a straight line, without regard to intervening structures, from the closest property line of the Cranberry Pond Recreation Area (Assessor's Map 3-3) to the closest exterior structural wall or parking space associated with the adult-oriented business; or

(d) Five hundred (500) feet from any existing residential use. The distance between a residential use and an adult-oriented business shall be measured in a straight line, without regard to intervening structures, from the closest property line of the residential property to the closest exterior structural wall or parking space associated with the adult-oriented business.

E. Site Development Standards - Pursuant to MGL c. 40A, § 9A, the following site improvements and amenities are required, in addition to the special permit requirements found in § 125-Article VI-3, Special Permits, to protect public safety and neighboring property values. The Planning Board is empowered hereunder to review and approve permit applications for adult oriented businesses and impose reasonable restrictions for buffering, outdoor lighting, parking, adequate ingress and egress from the site off of and onto public roads, pedestrian movement, and to provide for appropriate landscaping and building aesthetics as the special permit granting authority and to avoid site development layout which may result in negative environmental impacts.

(1) Dimensional requirements: Any building or structure containing an adult oriented business shall meet the setback requirements and other dimensional controls of the appropriate district as specified in these bylaws. For any property proposed to contain an adult oriented business, the applicant for a special permit for such use shall demonstrate that the entire property shall comply with these requirements and controls following the establishment of such use thereon.

(2) Parking and loading requirements: On-site parking and loading shall be provided in accordance with the requirements of § 125-Article III-1, Parking and Load Requirements, of these bylaws. For any property proposed to contain an adult oriented business, the applicant for a special permit for such use shall demonstrate that the entire property shall comply with these requirements and controls following the establishment of such use thereon.

(3) Site screening: Rear and side property lines shall be screened from any neighboring uses or properties. Screening shall be by a solid stockade fence that is three and a half (3 1/2) feet tall within twenty (20) feet of the street and six (6) feet tall elsewhere on the property plus a densely vegetated planting of evergreen and deciduous trees and shrubs which meets the requirements of § 125-Article III-3-F, Landscaping, of the Sunderland Zoning Bylaw.

(4) Site lighting shall be maintained at a minimum lumen as determined by the Sunderland Police Department to ensure adequate visibility on the property to ensure public safety. Light standards may not exceed twenty (20) feet in height and shall be consistent with § 125-Article III-1-E, Lighting, of the Sunderland Zoning Bylaw.

(5) No driveway to such premises shall be within three hundred (300) feet of any existing residential use. No such premises shall have any driveway entrance or exit for motor vehicles within five hundred (500) feet of the property used by any school, public library, or church.

(6) Signs: All signs for an adult-oriented business must meet the requirements of § 125-Article III-2, Signs, of this bylaw except that no advertising signs shall be located within twenty (20) feet of a public or private way and must be set back a minimum of twenty (20) feet from all property lines. In addition, no advertisement, display or other promotional material which contains sexually explicit graphics or sexually explicit text, as defined in MGL c. 272, § 31, shall be visible to the public from any public way including but not limited to sidewalks, pedestrian walkways, streets or bicycle paths. Signage for adult oriented businesses shall not contain any moving, flashing or animated lights, or visible moving or movable parts. No adult-oriented business may display flashing lights visible from outside the establishment.

(7) Appearance of buildings for adult-oriented businesses shall be consistent with the appearance of other buildings in Sunderland, not employing unusual color or building design which would attract attention to the premises.

(8) If the adult-oriented business allows for the showing of films or videos within the premises, the booths in which the films or videos are viewed shall not be closed off by curtains, doors or screens. All booths must be able to be clearly seen from the center of the establishment.

(9) All building openings, entries and windows shall be screened in such a manner as to prevent visual access to the interior of the establishment by minors. No signs, pictures, publications, videotapes, movies or other advertising that are distinguished or characterized by their emphasis depicting, describing, or related to sexual conduct or sexual excitement, as defined in MGL c. 272, § 31, shall be displayed in the windows of, or on the building of any adult-oriented business, or be visible to the public from pedestrian sidewalks or walkways or from other public or semipublic areas outside such establishments.

(10) No adult-oriented business shall be allowed to disseminate or offer to disseminate adult matter or paraphernalia to minors or allow minors to view displays or linger on the premises.

(11) The applicant for permission to operate any adult-oriented business must file his application on a form approved by the special permit granting authority, with the special permit granting authority and the Town Clerk. Such form shall contain information as set forth in the rules and regulations established by the special permit granting authority, but shall include as a minimum:

(a) Name and address of the legal owner of the adult-oriented business;

(b) Name and address of all persons having lawful, equity or security interests in the adult-oriented business;

(c) Name and address of the manager;

(d) The number of proposed employees; and

(e) Proposed security precautions.

(12) No adult-oriented business shall be established prior to submission and approval of a site plan by the Planning Board, pursuant to § 125-Article VI-1-B, Site Plan Review, for any proposed adult-oriented business. The site plan shall, at the minimum, depict all existing and proposed buildings, parking spaces, driveways, service areas, and other open uses. The site plan shall show the distances between the proposed adult-oriented business and the boundaries of all existing uses within one thousand (1,000) feet of the property lines of the proposed adult-oriented business.

(13) No special permit for an adult-oriented business shall be issued to any person convicted of violating MGL c. 119, § 63, or MGL c. 272, § 28 or are listed on the Sex Offender Registry. The applicant or owner must disclose if they have been convicted of violating these provisions and must disclose any and all involvement with other adult uses in the Town.

(14) Any adult-oriented business special permit issued under this section shall require that the owner of such business shall supply on a continuing basis to the Building Inspector any change in the name of the legal owner of the adult-oriented business or their address, or any change in the name of the current manager. If anyone so identified is or has been convicted of violating MGL c. 119, § 63, or MGL c. 272, § 28 or is listed on the Sex Offender Registry, then this shall be a violation of the requirements of this section and shall result in the immediate issuance of a cease and desist order by the Building Inspector ordering that all activities conducted under the special permit cease immediately.

(15) No adult oriented business shall employ any persons who would be excluded as a permit holder under this bylaw.

(16) No adult-oriented business special permit shall be issued under this section, become valid or in full force and effect until and unless the owner of the property containing such adult-oriented business shall supply to the Planning Board a notarized statement agreeing to all terms and conditions of said adult oriented business special permit.

(17) Procedural requirements for special permits: special permits shall only be issued following public hearings held within sixty-five (65) days after filing of an application with the special permit granting authority, a copy of which shall forthwith be given to the city or town clerk by the applicant.

(18) Action within ninety (90) days after hearing or special permit deemed granted: Special permit granting authorities shall act within ninety (90) days following a public hearing for which notice has been given by publication or posting and by mailing to all parties in interest. Failure by a special permit granting authority to take final action upon an application for a special permit within said ninety days following the date of public hearing shall be deemed to be a grant of the permit applied for.

(19) Any special permit, as permitted in MGL c. 40A, § 9A, and granted under this section shall lapse within twelve (12) months from the grant thereof, if a substantial use thereof has not sooner commenced 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, unless such time is extended by the time required to pursue or await the determination of an appeal as referred to in MGL c. 40A, § 17.

(20) A special permit issued under this section shall lapse upon any transfer of ownership or legal interest or change in contractual interest in the subject premises or property. The special permit may be renewed thereafter only in accordance with this section, § 125-Article V-2, Adult-Oriented Business.

F. Expiration - A special permit to conduct an adult-oriented business shall expire after a period of two calendar years from its date of issuance and shall be automatically renewable for successive two-year periods thereafter, provided that a written request for such renewal is made to the special permit granting authority prior to said expiration and that no objection to said renewal is made and sustained by the special permit granting authority based upon public safety factors applied at the time that the original special permit was granted.

G. Severability - The invalidity of any section or provision of this section shall not invalidate any other section or provision thereof.

§ 125-V-3 Large-Scale Ground-Mounted Solar Electric Installations.

[Added 4-27-2012 ATM, Art. 15; amended 4-25-2014, Art. 17]

A. Purpose - The purpose of this bylaw is to provide standards for the placement, design, construction, operation, monitoring, modification and removal of Large-Scale Ground-Mounted Solar Electric Installations and standards that address public safety, minimize impacts on environmental, scenic, natural and historic resources, and provide adequate financial assurance for the eventual decommissioning of such installations.

(1) Applicability.

(a) The provisions set forth in this section shall apply to the construction, operation, repair and/or removal of Large-Scale Ground-Mounted Solar Electric Installations occupying more than 1,000 square feet of land. Smaller scale (occupying 1,000 square feet of land or less) ground-mounted solar electric installations that are accessory structures to existing residential or nonresidential uses do not need to comply with this section, but require building permits and must comply with all applicable local, state, and federal requirements, including but not limited to all applicable safety, construction, electrical, and communications requirements and other provisions of Sunderland's Zoning Bylaws such as setback requirements.

(b) Large-Scale Ground-Mounted Solar Electric Installations occupying more than 1,000 square feet, proposed to be constructed on one or more adjacent parcels in common ownership (including those separated by a roadway) in the Village Residential (VR), Rural Residential (RR), Village Center (VC) and Commercial-1 (C-1) Zoning Districts require a Special Permit and must meet the requirements of this section.

(c) Large-Scale Ground-Mounted Solar Electric Installations in the Commercial-2 (C-2) Zoning District occupying four acres of land or less are allowed "by-right" and are subject to the requirements of this section and Site Plan Review under § 125-Article VI-1-B, Site Plan Review. Large-Scale Ground-Mounted Solar Electric Installations in the Commercial-2 (C-2) Zoning District occupying more than four acres of land require a Special Permit and must meet the requirements of this section.

(d) This section also pertains to physical modifications that materially alter the type, configuration, or size of Large-Scale Ground-Mounted Solar Electric installations or related equipment.

B. General Requirements - The following requirements are common to all Large-Scale Ground-Mounted Solar Electric Installations:

[Amended 6-6-2020 ATM by Art. 20]

(1) Compliance with laws and regulations. The construction and operation of all Large-Scale Ground-Mounted Solar Electric Installations shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable safety, construction, electrical, and communications requirements. All buildings and fixtures forming part of a solar electric installation shall be constructed in accordance with the Massachusetts State Building Code.

(2) Building permit and building inspection. No Large-Scale Ground-Mounted Solar Electric Installations shall be constructed, installed or modified as provided in this section without prior issuance of a building permit and payment of any required fees.

C. Special Permit/Site Plan Review - Large-Scale Ground-Mounted Solar Electric Installations must be issued a Special Permit by the Planning Board prior to construction, installation or modification as provided in this section, except for Large-Scale Ground-Mounted Solar Electric Installations occupying up to 4 acres in the Commercial-2 Zoning District which only require Site Plan Review. Upon submission of an application for a special permit or for site plan review, the Planning Board will be authorized to hire outside consultants, including legal counsel, pursuant to G.L. c. 44, § 53G, to assist the Planning Board with its review of the application. The Planning Board may direct the applicant to deposit funds with the Board for such review at the time the application is determined to be complete and may direct the applicant to add additional funds as needed upon notice. Failure to comply with this section shall be grounds for denying the application. Upon approval of the application, any excess amount attributable to the application processing by the Planning Board, including any interest accrued, shall be refunded to the applicant.

(1) General. All plans and maps shall be prepared, stamped and signed by a Professional Engineer licensed to practice in Massachusetts.

(2) Required documents.

(a) The project proponent shall provide the following documents:

[1] A site plan showing:

[a] Property lines, map and lot from the Assessor's records, and physical features, including roads and topography, for the project site;

[b] Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, screening vegetation or structures including their height;

[c] Locations of wetlands and Priority Habitat Areas defined by the Natural Heritage & Endangered Species Program (NHESP);

[d] Locations of Floodplains or inundation areas for moderate or high hazard dams;

[e] Locations of local or National Historic Districts and Priority Heritage Landscapes;

[f] A list of any hazardous materials proposed to be located on the site in excess of household quantities and a plan to prevent their release to the environment, as appropriate;

[g] 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;

[h] Provision of water including that needed for fire protection; and

[i] Existing trees of 6" caliper or larger and shrubs.

[2] A copy of an Interconnection Application filed with the utility including a 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;

[3] Documentation of the major system components to be used, including the electric generating components, transmission systems, mounting system, inverter, etc.;

[4] Documentation by an acoustical engineer of the noise levels projected to be generated by the installation;

[5] Name, address, and contact information for proposed system installer;

[6] Name, address, phone number and signature of the project proponent, as well as all co-proponents or property owners, if any;

[7] The name, contact information and signature of any agents representing the project proponent;

[8] Documentation of actual or prospective access and control of the project site (for more detail, see § 125-Article V-3-D, Site Control);

[9] An Operation and Maintenance Plan (for more detail, see § 125-Article V-3-E, Operation and Maintenance Plan);

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

[11] Proof of liability insurance. The owner or operator shall provide the Town Clerk with a certificate of insurance showing that the project has sufficient liability coverage pursuant to industry standards.

(b) The Planning Board may waive documentary requirements as it deems appropriate.

D. Site Control - The project proponent shall submit documentation of actual or prospective access and control of the project site sufficient to allow for construction and operation of the proposed solar electric installation.

E. Operation and Maintenance Plan - The project proponent shall submit a plan for the operation and maintenance of the Large-Scale Ground-Mounted Solar Electric Installation, which shall include measures for maintaining safe access to the installation, storm water and vegetation controls, as well as general procedures for operational maintenance of the installation.

F. Utility Notification - No Large-Scale Ground-Mounted Solar Electric Installation shall be constructed until evidence has been given to the Planning Board that the utility company that operates the electrical grid where the installation is to be located has been informed of the solar electric installation owner or operator's intent to install an interconnected facility. Off-grid systems shall be exempt from this requirement.

G. Dimension and Height Requirements.

(1) Setbacks for Large-Scale Ground-Mounted Solar Electric Installations shall be as follows:

(a) Front yard. The front yard depth shall not be less than 75 feet.

(b) Side yard. Each side yard shall have a depth of at least 75 feet.

(c) Rear yard. The rear yard depth shall not be less than 75 feet.

The Planning Board may reduce these setback requirements if it determines there is no threat to public safety, health, or welfare, in accordance with MGL c. 40A, § 3, paragraph 9.

(2) Height of Structures. No component of a Large-Scale Ground-Mounted Solar Electric Installation shall exceed 15 feet.

(3) Appurtenant Structures. All appurtenant structures to Large-Scale Ground-Mounted Solar Electric Installations shall be subject to regulations concerning the bulk and height of structures, lot area, and setbacks as specified in § 125-Article V-3-G, Dimension and Height Requirements. All such appurtenant structures, including but not limited to equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. All appurtenant structures shall be joined or clustered whenever reasonable to avoid adverse visual impacts.

H. Design and Performance Standards.

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

(2) Signage.

(a) Signs on Large-Scale Ground-Mounted Solar Electric Installations shall comply with Sunderland's sign bylaw, § 125-Article III-2, Signs. A sign consistent with Sunderland's sign bylaw shall be required to identify the owner and provide a 24-hour emergency contact phone number.

(b) Solar electric installations shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the solar electric installation.

(3) Utility Connections. Reasonable efforts, as determined by the Planning Board, shall be made to place all utility connections from the solar electric 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.

(4) Roads. Access roads shall be constructed to minimize grading and removal of stone walls or trees and to minimize impacts to environmental or historic resources.

(5) Landscape Maintenance/Control of Vegetation. When possible, a diversity of plant species shall be used, with a preference for species native to New England. Use of exotic plants, as identified by the most recent copy of the "Massachusetts Prohibited Plant List" maintained by the Massachusetts Department of Agricultural Resources, is prohibited. Herbicides shall only be applied by properly licensed personnel, as enforced by the Massachusetts Department of Agricultural Resources. Mowing, grazing, or using geotextile materials underneath the solar arrays are possible alternatives.

(6) Hazardous Materials. Hazardous materials stored, used, or generated on site shall not exceed the amount for a Very Small Quantity Generator of Hazardous Waste as defined by the DEP pursuant to MassDEP regulations 310 CMR 30.000 and shall meet all requirements of the DEP including storage of hazardous materials in a building with an impervious floor that is not adjacent to any floor drains to prevent discharge to the outdoor environment. If hazardous materials are utilized within the solar electric equipment then impervious containment areas capable of controlling any release to the environment to prevent potential contamination of groundwater are required.

(7) Noise.

(a) Noise generated by Large-Scale Ground-Mounted Solar Electric Installations and associated equipment and machinery shall conform to applicable state and local noise regulations, including the DEP's Division of Air Quality noise regulations, 310 CMR 7.10. A source of sound will be considered in violation of said regulations if the source:

[1] Increases the broadband sound level by more than 5db(A) above ambient; or

[2] Produces a "pure tone" condition, when an octave band center frequency sound pressure level exceeds the two (2) adjacent center frequency sound pressure levels by three (3) decibels or more; or

[3] Results in sound or noise levels greater than 30 dBA.

(b) Said criteria are measured both at the property line and at the nearest inhabited residence. "Ambient" is defined as the background A-weighted sound level that is exceeded 90% of the time measured during equipment hours, unless established by other means with the consent of the DEP. Noise generated shall further comply with § 125-Article III-3-E, Disturbances and Noise, of the Town of Sunderland bylaws.

(8) Impact on Agricultural and Environmentally Sensitive Land. The facility shall be designed to minimize impacts to environmentally sensitive land, land in the Prime Agricultural District, prime agricultural soils and active cropland. The design of the facility should be compatible with the continued agricultural use of the land to the maximum extent possible.

(9) Drainage. Solar electric systems shall be installed on water permeable surfaces, as approved by the Planning Board. The design shall minimize the use of concrete and other impervious materials to the greatest extent possible.

(10) Screening. Large-Scale Ground-Mounted Solar Electric Installations and any appurtenant structures shall be screened from view by a minimum fifteen (15) foot wide staggered and grouped planting of shrubs and small trees. Such plantings shall use native plants and a mix of deciduous and evergreen species and may be located within the setback area. Said vegetative screening shall reach a mature form to effectively screen the installation within five years of installation. Planting of the vegetative screen shall be completed prior to final approval of the electric installation by the Building Inspector.

I. Safety and Environmental Standards.

(1) Emergency Services. The Large-Scale Ground-Mounted Solar Electric Installations owner or operator shall provide a copy of the project summary, electrical schematic, and site plan to the local Fire Chief. Upon request the owner or operator shall cooperate with local emergency services in developing an emergency response plan. All means of shutting down the solar electric installation shall be clearly marked. The owner or operator shall identify a responsible person for public inquiries throughout the life of the installation.

(2) Land Clearing, Soil Erosion and Habitat Impacts. Clearing of natural vegetation shall be limited to what is necessary for the construction, operation and maintenance of the Large-Scale Ground-Mounted Solar Electric Installation or what is otherwise prescribed by applicable laws, regulations, and bylaws, including § 125-Article III-3-A, Erosion Control. Such installations shall not occur on any slopes greater than 15% in order to minimize erosion.

J. Monitoring, Maintenance and Reporting.

(1) Solar Electric Installation Conditions. The Large-Scale Ground-Mounted Solar Electric Installation owner or operator shall maintain the facility in good condition as documented or certified in the Annual Report described in § 125-Article V-3-J-(3), Annual Reporting. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief and Emergency Management Director. The owner or operator shall be responsible for the cost of maintaining the solar electric installation and any access road(s).

(2) Modifications. All material modifications to a Large-Scale Ground-Mounted Solar Electric Installation made after issuance of the required building permit shall require approval by the Planning Board.

(3) Annual Reporting. The owner or operator of the installation shall submit an Annual Report which certifies compliance with the requirements of this bylaw and their approved site plan including control of vegetation, noise standards, and adequacy of road access. The Annual Report shall also provide information on the maintenance completed during the course of the year and the amount of electricity generated by the facility. The Annual Report shall be submitted to the Select Board, Planning Board, Fire Chief, Emergency Management Director, Building Inspector, Board of Health and Conservation Commission (if Wetlands Permit was issued) no later than 45 days after the end of the calendar year.

K. Abandonment or Decommissioning.

(1) Removal Requirements. Any Large-Scale Ground-Mounted Solar Electric Installation which has reached the end of its useful life or has been abandoned consistent with this subsection (§ 125-Article V-3-K, Abandonment or Decommissioning) shall be removed. The owner or operator shall physically remove the installation within 150 days of abandonment or the proposed date of decommissioning, and if not the Town retains the right, after the receipt of an appropriate court order or as otherwise duly authorized by law, to enter and remove an abandoned, hazardous or decommissioned Large-Scale Ground-Mounted Solar Electric Installation. As a condition of Site Plan or Special Permit approval, an applicant shall agree to allow entry to remove an abandoned or decommissioned installation. The cost for the removal will be charged to the property owner in accordance with the provisions of M.G.L. 139, Section 3A as a tax lien on the property. The owner or operator shall notify the Planning Board by certified mail of the proposed date of discontinued operations and plans for removal. Decommissioning shall consist of:

(a) Physical removal of all Large-Scale Ground-Mounted Solar Electric Installations, structures, equipment, security barriers and transmission lines from the site, including any materials used to limit vegetation.

(b) Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations.

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

(d) Restoration of designated prime agricultural land to a condition suitable for resumption of agricultural production.

(2) Abandonment. Absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the solar electric installation shall be considered abandoned when it fails to operate for more than one year without the written consent of the Planning Board. If the owner or operator of the Large-Scale Ground-Mounted Solar Electric Installation fails to remove the installation in accordance with the requirements of this section within 150 days of abandonment or the proposed date of decommissioning, the Town may enter the property and physically remove the installation after the receipt of an appropriate court order or as otherwise duly authorized by law.

(3) Financial Surety. Proponents of Large-Scale Ground-Mounted Solar Electric Installations shall provide a form of surety, either through escrow account or other form of surety approved by the Select Board, to cover the cost of removal in the event the Town must remove the installation and remediate the landscape, in an amount and form determined to be reasonable by the Select Board, but in no event to exceed more than 125 percent of the cost of removal and compliance with the additional requirements set forth herein, as determined by the project proponent and the Town. Such surety will not be required for municipal or state-owned facilities. The project proponent shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified professional engineer. The amount shall include a mechanism for calculating increased removal costs due to inflation.