A.
Purpose. The purpose of this section is to protect the health, safety,
convenience and general welfare of the inhabitants of the City of
Gardner by providing for a review of plans for uses and structures
which may have significant impacts on traffic, municipal buildings
and public services and utilities, environmental and design quality,
community economics and community values in the City.
B.
Applicability. The site plan review and approval provisions of this
section shall apply to the following types of structures and uses
(excluding detached single-family and two-family dwellings):
(1)
Any new structure or group of new structures that consists of
2,500 square feet or more of gross floor area under the same ownership
on the same or contiguous lots.
(2)
Any improvement, alteration or change in use which results in
an increase of 2,500 square feet or more of gross floor area.
(3)
Requires an addition of 15 or more new parking spaces under
the requirements of this chapter.
(4)
Any improvement, alteration, change in use or new structure
or group of new structures under the same ownership on the same lot
or contiguous lots which is expected to generate, in the opinion of
the Planning Board, 500 or more vehicle trips per weekday.
(5)
All adult uses.
(6)
All development in the Development Overlay District over 2,500
square feet.
(7)
All development proposed under the Smart Growth PUD.
(8)
All developments proposed under the Industrial and Commercial
Heritage PUD.
(9)
All marijuana establishments.
(10)
Any use or structure proposed that includes a drive-through
window component where patrons can conduct business or transactions.
C.
Basic requirements.
(1)
Notwithstanding anything contained in this chapter to the contrary,
no person shall undertake any use or improvement subject to this section
unless a site plan review approval has been issued by the Planning
Board for the proposed development in accordance with requirements
of this section.
(2)
The Building Commissioner shall have the authority to enforce
compliance with this provision and with the site plan resulting from
this process.
(3)
The Planning Board may waive specific submission requirements
of a site plan review upon demonstration by the applicant that a requirement
is not necessary or inapplicable to the applicant's project.
(4)
If the proposed development is on property that was subject to a Zoning Map amendment accompanied by a sketch or concept plan pursuant to § 675-1160B, the site plan submission should include a statement as to the development's consistency with said sketch or concept plan and an explanation as to the reasons for any variation, if any.
D.
Application and review procedure. The following describes the process
through which a site plan review will be undertaken. In all cases,
an application shall not be accepted nor considered officially submitted
until all requirements of the application have been met. For a definitive
plan, a written determination of completeness of the application shall
be made by the Department of Community Development and Planning (DCDP)
within five working days of the time the application is presented
to the Department. The date of determination of completeness shall
be the formal date of submission.
(1)
Step one: preparation of preliminary development plan. The applicant
shall first submit 10 copies of a preliminary plan to the Director
of Community Development and Planning. The intent of this submittal
is to permit a full understanding of the plan and implementation approaches
before detailed design and planning occur. The applicant is required
to submit 10 copies of the following to the Director of Community
Development and Planning (DCDP):
(a)
A graphic and written description of the conceptual plan for
site and building use improvements and functional/visual character.
(b)
A tentative diagrammatic plan of property subdivision, to include
identification of public/private accessways and services and common
open spaces.
(c)
A description of the potential impacts upon the environment
and the neighborhood and, as appropriate, identification of mitigating
solutions.
(d)
A summary of proposed uses and phasing parameters.
(2)
Step two: preliminary plan conference. The information submitted
to the DCDP will be distributed to the Development Review Committee,
relevant agencies, and consultants for review. Within 15 working days,
a preliminary plan conference will be held with both the applicant's
representative and public staff present. Additional meetings, as required,
may be called. The purpose of the meeting will be to obtain an explanation
of the proposed project, to gain substantive reactions from the public
representatives, and to determine agreement on detailed approaches
and submittal requirements for the definitive development plan. A
report of the findings of the conference will be prepared by the public
representatives and submitted to the applicant. This report will confirm
the specific requirements for the project application and will normally
occur within 10 working days.
(3)
Step three: definitive development plan.
(a)
The approved product of this phase is 10 copies of a final subdivision
plan and/or comprehensive design master plan, implementation strategy
and program. The subdivision plan aspect will be satisfied by formal
submittal of drawings and data in accordance with rules specified
in the current Subdivision Rules and Regulations.
[1]
The design master plan description must be in sufficient
detail that construction could be completed without major adjustments.
Schematic design and engineering drawings of professional quality
will be submitted; narrative and outlined specifications of design
and construction standards will usually be required. Depending on
the environmental and contextual significance of the site and project,
landscaping and exterior architectural treatments may be required
for presentation in rendered site plans, building elevations, and
site/building cross sections.
[2]
If required by the DCDP, submittals concerning environmental, traffic, fiscal and neighborhood impacts will be presented (as per Subsection E), as well as final summary of project implementation and phasing strategy.
[3]
Immediately after receipt of this submittal, portions
will be circulated to relevant agencies (and consultants), followed
by a review conference. To the extent that individual portions must
be modified to achieve staff endorsement, additional applicant work
time and smaller review meetings may be called.
[4]
Upon achieving staff approval and agreement, an
acceptable performance guarantee will be posted to secure the applicant's
completion of proposed site improvements.
[5]
Responsible staff heads will then prepare a summary
of departmental comments/endorsements and assist the applicant to
route all related materials to the Planning Board via the City Clerk.
[6]
The Planning Board shall schedule a public hearing
and initiate internal Board review at the earliest convenient date.
(b)
The Planning Board shall hold a public review meeting on any
properly completed application within 35 days after the date of submission
of the definitive plan. Said meeting shall be advertised by at least
one printing in a local newspaper.
(c)
In reviewing the impacts of a proposed development, the Planning
Board shall consider the information presented in the application
for site plan review; all reports of City departments submitted to
the Planning Board; and any additional information available to the
Planning Board, submitted to the Planning Board by any person, official
or agency or acquired by the Planning Board on its own initiative
or research.
(d)
The Planning Board shall have 90 days from the date of definitive
plan submission in which to approve or not approve the site plan.
Additional review time may be established at the request of the developer.
E.
Contents and scope of applications. An application for a site plan
review under this section shall be prepared by qualified professionals,
including a registered professional engineer, a registered architect
and/or registered landscape architect, and shall include the following
items and information:
(1)
A site plan at a scale of one-inch equals 20 feet or such other
scale as may be approved by the planning staff, indicating water service,
sewer, waste disposal, and other public utilities on and adjacent
to the site. For convenience and clarity, this information may be
shown on one or more separate drawings.
(2)
A landscape plan at the same scale as the site plan, showing
the limits of work, existing tree lines, and all proposed landscape
features and improvements, including planning areas.
(3)
An isometric line drawing (projection), at the same scale as
the site plan, showing the entire project and its relation to existing
areas, buildings and roads for 100 feet from the project boundaries.
(4)
A locus plan at a scale of one inch equals 100 feet showing
the entire project and its relation to existing areas, buildings and
roads for a distance of 1,000 feet from the project boundaries, or
such other distance as may be approved or required by the Planning
Board.
(5)
Building elevation plans at a scale of 1/4 inch equals one foot
or 1/2 inch equals one foot showing all elevations of all proposed
buildings and structures and indicating the type and color of materials
to be used on all facades.
(6)
A City-wide location map at one-inch equals 1,000 feet showing
the property lines of the project, City boundaries, major streets,
or other factors as may be deemed relevant for the Planning Board
to analyze the project within the scope of the Master Plan.
(7)
In cases where the DCDP or Planning Board determines there is significant impact upon the community, a development impact statement is required. This statement shall describe potential impacts of the proposed development, compare them to the impacts of uses which are or can be made of the site without a requirement for site plan review, identify all significant positive or adverse impacts, and propose an acceptable program to prevent or mitigate adverse impacts. The DCDP, at its discretion and based on a preliminary assessment of the scale and type of development proposed, may waive or modify the requirements for submission of any of the elements of the development impact assessment listed in this Subsection E(7). Such waiver shall be issued in writing with supporting reasons. The development impact statement may consist of any and all of the following four elements:
(a)
Traffic impact assessment.
[1]
Purpose: to document existing traffic conditions
near the proposed project, to describe the volume and effect of projected
traffic generated by the proposed project, and to identify measures
proposed to mitigate any adverse impacts on traffic.
[2]
Format and scope.
[a]
Existing traffic conditions: average daily and
peak hour volumes, average and peak speeds, sight distances, accident
data, and levels of service (LOS) of intersections and streets likely
to be affected by the proposed development. Generally, such data shall
be presented for all streets and intersections adjacent to or within
1,000 feet of the projected boundaries.
[b]
Projected traffic conditions for design year of
occupancy: statement of design year of occupancy, background traffic
growth on an annual average basis, and impacts of proposed developments
which have already been approved in part or in whole by the City.
[c]
Projected impact of proposed development: projected peak hour and daily traffic generated by the development of roads and ways in the vicinity of the development; sight lines at the intersections of the proposed driveways and streets; existing and proposed traffic controls in the vicinity of the proposed development; and projected postdevelopment traffic volumes and levels of service of intersections and streets likely to be affected by the proposed development, as defined in Subsection E(7)(a)[2][a].
(b)
Environmental impact assessment.
[1]
Purpose: to describe the impacts of the proposed
development with respect to on-site environmental quality.
[2]
Format and scope.
[a]
Identification of potential impacts: description
of evaluation of potential impacts on the quality of air, surface
water, and groundwater adjacent to or directly affected by the proposed
development; on-site or off-site flooding, erosion and/or sedimentation
resulting from alterations to the project site, including grading
changes and increases in impervious areas; on-site or off-site hazards
from radiological emissions or other hazardous materials; adverse
impacts on temperature and wind conditions on the site and adjacent
properties; impacts on solar access of adjacent properties; and off-site
noise or light impacts.
[b]
Systems capacity: evaluation of the adequacy of
existing or proposed systems and services for water supply, sewage,
storm drainage and solid waste disposal.
[c]
Proposed mitigation measures: description of proposed
measures for mitigation of any potential adverse impacts identified
above.
(c)
Fiscal impact assessment.
[1]
Purpose: to evaluate the fiscal and economic impacts
of the proposed development on the City.
[2]
Format and scope.
[a]
Projections of costs arising from increased demands
for public services and infrastructure.
[b]
Projections of benefits from increased tax revenues,
employment (construction and permanent), and value of public infrastructure
to be provided.
[c]
Projections of the impacts of the proposed development
on the values of adjoining properties.
[d]
Five-, seven- and ten-year projections of increased
City revenues and costs resulting from the proposed development.
(d)
Community impact assessment.
[1]
Purpose: to evaluate the impact of the proposed
development with respect to the City's visual and historic character
and development goals.
[2]
Format and scope.
[a]
Site design and neighborhood impact: evaluation
of the relationship of the proposed new structures or alterations
to nearby preexisting structures in terms of character and intensity
of use (e.g., scale, materials, color, door and window size and locations,
setbacks, roof and cornice lines, and other major design elements)
and of the location and configuration of proposed structures, parking
areas, and open spaces with respect to neighboring properties.
[b]
Historic impact: identification of impacts on significant
historic properties, districts or areas or archaeological resources
(if any) in the vicinity of the proposed development.
(8)
In cases where the DCDP or Planning Board determines there is
significant impact upon the community, a development impact statement
is required; the applicant may be required to post a deposit of sufficient
funds for the Planning Board to engage outside consultant(s) to perform
peer review of the plans, reports, and other material submitted in
support of the application.
F.
Development impact standards. The following standards shall be used
in evaluating projected impacts of all major projects and for small
projects when relevant. "Required" standards must be met by all developments
subject to this section. "Recommended" standards are set forth as
guidelines to both the Planning Board and applicants and are not intended
to be inflexible requirements nor to discourage creativity and innovation.
(1)
Traffic impact standards.
(a)
Required. The level of service (LOS) of all impacted intersections
and streets shall be adequate following project development. For purposes
of this standard:
[1]
Level of service (LOS) shall be determined according
to criteria set forth by the Transportation Research Board of the
National Research Council;
[2]
"Impacted" means located within 1,000 feet of the
closest boundary of the project to receive at least 5% of the anticipated
average daily or peak hour traffic generated by the proposed development;
[3]
"Adequate" shall mean a level of service of "B"
or better for rural, scenic and residential streets and for all new
streets and intersections to be created in connection with the project
and "D" or better for all other streets and intersections to the extent
feasible; and
[4]
The Planning Board shall not deny a project if
the LOS of "D" or worse is not caused by the proposed development
but shall apply conditions that lessen the impact of the project on
the LOS to the extent feasible.
(b)
Recommended. The proposed site plan shall minimize points of
traffic conflict, both pedestrian and vehicular. The following guidelines
shall be used to achieve this standard:
[1]
Entrance and exit driveways shall be so located
and designed as to achieve maximum practicable distance from existing
and proposed access connections from adjacent properties.
[2]
Where possible, driveways shall be located opposite
similar driveways.
[3]
Sharing of access driveways by adjoining properties
and uses is encouraged.
[4]
Left-hand turns and other turning movements shall
be minimized.
[5]
Driveways shall be so located and designed as to
discourage the routing of vehicular traffic to and through residential
streets.
[6]
Pedestrian and bicycle circulation shall be separated
from motor vehicle circulation as far as practicable.
(2)
Environmental impact standards.
(a)
Required.
[1]
The proposed development shall not create any significant
emission of noise, dust, fumes, noxious gases, radiation, or water
pollutants, or any other similar significant adverse environmental
impact.
[2]
The proposed development shall not increase the
potential for erosion, flooding, or sedimentation, either on site
or on neighboring properties, and shall not increase rates of runoff
from the site, to the satisfaction of the City Engineer and Department
of Public Works. Provision for attenuation of runoff pollutants and
for groundwater recharge shall be included in the proposal.
[3]
The design of the proposed development shall minimize
the destruction of unique natural features.
[4]
The location and configuration of proposed structures,
parking areas and open space shall be designed to minimize any adverse
impact on temperature levels or wind velocities on the site or adjoining
properties.
[5]
Outdoor lighting, including lighting on the exterior
of a building or lighting in parking areas, shall be arranged to minimize
glare and light spillover to neighboring properties.
[6]
An unbroken yard space not less than 10 feet in
depth shall be established all along the entire perimeter of the lot
on which a multifamily dwelling is located. Such yard space shall
be planted and maintained by the multifamily dwelling owner. In such
yard space, there shall be no off-street parking or driveway except
a driveway crossing that part of such yard space as is bordered by
a street.
[7]
Any multifamily dwelling constructed near a municipal
boundary must be protected by a buffer zone from an incompatible use
in adjacent land in the neighboring municipality. A 100-foot natural
or landscaped buffer zone shall be constructed and maintained by the
multifamily dwelling owner if the land in the neighboring municipality
is used or zoned for commercial or industrial purposes. The buffer
zone must function as a physical barrier to suitably minimize noise
and to provide a visual screen adjacent commercial and/or industrial
zones. It may consist of existing or natural vegetation, selective
planting, earth berms, fences, or a combination of these arranged
in a manner to enhance the aesthetic value of the area.
(b)
Recommended.
[1]
Proposed structures and existing structures adjoining
the project shall be free from shadows created by the proposed development
from 9:00 a.m. to 3:00 p.m. on December 21. Proposed development within
the Central Business District shall be exempt from this standard.
[2]
All outdoor lighting shall be designed and located
so that a line drawn from the height of the luminary along the angle
of cutoff intersects the ground at a point within a development site,
except that this requirement shall not apply to:
(4)
Community impact standards.
(a)
Required.
[1]
Design elements shall be compatible with the character
and scale of neighboring properties and structures. Buildings should
have human-scale architectural features and patterns. The elements
should be integral parts of the building fabric and not superficially
applied trim or graphics or paint. Facades visible from a public way
should be articulated or use other techniques to reduce the massive
scale and the uniform appearances of large retail buildings.
[2]
Variations in rooflines and roof features should
be used to add variety to, and reduce the massive scale of, large
buildings.
[3]
Exterior building materials and colors should complement
materials and colors used in adjoining neighborhoods.
[4]
Large retail buildings should feature multiple
entrances. Multiple building entrances break up large walls, reduce
walking distances from cars, facilitate pedestrian and bicycle access
from public sidewalks, and provide convenience where certain entrances
offer access to individual stores or identified departments of a store.
Entryway design elements and variations should give orientation and
definition to the building.
[5]
The design of the development shall minimize the
visibility of visually degrading elements such as trash collectors,
loading docks, etc.
[6]
The design of the development shall be consistent
or compatible with existing local plans, including plan elements adopted
by the Planning Board, Conservation Commission, and other City bodies
having such jurisdiction.
[7]
The design of the development shall minimize the
area over which existing vegetation is to be removed. The removal
shall be minimized and, if established trees are to be removed, special
attention shall be given to the planting of replacement trees.
(b)
Recommended.
[1]
Facades and exterior walls and details.
[a]
Building facades must include a repeating pattern
that shall include color change, texture change, and materials change.
At least one of these elements shall repeat horizontally. All elements
shall repeat at intervals of no more than 30 feet, either horizontally
or vertically. Patterns can include architectural or structural bays
through a change in plane no less than 12 inches in width, such as
an offset, reveal, or projecting rib.
[b]
Facades visible from a public way greater than
100 feet in length, measured horizontally, shall incorporate wall
plane projections or recesses having a depth of at least 3% of the
length of the facade, so that no uninterrupted facade shall exceed
100 horizontal feet, or incorporate other types of articulation, facades,
displays, or texture which meets the above standard without forcing
structural changes to the core "big box."
[c]
Ground floor facades that face public streets shall
have arcades, display windows, entry areas, awnings, or other such
features along no less than 60% of their horizontal length.
[2]
Roofs shall have no fewer than two of the following
features:
[a]
Parapets concealing flat roofs and rooftop equipment
such as HVAC units from public view. The average height of such parapets
shall not exceed 15% of the height of the supporting wall, and such
parapets shall not at any point exceed 1/3 of the height of the supporting
wall. Such parapets shall feature three-dimensional cornice treatments.
[b]
Overhanging eaves extending no less than three
feet past the supporting walls.
[3]
Materials and colors. Predominant exterior building
materials shall be high-quality materials and include, but not be
limited to, brick, wood, sandstone, native stone, and tinted, textured,
and concrete masonry units. Facade colors shall be low reflectance,
neutral or earth-tone colors. Building trim and accent areas may feature
brighter colors, including primary colors.
[4]
Entrances and entryways. The sides of a principal
building that face an abutting public street or large parking lot
should have at least one customer entrance or a pedestrian arcade
that brings pedestrians around the building to the entrance. Each
principal building and each store within a building must have at least
one clearly defined, highly visible customer entrance, featuring no
fewer than three of the following: canopies or porticos, overhangs,
recesses/projections, arcades, raised corniced parapets over the door,
peaked roof forms, arches, outdoor patios, display windows, architectural
details which are integrated into the building structure (such as
tile work and moldings), or integral planters or wing walls that incorporate
landscaped areas and/or places for sitting.
[5]
Outdoor storage, trash collection, and loading
areas. Appropriate locations for loading and outdoor storage areas
include areas between buildings, where more than one building is located
on a site and such buildings are not more than 40 feet apart, or on
those sides of buildings that do not have customer entrances. Areas
for outdoor storage, truck parking, trash collection or compaction,
loading, or other such uses shall not be visible from abutting streets.
No areas for outdoor storage, trash collection or compaction, loading,
or other such uses shall be located within 20 feet of any public street,
public sidewalk, or internal pedestrian way. Loading docks, truck
parking, outdoor storage, utility meters, HVAC equipment, trash collection,
trash compaction, and other service functions shall be incorporated
into the overall design of the building and the landscaping so that
the visual and acoustic impacts of these functions are fully contained
and out of view from adjacent properties and public streets, and no
attention is attracted to the functions, by the use of screening materials
that are different from or inferior to the principal materials of
the building and landscape. Nonenclosed areas for the storage and
sale of seasonal inventory shall be permanently defined and screened
with walls and/or fences.
[6]
Pedestrian flows. Standard: sidewalks and internal
pedestrian circulation systems should provide user-friendly pedestrian
access as well as pedestrian safety, shelter, and convenience. Sidewalks
at least five feet in width shall be provided along all sides of the
lot that abut a public street. Continuous internal pedestrian walkways,
no less than five feet in width, shall be provided from the public
sidewalk or right-of-way to the principal customer entrance of all
principal buildings on the site. At a minimum, walkways shall connect
focal points of pedestrian activity, such as, but not limited to,
transit stops, street crossings, and building and store entry points,
and shall feature adjoining landscaped areas that include trees, shrubs,
benches, flower beds, ground covers, or other such materials for no
less than 50% of their length. All internal pedestrian walkways shall
be distinguished from driving surfaces using durable, low-maintenance
surface materials such as pavers, bricks, or scored concrete to enhance
pedestrian safety and comfort as well as the attractiveness of the
walkways.
[7]
Delivery/loading. Delivery and loading operations
should not disturb adjoining neighborhoods or other uses. No delivery,
loading, trash removal or compaction, or other such operations shall
be permitted between the hours of 10:00 p.m. and 7:00 a.m. unless
the applicant submits evidence that sound barriers between all areas
for such operations effectively reduce noise emissions to that which
will not disturb adjoining residential uses or residentially zoned
areas.
G.
Specific findings required. Prior to granting approval or disapproval
of the site plan review application, the Planning Board shall make
written findings with supporting documentation as specified below.
(1)
Approval.
(a)
The Planning Board may recommend approval of an application,
based on its review of the projected development impacts and the proposed
methods of mitigating such impacts, if it finds that the proposed
development is in conformance with this chapter and that:
[1]
The traffic-carrying capacity of the intersections and streets likely to be affected by the proposed development will meet the standards set forth in Subsection F(1).
[2]
The proposed development will comply with the environmental impact standards set forth in Subsection F(2).
[3]
The planned capacities of public facilities, such
as water supply, sewage and drainage systems, are adequate near the
site to serve the proposed development.
(b)
Such findings shall pertain to the entire proposed development,
including any site plan or design modifications requested by the Planning
Board as a condition of its approval, and any off-site improvements
proposed by the applicant or required by the Planning Board as a condition
of its approval.
(2)
Disapproval.
(a)
The Planning Board may disapprove an application where it determines
that the site plan fails to furnish adequate information on various
considerations imposed by this section as conditions of approval of
the plan.
(b)
Notwithstanding the above, the Planning Board may approve an
application if the adverse impacts of the proposed development are
not significantly greater than the impacts of uses which are or can
be made of the site under existing laws and regulations without a
requirement for a site plan review.
H.
Conditions, limitations and safeguards. In granting approval of an
application, the Planning Board may impose conditions, limitations
and safeguards which shall be in writing and shall be part of such
approval. Such conditions may include, among other matters and subjects:
(1)
Conditions on the location and type of access to the site.
(2)
Conditions on the number of vehicles that arrive or depart during
the morning and/or evening peak hours (including controls on the maximum
number of vehicles which may use the off-street parking areas during
said periods).
(3)
Conditions for off-site improvements to improve the capacity
and safety of roads, intersections, pedestrianways, water and sewer,
drainage and other public facilities which are likely to be affected
by the proposed development.
(4)
Conditions that may require donation and/or dedication of land
for right-of-way to provide for future roadway and/or intersection
widening or improvements.
(5)
Conditions for securing and performance of all proposed work,
including proposed improvements, by either or both of the following
methods:
(a)
A performance bond, a deposit of money, letter of credit acceptable
to the City Treasurer, or bank passbook in an amount determined by
the Planning Board to be sufficient to cover the cost of all or any
part of the improvements required as conditions of approval. In all
such cases, the Planning Board will not accept any form of security
that has an expiration date, unless provisions are made to guarantee
the City's performance security beyond the date of expiration.
(b)
A covenant running with the land, executed and duly recorded
by the owner of record, whereby the required improvements shall be
completed before the property may be conveyed by other than a mortgage
deed.
(6)
Conditions to minimize off-site impacts on traffic and environmental
quality during construction.
I.
Administration.
(1)
The Planning Board shall establish and may periodically amend
rules and regulations relating to the administration of this section,
including additional regulations relating to the scope and format
of reports required hereunder and provisions for the payment of outside
consultant to perform peer review.
(2)
The Planning Board shall establish and may periodically amend
a schedule of fees for all applications under this section. No application
shall be considered completed unless accompanied by the required fees.
(3)
The Planning Board shall be responsible for deciding the meaning
or intent of any provision of this section which may be unclear or
in dispute.
A.
Purpose and intent. In the development and execution of this section,
it is recognized that there are some uses which, because of their
very nature, are recognized as having serious objectionable operational
characteristics, particularly when several of them are concentrated
under certain circumstances thereby having a deleterious effect upon
the adjacent areas. Special regulation of these uses is necessary
to ensure that these adverse effects will not contribute to the blighting
or downgrading of the surrounding neighborhood. These special regulations
are itemized within this section. The primary control or regulation
is for preventing a concentration of these uses in any one area (i.e.,
not more than two such uses within 750 feet of each other which would
create such adverse effects).
B.
ADULT USE
(1)
(2)
(3)
(4)
(5)
(6)
(7)
SUBSTANTIAL OR SIGNIFICANT PORTION
(1)
(2)
(3)
(4)
Definitions. As used in this section, the following terms shall have
the meanings indicated:
An establishment, a building or portion thereof, or a use
of land having as a substantial or significant portion of its business
activity, stock-in-trade or other matter or materials for sale, rental,
distribution, or exhibition which are distinguished or characterized
by their emphasis on depicting, describing, or relating to sexual
conduct or sexual excitement as defined in MGL c. 272, § 31,
including but not limited to the following:
ADULT BOOKSTORE An establishment having as a substantial or
significant portion of its stock-in-trade books, magazines, and other
matter which are distinguished or characterized by their emphasis
on depicting, describing or relating to sexual conduct or sexual excitement
as defined in MGL c. 272, § 31.
ADULT CLUBAn establishment having as a substantial or significant portion of its activities or entertainment a person or persons performing in a state of nudity or distinguished by an emphasis on matter depicting, describing or relating to sexual conduct or sexual excitement, as defined in MGL c. 272, § 31.
ADULT ENTERTAINMENT ESTABLISHMENTAn establishment offering activities or goods or providing services where employees, entertainers or patrons are engaging in nudity, sexual conduct or sexual excitement as defined in MGL c. 272, § 31.
ADULT MOTION-PICTURE THEATERAn enclosed 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 STOREAn establishment having as a substantial or significant portion of its stock 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 VIDEO STOREAn establishment having as a substantial or significant portion of its stock-in-trade videos, movies or other film materials which are distinguished or characterized by their emphasis on depicting, describing, or relating to sexual conduct or sexual excitement, as defined in MGL c. 272, § 31.
BODY ART ESTABLISHMENTAny location, place or business where the practice of tattooing is performed.
Any of the following:
Twenty percent or more of the business inventory or stock of
merchandise for sale, rental, distribution, or exhibition during any
period of time.
Twenty percent or more of the annual number of gross sales,
rentals, or other business transactions.
Twenty percent or more of the annual gross business revenue.
Twenty percent or more of the hours during which the establishment
is open.
C.
Special permit. Adult uses shall be permitted only in Industrial
2 Districts with a special permit granted by the Zoning Board of Appeals
(ZBA) as set forth herein.
(1)
Conditions. No adult use establishment shall be within 750 feet
of:
(a)
A boundary line of a residential zoning district.
(b)
A lot line of any lot containing a nonconforming residential
dwelling that has not been abandoned or unoccupied for a period of
two years.
(c)
A lot line of any lot containing a church, any public school,
private kindergarten or school, licensed day-care facility, or any
school or college serving a student population where any of the student
population is less than 18 years of age.
(d)
A lot line of any lot containing a park, playground, library,
cultural facility, museum, elderly housing, assisted living facility,
nursing home, or adult day-care facility.
(e)
A lot line of any lot containing an establishment licensed under
the provisions of MGL c. 138, § 12.
(f)
Any other presently existing or permitted adult use.
(2)
Additional special permit requirements.
(a)
If the adult use 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, screens, or other view-inhibiting
devices. All booths must be able to be clearly seen from the center
of the establishment.
(b)
The application for a special permit for an adult use must include
the following information:
[1]
Name and address of the legal owner of the proposed
adult use establishment;
[2]
Name and address of all persons having any lawful,
equitable or secured interest in the adult use establishment;
[3]
An affidavit must be provided stating that neither
the applicant nor any person having a lawful, equitable or secured
interest in the adult use establishment has been convicted of violating
the provisions of MGL c. 119, § 63, or MGL c. 272, § 28;
[4]
Name and address of the manager of the adult use
establishment;
[5]
Proposed provisions for security within and without
the adult use establishment;
[6]
The number of employees; and
[7]
The present and proposed physical layout of the
interior of the adult use establishment.
(c)
No special permit for an adult use shall be issued to any person
convicted of violating MGL c. 119, § 63, or MGL c. 272,
§ 28.
(d)
An adult use special permit shall only be issued following a
public hearing held within 65 days after the filing of an application
with the ZBA.
(e)
Any adult use special permit granted under this section, pursuant
to the provisions of MGL c. 40A, § 9A, shall lapse within
six months of issuance, including the time required to pursue or await
the determination of an appeal as allowed under MGL c. 40A, § 17,
if a substantial use thereof has not sooner commenced, except for
good cause.
(f)
Any adult use special permit issued under this section shall
require that the owner of such adult use supply, in writing, to the
Building Commissioner any change in the name of the record owner or
address or any change in manager within 10 business days. Failure
to comply with this provision shall result in the immediate revocation
of such special permit. If anyone so identified is or is found to
be convicted of violating MGL c. 119, § 63, or MGL c. 272,
§ 28, such special permit shall immediately be null and
void.
(3)
Site development standards; site plan review. No special permit for any adult use shall be issued without site plan approval first having been obtained from the Planning Board, § 675-1010 (Site plan review) of this chapter. In addition to the standards set forth therein, the site plan must include the following:
(a)
Dimensional requirements. Any building or structure containing
an adult use shall meet the setback requirements and other dimensional
controls of the appropriate district as specified in this chapter.
For any property proposed to contain an adult use, 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.
(b)
Parking. On-site parking and loading shall be provided in accordance with the requirements set forth in Article VII (Off-Street Parking and Loading Standards) of this chapter as pertains to retail stores, clubs, or places of assembly. For any property proposed to contain an adult use, 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.
(c)
Landscaping. At a minimum, the property on which an adult use
is proposed to be located shall contain a landscaped buffer strip
along its entire perimeter, except that portion directly abutting
a public street, that screens parking areas and other parts of the
premises from adjoining properties by walls, fences, plantings or
other devices.
(d)
Signs. All signs for any adult use must meet the requirements of Article IX (Signs and Advertising Devices) of this chapter. In addition, no advertisement, display, or other promotional material which contains sexually explicit graphics or sexually explicit text shall be visible to the public from any public way, including but not limited to sidewalks, pedestrian walkways, highways, or railways.
D.
Body art establishments; conditions. No body art establishment shall
be within:
(1)
Seven hundred fifty feet of another presently existing or permitted
body art establishment.
(2)
Seven hundred fifty feet of a boundary line of a residential
zoning district.
(3)
Seven hundred fifty feet of a lot line of any lot containing
a church, any public school, private kindergarten or school, licensed
day-care facility, or any school or college serving a student population
where any of the student population is less than 18 years of age.
(4)
Seven hundred fifty feet of a lot line of any lot containing
a park, playground, library, cultural facility, museum, elderly housing,
assisted living facility, nursing home, or adult day-care facility.
(5)
Seven hundred fifty feet of a lot line of any lot containing
an establishment licensed under the provisions of MGL c. 138, § 12.
(This is an establishment that is licensed to sell alcohol.)
(6)
Seven hundred fifty feet of any presently existing or permitted
adult use.
In addition to the general conditions and procedures established
in this chapter for all special permits, the following additional
requirements and procedures shall apply:
A.
Purpose. The purpose of this section is to establish an ordinance
by which wireless communication may be provided with minimal harm
to the public health, safety, and general welfare. Specifically, this
section has been created to protect the general public from hazards
of structural failure associated with wireless communications facilities
and minimize visual impacts from wireless communications facilities
on residential districts within the City of Gardner. This section
does not apply to satellite dishes and antennas for residential use.
B.
CAMOUFLAGED
CARRIER
CO-LOCATION
EQUIPMENT SHELTER
FALL ZONE
GUYED TOWER
LATTICE TOWER
LICENSED CARRIER
MONOPOLE
MOUNT
(1)
(2)
(3)
(4)
(5)
PANEL ANTENNA
RADIOFREQUENCY ENGINEER
SECURITY BARRIER
SEPARATION
WIRELESS COMMUNICATIONS
(1)
(2)
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A wireless communications facility that is disguised, hidden,
part of an existing or proposed structure, or placed within an existing
or proposed structure.
A company that provides wireless services.
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.
An enclosed structure, cabinet, shed, or box at the base
of the mount within which are housed batteries and electrical equipment.
The area on the ground within a prescribed radius from the
base of a wireless communications facility. The fall zone is the area
within which there is a potential hazard from falling debris (such
as ice) or collapsing material.
A monopole or lattice tower that is tied to the ground or
other surface by diagonal cables.
A type of mount that is self-supporting with multiple legs
and cross-bracing of structural steel.
A company authorized by the FCC to construct and operate
a commercial mobile radio services system.
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.
The structure or surface upon which antennas are mounted,
including the following five types of mounts:
Roof-mounted: mounted on the roof of a building.
Side-mounted: mounted on the side of a building.
Ground-mounted: mounted on the ground.
Structure-mounted: mounted on a structure other than a building.
Interior-mounted: mounted within a building/structure such that
the wireless communications facility is not visible from the exterior
of the building/structure.
A flat surface antenna usually developed in multiples.
An engineer specializing in electrical or microwave engineering,
especially in the study of radiofrequencies.
A locked, impenetrable wall, fence or berm that completely
seals an area from unauthorized entry or trespass.
The distance between one carrier's array of antennas and
another carrier's array.
Commercial mobile services, unlicensed wireless services, and
common carrier wireless exchange access services [47 U.S.C. § 332(c)(7)(C)(i)].
Functionally equivalent services are cellular, personal communications
services (PCS), enhanced specialized mobile radio, specialized mobile
radio and paging.
Facility for the provision of wireless communications services.
C.
Use restrictions. When properly camouflaged, side-mounted, roof-mounted,
structure-mounted and interior-mounted wireless communications facilities
shall require only a building permit. The co-location of a new wireless
communications facility on any existing guyed tower, lattice tower,
or monopole shall require only a building permit, provided that the
installation of the new wireless communications facility does not
increase the height of the existing structure nor the size of the
existing secured area at the base of the facility where the equipment
cabinet/shelters are located.
(1)
Location.
(a)
The applicant shall submit documentation of the legal right
to install and/or use the proposed wireless communications facility
mount at the time of application for a building permit and/or special
permit.
(b)
If feasible, wireless communications facilities shall be located
on existing structures, including but not limited to buildings, water
towers, existing wireless communications facilities, utility poles
and towers, and related facilities, provided that such installation
preserves the character and integrity of those structures. Applicants
are urged to consider use of existing telephone and electric utility
structures as sites for one or more wireless communications facilities.
The applicant shall have the burden of proving that there are no feasible
existing structures upon which to locate.
(c)
If the applicant demonstrates that it is not feasible to locate
on an existing structure, wireless communications facilities shall
be designed to be camouflaged to the greatest extent possible, including
but not limited to disguising the facilities to look like other structures
(i.e., flagpoles, trees, etc.), the use of compatible building materials
and colors, screening, landscaping, and placement within clusters
of trees.
(2)
Dimensional requirements. Wireless communications facilities
shall comply with the following requirements:
(a)
Height of roof-mounted facilities. Roof-mounted wireless communications
facilities shall not project more than 10 feet above the height of
the existing building upon which the wireless communications facilities
are proposed to be located. Said wireless communications facilities
may locate on a building that is legally nonconforming with respect
to height, provided that the wireless communications facilities do
not project more than 10 feet above the existing building height.
(b)
Height of structure-mounted facilities. Structure-mounted wireless
communications facilities shall not project more than 10 feet above
the height of the existing structure upon which the wireless communications
facilities are proposed to be located. Said wireless communications
facilities may locate on a structure that is legally nonconforming
with respect to height, provided that the wireless communications
facilities do not project more than 10 feet above the existing structure
height.
(c)
Height of side-mounted facilities. Side-mounted wireless communications
facilities shall not project above the height of the existing building
or structure upon which the wireless communications facilities are
proposed to be located. Said wireless communications facilities may
locate on a building or structure that is legally nonconforming with
respect to height, provided that the wireless communications facilities
do not project more than 10 feet above the existing building or structure
height.
(d)
Height of interior-mounted facilities. Interior-mounted wireless
communications facilities shall not exceed the height of the building
or structure upon which the wireless communications facilities are
proposed to be located and shall be completely camouflaged, such as
within a flagpole, steeple, chimney or similar structure.
(e)
Height of ground-mounted facilities. Ground-mounted wireless
communications facilities shall not exceed the height of 190 feet.
The Zoning Board of Appeals shall have the authority to reduce the
height of proposed ground-mounted wireless communications facilities.
(f)
Setbacks. All wireless communications facilities and their equipment
shelters shall comply with the building setback provisions of the
zoning district in which the wireless communications facilities are
located.
(g)
Fall zone. To ensure public safety, the minimum distance from
the base of any ground-mounted wireless communications facility to
any property line, road, habitable dwelling, business or institutional
use, or public recreational area shall be the height of the wireless
communications facility, including any antennas or other appurtenances.
D.
Special permit regulations. All wireless communications facilities
shall comply with the following performance standards set forth in
this subsection:
(1)
Design standards; visibility/camouflage. Wireless communications
facilities shall be camouflaged as follows:
(a)
Camouflage by existing buildings.
[1]
When a wireless communications facility extends
above the roof height of a building on which it is mounted, every
effort shall be made to conceal the wireless communications facilities
within or behind existing architectural features to limit their visibility
from adjoining ways. Wireless communications facilities mounted on
a roof shall be stepped back from the front facade to limit their
impact on the building's silhouette.
[2]
Wireless communications facilities that are side
mounted shall blend with the architecture of the existing building
and shall be painted or shielded with material that is consistent
with the design features and materials of the building.
(b)
Camouflage by vegetation. All ground-mounted wireless communications
facilities and equipment shelters shall be surrounded by buffers of
tree growth and understory vegetation in all directions to create
an effective visual buffer at the street level. Ground-mounted wireless
communications facilities shall provide a vegetated buffer of sufficient
height and depth to effectively screen the wireless communications
facilities at the street level. Trees and vegetation may exist on
the subject property or be installed as part of the proposed wireless
communications facilities or a combination of both. The Zoning Board
of Appeals shall determine the types of trees and plant materials,
depth, and overall appropriate design of the needed buffer on site
conditions.
(c)
Color.
[1]
Wireless communications facilities that are side
mounted on buildings shall be painted or constructed of materials
to match the color of the building material directly behind them.
[2]
To the extent that any wireless communications
facility extends above the height of the vegetation immediately surrounding
it, it shall be appropriately camouflaged.
(2)
Equipment shelters. Equipment shelters for wireless communications
facilities shall be designed consistent with one of the following
design standards:
(a)
Equipment shelters shall be located in underground vaults;
(b)
Equipment shelters shall be designed in accordance with architectural
styles and materials reflective of the uses within a 300-foot radius
of the location acceptable to the Zoning Board of Appeals; or
(c)
Equipment shelters shall be camouflaged behind an effective
year-round landscape buffer, equal to the height of the proposed building,
cabinets, or wooden fence. The Zoning Board of Appeals shall determine
the style of the fencing and/or landscape buffer that is compatible
with the neighborhood.
(3)
Lighting and signage.
(a)
Wireless communications facilities shall be lit only if required
by the Federal Aviation Administration. Lighting of equipment structures
and any other facilities on site shall be shielded from abutting properties.
(b)
Signs shall be limited to a sign identifying the facility, the
owner and operator and an emergency telephone number where the owner
can be reached on a twenty-four-hour basis, a "No Trespassing" sign,
a sign displaying the FCC registration number and any signs required
to warn of danger. All signs shall comply with the requirements of
this chapter.
(c)
All ground-mounted wireless communications facilities shall
be surrounded by a security barrier of a design and material acceptable
to the Zoning Board of Appeals.
(4)
Historic buildings and districts.
(a)
All wireless communications facilities proposed to be located
within an historic district or on an historic structure shall be reviewed
by the Gardner Historical Commission (GHC). Upon receipt of an application,
the Zoning Board of Appeals shall transmit one copy of the application
to the GHC. Final action shall not be taken until a report has been
received from the GHC or until 35 days have elapsed.
(b)
Any wireless communications facilities located on or within
an historic structure shall not alter the character-defining features,
distinctive construction methods, or original historic materials of
the building.
(c)
Any alteration made to an historic structure to accommodate
a wireless communications facility shall be fully reversible.
(d)
Wireless communications 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 adjoining ways
and viewing areas within the district.
(5)
Environmental standards.
(a)
Wireless communications facilities shall be set back from designated
wetlands and water bodies. Conservation Commission review and approval
may be necessary.
(b)
No hazardous waste shall be discharged on the site of any wireless
communications facility.
(c)
Stormwater runoff shall be contained on site or adequately disposed
of off site via connection to an existing stormwater drainage system.
(6)
Safety standards. All equipment proposed for a wireless communications
facility shall comply with the Federal Communications Commission Guidelines
for Evaluating the Environmental Effects of Radiofrequency Radiation
(FCC Guidelines) and shall be maintained to remain in compliance with
such guidelines as they may be amended.
E.
Application procedures.
(1)
The special permit granting authority for wireless communications
facilities shall be the Zoning Board of Appeals.
(2)
The Zoning Board of Appeals shall have the authority to hire
a consultant to review any proposed wireless communications facilities
submission at the expense of the applicant.
(3)
Application filing requirements. In accordance with this section, the location of a wireless communications facility will require a special permit from the Zoning Board of Appeals. An application for a special permit shall be filed in accordance with § 675-1170 and shall be accompanied by seven copies of the following information:
(a)
Details of the wireless communications facility, guy wires and
anchors (if any), lighting, and all structures located within 300
feet of the wireless communications facility.
(b)
Location of alternate sites, if any.
(c)
Color photographs, computer simulation or renditions illustrating
the proposed wireless communications facility with its antenna and/or
panels or dishes and its location. The Zoning Board of Appeals may
require additional visual analysis, such as, among other items, enhanced
landscaping plans and line-of-sight drawings.
(d)
A certification that the applicant possesses all necessary licenses
to operate such a facility and has complied with all federal and state
requirements to provide the proposed service.
(e)
Reports prepared by one or more registered professional engineers
which shall:
[1]
Demonstrate that the wireless communications facility
complies with all applicable standards of the federal and state governments;
[2]
Describe the capacity of the wireless communications
facility, including the number and type of transmitting and receiving
antennas that it can accommodate and the basis for the calculation
of capacity;
[3]
Demonstrate that the wireless communications facility
and site comply with this regulation; and
[4]
Describe the auxiliary power source, if any.
(f)
A copy of the FCC registration, FCC license, and FAA opinion
letter or registration for the proposed wireless communications facility
and applicant.
(4)
Applicants proposing to erect facilities on municipally owned
land or structures shall provide evidence of contractual authorization
from the City of Gardner to conduct wireless communications on municipally
owned property.
(5)
At the time of the application filing, the applicant shall file
an approval letter from the Massachusetts Department of Public Health
confirming that the proposed filing meets the requirements of Massachusetts
Department of Public Health regulation 105 CMR 122.000 for wireless
communications facilities with respect to emissions.
(6)
Before any new wireless communications facility is approved,
the applicant must demonstrate that it is not feasible to locate its
antenna and facilities on an existing wireless communications facility,
structure, or building. Before a new wireless communications facility
is proposed in a residential district, the applicant must also demonstrate
that it is not feasible to locate its antenna and facilities in other
districts or on municipal facilities. Such demonstration studies shall
include a summary of propagation studies and a plan for any network
of facilities.
(7)
Within 30 days after filing the application for any new wireless
communications facility or extension in height thereto, if requested
by the Zoning Board of Appeals, the applicant shall arrange to fly
a balloon at the site at the maximum height of the proposed installation.
The balloon shall be of size and color that can be seen from every
direction for a distance of one mile.
F.
Approval. A special permit shall be granted by the Zoning Board of Appeals in accordance with the Massachusetts General Laws and § 675-1170 of this chapter. Any extension of height or replacement of a wireless communications facility shall be subject to a new application or an amendment to the special permit.
G.
Conditions of use.
(1)
The wireless communications facility and its transmissions shall
comply in all respects with the current standards of the American
National Standards Institute (ANSI) and the National Council for Radiation
Protection (NCRP), whichever are stricter.
(2)
All wireless communications facilities shall be operated only
at Federal Communications Commission (FCC) designated frequencies
and power levels, and the applicant shall provide certification that
the allowable frequencies are not deviated from, and power levels
will not be exceeded. Certification shall include technical specifications,
an explanation of those specifications, and, if necessary, field verification.
(3)
All unused wireless communications facilities or parts thereof
or accessory facilities and structures which have not been used for
one year shall be dismantled and removed at the owner's expense.
(4)
All wireless communications facilities shall be maintained in
good order and repair. Any paint and finish must be annually maintained
and repaired when the blemishes are visible from the property line.
Annual inspection and maintenance reports for the wireless communications
facilities and site shall be filed with the Building Commissioner
and the Zoning Board of Appeals.
H.
Performance guarantees.
(1)
Insurance in a reasonable amount determined and approved by
the Zoning Board of Appeals after consultation at the expense of the
applicant with one or more insurance companies shall be in force to
cover damage from the structure and other site liabilities. Annual
proof of said insurance shall be filed with the Zoning Board of Appeals.
(2)
An initial bond shall be posted for annual maintenance for any
access road, site, and wireless communications facility in an amount
approved by the Zoning Board of Appeals.
(3)
The Zoning Board of Appeals may require an additional financial
performance guarantee to ensure that facilities which have not been
used for one year are removed.
(4)
Annual certification demonstrating continuing compliance with
the standards of the Federal Communications Commission, Federal Aviation
Administration, and the American National Standards Institute shall
be filed with the Building Commissioner and the Zoning Board of Appeals
by the special permit holder at the operator's expense.
A.
Definition. "Wind energy conversion system" shall mean a combination
of:
(1)
Some form of surface area for capturing the wind;
(2)
A shaft or gearing (or the like) assembly for converting the
rotational power of the attached surface area to an electrically or
mechanically utilizable form;
(3)
A generator or alternator to convert rotational energy into
electrical energy (for systems designed for producing electrical power);
water; and
(4)
Some form of tower or other structure upon which the first three
elements are mounted.
B.
Construction.
(1)
Tower construction shall comply in all respects with the Massachusetts
Building Code and with any and all federal or state requirements pertaining
to the erection of towers in the vicinity of airports. Towers will
meet all code requirements as to load factor, construction, foundation,
grounding and the placement of guy wire. All towers shall have adequate
anticlimb devices.
(2)
In addition, towers shall be subject to regular, biennial inspections
by the Building Commissioner, who shall order the dismantling of any
tower that fails to meet existing structural safety standards as enumerated
in the Massachusetts Building Code.
C.
Setbacks.
(1)
The placement of wind machine towers on a given parcel of land
shall comply in all respects with the Massachusetts Building Code.
(2)
The wind machine tower shall be set back from every property
line by a distance equal to its height as measured to the highest
tip of the blades (hereinafter "fall area"), except when a fall area
easement has been obtained from the appropriate abutters, not including
any private or public ways or other areas open to public use.
(3)
In all cases, the installation shall not be erected nearer to
any public way or public utility wires (excluding service wires to
the windmill owner's dwelling and accessory building) than the total
height of the structure.
(4)
Wind machine owners shall be required to have insurance coverage
for their wind machines to cover the liability claims of other parties
and shall furnish proof of such annually to the City Solicitor.
D.
Minimum blade height. The minimum distance between the ground and
any protruding blades utilized shall be 15 feet, as measured at the
lowest point of arc of the blades.
E.
Electrical regulations. The installation of wind turbine electrical
generators or the like must conform to the following requirements:
(1)
All installation must conform to the Massachusetts Electrical
Code FPR No. 11.
(2)
An electrical permit must be obtained from the City prior to
a building permit being issued.
(3)
The City Wire Commissioner must be contacted upon completion
of installation for final inspection before the device is put to use.
[Amended 3-16-2020 by Ord. No. 1631]
Fences dividing property or facing the street shall have the
smooth or unclimbable side facing out. At corners, no fence or hedgerow
shall be allowed to block vision over three feet above the street
grade within an area formed by the intersecting curblines and straight
line joining the point of said curblines 30 feet back from their points
of intersection. Fencing and hedgerows running perpendicular to the
streets shall not be allowed to block vision over three feet above
the street grade for a distance of 15 feet along driveways immediate
in location.
A.
General. No person shall remove earth or conduct earth alteration
as hereinafter defined from any land not in public use in any part
of the City without first obtaining a special permit from the Zoning
Board of Appeals after a public hearing, except as provided herein.
B.
Definition.
(1)
Earthmoving and earth alteration. The term shall include, without
limitation, the following activities:
(a)
Removal, excavation, processing or dredging of soil, sand, gravel
or aggregate materials of any kind.
(b)
Changing of preexisting drainage characteristics, sedimentation
patterns, flow patterns or flood-retention characteristics.
(c)
Dumping, discharging or filling with any material which would
degrade water quality.
(d)
Placing of fill or removal of material which would alter elevation.
(e)
Driving of piles, erection of additions to buildings or structures
of any kind.
(f)
Placing of obstructions or objects in water.
(g)
Removal of vegetation from combined total area exceeding 10,000
square feet on a single or adjacent lots.
(h)
Changing water temperature, biochemical oxygen demand or other
physical or chemical characteristics of water; but specifically excluding
the use of de-icing materials and chemicals for roadway maintenance
during the winter months.
(i)
Any activities, changes or work which may cause or tend to contribute
to the pollution of any body of water or groundwater.
(2)
For the purpose of this section, more than one contiguous lot
under development constitutes a single project.
C.
Regulation.
(1)
Filling or dumping.
(a)
The placing, filling, or dumping of snow and ice or earth, including
soil, loam, sand, gravel, clay, stone, quarried rock, or other subsurface
products, except water, is permitted in all districts if such placing,
filling or dumping is entirely incidental to:
[1]
The construction of any structure for which a building
permit has been issued.
[2]
Utility construction in public and private ways
and private property.
[3]
The routine landscaping (not including significant
changes in topography) of a lot with a one- or two-family dwelling
thereon by the owner thereof so long as the topography of the parcel
in no location exceeds a 15% grade.
(b)
Notwithstanding anything herein to the contrary, a special permit
hereunder shall be obtained in relation to the construction of any
subdivision which alters 40 or more acres of land or constructs new
streets two or more miles in length.
(c)
During construction or any of the activities noted above, all
disturbed areas of land shall have erosion control in place to prevent
damage to adjacent properties. Erosion control methods shall be approved
by the Building Commissioner and shall be installed prior to construction.
The Building Commissioner or Department of Public Works Director,
where applicable, may require certification by a registered professional
engineer of erosion control methods prior to the issuance of a building
permit.
(d)
All earth placing, filling or dumping incidental to the activities in Subsection C(1)(a) above shall have finished slopes at no greater than 2.5:1 without providing some form of slope protection or retaining walls. Any slope protection method or retaining wall shall receive approval of the Building Commissioner prior to its installation. The Building Commissioner may require certification by a registered professional engineer of erosion control methods prior to the issuance of a building permit.
(2)
Earth excavation.
(a)
The removal of earth, including soil, loam, sand, gravel, clay,
stone, quarried rock or other subsurface products, except water, is
permitted in all districts if such material is entirely incidental
to:
[1]
The construction of any structure for which a building
permit has been issued.
[2]
Utility construction in public and private ways
and private property.
[3]
The routine landscaping (not including significant
changes in topography) of a lot with a one- or two-family dwelling
thereon by the owner thereof, so long as the existing topography of
the parcel in no location exceeds a fifteen-percent grade.
(b)
Notwithstanding anything herein to the contrary, a special permit
hereunder shall be obtained in relation to the construction of any
subdivision which alters 40 or more acres of land or constructs new
streets two or more miles in length.
(c)
During construction or any of the activities in Subsection C(2)(a) above, all disturbed areas of land shall have erosion control in place to prevent damage to adjacent properties. Erosion control methods shall be approved by the Building Commissioner or Public Works Director and shall be installed prior to construction. The Building Commissioner or Public Works Director may require certification by a registered professional engineer of erosion control methods prior to the issuance of a building permit.
(d)
All earth placing, filling or dumping incidental to the activities in Subsection C(2)(a) above shall have finished slopes at no greater than 2.5:1 without providing some form of slope protection or retaining walls. Any slope protection method or retaining wall shall receive approval of the Building Commissioner prior to its installation. The Building Commissioner may require certification by a registered professional engineer of erosion control methods prior to the issuance of a building permit.
D.
Criteria. Before granting any such permit, the Zoning Board of Appeals
shall give due consideration to:
(1)
The location of the place from which it is proposed to remove
soil, loam, sand or gravel.
(2)
The general character of the neighborhood surrounding such location.
(3)
The effect of the proposed removal or fill in such neighborhoods;
for example, the amount of noise, dust and vibration likely to result
from the proposed removal, excavation or filling; the extent, depth,
height and contour of the location and surrounding neighborhood from
which such removal is proposed or to which such fill is proposed;
the general safety of the public on the public ways giving access
to and in the immediate vicinity of such location; and the use to
which such location has been put prior to the application for a permit
and to which it may be put after the expiration of the permit.
E.
Conditions.
(1)
As a part of and as set forth in any such permit, the Zoning
Board of Appeals may impose such reasonable restrictions and conditions
on the exercise of the permit as it deems to be in the public interest,
including but not limited to the following:
(a)
The duration of time from which the permit may be exercised.
(b)
The extent, depth, height and contour of the area of removal
or fill.
(c)
The grade of the slope of the banks of the area of removal or
fill and the specification of showing and reinforcement of the banks
of any excavation or fill.
(d)
The proximity of such removal or fill to any public way.
(e)
The hours of the day during which such removal or fill may be
permitted.
(f)
The hours of the day during which the material may be trucked
away from the location of removal or to the location of fill.
(g)
The conditions under which the removal or fill trucks may be
operated.
(h)
The replacement of topsoil and the replanting of the area of
removal and screening the same from public view.
(2)
In any event the conditions at a minimum must include the following:
(a)
For earth filling and placing or dumping, the conditions shall
include but not be limited to:
[1]
Establishment of a time period to complete the
filling operations, but not more than one year.
[2]
Not more than two entrances/exits shall be allowed
onto any one street.
[3]
At all stages of operation, proper drainage shall
be provided to prevent the collection and stagnation of water to prevent
harmful effects upon surrounding properties. During construction or
filling operations on sites adjacent to or where drainage and runoff
will enter any natural stream, pond or culvert connected thereto,
a berm will be constructed between the stream or pond and the construction
site, with drainage channeled through a settling pool or catch basin
to trap silt prior to entering the water body. If, when complete,
the site is to be paved, all drainage shall be channeled through an
approved catch basin before entering the water body.
[4]
During the period of placing, filling, or dumping,
all necessary precautions shall be taken as deemed necessary to the
Zoning Board of Appeals for the protection of pedestrians and vehicles.
[5]
When the placing, filling, or dumping of earth
is completed, the area is to be graded so that no finish grade shall
be steeper than a slope of 2 1/2 horizontal to one vertical.
[6]
A layer of arable topsoil of a quality approved
by the Building Commissioner shall be spread over the clean fill to
a minimum of four inches in accordance with the approved contour plan.
The area shall be seeded with a suitable cover crop and maintained
until the area is stabilized and approved by the Building Commissioner.
[7]
All necessary precautions shall be taken to protect
against any damage being done to surrounding land and to ensure that
no dangerous conditions are created after completion.
[8]
Prior to placing, filling, or dumping of earth,
site plans shall be submitted to the Zoning Board of Appeals containing
the following:
(b)
For earth removal, the conditions shall include but not be limited
to:
[1]
Establishment of a time period to complete the
removal operations, but not more than one year.
[2]
Existing topsoil is not to be removed from the
site until the area from which it was removed has been restored.
[3]
Not more than two entrances/exits shall be allowed
onto any one street.
[4]
At all states of operation, proper drainage shall
be provided to prevent the collection and stagnation of water to prevent
harmful effects upon surrounding properties. During construction or
soil removal, on sites adjacent to or where drainage and runoff will
enter any natural stream, pond or culvert connected thereto, a berm
will be constructed between the stream or pond and the construction
site with drainage channeled through a settling pool or catch basin
to trap silt prior to entering the water body. If, when complete,
the site is paved, all drainage shall be channeled through an approved
catch basin before entering the water body.
[5]
During excavation and removal, barricades and/or
fences shall be erected as are deemed necessary by the Zoning Board
of Appeals for the protection of pedestrians or vehicles.
[6]
When excavations and removal operations or either
of them are completed, the excavated area shall be graded so that
no gradients in disturbed earth shall be steeper than a slope 2 1/2
horizontal to one vertical.
[7]
In restoring the excavated areas, topsoil shall
be spread to a depth of four inches and shall be seeded with a suitable
cover crop and maintained until the area is stabilized and approved
by the Building Commissioner.
[8]
Prior to any earth excavation, site plans shall
be submitted to the Zoning Board of Appeals containing the following:
[a]
Existing and proposed contours at intervals of
two feet.
[b]
Estimated volume of earth to be removed.
[c]
Proposed truck access to the excavation.
[d]
Names of the abutters.
[e]
Groundwater levels shall be indicated.
[f]
Details of regrading and revegetation of the site
at conclusion of operations.
F.
Time limit. No permit for removal of material granted by the Zoning
Board of Appeals shall be valid for a period more than one year from
its date of issue, unless an extension thereof has been granted by
the Zoning Board of Appeals, which extension shall not be granted
in intervals greater than one year. Any application for extension
granted hereunder shall meet all the requirements of this section.
A.
Purpose.
(1)
To provide for the placement of marijuana establishments in
appropriate places and under conditions in accordance with the provisions
of MGL c. 94G.
(2)
To minimize the adverse impacts of marijuana establishments
on adjacent properties, residential neighborhoods, schools and other
places where children congregate, local historic districts, and other
sensitive land uses potentially incompatible with said establishments.
(3)
To regulate the siting, design, placement, security, safety,
monitoring, modification, and discontinuance of marijuana establishments.
B.
Applicability.
(2)
Nothing in this section shall be construed to supersede federal
and state laws governing the sale and distribution of Class 1 Controlled
Substances.
(3)
If any provision of this section or the application of any such
provision to any person or circumstance shall be held invalid, the
remainder of this section, to the extent it can be given effect, or
the application of those provisions to persons or circumstances other
than those to which it is held invalid, shall not be affected thereby,
and to this end the provisions of this section are severable.
C.
General requirements and conditions for all marijuana establishments.
(1)
All marijuana establishments shall be contained within a building
or structure.
(2)
The hours of operation of marijuana establishments shall be
set by the special permit granting authority.
(3)
No marijuana establishment property line shall be located within
500 linear feet of a lot line where the following districts, activity,
or uses occur:
(b)
Any church, public or private school or child-care facility;
or place where minors frequent (e.g., a library, ball field, park,
sports or family recreation facility, religious facility or the like);
(c)
Any other marijuana establishment;
(d)
Any drug or alcohol rehabilitation facility; or
(e)
Any correctional facility, halfway house or similar facility.
(4)
No smoking, burning or consumption of any product containing
marijuana or marijuana-related products shall be permitted on the
premises of a marijuana establishment.
(5)
No marijuana establishment shall be located inside a building
containing residential units, including transient housing such as
motels and dormitories, or inside a movable or mobile structure such
as a van or truck.
(6)
Marijuana establishments shall provide the Gardner Police and
Fire Departments, Building Commissioner, Board of Health, and the
special permit granting authority with the names, phone numbers and
e-mail addresses of all management staff and key holders to whom one
can provide notice if there are operating problems associated with
the establishment.
(7)
The City shall have access at any time to inspect the premises
of the marijuana establishment to ensure compliance with local and
state regulations, excluding client health information protected under
the Health Insurance Portability and Accountability Act of 1996.
(8)
Pursuant to MGL c. 94G, § 3(a)(2)(i) to (iii), the
maximum number of licensed marijuana establishments in the City shall
be consistent with the following provisions:
(a)
Shall not prohibit one or more types of marijuana establishment;
(b)
The number of marijuana retail establishments shall not exceed
35% of liquor licenses issued for retail sale of alcohol not consumed
on the premises in the City of Gardner, said number to be rounded
up to the next whole number;
[Amended 3-18-2024 by Ord. No. 1670]
(c)
The number of marijuana establishments shall not prevent the
conversion of a medical marijuana treatment center licensed or registered
no later than July 1, 2017, to a marijuana establishment engaged in
the same type of activity.
[Amended 9-3-2019 by Ord. No. 1625]
D.
Special permit requirements.
(1)
No special permit for any marijuana establishment shall be issued without site plan approval first having been obtained from the Planning Board, § 675-1010, Site plan review, of this chapter. In addition to the standards set forth within, the site plan must meet all dimensional, parking, landscaping, and signage requirements within this chapter.
(2)
A marijuana establishment shall only be allowed by special permit
from the Gardner Planning Board in accordance with MGL c. 40A, § 9,
subject to the following statements, regulations, requirements, conditions
and limitations.
(3)
A special permit for a marijuana establishment shall be limited
to one or more of the following uses that shall be specified by the
special permit granting authority:
(4)
In addition to the application requirements set forth above,
a special permit application for a marijuana establishment shall include
the following:
(a)
The name and address of each owner of the establishment;
(b)
Copies of all required licenses and permits issued to the applicant
by the Commonwealth of Massachusetts Cannabis Control Commission and
any of its other agencies for the establishment;
(c)
Evidence of the applicant's right to use the site of the establishment
for the establishment, such as a purchase and sale agreement, deed,
owner's authorization, or lease;
(d)
Proposed security measures for the marijuana establishment,
including lighting, fencing, gates and alarms, etc., to ensure the
safety of persons and to protect the premises from theft. A letter
from the City of Gardner Police Chief, or designee, acknowledging
review and approval of the marijuana establishment security plan is
required. To the extent allowed by law, all such documents shall be
confidential.
(5)
Mandatory findings. The special permit granting authority shall
not issue a special permit for a marijuana establishment unless it
finds that:
(a)
The establishment is designed to minimize any adverse impacts
on abutters and other parties in interest, as defined in MGL c. 40A,
§ 11.
(b)
The establishment demonstrates that it will meet all the permitting
requirements of all applicable agencies within the Commonwealth of
Massachusetts and will comply with all applicable state laws and regulations;
and
(c)
The applicant has satisfied all the conditions and requirements
set forth herein.
(6)
A special permit granted under this section shall have a term limited to the duration of the applicant's ownership or leasehold of the premises as a marijuana establishment. A special permit may be transferred only with the approval of the special permit granting authority in the form of an amendment to the special permit with all information required in this § 675-1070.
E.
Abandonment or discontinuance of use.
(1)
A special permit shall lapse if not exercised within one year
of issuance.
(2)
A marijuana establishment shall be required to remove all personal
property, including but not limited to all material, plants, equipment,
accessories, paraphernalia, and any other property no later than the
earliest of:
