Town of Upton, MA Article 6 Special Regulations

§ 300-6.1 Common driveways.

[Amended 6-23-2020 ATM by Art. 16]

A "common driveway" is any road to be used for vehicular access to two or more dwellings or places of business. Common driveways shall only be allowed by special permit, subject to the provisions of § 300-9.3 of this bylaw. For the purposes of this section, the special permit granting authority shall be the Planning Board of the Town of Upton. All persons constructing common driveways in any and all districts of the Town of Upton shall meet the following standards:

A. Common driveways shall be of sufficient design so as to provide safe travel for vehicles and pedestrians and to obtain maximum amenities for future residents.

B. All common driveways shall be identified by a sign posted at the intersection with public way, and the sign shall state: NOT A PUBLIC WAY.

C. The driveway shall be graded and prepared according to all requirements of Chapter 310, Subdivision of Land, § 310-29B, C and D.

D. Common driveways shall have an easement width of not less than 24 feet and shall have a paved width of not less than 18 feet.

E. A three-foot shoulder shall be constructed along at least one side of the paved driveway.

F. The maximum center line grade shall not exceed 8%. No grade shall exceed 3% within 75 feet of street right-of-way lines.

G. Property lines at street intersections shall be rounded or cut back to provide for a curb radius of not less than 30°.

H. Common driveways shall not exceed 500 feet in length.

I. In the circular turning area at the end of the cul-de-sac, the minimum easement shall be of a diameter of not less than 120 feet and the paved area shall be not less than 100 feet in diameter.

J. In addition to the above standards, the following standard conditions shall apply to all special permits granted under this section:

(1) No building permits shall be issued until the driveway layout and base have been inspected by a third-party engineer pursuant to § 310-29D of the Code of the Town of Upton, Chapter 310, Subdivision of Land.

(2) No occupancy permit shall be issued until the completed driveway has been inspected by a third-party engineer pursuant to § 310-29D of the Code of the Town of Upton, Chapter 310, Subdivision of Land.

§ 300-6.2 Personal wireless service facilities.

[Amended 5-8-2021 ATM by Art. 16; 11-7-2023 STM by Art. 16; 11-12-2024 STM by Art. 24]

A. Purpose and intent. The purpose of this section is to regulate personal wireless service facilities (herein abbreviated "facility" or "facilities") such that these services may be provided with the minimum harm to the public health, safety and general welfare by:

(1) Protecting the general public from hazards associated with such facilities.

(2) Minimizing visual impact from such facilities.

(3) Preventing adverse impact on local property values.

(4) Improving the ability of the carriers to maximize coverage while minimizing adverse impact on the community.

B. Special permit granting authority. A wireless data transfer facility shall only be allowed by a special permit. The Planning Board shall act as the special permit granting authority (SPGA) for wireless data transfer facilities in the Town of Upton. The Planning Board is authorized to hear and decide upon applications for special permits for wireless data transfer facilities in accordance with the provisions of this Zoning Bylaw.

C. Application in zoning districts. A wireless data transfer facility shall be allowed by special permit in all zoning districts in accordance with the requirements and regulations of the Town of Upton Zoning Bylaw.

D. Applicability and exemptions.

(1) This section applies to any wireless data transfer facility. The following specific uses are exempt:

(a) Satellite dishes or antennas used exclusively for residential use.

(b) Police, fire, ambulance and other public emergency dispatch.

(c) Citizens band radio.

(d) Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the FCC, provided that the tower is not used or licensed for any commercial purpose and the tower is removed upon loss or termination of said FCC license.

(2) A nonexempt wireless data transfer facility or repeater facility that shares a tower or other structure with any exemptions listed above shall not be considered exempt from this bylaw for any reason.

(3) Existing towers may be reconstructed, expanded and/or altered in all zoning districts subject to a special permit granted by the Planning Board, provided that they conform to all of the requirements set forth in this Zoning Bylaw.

(4) Wireless data transfer devices and wireless data transfer accessory buildings may be located totally within existing buildings and existing structures in all zoning districts, subject to a special permit granted by the Planning Board.

E. Consistency with federal law. These regulations are intended to be consistent with the Telecommunications Act of 1996[1] in that:

(1) They do not prohibit or have the effect of prohibiting the provision of personal wireless services.

(2) They are not intended to be used to discriminate unreasonably among providers of functionally equivalent services.

(3) They do not regulate personal wireless services on the basis of environmental effect of radio frequency emissions to the extent that the regulated services and facilities comply with the FCC's regulations concerning emissions.

[1] Editor's Note: See 47 U.S.C. § 521 et seq.

F. Wireless data transfer facility: Design requirements and performance standards. All wireless data transfer facilities erected, installed and/or used shall comply with the following design requirements and performance standards:

(1) Shared use. Shared use of towers by commercial wireless data transfer carriers is required unless such shared use is shown by substantial evidence to not be feasible.

(2) Height.

(a) The maximum allowed height of a tower shall be 150 feet. The Planning Board may grant a waiver of the maximum allowed height limitation under this section for a tower not to exceed 200 feet in total if the Planning Board finds that the increased height is in the best interest of the Town.

(b) Data transfer devices located on a structure shall not exceed 10 feet in height above the roofline of the structure, unless the Planning Board finds that a greater height is essential to the proper functioning of the wireless communication services to be provided by the applicant at such location. For structures where it is difficult to determine the roofline, such as water tanks, the height of the data transfer devices shall not exceed 10 feet above the highest point of the structure.

(3) Co-location. In the event that the Planning Board finds that co-location is preferable in order to conform to the intent and purpose of this bylaw, then towers shall be designed to accommodate the maximum number of presently interested users that is technologically practical. In addition, if the number of proposed users is fewer than four, the applicant shall provide a plan showing how the proposed tower can be expanded to accommodate up to four users. In the event that the Planning Board finds that co-location is preferable, the applicant must agree to allow co-location pursuant to commercially reasonable terms to additional users.

(4) Proximity to existing residence. Towers shall be located a minimum of 750 feet from an existing residential dwelling or proposed dwelling in a permitted submission.

(5) Setback. A tower shall be set back from the property lines of the lot on which it is located by a distance equal to 1 1/2 times the overall vertical height of the tower and any attachments.

(6) Screening requirements.

(a) All exterior wireless data transfer facilities equipment and fixtures shall be painted or otherwise screened or colored to minimize their visibility to abutters, adjacent streets and residential neighborhoods. Wireless data transfer facilities, equipment and fixtures visible against a building or structure shall be colored to blend with such building or structure. Wireless data transfer facilities, equipment and fixtures visible against the sky or other background shall be colored or screened to minimize visibility against such background. A different coloring scheme shall be used to blend the structure with the landscape below and above the tree or building line. Existing on-site vegetation shall be preserved to the maximum extent feasible.

(b) Data transfer devices shall be situated on or attached to a structure in such a manner that they are screened, preferably not being visible from abutting streets and residences. Freestanding dishes or data transfer devices shall be located on the landscape in such a manner so as to minimize visibility from abutting streets and residences, and to limit the need to remove existing vegetation. All equipment shall be screened, colored, molded and/or installed to blend into the structure and/or the landscape.

(7) Fencing. Fencing shall be provided to control access to wireless data transfer facilities and shall be compatible with the scenic character of the Town and shall not be of razor wire and shall be subject to the approval of the Planning Board. Any entry to the proposed access road shall be gated (and locked) at the intersection of the public way, and a key to the lock provided to emergency response personnel.

(8) Lighting. Night lighting of towers shall be prohibited unless required by the Federal Aviation Administration. Lighting shall be limited to that needed for emergencies and/or as required by the Federal Aviation Administration.

(9) Parking. There shall be a minimum of one parking space for each facility, to be used in connection with the maintenance of the site, and not be used for the permanent storage of vehicles or other equipment.

(10) Access. For proposed tower sites, the width, grade, and construction of the access road shall be designed so that emergency response vehicles can get to the tower and wireless data transfer facility accessory buildings, and shall be designed to provide proper storm drainage.

G. Small wireless facility. This bylaw section is to permit regulation of the installation of small wireless facilities outside of public property.

(1) No small wireless facility shall be placed, installed, constructed or modified without first obtaining special permit approval from the Planning Board.

(2) The Planning Board shall adopt and may from time to time amend policies, rules and regulations relative to approval under this § 300-6.2G. All policies and amendments shall be subject to a public hearing. Adoption of policies and amendments shall require a simple majority vote of the Planning Board.

(3) A copy of the policies, rules and regulations shall be kept on file with the Town Clerk and shall apply to and set forth the following:

(a) The application process, including public hearing requirements, evaluation criteria and timing for action by the Planning Board.

(b) The form and contents of the application and application fee.

(c) Applicable design, placement, safety, and aesthetic criteria.

(d) Requirements for modification, abandonment and annual recertification.

(4) The policies described in Subsection G(2) shall be intended to preserve the aesthetic character of the Town; to safeguard public safety, health and welfare; protect the financial interests of the Town; and to protect against intangible public harm resulting from unsightly or out-of-character deployments.

(5) The Select Board shall adopt the policies, rules and regulations described in Subsection G(2) above, with necessary modifications applicable to rights-of-way and other lands under the control of the Select Board. These policies, rules and regulations shall also be kept on file with the Town Clerk.

H. General requirements.

(1) No wireless data transfer facility may be erected except upon the issuance of a special permit by the Planning Board and approval under site plan approval as set forth in § 300-9.4 of the Zoning Bylaw and subject to all of the provisions of this section. It is recommended to the applicant to undertake both the special permit and site plan approval procedures concurrently in order to expedite the permitting process. Multiple applicants for the same site/facility are also encouraged, provided there is one lead applicant responsible for all submissions and further provided that no application shall be considered complete and filed until all the applicants have complied with all of the submission requirements.

(2) All owners and operators of land used in whole or in part for a wireless data transfer facility and all owners and operators of such wireless data transfer facility shall, as a continuing condition of installing, constructing, erecting and using a wireless data transfer facility, permit other FCC-licensed commercial entities seeking to operate a wireless data transfer facility to install, erect, mount and use compatible wireless data transfer equipment and fixtures on the equipment mounting structure on reasonable commercial terms, provided that such co-location does not materially interfere with the transmission and/or reception of communication signals to or from the existing wireless data transfer facility, and provided that there are no structural or other physical limitations that make it impractical to accommodate the proposed additional wireless data transfer equipment or fixtures.

(3) Each proposed construction of a new wireless data transfer facility, tower, wireless data transfer device or wireless data transfer accessory building shall require an initial special permit. Any extension in the height of, addition of wireless data transfer accessory buildings or wireless data transfer devices to, or replacement of any wireless data transfer facility shall require an amendment to the special permit previously issued for that facility or, in the case where there is no special permit, an initial special permit.

(4) New wireless data transfer facilities shall be considered by the Planning Board only upon a finding by the Planning Board that:

(a) The applicant has used reasonable efforts to co-locate its proposed wireless data transfer facilities on existing or approved facilities; and

(b) The applicant either was unable to negotiate commercially reasonable lease terms with the owner of any existing or approved facility that could accommodate the proposed facilities from both structural engineering (i.e., the height, structural integrity, weight-bearing and wind-resistant capacity of the existing or approved facility) and radio frequency engineering (i.e., height, coverage area, etc.) perspectives; or there neither exists nor is there currently proposed any facility that could accommodate the proposed facilities from structural and radio frequent engineering perspectives. A report discussing this information entitled "New Wireless Data Transfer Feasibility Study" is to be submitted to the Planning Board as part of any special permit submission.

(5) The Planning Board may require the applicant to pay reasonable fees for professional review of the applicant's proposal by a professional or radio frequency engineer, attorney and/or other qualified professional.

(6) A wireless data transfer facility may be located on the same lot by special permit with any other structures or uses lawfully in existence and/or lawfully undertaken pursuant to this bylaw.

I. Criteria for granting special permit.

(1) Applications for special permits may be denied if the Planning Board finds that the petitioner does not meet or address the requirements of § 300-6.2 herein, § 300-9.4 of this Zoning Bylaw and MGL c. 40A, § 9.

(2) When considering an application for a wireless data transfer facility, the Planning Board shall take into consideration the proximity of the facility to residential dwellings and its impact on these residences. New towers shall only be considered after a finding that existing (or previously approved) towers suitable for and available to the applicant on commercially reasonable terms cannot accommodate the proposed use(s), taking into consideration radio frequency engineering issues and technological constraints.

(3) When considering an application for a proposed data transfer device to be placed on a structure, the Planning Board shall take into consideration the visual impact of the unit from the abutting residences and streets.

J. Conditions. The Planning Board shall impose, in addition to any reasonable conditions supporting the objectives of the Zoning Bylaw, such applicable conditions as it finds appropriate to safeguard the neighborhood or otherwise serve the purpose of § 300-6.2 herein, including, but not limited to screening, buffering, lighting, fencing, modification of the external appearance of the structures, limitation upon the size, method of access or traffic features, parking, removal or cessation of use, or other requirements. Such conditions shall be imposed, in writing, with the granting of a special permit or site plan approval. As a minimum, the following conditions shall apply to all grants of special permit relating to a wireless data transfer facility pursuant to this section:

(1) Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission and Federal Aviation Administration, and required maintenance shall be filed with the Building Commissioner by the special permit holder, with a copy received by the Planning Board no later than January 31 of each year.

(2) Removal of abandoned towers and facilities. Any wireless data transfer facility that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such tower and facility shall remove same within 90 days of receipt of notice from the Planning Board, notifying the owner of such abandonment. If such tower or facility is not removed within said 90 days, the Planning Board may cause such tower or facility to be removed at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.

(3) For all towers, the applicant shall provide a performance bond or other security from a surety authorized to do business in Massachusetts and satisfactory to the Planning Board, in an amount equal to the cost of removal of any and all wireless data transfer facility from the premises and for the repair of such premises and restoration to the condition that the premises were in at the onset of the lease, said amount to be determined at the discretion of the Planning Board by either the applicant's engineer or professional hired by the Planning Board at the applicant's expense. The amount of the bond shall be the total estimate of restoration costs and anticipated fees (in today's dollars) by the applicant's engineer, plus an annual increase of 3% for the term of the lease. The term of the bond shall be for the full term of any lease, plus 12 months. The Town must be notified of any cancellation or change in the terms or conditions in the bond.

(4) For all towers, an agreement must be executed whereby the user will allow the installation of municipal data transfer devices at no cost to the Town of Upton, and which will allow other carriers to lease space on the tower so long as such use does not interfere with the user's use of the tower, or with any Town-controlled data transfer devices.

(5) For all towers located on nonmunicipal property, a clause must be inserted in any lease that unconditionally permits the Town or contractors hired by the Town to enter the premises, at any time, whereupon towers are located, if any Town-wide or Town-controlled telecommunications are located thereon.

(6) For all towers located on municipal property, a certificate of insurance for liability coverage in amounts determined by the Select Board must be provided, naming the Town as an additional insured.

(7) For all towers located on municipal property, an agreement must be executed whereby the user indemnifies and holds the Town harmless against all claims for injury or damage resulting from or arising out of the use or occupancy of the Town-owned property by the user.

(8) All permittees shall be required to file annually on or before February 1 with the Upton Planning Board a complete list of all wireless data transfer facility locations in the Town then used by the permittee, including data transfer devices mounted on the interior of a building or structure.

(9) The special permit shall lapse in two years unless substantial use or construction has commenced by such date, unless for good cause shown a written request for an extension of time is made to the Planning Board before the two years has expired. Such construction, once begun, shall be actively and continuously pursued to completion within a reasonable time. This two-year period does not include such time as required to pursue or await the determination of an appeal from the granting of this special permit.

(10) Any future extension or addition of a wireless data transfer facility or construction of new or replacement towers shall be subject to an amendment of the special permit, following the same procedure as for an original grant of a special permit.

(11) Prior to construction, the permittee shall provide a recorded copy of a restrictive covenant prohibiting construction on all areas contained in the setback/fall areas.

K. Severability. If any section of this bylaw is ruled invalid by any authority or a court of competent jurisdiction, such ruling will not affect the validity of the remainder of the bylaw.

§ 300-6.3 Solid waste, hazardous waste and infectious waste.

To the extent permitted by law, no new building or facility or part thereof shall be constructed or used, and no premises shall be used, and no building or facility or part thereof shall be altered, enlarged, reconstructed or used for any purpose, to include: processing, storing or staging of solid waste, hazardous waste, infectious waste as defined by the Department of Environmental Protection or the Commonwealth of Massachusetts or as defined herein.

§ 300-6.4 Planned village development.

A. Intent. The intent of this Planned Village Development Bylaw is to permit greater flexibility and more creative and imaginative design for the development of municipal, commercial, retail, general business, and residential mixed-use areas than is generally possible under conventional zoning provisions. It is further intended to promote a vibrant, compact, pedestrian-friendly development with the virtues of a traditional New England village, but with modern amenities and services, enabling residents of diverse income levels and ages to live, work, or retire in a well-planned built and natural environment. In addition, the Town may use this bylaw to promote unmet housing needs, including affordable housing and handicap barrier free housing.

B. Special permit granting authority. The Planning Board shall act as the special permit granting authority (SPGA) for a planned village development in the Town of Upton. The Planning Board is authorized to hear and decide upon applications for special permits for planned village developments in accordance with the provisions of this Zoning Bylaw.

C. Application in zoning districts. A planned village development may only be permitted by a special permit in a Commercial & Industrial District in accordance with the requirements and regulations of this section of the Town of Upton Zoning Bylaws.

D. Design requirements.

(1) Overall threshold of development. The maximum area of development or gross floor area of retail/office use or residential units permissible under a planned village development special permit and for a planned village development tract of land shall be determined as part of the concept plan review and approval process. Based on its review and in order to advance the purpose of this bylaw, to ensure that residential development is not the dominant land use, and mixed-use development is achieved, the Planning Board shall determine the following:

(a) Developable area as defined.

(b) Open space area as defined.

(c) The maximum amount of retail/office density.

(d) The maximum amount of residential density, not to exceed eight dwelling units per developable acre.

(e) The maximum amount of municipal density.

(f) A minimum percentage of gross floor area to be devoted to retail/office and/or municipal uses that advance the purposes of this bylaw.

(g) A maximum ratio of total residential building gross floor area to total commercial and municipal building gross floor area.

(2) Developable area. "Developable area" shall be defined as an area calculated by a registered civil engineer and/or registered land surveyor that does not include any of the following:

(a) Land within the 100-year floodplain as defined by MGL c. 131, § 40.

(b) Freshwater wetlands as defined by MGL c. 131, § 40.

(c) Land subject to the Massachusetts Rivers Protection Act[1] as defined by MGL c. 131, § 40.

[1] Editor's Note: See Acts of 1996, c. 258.

(d) Land having a slope greater than 20%.

(e) Land subject to any local and/or state law or regulation, right-of-way, public or other restriction which prohibits development.

(3) Open space.

(a) Open space should generally be planned as contiguous areas that promote the objectives of this bylaw while retaining the natural features of the site most worthy of preservation in a natural state. Open space in a planned village development shall consist of three categories:

[1] Open space for active and/or passive recreational pursuits, including but not limited to ball fields, soccer fields, trail systems, parks, etc., that would be transferred to the Town, state, or other nonprofit agency;

[2] Open space associated with retail/office and/or municipal uses;

[3] Open space consisting of landscaped or natural vegetation that shall serve as buffers for the residential components of the planned village development.

(b) The first two categories of open space would generally provide for public access, which would be defined through covenants approved by the Planning Board as part of the special permit process.

E. Dimensional requirements. In order to permit site planning best tailored to the land under consideration, there are no predetermined dimensional requirements except for the following:

(1) When the planned village development property adjoins residential property, a buffer area shall be provided and delineated on a planned village development site plan.

(2) The minimum frontage of a planned village development property proposed for a planned village development special permit shall be 200 feet on an existing Town accepted way.

(3) Open space requirements for the property proposed for a planned village development special permit shall be as follows:

(a) No less than 30% of the developable area within the planned village development site shall be designated as open space.

(b) No less than 20% of the planned village development site shall be designated as upland open space that shall not consist of wetlands as defined by MGL c. 131, § 40.

(c) Wetland areas shall be incorporated into open space to the greatest extent possible.

(d) No less than half of the planned village development site classified as upland open space shall be dedicated as publicly accessible and usable open space that shall not consist of wetlands as defined by MGL c. 131, § 40.

F. Unmet housing needs. In order to promote the intent and purpose of this bylaw, the Planning Board shall determine a percentage of housing built under the bylaw and within a planned village development that shall be required by covenant or restriction acceptable to the Planning Board to be set aside to meet unmet housing needs, as shall be determined by the Planning Board, including those specified in § 300-6.4A.

G. Procedures and administration. Applications shall be filed in accordance with Chapter 308, Site Plan Approval, of this Code. An application shall not be deemed complete until all copies of required information and documentation have been filed with the Planning Board.

H. Application procedure. The application procedure shall consists of two steps:

(1) Submission of a conceptual site plan to the Planning Board for preapplication review.

(2) Submission of a application for approval of a planned village development special permit to the Planning Board, which will include the following:

(a) A special permit application cover letter form.

(b) A preparation of plans with a designer certificate.

(c) A development impact statement.

(d) Development plans as specified herein this special permit bylaw.

I. Preapplication.

(1) To be eligible to apply for a special permit, applicants are first required to have submitted a conceptual site plan prepared by a landscape architect, a registered architect, and a registered professional engineer for review at a scheduled Planning Board meeting. The Planning Board may conduct its review of a conceptual site plan at more than one meeting.

(2) The conceptual site plan shall include a detailed analysis of site topography, wetlands, unique land features, soil type, site layout and building design. The purpose of this requirement is to help applicants and Town officials develop a better understanding of the property and to help establish an overall design approach that respects the intent of this bylaw.

(3) As an integral part of the preapplication process and prior to its formal review conducted in its capacity as SPGA, the Planning Board shall set forth its preliminary findings pursuant to its review of a conceptual site plan. These findings may include but not be limited to suggestions related to the design, scope, building, use, or development program, open space, infrastructure, or other components related to an anticipated planned village development proposal for the subject property.

J. Special permit application.

(1) Applicants are required to submit a special permit application and site plan, conforming to the requirements of this bylaw, to the Planning Board for approval.

(2) Contents of special permit application. The application for a planned village development special permit shall be accompanied by a site plan, including all of the plans and information listed below:

(a) A special permit application cover letter form.

(b) A preparation of plans designer certificate.

(c) A development impact statement, as defined in this bylaw.

(d) Development plans as specified herein this special permit bylaw.

(e) Payment of any application fee(s) required under the Planning Board's rules and regulations for the administration of this bylaw.

K. Planned village development special permit rules and regulations. The Planning Board shall adopt reasonable rules and regulations for the administration of this bylaw, which may be amended from time to time.

L. Public hearing. The Planning Board shall hold a public hearing on any application for a planned village development special permit within 65 days from the date of filing of the special permit application. The Planning Board shall provide notice of hearings in accordance with MGL c. 40A, §§ 9 and 11.

M. Basis for approval, and required findings and determinations.

(1) Upon receipt of the application and required plans, the Planning Board shall transmit one copy each to the Select Board, Board of Health, Conservation Commission, Public Works Department, Fire and EMS Department, and Police Department for recommendations consistent with the intent of this bylaw as set out in § 300-6.4A. Failure of such boards and officials to make any recommendation within 35 days of receipt of the special permit application by such boards and officials shall be deemed lack of opposition to the special permit. The Planning Board shall act on applications according to the procedures specified in MGL c. 40A, § 9.

[Amended 11-7-2023 STM by Art. 16]

(2) The decision of the Planning Board shall be made within 90 days following the date of such public hearing. The required time limit for a public hearing and said action may be extended by written agreement between the petitioner and the Planning Board. A copy of such agreement shall be filed in the office of the Town Clerk as required by MGL c. 40A, § 9. The Planning Board shall file its special permit granting decision with the Town Clerk as required by MGL c. 40A, § 9.

(3) Special permits shall be granted by the Planning Board, unless otherwise specified herein, upon its written determination that:

(a) The proposed development is consistent with the intent of this bylaw, as set out in § 300-6.4A.

(b) Municipal services such as water, sewer or other services are adequate or will be adequate at the time of completion of the development.

(c) The benefit to the Town and the neighborhood outweigh the adverse effects of the proposed use, taking into account the characteristics of the site and of the proposal in relation to that site.

(4) In addition to the determination listed above, prior to granting approval of the planned village development, the Planning Board shall also give consideration of each of the following:

(a) Social, economic, or community needs that are served by the proposal;

(b) Adequacy of vehicular and pedestrian traffic safety on and off the site, and adequacy of parking and loading areas;

(c) Adequacy of utilities and other public services;

(d) Impacts on neighborhood character and social interaction;

(e) Impacts on the natural environment; and

(f) Potential fiscal impact, including impact on municipal services, tax base, and employment.

(5) The Planning Board shall not grant approval for the following:

(a) A planned village development solely for residential use shall not be permitted. Strictly single-family detached residential development shall not be permitted.

(b) A planned village development shall not be permitted when municipal services such as water, sewer or other services are not adequate or will not be adequate at the time of completion of the development. Proof of adequacy of municipal services shall be the burden of the developer. The Planning Board shall determine, based on all evidence submitted to it, what constitutes adequate municipal services.

(c) A planned village development that does not meet the specified intent of this bylaw.

N. Conditions. The special permit may be granted with such reasonable conditions, safeguards, or limitations on time or use, performance guarantees, site construction requirements, inspection requirements, and owner/occupancy reporting requirements to satisfy compliance with the special permit. The Planning Board may require additional conditions as it finds reasonably appropriate to safeguard the health, safety, and welfare of the existing neighborhoods and the Town of Upton or otherwise serve the intent of this bylaw.

O. Change in plans after grant of special permit.

(1) No change in any aspect of the approved plans shall be permitted unless approved by the Planning Board. A new or amended special permit will be required if the Planning Board determines any proposed change to be substantial. The Planning Board shall hold a public hearing if the proposed change is determined to be substantial, within the provisions of this bylaw.

(2) No land for which a special permit for a planned village development has been granted shall be further subdivided.

P. Lapse. The special permit shall lapse if a substantial use thereof or construction hereunder has not begun, except for good cause, within 24 months following the filing of the special permit approval (plus such time required to pursue or await the determination of an appeal referred to in MGL c. 40A, § 17, from the grant thereof) with the Town Clerk.

Q. Appeal. An aggrieved party may appeal a Planning Board decision pursuant to MGL c. 40A, § 17.

R. Validity. If any provision of this bylaw is determined to be invalid, it shall not affect the validity of the remaining provisions.

S. Development impact statement. At the discretion of the Planning Board, the submittal of a development impact statement may be required at the expense of the applicant. The Planning Board may deny a special permit when the development impact statement discloses that the proposed use does not comply with the provisions of this bylaw or would be detrimental to the Town or its citizens. The development impact statement shall be prepared by an interdisciplinary team, including a registered landscape architect or architect, a registered civil engineer, registered surveyor, and a land planner, and may include all or some of the following information:

(1) Physical environment.

(a) Describe the general physical conditions of the site, including amounts and varieties of vegetation, general topography, unusual geologic, archaeological, scenic and historical features or structures, locations of significant viewpoints, stone walls, trees over 16 inches in diameter, trails and open space links, and indigenous wildlife.

(b) Describe how the project will affect these conditions, providing a complete physical description of the project and its relationship to the immediate surrounding area.

(2) Surface water and subsurface conditions.

(a) Describe locations, extent, and types of existing water and wetlands, including existing surface drainage characteristics, both within and adjacent to the site.

(b) Describe any proposed alterations of shorelines or wetlands.

(c) Describe any limitations imposed on the project by the site's soil and water conditions.

(d) Describe the impact upon groundwater and surface water quality and recharge, including estimated phosphate and nitrate loading on groundwater and surface water from septic tanks, lawn fertilizer, and other activities within the site.

(3) Vehicle circulation system.

(a) Project the number of motor vehicles to enter or depart the site per average day and during peak hours. Also state the number of motor vehicles to use streets adjacent to the site per average day and during peak hours. Such data shall be sufficient to enable the Planning Board to evaluate existing traffic on streets adjacent to or approaching the site; traffic generated by or resulting from the site; and the impact of such additional traffic on all ways within and providing access to the site.

(b) Actual study results, a description of the study methodology, and the name, address, and telephone number of the person responsible for producing the study shall be attached to the development impact statement.

(4) Support systems.

(a) Water distribution. Discuss the water system proposed for the site, and the means of providing water for firefighting, and any problems unique to the site.

(b) Sewage disposal. Discuss the sewer system to be used, and evaluate impact of sewage disposal on the wastewater treatment facility.

(c) Refuse disposal. Discuss the location and type of facilities, the impact on existing Town refuse disposal capacity, hazardous materials requiring special precautions.

(d) Protection service. Discuss the distance to the fire station, police station, and emergency medical service, and the adequacy of existing equipment and manpower to service the proposed site.

(e) Recreation. Discuss the distance to and type of public facilities to be used by the residents of the proposed site, and the type of private recreation facilities to be provided on the site.

(f) School system. Project the increase to the student population for nursery, elementary, middle school, and high school levels.

(5) Phasing. Where development of the site will be phased over more than one year, indicate the following:

(a) Describe the phasing of the construction with a dated time line with dated milestones.

(b) Describe the approximate size and location of the portion of the parcel to be cleared at any given time and the length of time of exposure.

(c) Describe the phased construction, if any, of any required public improvements, and how such improvements are to be integrated into site development.

(d) Describe how the site will be separated into work areas and made safe for workmen and residents.

(6) Preparation of plans. A registered professional engineer, registered land surveyor, architect, or landscape architect shall prepare plans, as appropriate, which shall be clearly and legibly drawn in black line on white paper. Dimensions and scale shall be adequate to determine that all requirements are met and to enable complete analysis and evaluation of the proposal. Sheet size shall be as specified in Chapter 308, Site Plan Approval, of this Code. If multiple sheets are used, an index sheet showing the entire planned village development, adjacent streets, and abutting properties shall accompany them.

(7) Contents of plans. Contents of plans shall include:

(a) Plan form and content shall be as specified in Chapter 308, Site Plan Approval, of this Code.

(b) A written statement indicating the estimated time required to complete the proposed project and any and all phases thereof shall accompany the plan. There shall be submitted a written estimate, showing in detail the costs of all site improvements planned.

(c) A written summary of the contemplated project(s) shall be submitted with the plan, indicating, where appropriate, the number of dwelling units to be built and the acreage in residential use, the evidence of compliance with parking and off-street loading requirements, the forms of ownership contemplated for the property and a summary of the provisions of any ownership or maintenance thereof, identification of all land that will become common or public land, and any other evidence necessary to indicate compliance with this bylaw.

(d) Storm drainage design and roadways, private and public, must conform to the durability requirements and other requirements of Chapter 310, Subdivision of Land, of this Code, unless another standard is specified by the Planning Board. When in the public interest, and to meet the objectives of this bylaw, alternative road width and other requirements varying from Chapter 310, Subdivision of Land, may be specified in the granting of a planned village development.

§ 300-6.5 Drive-through establishments.

A. Purpose and intent. The purpose of this section is to protect the safety, public health, convenience and general welfare of the inhabitants of the Town of Upton by providing detailed review of the design and layout of drive-through establishments given the impact upon the character of the Town as well as traffic, utilities and services therein.

B. Procedures. Drive-through establishments may only be allowed by special permit from the Planning Board (SPGA) in accordance with the special permit process as set forth in this section as well as § 300-9.3 of this Zoning Bylaw.

C. Applicability.

(1) This section applies to any establishment that intends to include a drive-through window.

(2) Drive-through establishments are limited to a bank or pharmacy by special permit in the General Business, Upton Center Business and Commercial & Industrial Districts.

[Amended 11-5-2019 STM by Art. 16]

(3) Drive-through establishments other than a bank or pharmacy are prohibited in all districts.

D. Traffic study. A traffic impact analysis shall be submitted for any proposed drive-through establishment. A registered professional engineer experienced and qualified in traffic engineering shall prepare the traffic impact study. The study shall contain the following:

(1) Existing traffic conditions: average daily and peak hour volumes, average and peak speeds, sight distances, accident data for the previous three years, and levels of service (LOS) of intersections and streets 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 project boundaries, and shall be no more than 12 months old at the date of application, unless other data is specifically approved by the SPGA.

(2) Projected traffic conditions for design year of occupancy shall include: statement of design year of occupancy, average annual background traffic growth, and additions of proposed developments which have already been approved, under construction and/or are pending before a Town board.

(3) Projected impacts of the proposed development shall include: projected peak hour and daily traffic generated by the development on roads and ways in the vicinity of the development; sight lines at the intersections of the proposed access connection and adjacent streets; existing and proposed traffic controls in the vicinity of the proposed development; and the projected post-development traffic volumes and levels of service of intersections and streets likely to be affected by the proposed development (as defined above).

(4) A proposed mitigation plan shall include: a plan (with supporting text) to minimize traffic and safety impacts through such means as physical design and layout concepts, staggered employee work schedules, promoting use of public transit or carpooling, directional signage or other appropriate means; and an interior traffic and pedestrian circulation plan designed to minimize conflicts and safety problems. Measures shall be proposed such that all streets and intersections to be impacted by the project shall, at a minimum, have the same level of service that existed prior to development.

E. Standards.

(1) Dimensional requirements.

(a) Drive-through establishments shall have the following minimum dimensional requirements:

[1] Lot area: 30,000 square feet.

[2] Lot frontage: 200 feet.

[3] Lot depth: 150 feet.

(b) Separation between access connections on all collectors and arterials shall be based on the posted speed limit in accordance with the following table:

Posted Speed Limit (mph)	Access Connection Spacing (feet)
20	140
30	210
40	280
50	350

(c) The width of the access connections at the front property line of the development shall not exceed 25 feet, unless a landscaped traffic island is used or the traffic impact study identifies and the SPGA agrees to the need for turning lanes to or from the development and the adjacent public road. For a site at an intersection where no alternatives exist, the SPGA may allow construction of an access connection at a location suitably removed from the intersection. In such cases, the applicant shall provide directional restrictions (i.e., right in/right out only and/or a restrictive median) as required by the SPGA.

(d) Any drive-through service facilities shall be a minimum of 100 feet from the property line of a residential use.

(e) A leveling area shall be provided, having a maximum 1% grade for a distance of at least 30 feet. This shall be measured from the nearest exterior line of the intersecting street to the point of vertical curvature.

(f) The following minimum landscaped buffer shall be provided between the exterior lot lines and any paved areas (except across access connections):

[1] Frontage along public ways: 10 feet.

[2] Side and rear yards abutting residential property: 25 feet.

(2) Stacking lanes.

(a) Drive-through establishments shall provide a minimum of eight stacking spaces (within the site) before the transaction window. An additional space shall also be provided adjacent to the transaction window.

(b) Each stacking space shall be a minimum of 20 feet in length and 10 feet in width along straight portions. Stacking spaces and stacking lanes shall be a minimum of 12 feet in width along curved segments. Stacking lanes shall be delineated from traffic aisles, other stacking lanes and parking areas with the use of one or more of the following: striping, curbing, landscaping and the use of alternative paving materials or raised medians. Entrances to stacking lane(s) shall be clearly marked at least 60 feet from the intersection with the access connection. The distance shall be measured from the street to the beginning of the entrance.

(c) Stacking lanes shall be designed to prevent circulation congestion, both on-site and on adjacent public streets. The circulation shall:

[1] Separate drive-through traffic from site circulation traffic.

[2] Not impede or impair access into or out of parking spaces.

[3] Minimize conflicts between pedestrian and vehicular traffic by physical and visual separation between pedestrianways and stacking lanes and driveways, or at the crossing of the two.

(d) Stacking lanes shall not interfere with required loading and trash storage areas nor impede or impair vehicular movement within stacking lanes. If said separate stacking lane is curbed, an emergency bypass or exit shall be provided.

(e) The intersection of stacking lanes and walk-in customer access shall be a minimum of 50 feet from any access connections and/or transaction windows. Said intersections shall be provided with a crosswalk. These crosswalks must be emphasized by enriched paving and striping and include warning signage aimed at both the pedestrian and vehicle.

(f) Access to and egress from all stacking lanes shall be made within the parking lot, not directly from/to a public right-of-way. Stacking lanes shall be integrated with the site circulation pattern.

(3) The mass, proportion and scale of the building, roof shape, roof pitch, and proportions and relationships between doors and windows should be harmonious among themselves and with those of the surrounding area. Proposed buildings and structures shall be integrated as much as possible with the existing building locations, landscape and terrain. The building's location shall be oriented parallel or perpendicular to the street.

(4) Exposed machinery, utility structures and areas for parking, loading, storage, service and disposal shall be screened from adjoining properties and streets.

(5) When a drive-through establishment is proposed on a property with an historic building, the architectural character and defining exterior elements of historic building shall be preserved. Signage should be compatible with the historic character of the building.

(6) The landscape shall be preserved in its natural state as much as possible by minimizing tree and soil removal. Abrupt grade changes shall be avoided. Grade changes shall avoid straight lines and should blend into existing topography. All open space shall be landscaped with a variety of native plant material and maintained accordingly.

(7) The removal of surface water shall not adversely affect adjoining properties, streets or storm drainage systems nor obstruct circulation of vehicles and pedestrians. For parking areas serving new buildings or expansions to existing parking areas, the performance of surface drainage shall be based on standards set forth in Chapter 310, Subdivision of Land, of this Code.

F. Compliance.

(1) No building permit shall be issued by the Building Commissioner for any development subject to this section and no construction or site preparation shall be started until a decision of the SPGA approving a drive-through establishment has been filed with the Town Clerk and a special permit has been issued by the SPGA.

(2) An as-built plan, certified by a registered professional land surveyor or engineer, shall be submitted to the Building Commissioner before the issuance of a permanent occupancy permit. The as-built plan shall attest to a development's conformity to its approved site/drive-through plan, including traffic mitigation, vehicular and pedestrian circulation, landscaping, buildings, drainage flow, number of parking stalls, and drive-through standards.

(3) No permanent occupancy permit shall be issued for any building subject to this section unless such building and all its related facilities have been completed according to the approved site/drive-through plan. No permanent occupancy permit shall be issued for more than 80% of the structures or units within a multiple unit development unless the development has been completed according to the approved site/drive-through plan. No activity subject to drive-through special permit shall be conducted on the site unless, in the opinion of the Building Commissioner, the development or approved phase thereof has been substantially completed according to the approved site/drive-through plan, and unless the SPGA pursuant to the drive-through special permit approval procedure reviewed the proposed activity.

(4) Any changes in the approved site/drive-through plan or in the activity to be conducted on the site shall be submitted to the Board for review and approval.

(5) Drive-through establishments are prohibited from operating in a manner that results in vehicular stacking that interferes with a public way.

§ 300-6.6 Large-scale ground-mounted solar photovoltaic installations.

A. Purpose.

(1) The purpose of this bylaw is to promote the creation of new large-scale ground-mounted solar photovoltaic installations by providing standards for the placement, design, construction, operation, monitoring, modification and removal of such installations that address public safety and minimize impacts on scenic, natural and historic resources and to provide adequate financial assurance for the eventual decommissioning of such installations.

(2) The provisions set forth in this section shall apply to the construction, operation, and/or repair of large-scale ground-mounted solar photovoltaic installations.

B. Applicability.

(1) This section applies to large-scale ground-mounted solar photovoltaic installations proposed to be constructed after the effective date of this section. This section also pertains to physical modifications that materially alter the type, configuration, or size of these installations or related equipment.

(2) The provisions set forth in this section shall apply to the construction, operation and/or repair of large-scale ground-mounted solar photovoltaic installations with a rated nameplate capacity of from 250 kW DC to 500 kW DC and that occupy from 40,000 square feet and 80,000 square feet of surface area.

(3) Any large-scale ground-mounted solar photovoltaic installation with a rated nameplate capacity of over 500 kW DC or that occupies more than 80,000 square feet of surface area (on one or more parcels of land in common ownership, including those separated by a roadway) shall require a special permit in accordance with the Upton Zoning Bylaw, with the Planning Board as the special permit granting authority.

C. Definitions. The following definitions shall apply:

AS-OF-RIGHT SITING

"As-of-right siting" shall mean that development may proceed without the need for a special permit, variance, amendment, waiver, or other discretionary approval. As-of-right development may be subject to site plan review to determine conformance with local zoning bylaws. Projects cannot be prohibited, but can be reasonably regulated by the Building Commissioner and the Planning Board.

BUILDING PERMIT

A construction permit issued by an authorized Building Commissioner; the building permit evidences that the project is consistent with the state and federal building codes as well as local zoning bylaws, including those governing ground-mounted large-scale solar photovoltaic installations.

DESIGNATED LOCATION

The location(s) designated herein where large-scale ground-mounted solar photovoltaic installations with a rated nameplate capacity from 250 kW DC to 500 kW DC and that occupy from 40,000 square feet to 80,000 square feet of surface area may be sited as-of-right in the Commercial & Industrial Districts as shown on the Town of Upton Zoning Map.

LARGE-SCALE GROUND-MOUNTED SOLAR PHOTOVOLTAIC INSTALLATION (LGSPI)

A solar photovoltaic system that is structurally mounted on the ground and is not roof-mounted, and has a rated nameplate capacity of 250 kW DC or more, and occupies more than 40,000 square feet of surface area.

RATED NAMEPLATE CAPACITY

The maximum rated output of electric power production of the photovoltaic system in direct current (DC).

SITE PLAN REVIEW

Review by the Planning Board to determine conformance with local zoning bylaws. See § 300-9.4, Site plan approval, for details.

SOLAR PHOTOVOLTAIC ARRAY

An arrangement of solar photovoltaic panels.

D. General requirements for all large-scale ground-mounted solar power generation installations. The following requirements are common to all LGSPI to be sited in Upton:

(1) Compliance with laws, bylaws and regulations. The construction and operation of all LGSPI 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 LGSPI shall be constructed in accordance with the State Building Code.

(2) Building permit and building inspection. No LGSPI shall be constructed, installed or modified as provided in this section without first obtaining a building permit.

(3) Fees. The applications for a site plan review, a building permit, and any other permits related to a LGSPI must be accompanied by the required fees.

E. Site plan review. LGSPI shall undergo site plan review prior to construction, installation or modification as provided in this section and § 300-9.4, Site plan approval, hereof.

(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) Pursuant to the site plan approval process in § 300-9.4 hereof, and in addition to the requirements thereunder, the applicant shall provide the following documents:

[1] A site plan showing:

[a] Property lines and physical features, including roads, for the project site;

[b] Locations of wetlands, rivers and priority habitat areas (as determined by the Natural Heritage and Endangered Species Program);

[c] 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;

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

[e] Blueprints or drawings of the LGSPI, 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 or vegetation;

[f] One- or three-line electrical diagram detailing the LGSPI, associated components, and electrical interconnection methods, with all National Electrical Code-compliant disconnects and overcurrent devices;

[g] Documentation of the major system components to be used, including the photovoltaic panels, mounting system, and inverter;

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

[i] Name, address, phone number and signature of the applicant, as well as all coapplicants or property owners, if any; and

[j] The name, contact information and signature of any agents representing the applicant.

[2] Documentation of actual or prospective access and control of the project site (see also § 300-6.6F).

[3] An operation and maintenance plan (see also § 300-6.6G).

[4] Description of financial surety that satisfies § 300-6.6M(3).

[5] Proof of liability insurance that satisfies § 300-6.6N.

[6] 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].

(b) The Planning Board may waive documentary requirements for good cause.

(c) Upon receipt of an application for site plan approval of a LGSPI, the Planning Board may engage, at the applicant's cost, professional and technical consultants, including legal counsel, to assist the Board with its review of the application in accordance with the requirements of MGL c. 44, § 53G. The Planning Board may direct the applicant to deposit funds with the Planning Board for such review at the time the application is accepted, and add additional funds as needed upon notice. Failure to comply with this subsection shall be good grounds for denying the application. Upon approval of the application, any excess amount in the account attributable to the project, including any interest accrued, shall be repaid to the applicant.

F. Site control. The applicant 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 photovoltaic installation.

G. Operation and maintenance plan. The applicant shall submit a plan for the operation and maintenance of the LGSPI, which shall include measures for maintaining safe access to the installation, stormwater controls, vegetation controls, as well as general procedures for operational maintenance of the installation.

H. Utility notification. No LGSPI 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 LGSPI's owner or operator's intent to install an interconnected customer-owned generator, as well as documentation from said utility that it can and will connect the proposed customer-owned (owned by an entity other than the utility company) generator into its power grid.

I. Dimension and density requirements. The following dimensional and density requirements shall apply to all LGSPI:

(1) Setbacks. The front, side and rear setbacks shall be as follows:

(a) Front yard. The front yard depth shall be at least 30 feet; provided, however, that where the lot abuts a residential district, the front yard shall not be less than 100 feet.

(b) Side yard. Each side yard shall have a depth at least 20 feet; provided, however, that where the lot abuts a residential district, the side yard shall not be less than 100 feet.

(c) Rear yard. The rear yard shall have a depth at least 20 feet; provided, however, that where the lot abuts a residential district, the rear yard shall not be less than 100 feet.

(2) Appurtenant structures. All appurtenant structures to LGSPI shall be subject to reasonable regulations concerning the bulk and height of structures, lot area, setbacks, open space, parking and building coverage requirements. All such appurtenant structures, including, but not limited to, equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. Whenever reasonable, appurtenant structures should be shielded from view and/or joined or clustered to avoid adverse visual impacts.

J. Design standards. The following design standards shall apply to all LGSPI.

(1) Lighting. Lighting of LGSPI 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. Where feasible, lighting of the solar photovoltaic installation shall be directed downward and shall incorporate full cutoff fixtures to reduce light pollution.

(2) Signage.

(a) A sign consistent with the Town's Zoning Bylaw § 300-5.12 shall be required to identify the owner and operator of the LGSPI and provide a twenty-four-hour emergency contact phone number.

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

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

(a) LGSPI and appurtenant structures shall be adequately screened with vegetation or behind other existing structures from view from public ways and neighboring properties.

(b) Where LGSPI abut residential uses, there must be increased consideration for mitigating visual impact to the residential use. For example, the Planning Board may require items such as increased setbacks, visual screening or sound buffering in the site plan review.

(c) Where installation panels could pose sun glare to abutting properties or roadways, additional screening or other public safety measures may be considered.

(d) When vegetation is used, where possible, a diversity of plant species shall be used, with a preference for species native to New England and this region. Use of plants listed in the most recent version of the "Massachusetts Prohibited Plant List" maintained by the Massachusetts Department of Agricultural Resources (or the then-equivalent document) is prohibited.

K. Safety and environmental standards. The following safety and environmental standards shall apply to all LGSPI:

(1) Emergency services. The LGSPI owner or operator shall provide a copy of the project summary, electrical schematic, and site plan to the Upton Fire/EMS Chief. Upon request, the owner or operator shall cooperate with Upton emergency services in developing an emergency response plan. All means of shutting down the solar photovoltaic installation shall be clearly marked. The owner or operator shall provide the Town with the contact information for 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 LGSPI or otherwise prescribed by applicable laws, regulations, and bylaws.

L. Monitoring and maintenance.

(1) Solar photovoltaic installation conditions. The LGSPI's owner or operator shall maintain the facility and access road(s) in good condition. 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 Upton Fire/EMS Chief.

(2) Modifications. All material modifications to an LGSPI made after issuance of the required building permit shall require approval by the Planning Board. In determining whether a modification is material, the Planning Board shall consider the scope of the proposed modification in relation to the approved LGSPI.

M. Abandonment or decommissioning.

(1) Removal requirements. Any LGSPI which has reached the end of its useful life or has been abandoned consistent with § 300-6.6M(2) of this bylaw shall be removed by the owner or operator no more than 150 days after the date of discontinued operations. 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 LGSPI structures, equipment, security barriers and transmission lines from the site.

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

(c) Stabilization and revegetation 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.

(2) Abandonment. Absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the LGSPI 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 LGSPI 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.

(3) Financial surety. Proponents of LGSPI projects shall provide a form of surety, either through escrow account, bond or otherwise, 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 Planning Board, but in no event to exceed more than 125% of the cost of removal and compliance with the additional requirements set forth herein, as determined by the project proponent. Such surety will not be required for municipally or state-owned facilities. The project proponent shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a mechanism for calculating increased removal costs due to inflation.

N. Liability insurance. The owner or operator of an LGSPI shall provide the Town Clerk with a certificate of insurance showing that the property has a minimum of $1,000,000 in liability coverage, and that the Town of Upton is an additional named insured thereon. Such a certificate shall be supplied on an annual basis upon the renewal of said insurance policy.

§ 300-6.7 Marijuana Overlay District.

A. Purpose. The purpose of this section is to allow for the siting of state-licensed adult-use marijuana establishments in appropriate locations consistent with MGL c. 94G and 935 CMR 500.000 and any other applicable state laws and regulations regarding adult-use marijuana, also known as "recreational" or "nonmedical" marijuana, and to impose reasonable time, place and manner restrictions on such establishments to ensure public health, safety and well-being and mitigate against undue impacts on the natural and built environment of the Town and its residents.

B. Definitions. Where not expressly defined herein, terms used in this section shall be interpreted as defined in the regulations governing adult use of marijuana (935 CMR 500.000) and otherwise by their plain language. "Marijuana establishment" for purposes of this bylaw means all marijuana establishments as defined in MGL c. 94G, § 1, and 935 CMR 500.000, but excluding marijuana retailers.

C. Prohibited use. Consistent with MGL c. 94G, § 3(a)(2), the Town hereby prohibits marijuana retailers in the Town of Upton.

D. Establishment of district.

(1) Establishment. There is hereby established in the Town of Upton one Marijuana Overlay District, the boundaries of which are shown on the Zoning Map on file with the Town Clerk and are described as follows:

(a) Marijuana overlay. All marijuana establishments (to be referred to as "MOD EAST"), to be comprised of parcels within the C&I Zoning District appearing on the Zoning Map located to the east side of Town and abutting Hopedale and Mendon.

(2) MOD EAST uses.

(a) Land within the MOD EAST may be used for:

[1] All marijuana establishments, as defined herein, subject to the provisions of this bylaw; or

[2] A use allowed in the underlying district, in which case the requirements of the underlying district shall apply.

(b) Within the MOD EAST, all requirements of the underlying zoning district remain in effect, except where this bylaw provides an alternative to such requirements. If the provisions of this bylaw are silent on a zoning regulation, the requirements of the underlying district shall apply. If the provisions of the MOD EAST conflict with the requirements of the underlying district, the requirements of the MOD shall control.

E. Location and dimensional controls.

(1) Marijuana establishments allowed pursuant to § 300-6.7D may be permitted in the MOD EAST pursuant to a special permit as set forth in § 300-9.3 and site plan approval as set forth in § 300-9.4 of the Zoning Bylaws.

(2) Location.

(a) Marijuana establishments may not be located within 500 feet of the following preexisting uses:

[1] Public or private school providing education in kindergarten or grades one through 12.

[2] State-licensed child care facility.

[3] Library, playground, public park, youth center, or similar youth recreational facility.

(b) The distance under this section shall be measured in a straight line from the nearest point of the property line of the protected uses identified above to the nearest point of the property line of the proposed marijuana establishment.

(3) Marijuana establishments shall be located only in a permanent building and not within a trailer, cargo container, motor vehicle or other similar nonpermanent, movable enclosure.

(4) No marijuana establishment is permitted to provide a drive-through service.

(5) Unless explicitly stated otherwise, marijuana establishments shall conform to the dimensional requirements applicable to nonresidential uses within the underlying zoning district.

(6) All marijuana establishments shall conform to the signage requirements of § 300-5.12 of the Zoning Bylaws.

(7) Marijuana establishments shall employ odor-control technology such that no odor from marijuana cultivation or its processing can be detected by a person with an unimpaired and otherwise normal sense of smell at the exterior of the marijuana establishment or at any adjoining use or property.

(8) Lighting at marijuana establishments shall comply with this bylaw and be shielded so as not to shed light onto adjacent properties. The Planning Board may require any artificial lighting system to employ only LED components equipped with deflectors in order to mitigate potential light pollution.

(9) Marijuana establishments shall comply with the parking requirements of § 300-5.10A(4) for shops of the building trades.

F. Special permit.

(1) Procedure. The Planning Board shall be the special permit granting authority (SPGA) and shall conduct site plan review for an applicant for a marijuana establishment pursuant to §§ 300-9.3 and 300-9.4 of the Zoning Bylaw.

(a) Additional required information. No special permit application for a marijuana establishment shall be deemed complete until the following additional information, which shall be further considered as detailed below, is provided:

[1] The name and address of each owner and operator of the marijuana establishment;

[2] A detailed floor plan of the premises of the proposed marijuana establishment that identifies the square footage available and describes the functional areas of the facility;

[3] Detailed schematics of signage being proposed for the facility;

[4] A site plan that include the following information:

[a] Compliance with the requirements for parking and loading spaces, for lot size, frontage, yards and heights and coverage of buildings, signage and all other applicable provisions of the Zoning Bylaw;

[b] Convenience and safety of vehicular and pedestrian movement on the site to provide secure and safe access and egress for clients and employees arriving to and from the site;

[c] Convenience and safety of vehicular and pedestrian movement off the site, if vehicular and pedestrian traffic off-site can reasonably be expected to be substantially affected by on-site changes;

[d] Adequacy as to the arrangement and the number of parking and loading spaces in relation to the proposed use of the premises, including designated parking for home delivery vehicle(s), as applicable;

[e] Site design such that it provides convenient, secure and safe access and egress for clients and employees arriving to and from the site.

[f] Design and appearance of proposed buildings, structures, freestanding signs, screening and landscaping; and

[g] Adequacy of water supply, surface and subsurface drainage and light.

[5] A description of the security measures, including employee security policies;

[6] A copy of the emergency procedures;

[7] A copy of proposed waste disposal procedures;

[8] Evidence that the applicant has site control and the right to use the site for a marijuana establishment in the form of a deed, valid lease, or purchase and sale agreement or a notarized statement from the property owner, certifying the applicant has firm site control;

[9] Evidence that the applicant has executed a host community agreement with the Town of Upton for the marijuana establishment;

[10] Evidence that a community outreach meeting in accordance with 935 CMR 500 has occurred;

[11] Proof that the marijuana establishment application to the Cannabis Control Commission has been deemed complete pursuant to 935 CMR 500.102. Copies of the complete application, to the extent legally allowed, shall be submitted as part of the special permit application, and no special permit application shall be deemed complete until this information is provided;

[a] No special permit shall be granted to an applicant without the marijuana establishment first having been issued a provisional license from the Commission pursuant to 935 CMR 500.000.

[b] No person shall operate a marijuana establishment without having a license in good standing from the Commission.

[12] An odor-control plan detailing the specific odor-emitting activities or processes to be conducted on-site, the source of those odors, the locations from which they are emitted from the establishment, the frequency of such odor-emitting activities, the duration of such odor-emitting activities, and the administration of odor control technology, including maintenance of such controls; and

[13] All marijuana cultivators shall submit an energy use plan to demonstrate best practices for energy conservation. The plan shall include an electrical system overview, proposed energy demand, ventilation system and air quality, proposed water system and utility demand.

(b) The Planning Board shall refer copies of the application to all appropriate Town departments and officials, including but not limited to the Code Enforcement Department, Fire and EMS Department, Police Department, Board of Health, and the Conservation Commission, which shall, in turn, review the application and submit written recommendations. Failure to make recommendations within 35 days of referral shall be deemed to be lack of opposition.

[Amended 5-8-2021 ATM by Art. 16]

(c) After notice and public hearing in accordance with §§ 300-9.3 and 300-9.4 of the Zoning Bylaw and consideration of application materials, consultant reviews, public comments, and the recommendations of other Town officials, boards and departments, the Planning Board may act upon the special permit and request for site plan approval.

(2) Special permit conditions on marijuana establishments. The Planning Board may impose conditions reasonably appropriate to improve site design, traffic flow, and public safety, protect water quality, air quality, and significant environmental resources, preserve the character of the surrounding area and otherwise serve the purpose of this section. In addition to any specific conditions applicable to the applicant's marijuana establishment, the Planning Board may include the following conditions in any special permit granted under this section:

(a) The use shall not generate outside odors from the processing or manufacturing of marijuana and marijuana products.

(b) A security plan shall be required for all marijuana establishments, which shall be subject to approval by the Fire and Police Chiefs and submitted to the Planning Board and updated on an annual basis.

(c) The special permit holder shall provide to the Building Commissioner and Chief of the Police Department, the name, telephone number and electronic mail address of a contact person in the event that such person needs to be contacted after regular business hours to address an urgent issue. Such contact information shall be kept updated by the permit holder.

[Amended 5-8-2021 ATM by Art. 16]

(d) Marijuana establishments may not operate, and the special permit will not be valid, until the applicant has obtained all licenses and permits issued by the Commonwealth of Massachusetts and any of its agencies for the marijuana establishment.

(e) Marijuana establishments may not operate, and the special permit will not be valid, until the applicant has entered into a host community agreement with the Town relative to any marijuana establishment permitted under this section.

(f) A special permit granted under this section shall have a term limited to the duration of the applicant's ownership and use of the premises as a marijuana establishment. A special permit may be transferred only with the approval of the Planning Board in the form of a modification to the special permit.

(g) The special permit shall lapse upon the expiration or termination of the applicant's license by the Cannabis Control Commission.

(h) The special permit holder shall notify the Building Commissioner and Planning Board, in writing, within 48 hours of the cessation of operation of the marijuana establishment or the expiration or termination of the permit holder's license with the Cannabis Control Commission.

[Amended 5-8-2021 ATM by Art. 16]

(3) Waiver. When reviewing an application for a special permit, the Planning Board may waive any submission requirement or design guideline it determines to be unnecessary or not applicable to the review of the project, provided that the Planning Board determines that the project will not have a significant impact on the site, its relationship with abutting properties, traffic impacts to public ways, public infrastructure or services, or environmental or historic resources. Waiver requests shall be made by the applicant, in writing, with stated reasons for requesting the waiver(s). Any waivers acted on by the Planning Board shall be in writing as part of its written decision on the plan filed with the Town Clerk.

(4) Findings. In addition to the standard findings for a special permit and site plan approval, the SPGA must also find all the following:

(a) The marijuana establishment is consistent with and does not derogate from the purposes and intent of this section and the Zoning Bylaw generally;

(b) The marijuana establishment is designed to minimize any adverse visual, odor or other environmental and economic impacts on abutters and the general public;

(c) The marijuana establishment demonstrates that it meets or exceeds all the permitting requirements of all applicable agencies within the Commonwealth of Massachusetts and is in compliance with all applicable state laws and regulations;

(d) The applicant has satisfied all of the requirements of this section and other applicable sections of this bylaw;

(e) The marijuana establishment provides adequate security measures to ensure that no individual participant will pose a direct threat to the health or safety of other individuals, and that the storage and/or location of marijuana is adequately secured on site or via delivery; and

(f) The marijuana establishment adequately addresses issues of traffic, circulation, parking and queuing, particularly at peak periods at the marijuana establishment, and its impact on neighboring uses.

G. Prohibition against on-site consumption. No marijuana shall be smoked, eaten, or otherwise consumed or ingested in public or on the premises of a marijuana establishment unless expressly permitted under this law and permitted by state law or regulation. The prohibition on on-site consumption shall also include private social clubs or any other establishment which allows for social consumption of marijuana or marijuana products on the premises, regardless of whether the product is sold to consumers on site.

H. Prohibition against nuisances. No use shall be allowed in the MOD which creates a nuisance to abutters or to the surrounding area, or which creates any hazard, including, but not limited to, fire, explosion, fumes, gas, smoke, odors, obnoxious dust, vapors, offensive sound or vibration, flashes, glare, objectionable effluent or electrical interference, which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area.

I. Severability. The provisions of this bylaw are severable. If any provision, paragraph, sentence, or clause of this bylaw or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this bylaw.

§ 300-6.8 Solar Overlay District.

[Added 5-2-2024 ATM by Art. 32]

A. Purpose.

(1) The purpose of this bylaw is to promote the creation of new large-scale ground-mounted solar photovoltaic installations by providing standards for the placement, design, construction, operation, monitoring, modification, and removal of such installations that address public safety and minimize impacts on scenic, natural, and historic resources and to provide adequate financial assurance for the eventual decommissioning of such installations.

(2) The provisions set forth in this section shall apply to the construction, operation, and/or repair of large-scale ground-mounted solar photovoltaic installations.

B. Definitions. Where not expressly defined herein, terms used in this section shall be interpreted as defined and consistent with the provisions of § 300-6.6, Large-scale ground-mounted solar photovoltaic installations (LGSPI).

C. Establishment of District. There is hereby in the Town of Upton one Solar Overlay District, the boundaries of which are shown on the Zoning Map on file with the Town Clerk.

D. Applicability.

(1) All uses allowed by right or by special permit in the underlying zoning district shall be allowed by right in the Solar Overlay District and, in such case, shall be subject to provisions of these bylaws that are applicable to the underlying district.

(2) All large-scale ground-mounted solar photovoltaic installations (LGSPI) proposed in the Solar Overlay District shall be subject to the requirements and provisions of § 300-6.6, Large-scale ground-mounted solar photovoltaic installations (LGSPI).

(3) Large-scale ground-mounted solar photovoltaic installations with rated nameplate capacity of 250 kW DC or that occupy more than 40,000 square feet of surface area (see § 300-6.6 for additional regulations) shall be allowed by special permit in the Solar Overlay District.

E. Severability. The provisions of this bylaw are severable. If any provision, paragraph, sentence, or clause of this bylaw or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this bylaw.