Town of Upton, MA Article 7 Special Residential Regulations

§ 300-7.1 Scheduled development in approved subdivisions.

A. The objective of this section is to relate the timing of residential development to the Town's ability to provide services to such subdivision development, and thereby to promote the health, safety, convenience and welfare to the inhabitants of the Town, by regulating the maximum rate at which individual developments may proceed.

B. This section shall take effect only when and if the Building Commissioner determines that 44 dwelling units, including units in multifamily complexes, have been authorized Town-wide within a twenty-four-month period.

C. While this section is in effect, the Building Commissioner shall issue building permits for construction of new dwelling units in subdivisions given approval after passage of this section only if permit issuance will not result in authorizing construction within a twenty-four-month period of more than 44 units or 20% of the units potentially allowed in each subdivision, whichever is greater.

D. Permits shall be issued hereunder for each specific subdivision lot after the date so designated for the lot on a development schedule, which has been approved by the Planning Board and recorded with the subdivision plan which created the lot. Planning Board approval of a development schedule shall provide that:

(1) The schedule designates for building not more than 44 units or 20% of the potential dwelling units in the subdivision, whichever is greater, within the first two years following definitive approval;

(2) In each year thereafter, the schedule permits construction of not more than 22 units or 10% of the total number of potential dwelling units in the subdivision, whichever is greater;

(3) In the opinion of the Planning Board, the development sequence established by the schedule is not arbitrary or unreasonable; and

(4) In the opinion of the Planning Board, the development schedule will not place an unreasonable burden on the Town.

E. Units designed for low- or moderate-income residents of all ages and units receiving or eligible to receive state or federal subsidies shall be exempt from this scheduling bylaw.

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

F. Insofar as the subdivision is not exempted by MGL c. 40A. § 6, from the provisions of this bylaw, the period of time provided under MGL c. 40A in which a subdivision is not affected by zoning changes is hereby extended during the duration of this bylaw, so as to protect such subdivisions against further changes in use and density requirements.

§ 300-7.2 Townhouses and garden apartments.

Townhouses and garden apartments shall be permitted within a Single Residential SRA or SRB District, provided that there be the equivalent of 15,000 square feet of lot area per dwelling unit in a Single Residential SRA District and an equivalent of 25,000 square feet of lot area per dwelling unit in an SRB District and provided that there are no more than eight dwelling units in any one townhouse building and no more than 12 dwelling units in any garden apartment building and subject to the following restrictions:

A. Each dwelling unit shall have two exposures.

B. Each dwelling unit shall have two separate exits.

C. There shall be one off-street parking space of 250 square feet per dwelling unit plus one off-street parking space per bedroom over and above that area needed for access roadways and maneuvering to a maximum of three spaces per unit. No more than 50 spaces may be allowed in any one parking lot, each of which shall be adequately screened from view from exterior streets by appropriate landscaping. No parking spaces shall be located within 30 feet of that part of a building containing windows of habitable rooms at the basement or first-story level unless such rooms are protected from headlight glare by at least a four-foot- but not more than five-foot-high densely planted landscaped strip or fence placed at the periphery of the parking area. Such parking spaces which are screened as above mentioned may be located up to, but not within, 10 feet of that part of a building containing habitable rooms at the basement or first story level.

D. Each dwelling unit shall be connected to Town water in a Single Residential SRA District or supplied by a water source as approved by the Town Board of Health in a Single Residential SRB District.

E. In cases of 75 dwelling units or more each dwelling shall be connected to a packaged on-site sewage treatment facility as approved by the Town Board of Health and the State Department of Public Health. Such treatment facility shall be constructed concomitantly with the dwelling units and shall be fully operable before the occupancy of any of the dwelling units. In the case of a single owner of all of the dwelling units, such owner shall be responsible for the maintenance of the treatment plant in a manner prescribed by the State Department of Public Health. In the case of more than one owner, each owner shall, as a condition of purchase, be required to join a homeowners' association for the purpose of maintaining the treatment plant in a manner prescribed by the State Department of Public Health, and each owner shall be required to pay a periodic assessment to the association for the maintenance of said sewage treatment plant. The organization of such homeowners' association shall be on file with the Town Clerk along with an annual report, including the names and addresses of officers, to be submitted to the Town Clerk by February 15 of each year.

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

F. There shall be adjacent to the exterior walls of each residential building, except at entrances, at least a three-foot-wide area of landscaping.

G. There shall be 8,000 square feet of usable common open space per dwelling unit. "Usable common open space" shall mean areas left substantially in a natural state or improved by landscaping and primarily designed and intended for the active and passive recreation of the occupants of the dwellings. Usable common open space shall not include street rights-of-way, open parking, or service areas, driveways, easements for aboveground utilities, laundry drying areas, required front yards, landscaped area around the buildings or any other land deemed unsuitable by the Planning Board for reasons of excessive slope or poor drainage. In case of rental property, the owner shall assume the responsibility for maintaining the open space. In cases of the sale of individual units, there shall be included in the deed a requirement obligating the purchasers to participate in a nonprofit homeowners' association and to support the maintenance of the common open space accessible and available for the purchasers only, by paying assessments to the association. This association may be one and the same as that referred to in Subsection E above. In cases of public open space dedicated in fee to the Town, such open space shall be maintained as a public park, accessible to the public. This shall not preclude the Town from refusing to accept such land without a favorable report from the Planning Board.

H. There shall be a satisfactory design and location of collection points for the disposal of garbage and trash, adequately screened for reasons of health and safety, as determined by the Planning Board and the Board of Health.

I. All proposed utilities should be installed underground at the time of initial construction.

J. A site plan prepared in accordance with the provisions of § 300-9.4 has been submitted and approved.

K. If there is more than one such structure on a lot of record there shall be at least 40 feet between each structure.

L. Each applicant who seeks a special permit from the Zoning Board of Appeals for construction of townhouses or garden apartments shall also file a definitive plan with the Planning Board in accordance with the Subdivision Rules and Regulations and otherwise comply with all the procedures contained therein for the submission of a definitive plan, and all design and construction specifications shall apply to all interior streets (considered minor streets unless otherwise designated by the Planning Board), public walkways (sidewalks) and parking areas, the latter to be constructed to the same construction specifications as a street.

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

§ 300-7.3 Open space residential development.

A. Intent.

(1) The primary objectives of open space residential development are:

(a) To permit greater flexibility and more creative and imaginative design for residential development than is generally possible under conventional zoning;

(b) To encourage the permanent preservation and protection of open space, agricultural land, forestry land, wildlife habitat, geological features, and other natural resources including aquifers, water bodies, and wetlands in a manner that is consistent with the Upton Master Plan and the Upton Open Space and Recreation Plan;

(c) To encourage a less sprawling and more efficient form of development that consumes less open space land and conforms to existing topography and natural features better than a conventional or grid subdivision;

(d) To minimize the total amount of disturbance on the site;

(e) To further the goals of the Upton Master Plan and the Upton Open Space and Recreation Plan;

(f) To facilitate the construction and maintenance of housing, streets, utilities, and public service in a more economical and efficient manner;

(g) To encourage preservation of stone walls and other historic structures and historic landscapes.

(2) The secondary objectives of open space residential development are:

(a) To preserve and enhance the community's village character;

(b) To protect community water supplies;

(c) To promote unmet housing needs, including affordable housing and handicap barrier free housing;

(d) To enhance recreational opportunities appropriate and accessible to all Upton residents;

(e) To promote energy conservation and energy independence.

B. Special permit granting authority. The Planning Board shall act as the special permit granting authority for open space residential development in the Town of Upton. The Planning Board is authorized to hear and decide upon applications for special permits for open space residential development in accordance with the provisions of this Zoning Bylaw.

C. Eligibility.

(1) Minimum size of tract. To be eligible for consideration as an open space residential development, the tract shall contain a minimum of 10 acres.

(2) District applicability. Only tracts located in an Agricultural-Residential, SRB, SRC, or SRD District shall be eligible for consideration as an open space residential development.

(3) Land division. To be eligible for consideration as an open space residential development, the tract may be a subdivision or a division of land pursuant to MGL c. 41, § 81P.

D. Procedures and administration.

(1) Application procedure. The application procedure shall consist of the following three steps: preapplication conference to review scope of project plans; submission of an application for an open space residential development special permit; and submission of an open space residential development definitive subdivision plan and associated supporting materials.

(2) Administration.

(a) Applications shall be filed in accordance with the § 300-7.3E, F and G of this bylaw as well as in accordance with any special permit regulations of the Planning Board. The Planning Board may adopt additional rules and regulations for the administration of this Zoning Bylaw.

(b) The Planning Board shall use the fee structure of Chapter 308, Site Plan Approval, of this Code to assess reasonable administrative fees and technical review fees for the applications for open space residential development special permits.

(c) An application shall not be deemed complete until all copies of required information and documentation have been filed with the Planning Board.

E. Step 1: Preapplication conference.

(1) Conference. The applicant is encouraged to request a preapplication conference at a regular business meeting of the Planning Board. The Planning Board may invite representatives of the Conservation Commission, Board of Health, Historical Commission, Open Space Committee, and the Department of Public Works Director. The purpose of a preapplication conference is to commence discussions with the Planning Board at the earliest possible stage in the development. At the preapplication conference, the applicant may outline the proposed development, including both conventional and open space residential development models, seek preliminary feedback from the Planning Board and/or its technical experts, and set a timetable for submittal of a special permit application. The Planning Board, at the applicant's expense, may engage technical experts to review the scope of project plans of the applicant and to facilitate submittal of a formal application for a conventional or open space residential development special permit.

(2) Scope of project plan. In order to facilitate review of the special permit at the preapplication stage, applicants shall submit the following information:

(a) Site context map. This map shall illustrate the parcel in connection to its surrounding neighborhood. Based upon existing data sources and field inspections, it shall show existing infrastructure, various kinds of major natural resource areas, protected areas, trails, or other features that are located on adjoining lands. This map enables the Planning Board to understand the site in relation to what is occurring on adjacent properties.

(b) Existing conditions/site analysis map. This map familiarizes officials with existing conditions on the property. Based upon existing data sources and field inspections, this base map shall locate and describe noteworthy resources that could be protected through sensitive subdivision layouts. These resources shall include wetlands, riverfront areas, floodplains and steep slopes, but may also include mature woodlands, hedgerows, farmland, unique or special wildlife habitats, trails, historic or cultural features (such as old structures or stone walls), unusual geologic formations and scenic views into and out from the property. Where appropriate, photographs of these resources should accompany the map. By overlaying this plan onto a development plan, the parties involved can clearly see where conservation priorities and desired development overlap/conflict.

(3) Site visit (optional). Applicants are encouraged to request a site visit by the Planning Board and/or its agents as part of the preapplication process. If a site visit is requested, the Planning Board shall invite representatives of the Conservation Commission, Board of Health, Historical Commission, Open Space Committee, and the Department of Public Works Director.

(4) Preliminary findings. As an integral part of the preapplication process the Planning Board may set forth its preliminary findings pursuant to its review of the scope of project plan. These findings may include but not be limited to suggestions related to the design, building style, open space requirements (location, type and amount), infrastructure requirements, unmet housing needs, or other components related to the anticipated open space residential development special permit application. At its discretion, the Planning Board may provide a preliminary assessment of the number of conventional lots that could, based on existing information, be permitted in a conventional subdivision. Preapplication findings shall not represent an endorsement of an open space residential development plan.

F. Step 2: Special permit application.

(1) Contents. The application for an open space residential 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, if required by Planning Board.

(d) Site plan as specified herein this special permit bylaw.

(e) Statement of threshold of development and supporting information pursuant to § 300-7.3H of this bylaw.

(f) Proposal for ownership and protection of the open space pursuant to § 300-7.3I of this bylaw.

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

(2) Site plan and phasing.

(a) Site plan. An open space residential development site plan shall be prepared by a multidisciplinary team of which one member must be a certified landscape architect, conforming to the provisions this bylaw, all the provisions of Chapter 308, Site Plan Approval, of this Code, and § 300-9.4, Site plan approval.

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

[1] Describe the phasing of the construction with a dated time line with date milestones.

[2] 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.

[3] Describe the phased construction, if any, of any required public improvements, and how such improvements are to be integrated into site development.

[4] Describe how the site will be separated into work areas and made safe for workers, Town officials, and residents.

(3) Development impact statement. If the Planning Board determines the scope of the project requires additional information to make an informed decision, the Planning Board may require submittal of a development impact statement at the expense of the applicant. The development impact statement shall describe the impacts of the proposed open space residential development and compare them to those of a conventional subdivision. 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:

(a) Physical environment. 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 20 inches in diameter, trails and open space links, and wildlife habitat. Describe how the project will affect these conditions, providing a complete physical description of the project and its relationship to the immediate surrounding area.

(b) Surface water and subsurface conditions. Describe locations, extent, and types of existing water and wetlands, including vernal pools as defined by Chapter 280, Wetlands Protection, of this Code. Describe existing surface drainage characteristics, both within and adjacent to the site. Describe any proposed alterations of shorelines or wetlands. Describe any limitations imposed on the project by the site's soil and water conditions. Describe the impact upon groundwater and surface water quality, including estimated groundwater withdrawal and recharge, phosphate and nitrate loading on groundwater and surface water from septic tanks, lawn fertilizer, and other activities within the site.

(c) Vehicle circulation system. 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. 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.

(d) Support systems. Describe the water system proposed for the site, impacts to abutters, the means of providing water for firefighting, and any problems unique to the site. Describe the sewer system to be used, and evaluate impact of sewage disposal on the wastewater treatment facility. Describe 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. Describe the distance to and type of public facilities to be used by the residents of the proposed site, and the type of recreation facilities to be provided on the site.

(4) Public hearing. The Planning Board shall comply with the notice and hearing provisions of MGL c. 40A, § 9, and MGL c. 40A, § 11.

(5) Coordination with other Town of Upton boards and commissions. 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, Open Space Committee, Historical Commission, Recreation Commission, Public Works Department, Fire and EMS Department, and Police Department for recommendations consistent with the intent of this bylaw. 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]

(6) Basis for approval and required findings and determinations.

(a) The decision of the Planning Board shall be made within 90 days following the close 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.

(b) Special permits may be granted by the Planning Board, unless otherwise specified herein, upon its written determination that the proposed development is consistent with the intent of this bylaw, municipal services such as water, sewer or other services are adequate or will be adequate at the time of completion of the development, the dimensional requirements for the open space have been met, 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, and all requirements of § 300-9.3 of Upton Zoning Bylaw are met.

(7) 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.

(8) Changes in plans after grant of special permit.

(a) No change in any aspect of the approved plans shall be permitted unless approved by the Planning Board after public notice and hearing in accordance with the provisions of MGL c. 40A, §§ 9 and 11, and as provided for below in Subsection G(3)(e).

(b) No land for which a special permit for an open space residential development has been granted shall be further subdivided.

(9) Lapse. The special permit shall lapse if a substantial use thereof or construction thereunder 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.

(10) Appeal. An aggrieved party may appeal a Planning Board special permit decision pursuant to MGL c. 40A, § 17.

G. Step 3: Open space definitive subdivision plan.

(1) 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 open space residential development, adjacent streets, and abutting properties shall accompany them.

(2) Contents of plans.

(a) Plan form and content shall be as specified in Chapter 308, Site Plan Approval, of this Code. A written statement indicating the estimated time required to complete the proposed project and any and all phases thereof shall accompany the plan.

(b) 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.

(c) Storm drainage design and roadways, private and public, must conform to state and federal stormwater management guidelines, and 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.

(d) 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, of this Code, may be specified in the granting of an open space residential development special permit.

(3) Relationship between the special permit, site plan and definitive subdivision plan.

(a) The issuance of an open space residential development special permit allows the applicant to submit a definitive subdivision plan to the Planning Board for approval under the Subdivision Control Law.[1] Any special permit shall specifically state that the definitive subdivision plan shall substantially comply with the special permit and site plan.

[1] Editor's Note: See MGL c. 41, § 81K to 81GG.

(b) A definitive subdivision plan will be considered not to substantially comply with the special permit and/or site plan if the Planning Board determines that any of the following conditions exist:

[1] An increase in the number of dwelling units and/or building lots;

[2] A significant decrease in the open space acreage;

[3] A significant change in the lot layout;

[4] A significant change in the general development pattern which adversely affects natural landscape features and open space preservation;

[5] Significant changes to the stormwater management facilities;

[6] Significant changes in the wastewater management system;

[7] Significant change in the potable water supply system.

(c) If the Planning Board determines that the definitive subdivision plan does not substantially comply with the special permit and/or site plan, the Board may disapprove the definitive subdivision plan.

(d) The Planning Board may conditionally approve a definitive subdivision plan that does not substantially comply with the special permit and/or the site plan. However, such approval must identify those respects in which the definitive subdivision plan does not substantially comply with the special permit and/or the site plan and shall require that the special permit and/or site plan be amended to be in compliance with the significant changes identified by the Planning Board. The Planning Board shall also require that the applicant file an application to amend the special permit and/or the site plan.

(e) The public hearing on the application to amend the special permit and/or the site plan shall be limited to the significant changes identified by the Planning Board in its conditional approval of the definitive subdivision plan. These are the only considerations that the Planning Board may take into account in deciding whether to amend the special permit and/or site plan.

H. Design requirements.

(1) General.

(a) The landscape shall be preserved in its natural state, insofar as practicable, by minimizing removal of trees, other vegetation, natural features, and soil. Any grade changes shall be in keeping with the general appearance of the neighboring developed areas. The orientation of individual building sites shall be such as to maintain maximum natural topography and cover. Topography, tree cover, surface water buffers, and natural drainageways shall be treated as fixed determinants of road and lot configuration rather than as malleable elements that can be changed to follow a preferred development scheme.

(b) Streets shall be designed and located in such a manner as to maintain and preserve natural topography, significant landmarks, and trees; to minimize cut and fill; and to preserve and enhance views and vistas on the subject parcel and in the neighborhood.

(c) All open space (landscaped and usable) shall be designed to add to the visual amenities of the area by maximizing its visibility for persons passing the site or overlooking it from nearby properties.

(d) The removal or disruption of historic, traditional or significant uses, structures, or architectural elements shall be minimized insofar as practicable, whether these exist on the site or on adjacent properties.

(2) Overall threshold of development. The maximum number of residential units permissible under an open space residential development shall be determined as part of the special permit application review process. Based on its review and in order to advance the purpose of this bylaw, the Planning Board shall make the following findings:

(a) Open space area and location within the site.

(b) The maximum amount of residential units within the open space residential development, not to exceed the number reasonably expected to be permitted in a conventional subdivision.

(c) The minimum dimensional requirements for each dwelling unit lot within the open space residential development, including minimum frontage, setbacks, and lot shape.

(3) Site development 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:

(a) The access to a tract of land proposed for an open space residential development special permit shall be a minimum of 60 feet on an existing Town accepted way. The Planning Board may require a greater right-of-way width.

(b) Lots on a street other than a street created by the open space residential development shall conform to residential lot dimensional regulations set forth in § 300-4.2, Table B, of the Upton Zoning Bylaw.

(c) Except as the Planning Board may approve in accordance with Subsection H(4)(g) below, open space requirements for the property proposed for an open space residential development special permit shall be as follows: no less than 50% of the area of the overall site shall be designated as open space; a minimum of 35% of the overall site shall be upland open space; and upland areas adjacent to wetlands, rivers, streams, and vernal pools shall be incorporated into open space to the greatest extent possible. Wetland areas are as defined by MGL c. 131, § 40, and Chapter 280, Wetlands Protection, and Chapter 330, Wetlands Protection Regulations, of this Code.

(4) Open space.

(a) Open space shall be used solely for wildlife habitat conservation, watershed protection, agriculture, forestry or recreation (see below) purposes. Open space shall generally be contiguous within the open space residential development and with adjacent permanently protected parcels. Where appropriate, multiple use of open space is encouraged. The proposed use of the open space shall be specified in the special permit application. If several uses are proposed, the plans shall specify what uses will occur in what areas. The Planning Board shall have the authority to approve or disapprove particular uses proposed for the open space.

(b) To ensure that the designated open space is kept in an open and/or natural state and shall not be built upon, except as provided below, restrictions shall be defined through covenants approved by the Planning Board as part of the special permit process.

(c) Up to 5% of the open space may be set aside and designated to allow for the construction of structures and facilities accessory to the proposed use of the open space, including parking and access roads.

(d) 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 of Upton or a nonprofit agency and are accessible to the residents of the Town of Upton shall be acceptable as open space pursuant to this Zoning Bylaw.

(e) Open space should generally provide for public access, which would be defined through covenants approved by the Planning Board as part of the special permit process.

(f) A portion of the open space may be used for components of water supply and sewage disposal systems serving the subdivision, where the Planning Board finds that such use will not be detrimental to the character, quality, or use of the open space, and enhances the site plan. The Planning Board shall require adequate legal safeguards and covenants that such facilities shall be adequately maintained by the lot owners within the development.

(g) The Planning Board may accept the off-site location of open space for the purpose of satisfying this Zoning Bylaw.

(5) Residential unit density (conventional subdivision). It is the responsibility of the applicant to provide sufficient documentation so that the Planning Board may establish the number of dwellings that would be reasonably expected to be permitted by the Planning Board in a conventional subdivision (the "basic maximum number"). All determinations of residential unit density by the Planning Board shall be final.

(a) The required documentation shall include, without limitation, the following:

[1] Soil analysis. The purpose of the soil analysis is to demonstrate that lots shown in the conventional subdivision layout are suitable for subsurface sewage disposal. The soil analysis shall include an analysis of soil maps and other existing information, a site specific soil survey by a qualified soil scientist, and may include some soil testing. The identified lots shall conform to the regulations for subsurface sewage disposal in accordance with the rules and regulations of the Town of Upton Board of Health and applicable laws of the Commonwealth of Massachusetts. It is not the intent of this bylaw to normally require soil testing for each proposed lot shown on a conventional subdivision layout. The Planning Board may, however, require testing, at the applicant's expense, of a subset of the lots to verify the soil analysis.

[2] A layout for each conventional lot and supporting technical documentation to clearly demonstrate that each conventional lot can also fully comply with all of the applicable laws and regulations pertaining to zoning and subdivision requirements for: sewage disposal, water supply, wetlands protection, stormwater management, and roadway construction.

(b) The Planning Board reserves the right to require such further documentation or other evidence as it deems necessary.

(6) Unmet housing needs. The Planning Board may allow an increase in the number of dwelling units beyond the basic maximum number to further the goals of this bylaw and satisfy unmet housing needs. The increase shall not, in the aggregate, exceed 20% of the basic maximum number. A density bonus may be awarded as follows:

(a) For every two dwelling units restricted in perpetuity to occupancy by moderate-income households (as determined by the United States Department of Housing and Urban Development for the Standard Metropolitan Statistical Area that includes the Town of Upton), one market rate dwelling unit may be added to the basic maximum number. Such affordable housing units may be used toward density bonuses only if they can be counted toward the Town's affordable housing inventory as determined by the Massachusetts Department of Housing and Community Development. The applicant shall provide documentation demonstrating that the unit(s) shall count toward the community's affordable housing inventory to the satisfaction of the Planning Board.

(b) The Planning Board may accept the off-site location of affordable and architectural barrier free housing for the purpose of satisfying the above requirement.

(7) Increase in permissible density.

(a) For every historic structure preserved and subject to a historic preservation restriction, one dwelling unit may be added to the basic maximum number.

(b) For each additional 10% of the site area over and above the required 50% set aside as open space, a bonus of 5% of the basic maximum number may be awarded, if the Planning Board determines such additional set aside would further the objectives of this bylaw. The additional open space shall be at least 65% upland.

(8) Ownership and protection of open space.

(a) The open space shall, at the option of the Planning Board, be conveyed by the owner of the land to one of the following entities:

[1] The Town of Upton;

[2] A nonprofit organization (i.e., land trust) the principal purpose of which is the conservation of open space and any of the purposes for such open space set forth above;

[3] A corporation or trust owned jointly or in common by the owners of lots within the open space residential development. If such corporation or trust is utilized, ownership thereof shall pass with conveyance of the lots in perpetuity. Maintenance of such open space and facilities shall be permanently guaranteed by such corporation or trust that shall provide for mandatory assessments for maintenance expenses to each lot. Each such trust or corporation shall be deemed to have assented to allow the Town to perform maintenance of such open space and facilities, if the trust or corporation fails to provide adequate maintenance, and shall grant the Town an easement for this purpose. In such event, the Town shall first provide 14 days' written notice to the trust or corporation as to the inadequate maintenance, and, if the trust or corporation fails to complete such maintenance, the Town may perform it. Each individual deed, and the deed or trust or articles of incorporation, shall include provisions that effectuate these provisions. Documents creating such trust or corporation shall be submitted to the Planning Board and shall be subject to Planning Board and Town Counsel review and approval, at the applicant's expense, and shall thereafter be recorded in the Registry of Deeds by the corporation or trust. Nothing in this subsection may be construed to obligate the Town to undertake or perform any maintenance regarding the open space and facilities.

(b) In addition to the above, any open space, unless conveyed to the Town, shall be subject to a recorded restriction enforceable by the Town Conservation Commission, providing that such land shall be perpetually kept in an open state as provided in the special permit, that it shall be preserved exclusively for the purposes set forth therein, and that it shall be maintained in a manner which will ensure its suitability for its intended purposes.

§ 300-7.4 Senior housing communities.

A. Purpose and intent. The purpose of the Senior Housing Community Bylaw is to encourage development that provides alternative housing choices for people that are 55 years of age or older. It is the intent of this bylaw to enhance and preserve the rural village character of Upton, to protect open space, to preserve our natural resources and to promote efficient use of the land and infrastructure.

B. Objectives. The following objectives will apply to all proposed senior housing community construction in Upton:

(1) To establish a procedure whereby each proposal for a senior housing community will be reviewed separately and judged by standards designed to protect both the special quality of the site and its environment.

(2) To ensure the senior housing community is developed in accordance with the planning objectives (Master Plan) of the Town and at a rate that can be supported by the Town services.

(3) To encourage the conservation of viable acres of open land, wildlife habitats, historical and natural resources.

(4) To encourage and recognize the importance of diversity and variety in the exterior design of structures so that those are specifically designed for and related to special conditions and features of the proposed site.

(5) To require builders to use visual space planning to all site development elements, such as parking, wooded or conservation areas, adjacent streets, accessory buildings, lighting and open areas.

(6) To provide for design review of all proposed senior housing communities prior to construction, to ensure compliance with the above intent and objectives and to assure that the proposal will not result in or contribute to incompatible use of the land, pollution of the soil or groundwater, traffic congestion or inappropriate site development.

C. Definitions and word usage.

(1) Definitions.[1]

COMMON LAND

Common land shall be an area of land owned and maintained by a homeowners' association and used solely for recreational, conservation, agriculture or forestry purpose by residents of the development and/or the public.

DWELLING UNIT

One or more living or sleeping rooms arranged for the use of one or more individuals living as a single housekeeping unit with individual or congregate cooking, living, and sanitary facilities, excluding mobile homes and trailers. The intent of this definition is to define a "home" with private sleeping rooms rather than a dormitory arrangement of sleeping quarters.

IMPERVIOUS SURFACE

A surface area in which water is not allowed an entrance, which includes but is not limited to building footprints, roadways, driveways, and parking lots, etc.

OPEN SPACE

"Open space" shall be an area of undeveloped land used solely for conservation and is permanently protected from development by a permanent conservation restriction in accordance with MGL c. 184, § 31. Open space shall not contain any common land.

[1] Editor's Note: The definitions of "assisted living facility," "congregate senior housing," "independent senior living," and "restorative care/skilled nursing facility," which appeared in this subsection, were repealed 5-8-2021 ATM by Art. 16. For definitions of these terms, see § 300-7.4J.

(2) Additional terms.

(a) Shall: indicates a mandatory requirement.

(b) Should: indicates a recommendation or that which is advised but not necessarily required.

(c) SPGA: special permit granting authority.

D. Special permit granting authority. The Planning Board shall be the special permit granting authority for senior housing communities in the Town of Upton, and is authorized to hear and decide upon applications for special permits for senior housing communities in accordance with the provisions of this zoning section.

E. Application in zoning districts. A senior housing community, under single ownership or as condominiums, may only be permitted by a special permit in Single Residential SRA, SRB, SRC and SRD Districts and Agricultural Residential Districts where residential uses are permitted by right in accordance with the requirements and regulations of the Town of Upton Zoning Bylaw.

F. Application procedure. The application procedure consists of two steps:

(1) Preapplication review of a conceptual site plan by the special permit granting authority. To be eligible to apply for a special permit, applicants are required to have submitted a conceptual site plan prepared by a registered landscape architect, a registered architectural architect, and a registered professional civil engineer at a scheduled Planning Board meeting. The conceptual site plan shall include a detailed analysis of site topography, wetlands, unique land features and 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.

Commentary. The preapplication process should not be limited to one meeting, but should be a series of meetings to review and discuss details and options.

(2) An application for approval of a senior housing community special permit to the SPGA. Applicants are required to submit a special permit application and site plan, conforming to the requirements of this bylaw, to the SPGA for approval. The application for a senior housing community special permit shall be accompanied by a site plan, including all of the plans and information listed below:

(a) The plan or plans shall contain the following: The name of the record owner(s) of the land, the name of the applicant, the name of the registered landscape architect, the name of the registered architectural architect, the name of the registered professional engineer, and the name of the land surveyor who made the plan(s).

(b) An "existing conditions plan" (at a scale of not less than one inch equals 100 feet) showing topography, soil types, watercourses, wetlands and 100-year floodplains, existing streets, all known easements, and structures within and on parcels contiguous to the tract.

(c) An overall land use plan (at a scale of not less than one inch equals 100 feet) showing the location, ownership, and use of the proposed common land, the extent of open space, the area of residential use, the maximum number of residential units proposed, and the maximum number of bedrooms, any amenity or recreation area serving the residential uses, and the general layout of all roads and accessways. The "overall land use plan" shall include a tabulation indicating the total area, upland area, wetlands area, open space area, common land area, all impervious area to be created in the senior housing community and the respective percentage of each area for the entire tract.

(d) A layout plan for the proposed senior housing community at a scale of not less than one inch equals 100 feet, showing the intended location of each residential building, accessory structure and facility, the intended location of all roads and accessways, curb cuts, driveways and approximate finished grades, the proposed location of all recreational areas, proposed improvements and structures on the common land, and methods for providing water and sewerage facilities.

(e) A plan or plans showing the proposed grading of the tract and the proposed location, dimensions, materials and type of construction of streets, common drives, parking areas, walks, paved areas, utilities, emergency accessways, easements, and the location and outline of all proposed buildings and structures, including, but not limited to, dwellings, garages, and any accessory structures thereto. If the proposed senior housing community is to be constructed in separate phases, this plan or plans shall clearly indicate the construction phases proposed.

(f) A plan or plans showing the proposed use of common land (whether public or private), including all improvements intended to be constructed thereon.

(g) A plan or plans showing in a general way existing vegetation (at a scale of one inch equal 100 feet) and detailed landscaping and planting plans (at a scale of one inch equals 100 feet) for all areas to be disturbed and buffer areas.

(h) A perspective plan or plans showing the proposed architecture of the buildings/structures by type and such plan(s) shall include a tabulation of proposed buildings/structures by type (i.e., number of units per building, and number of bedrooms per unit).

(i) Copies of all instruments to be recorded with the senior housing community special permit, including the proposed deed(s) for the common land, dispositions of open space, the articles of organization and bylaws of any corporation or trust to be organized to own the land and the language of all restrictions to be imposed on the land.

(j) A management plan for common land to be incorporated in the deed covenants to be executed with purchases of land or other interests in the senior housing community.

G. Development impact statement. At the discretion of the SPGA, the submittal of a development impact statement may be required at the expense of the applicant. The SPGA may deny a special permit where 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 shore lines 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 SPGA to evaluate:

[1] Existing traffic on streets adjacent to or approaching the site;

[2] Traffic generated or resulting from the site; and

[3] 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 implementing the study shall be attached to the development impact statement.

(4) Support systems.

(a) Water distribution. Discuss the water system proposed for the site, 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.

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

(a) Describe the method to be used during construction to control erosion and sedimentation through use of sediment basins, mulching, matting, temporary vegetation, or covering of soil stockpiled. Describe the approximate size and location of portion of the parcel to be cleared at any given time and the length of time of exposure.

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

H. SPGA rules and regulations. The SPGA shall adopt reasonable rules and regulations for the administration of this section, which may be amended from time to time.[2] Such regulations shall include a schedule of fees, site construction requirements, inspection requirements, and owner/occupancy reporting requirements to satisfy compliance with the age restriction, as well as such other items as the SPGA deems necessary, including the following:

(1) SPGA public hearing. The SPGA shall hold a public hearing and shall file its decision with the Town Clerk as required by MGL c. 40A, § 9.

(2) Approval. The SPGA may grant a special permit for a senior housing community if it determines that all the requirements under this bylaw have been met and such use will not be detrimental to the public good.

(3) Upon receipt of the application and required plans, the SPGA shall transmit one copy each to the Board of Health and Conservation Commission. Within 45 days of their receipt of the application/plans, these agencies shall submit any recommendations to the SPGA. The SPGA shall act on applications according to the procedures specified in MGL c. 40A, § 9. Notice shall be provided of hearings in accordance with MGL c. 40A, § 11.

Commentary: Compliance with the time frame requirements of MGL c. 40A is necessary in order to prevent constructive grants.

(4) The SPGA may impose special permit conditions as a condition of approval such as site construction requirements, inspection requirements, and owner/occupancy reporting requirements to satisfy compliance with the age restriction. The SPGA 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 purpose of this bylaw.

(5) The SPGA may approve the special permit application with a condition of approval from the Board of Health and Conservation Commission.

(6) Change in plans after grant of special permit. No change in any aspect of the approved plans shall be permitted unless approved, in writing, by the SPGA. A new or amended special permit will be required if the SPGA determines any proposed change to be substantial. The SPGA shall hold a public hearing if the proposed change is determined to be substantial, in accordance with the provisions of this bylaw.

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

(7) No land for which a special permit for a senior housing community has been granted shall be further subdivided.

[2] Editor's Note: See Ch. 306, Senior Housing Communities.

I. Optional incentive provisions. The SPGA may approve density bonuses pursuant to one or more of the following provisions; provided, however, that in no case shall the density bonus be greater than a 15% increase in the number of bedrooms permitted in the applicable senior housing community.

(1) Affordable option. A density bonus may be permitted when the proposed community provides affordable housing opportunities consistent with the Upton Local Housing Partnership Policy Plan. For each affordable housing unit provided under this subsection, four additional bedrooms may be permitted subject to the 15% limitation expressed in § 300-7.4I. Affordable units shall be developed concurrently with the market rate units in the development. The affordable units must be subject to use restrictions of a substantial duration to ensure that the units remain available exclusively to persons with qualifying income.

(2) Recreational space option. A density bonus may be permitted when the proposed community provides for public access to recreational facilities and/or recreational fields within the community or when they are deeded to the municipality. For every five acres of land that is donated to the municipality or open to public use, four additional bedrooms may be permitted subject to the 15% limitation expressed in § 300-7.4I. Recreational space that is open to public use shall be accessible from a public way, and adequate parking shall be provided to meet anticipated demand.

(3) Open space option. A density bonus may be permitted when the proposed community provides additional open space. For every five acres of land that is donated to the municipality or land trust, four additional bedrooms may be permitted subject to the 15% limitation expressed in § 300-7.4I.

(4) Provision for off-site locations. The SPGA may accept the off-site location of affordable housing, recreational space, or open space for the purpose of satisfying the optional incentive provisions.

J. Standards.

(1) Independent senior housing. As used by this bylaw, "independent senior housing" means private residential dwelling units individually equipped with a minimum of a kitchen, bedroom, bathroom and living area. Geared toward independently functioning adults, this housing typically does not offer on-site supportive services but is designed to be barrier free and should include emergency call features complemented by housing management and maintenance services.

(2) Congregate senior housing.

(a) As used in this bylaw, "congregate senior housing" means private dwelling units/apartments which may have kitchen facilities within a complex containing central dining and other common areas and is designed for an adult population requiring some supportive services, including but not limited to meals, housekeeping, home health and other supportive services. Congregate senior housing under this section of the bylaw shall obtain all required permits and/or licenses that are required to operate such facilities by the Commonwealth of Massachusetts and the Town of Upton.

(b) The standards for this bylaw section shall be the same as independent senior housing except where stated otherwise.

(c) Exceptions. Building and dwelling requirements (see § 300-7.4R) can be waived or modified.

(3) Assisted living facility.

(a) As used in this bylaw, an "assisted living facility" means a twenty-four-hour staff along with private dwelling units which may contain independent efficiency kitchens, but which facility contains a common kitchen, dining and other activity areas. Assisted living facilities are geared to an adult population which may have difficulty functioning independently and may require oversight, including but not limited to the provisions of a full meal plan, transportation services, personal care and assistance with medication. Special care programs specifically designed for adults with memory loss are included in this category. Assisted living facility under this section of the bylaw shall obtain all required permits and/or licenses required to operate such a facility by the Commonwealth of Massachusetts and the Town of Upton.

(b) The standards for this bylaw section shall be the same as the bylaw section for independent senior housing except where stated otherwise.

(c) Exceptions.

[1] Building and dwelling requirements (see § 300-7.4R) can be waived or modified.

[2] Parking area requirements (see § 300-7.4T) can be waived or modified.

(4) Restorative care/skilled nursing facility.

(a) Restorative care/skilled nursing facility includes any institution which provides services primarily to three or more individuals admitted thereto with long-term nursing, convalescent or rehabilitative care; supervision and care incident to old age; or retirement home care for elderly persons and include services provided by nursing homes, convalescent homes, long term facilities, rest homes, infirmaries for older adults, and charitable homes for the aged. Restorative care/skilled nursing facility under this bylaw shall obtain all applicable permits and licenses required by the Commonwealth of Massachusetts and the Town of Upton.

(b) The standards for this bylaw section shall be the same as the bylaw section for independent senior housing except where stated otherwise.

(c) Exceptions.

[1] Occupancy restriction requirements (see § 300-7.4K) can be waived or modified.

[2] Building and dwelling requirements (see § 300-7.4R) can be waived or modified.

[3] Parking area requirements (see § 300-7.4T) can be waived or modified.

K. Occupancy restrictions. The following provisions are intended to ensure that the dwelling units in independent senior housing are used as residences for persons of 55 years of age and older.

(1) Each dwelling unit in an independent senior housing community shall be subject to a recorded deed restriction limiting occupancy to at least one person 55 years of age or older.

(2) Individuals under the age of 18 or guests may not reside in a dwelling unit in an independent senior housing community for more than six months in a twelve-month time period.

(3) In the event of the death of the qualifying occupant of a unit, or foreclosure or other involuntary transfer of a unit in an independent senior housing community, a two-year exemption shall be allowed to facilitate the transfer of the unit to another eligible household.

L. Site dimensional requirements.

(1) The tract of land for an independent senior housing community shall contain at least five acres and shall have at least 100 feet of frontage on an existing Town accepted way.

(2) A 100-foot screened buffer zone consisting of landscaped or natural vegetation shall encompass the entire perimeter of the development site.

(3) Upon finding by the SPGA that a buffer zone of lesser width would be sufficient to visually screen and/or separate the independent senior housing community from adjacent property, the SPGA may waive and/or alter the buffer zone requirement. The SPGA may require no-cut easements, conservation restrictions or the like where the buffer zone has been reduced.

M. Density.

(1) The residential density in an independent senior housing community shall not exceed six bedrooms per acre of developable area, and shall contain no more than 200 bedrooms except when optional incentive provisions have been applied. For the purpose of this computation, the "developable area" shall be the total area of the tract, including the common land, but excluding all listed nonbuildable areas as provided under § 300-7.4N.

(2) The total area of dwelling unit footprints, garages, accessory buildings, and all other impervious surfaces shall not exceed 20% of the site area, except when optional incentive provisions have been applied.

N. Usable land. Developable area shall be calculated by a registered civil engineer and/or registered land surveyor and shall not include any of the following:

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

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

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

(4) Land subject to conservation restrictions that prohibit development.

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

(6) Land recorded with open space restrictions.

O. Open space. A minimum of 25% of the development site shall be dedicated to open space and shall be clearly delineated and defined on the overall land use plan of each application. It is the intention of this subsection that open space should generally occur as a single contiguous area of open space which shall retain those natural features of the site most worthy of preservation in their natural state. The minimum required area of open space shall consist of no more than 30% wetlands as defined in MGL c. 131, § 40. Land comprising the buffer zone under § 300-7.4L shall not count toward this open space requirement.

P. Common land. The common land shall be dedicated and used for conservation, recreation, park purposes, outdoor education, agriculture, horticulture or forestry, or for any combination of such use. Common land shall be planned as large and contiguous whenever possible. Common land may be set aside in more than one parcel, provided that the size, shape, and location of such parcel are suitable for the designated use. Strips or narrow parcels of common land shall be permitted only when necessary for access, or if the SPGA finds that a vegetation buffer strip along the site's perimeter is appropriate and consistent with the purpose of the Senior Housing Community Bylaw.

Q. Recreational space. Suitable recreational space for the independent senior housing community should be provided. Such areas should be suitable for a site of an active recreational facility. Such recreational areas should be contiguous to the open space or may be separately located.

R. Building and dwelling requirements. In an independent senior housing community the following building and dwelling requirements shall apply:

(1) Dwelling units in an independent senior housing community may be attached, detached, or a combination of these types.

(2) No building shall contain more than eight bedrooms.

(3) No dwelling unit shall contain more than two bedrooms.

(4) Buildings shall not exceed 2 1/2 stories and/or 30 feet in height.

(5) In an independent senior housing community, the following setbacks requirements shall apply:

(a) All buildings must be located a minimum of 30 feet from other structures within the independent senior housing community.

(b) All buildings must be located a minimum of 30 feet from an interior roadway and driveway, which are not considered accepted public way.

(c) All buildings must be located a minimum of 100 feet from any side or rear site lot line from any off-site private or public way.

(6) Upon finding by the SPGA that a setback of lesser width would be sufficient to visually screen and/or separate the independent senior housing community from adjacent property, the setback may be reduced. The SPGA may require no-cut easements, conservation restrictions or the like where the setback has been reduced.

S. Water and sewage services.

(1) Each dwelling unit in a Single Residential SRA and SRB District shall be connected to the municipal water system. Each dwelling unit in a Single Residential SRC and SRD District and Agricultural Residential District under this bylaw shall be supplied by a water source approved in writing by the Board of Health and by the Director of Public Works.

(2) Each dwelling unit in a Single Residential SRA and SRB District shall be connected to a municipal wastewater treatment system. Each dwelling unit in a Single Residential SRC and SRD District and Agricultural Residential District shall be connected to a municipal wastewater treatment system, as agreed to in writing by the Director of Public Works, or to an on-site sewage treatment facility, as approved in writing by the Board of Health and under state law, where applicable.

(3) If an on-site sewage treatment facility is used, the owner(s) shall have complete responsibility for maintenance and operation of the facility. If individual units are sold, each owner shall, as a condition of purchase, be required to join a homeowners' association or a condominium trust for the purpose of maintaining the treatment plant in a manner prescribed by the Massachusetts Department of Environmental Protection, and approved by the Board of Health.

Commentary: The Town of Upton at the discretion of the DPW Director and the Board of Health may provide testing, maintenance and service work for a fee.

(4) For proposals where neither the municipal water system nor the municipal wastewater treatment system is to be used, a coordinated water supply/sewage treatment facility plan must be submitted to, and approved in writing by, the Board of Health and, when required, by the Massachusetts Department of Environmental Protection.

T. Parking area. There shall be provisions for 1.5 parking spaces per bedroom, at least one of which shall be located so as to provide convenient access to its assigned dwelling unit. Parking garages will be permitted as a parking space if located and designed so as to complement the building design and site layout.

U. Landscaping. Suitable landscaping materials shall be placed along site property lines to provide screening if there is no suitable natural growth in these areas. No solid fences shall be allowed along site property lines.

V. Rubbish. The owner, or homeowners' association, or condominium trust shall provide rubbish disposal. There shall be a satisfactory design and location of collection points for the disposal of rubbish. Provisions for adequate screening shall be determined by the SPGA.

W. Illumination. All outdoor lighting shall be directed away from adjoining property. Streetlights should be installed within the independent senior housing community with best engineering practices and be of the type and style that matches the architectural style of the community.

X. Accessory buildings and structures.

(1) Accessory buildings and structures for the use of residents of the independent senior housing community and their guests may be permitted, including garages, clubhouses, swimming pools, tennis courts, cabanas, and maintenance structures.

(2) Accessory buildings and structures shall be shown on the site development plan and shall not be constructed within designated open space.

Y. Maintenance.

(1) The owners of the dwelling units within the independent senior housing community shall be responsible for the maintenance of all common elements and facilities owned by and serving the residents of the independent senior housing community and an organization of owners or condominium trust shall be established to carry out these maintenance responsibilities. Such homeowners' association or condominium trust shall file an annual report, including the names and addresses of its officers, with the Town Clerk by February 15 of each year.

(2) The special permit shall be conditional on the SPGA approval of the declaration of homeowners trust.

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

§ 300-7.5 Large lot frontage reduction special permit.

[Amended 5-8-2021 ATM by Art. 16; 5-5-2022 ATM by Art. 24]

A. Intent. The intent of this large lot frontage reduction is to permit greater flexibility and more creative and imaginative design for the development of residential areas than is generally possible under conventional zoning provisions. It is further intended to promote more economical and efficient use of the land, while preserving the natural environment and scenic qualities of open space which otherwise might be lost.

B. Special permit granting authority. The Planning Board shall be the special permit granting authority for large lot frontage reduction in the Town of Upton and is authorized to hear and decide upon applications for special permits for large lot frontage reduction in accordance with the provisions of this zoning section.

C. Application in zoning districts. A residential lot with reduced frontage may only be permitted by a special permit in all residential districts where residential use is permitted by right in accordance with the requirements and regulations of the Town of Upton Zoning Bylaw.

D. 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 large lot frontage reduction special permit shall be accompanied by a site plan including all of the information listed below:

(a) A special permit application.

(b) A site plan shall conform to the latest ANR (MGL c. 41, § 81P) drawing requirement that the Town of Upton has.

(c) Documentation that the lot can be developed as a conventional subdivision, including, but not limited to, a schematic site plan. The Planning Board, at its sole discretion, may also require perc tests, wetland delineations, and any other documentation deemed necessary.

E. Public hearing. The Planning Board shall hold a public hearing and shall file its decision with the Town Clerk as required by MGL c. 40A, § 9.

F. Approval.

(1) Upon receipt of the application and required plan, the Planning Board shall transmit one copy each to the Board of Health and Conservation Commission. Within 45 days of their receipt of the application/plan, these agencies shall submit any recommendations to the Planning Board. The Planning Board shall act on applications according to the procedures specified in MGL c. 40A, § 9. Notice shall be provided of hearings in accordance with MGL c. 40A, § 11.

(2) Special permits shall be granted by the Planning Board, unless otherwise specified herein, only upon its written determination that the benefits 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. The following shall also be considered:

(a) The Planning Board may grant by special permit the right to build on a large parcel that has insufficient frontage by right to build on but is large enough to create an alternative potential subdivision with a road and multiple lots. However, the possibility of such an alternative potential subdivision shall not necessarily be sufficient justification to grant a special permit. The Planning Board may weigh other factors such as the likelihood or practicality of such a subdivision being built, or scenarios where a proposed large lot frontage reduction (LLFR) lot is adjacent to an existing LLFR lot (which is generally discouraged), or any other factors deemed appropriate, as may be in the best interest of the Town. Additionally, in extraordinary circumstances, the Planning Board may grant an LLFR special permit even if the possibility of an alternative potential subdivision does not exist, provided there is a finding that granting said permit is in the best interest of the Town.

(3) Specific criteria:

(a) The parcel has a minimum of 70 feet of frontage along a public way;

(b) The parcel contains a minimum of three times the land area it would normally require in each district;

(c) A sixty-five-foot-diameter circle must be able to pass from the frontage through to the front building line without touching a side lot line;

(d) The front setback dimensional requirement shall be increased by a factor of three times; all other dimensional requirements of the district in which the parcel is located shall apply;

(e) The parcel shall be accessed from its frontage only; cul-de-sacs may not be used to satisfy frontage;

(f) Any access road or driveway serving a lot created under this bylaw must be set back at least 10 feet from adjacent property lines;

(g) No development other than a driveway is allowed in any access strip to a lot created under this bylaw;

(h) Access to an LLFR lot shall not serve as access to any future development;

(i) Any conforming parcel already developed with a home may not be rendered nonconforming as a result of the provisions of this bylaw;

(j) No more than two LLFR lots shall be created from any parcel;

(k) It is not the intent of this bylaw to modify an existing conforming lot into multiple LLFR lots such that none of the resultant lots are conforming.

(4) In addition to any specific criteria that may be set forth in this bylaw, the determination shall have consideration of each of the following:

(a) Adequacy of vehicular and pedestrian traffic safety on and off the site;

(b) Adequacy of utilities and other public services;

(c) Impacts on the natural environment.

G. Conditions. The special permit may be granted with such reasonable conditions, safeguards, or limitations on use, including 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 to serve the purpose of this bylaw.

H. Change in plans after grant of special permit.

(1) No change in any aspect of the approved plans shall be permitted unless approved, in writing, 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, in accordance with the provisions of this bylaw.

(2) No land for which a special permit for a large lot frontage reduction has been granted shall be further subdivided or be granted additional zoning waivers.

(3) A note shall be placed on the plans stating that no further subdivision of any new LLFR lots created via this bylaw is permitted.

I. Lapse. The special permit shall lapse if a substantial use thereof or construction thereunder 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.

§ 300-7.6 Accessory dwelling units.

[Amended 5-8-2021 ATM by Art. 16; 11-12-2025 STM by Art. 27]

A. Purpose and intent. The intent of permitting accessory dwelling units is to develop housing units in residential zoning districts that are appropriate for households at a variety of life cycle stages.

B. Use allowed by right or by special permit.

(1) Accessory dwelling unit by right: accessory dwelling units which meet the requirements of the definition as stated in § 300-10.1 of this bylaw, MGL c. 40A, § 1A, and MGL c. 40A, § 3, shall be allowed by-right in residential zoning districts.

(2) Accessory dwelling unit by special permit: accessory dwelling units that exceed the size requirements set forth in the definition in § 300-10.1 may only be allowed in the AR, SR-A, SR-B, SR-C, and SR-D residential zoning districts through the grant of special permit from the Zoning Board of Appeals in accordance with the special permit process as set forth in this section, § 300-7.6C and D, as well as § 300-9.3 of this Zoning Bylaw. For more than one accessory dwelling unit, or rental thereof, on a lot in the AR, SR-A, SR-B, SR-C, and SR-D residential zoning districts, there shall be a special permit for the use of land or structures for an accessory dwelling unit.

(3) Accessory dwelling unit not located in a Residential Zone. Accessory dwelling units as defined in a § 300-10.1 may be allowed in nonresidential zoning district UCBD, through the grant of a special permit by the Zoning Board of Appeals in accordance with the special permit process as set forth in this section, § 300-7.6C and D, as well as § 300-9.3 of this Zoning Bylaw.

C. Special permit procedures.

(1) Applications shall be filed in accordance with the Rules and Regulations of the Zoning Board of Appeals. An application shall not be deemed complete until all copies of required information and documentation have been filed with the Zoning Board of Appeals.

(2) The Zoning Board of Appeals shall hold a public hearing as required by MGL c. 40A, § 11.

(3) The Zoning Board of Appeals shall file its decision with the Town Clerk as required by MGL c. 40A, § 9.

(4) The special permit decision may be appealed pursuant to MGL c. 40A, § 17, and filed within 20 days after the date the decision notice was filed with the Town Clerk.

(5) No special permit, or any extension, modification, or renewal thereof, can take effect until a copy of the decision bearing the certification of the Town Clerk is recorded in the Registry of Deeds.

(6) The special permit shall lapse if a substantial use thereunder has not begun within 24 months following the filing of the special permit approval with the Town Clerk; provided, however, if before the expiration of the 24 months, the Zoning Board of Appeals finds that there is good cause for such lack of substantial use, the Zoning Board of Appeals may extend the permit.

D. Special permit criteria. The Zoning Board of Appeals may grant a special permit for an accessory dwelling unit if it determines that all the requirements set forth in this bylaw have been met and such use will not be detrimental to the public good. The determination shall include consideration of each of the following criteria:

(1) Plans. A plot plan of the existing dwelling unit and proposed accessory dwelling unit shall be submitted to the SPGA showing the location of the building on the lot, the proposed accessory dwelling unit, location of any septic system and the required parking.

(2) Physical size. The accessory dwelling unit shall not exceed 50% of the total gross living area of the primary dwelling.

(3) Number of units. More than one accessory dwelling unit may be established on a lot by grant of a special permit by the Zoning Board of Appeals pursuant to MGL c. 40A, § 3. No more than two accessory dwelling units shall be permitted on a lot.

(4) Services. The Board of Health may issue a recommendation as to the suitability of the disposal of sewage, waste and drainage generated by the occupancy of the accessory dwelling unit. In addition, no special permit shall be granted without a condition that the accessory dwelling unit shall conform to the provisions of Title V of the Sanitary Code, 310 CMR 15.00.

(5) Building exterior. The external appearance of the building in which the accessory dwelling unit is to be located shall not be significantly altered from the appearance of a single-family building. All stairways to upper floors shall be enclosed within the exterior wall of the building. There shall be no enlargement or extension of the building except for the accessory dwelling unit itself and minimal additions necessary to comply with building, safety or health codes, handicap accessibility (if needed), or the enclosure of an entryway or stairway. Any new exterior entrance shall be located on the side or rear of the building.

(6) Off-street parking. There shall be at least two off-street parking spaces for the principal dwelling unit and at least one off-street parking space for the accessory dwelling unit, except for accessory dwelling units located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal, or bus station, which shall not require an additional parking space. No parking spaces shall be located within the boundary of a street right-of-way. In no case shall parking spaces which are more than two spaces deep be considered in computing the required number of parking spaces. Said parking space(s) shall be constructed of materials similar to the existing driveway and shall have vehicular access to the driveway.

E. Decision. Special permits for an accessory dwelling unit may be granted by the SPGA upon a finding that the construction and occupancy of an apartment will not be detrimental to the neighborhood in which the subject property is located and after consideration of all criteria set forth in this bylaw section as well as § 300-9.3 of this Zoning Bylaw.

F. Conditions. Accessory dwelling units shall be subject to the following conditions in addition to any other conditions that may be provided for in the special permit:

(1) The ownership of an accessory dwelling unit dwelling unit shall not be conveyed or otherwise transferred separately from the principal dwelling.

(2) The applicant for a special permit shall file with the Zoning Board of Appeals such plans, specifications and other information concerning the unit and its proposed use as the Board may require by general rule or request to the applicant.

(3) Except as provided herein, all requirements of the Town's Zoning districts for which the accessory dwelling unit is located will apply as provided in the Town of Upton Zoning Bylaw.

G. Grandfathering. Accessory dwelling units permitted or allowed by special permit at the time of adoption of this bylaw section are exempt from these provisions.

§ 300-7.7 Inclusion of affordable housing.

[Added 5-2-2024 ATM by Art. 31]

A. Purpose and intent. The purpose and intent of this zoning bylaw is to promote the inclusion of affordable housing as part of the development of housing overall in the Town of Upton. This is also known as inclusionary zoning. More specifically:

(1) The purpose of these provisions is to encourage a greater diversity of housing and the development of new or renovated housing that is affordable to eligible low- and moderate-income households in perpetuity or so long as allowed by law. At a minimum, affordable housing produced through this regulation shall be in compliance with the requirements set forth in MGL c. 40B, §§ 20 through 23 (as the same may be amended from time to time).

(2) It is intended that the affordable housing units (AHUs) that result from the application of this bylaw be considered as local action units (LAUs), in compliance with the requirements for the same as specified by the Executive Office of Housing and Livable Communities (EOHLC) or successor state agency or regulations.

(3) The LAUs created by this bylaw are intended to add to the town's subsidized housing inventory (SHI) and contribute to local efforts to meet the state's requirement for affordable housing levels. Accordingly, these units must meet EOHLC's Local Incentive Program (LIP) criteria to be suitable for inclusion and counted in the Town's SHI.

(4) The application of these affordable housing provisions is intended to consider other important zoning objectives, such as those given in § 300-1.1, Purpose, of these Zoning Bylaws, specifically, to encourage the most appropriate use of land throughout the Town, to preserve the cultural, historical and agricultural heritage of the community, to increase the amenities of the Town, and to reduce the hazard from fire by regulating the location and use of buildings and the area of open space around them, all as authorized by, but not limited to, the provisions of the Zoning Act, MGL c. 40A, as amended, Section 2A of 1975 Mass. Acts 808, and by Article 89 of the Amendments to the Constitution of the Commonwealth of Massachusetts.

B. Applicability. In all zoning districts, including overlay districts, the inclusionary zoning provisions of this section shall apply to the following uses:

(1) Division of land. This section shall apply to the division of contiguous land held in single or common ownership into six or more residential lots.

(2) Multiple dwelling units. This bylaw shall apply to the construction of six or more dwelling units, whether on one or more contiguous parcels, alteration, expansion, reconstruction, or change of existing residential or nonresidential space.

(3) Senior housing community. Senior housing communities pursuant to § 300-7.4 of this zoning bylaw shall be subject to the provisions of § 300-7.7 herein.

(4) Planned village developments. Planned village development pursuant to § 300-6.4 of this zoning bylaw shall be subject to the provisions of § 300-7.7 herein.

(5) The provisions of Subsection B(2) above shall apply to the construction of six or more dwelling units on individual lots if said six or more lots are held in single or common ownership.

(6) To prevent segmentation of projects designed to avoid the requirements of this bylaw, parcels held in single or common ownership and which are subsequently divided into six or more lots shall also be subject to this bylaw.

(7) To address the possible segmentation of projects over time, any construction that results in a net increase of six or more dwelling units measured over a thirty-six-month period shall be subject to this bylaw, that ten-year period is measured from the date of the issuance of the first certificate of occupancy.

(8) If the special permit granting authority (SPGA) determines that an applicant has established surrogate or subsidiary entities to avoid the requirements of this Subsection B, then an inclusionary housing special permit shall be denied.

C. Inclusionary housing special permit. Pursuant to MGL c. 40A, § 9, the development of any project set forth in Subsection B above shall require the grant of an inclusionary housing special permit (IHSP) from the Planning Board SPGA. The special permit shall be granted if the proposal meets the requirements of this bylaw.

D. Provision of affordable housing. As a condition for approval of a special permit, the applicant shall contribute to the local inventory of affordable housing by providing at least the number of AHUs specified below, which must be eligible for inclusion in the Town's SHI.

(1) For developments of six to nine ownership or rental units, at least one unit of the total proposed dwelling units shall be affordable.

(2) For development of 10 to 19 ownership or rental units, at least two units of the total proposed dwelling units shall be affordable.

(3) For development of 20 to 29 ownership or rental units, at least three units of the total proposed dwelling units shall be affordable.

(4) For development of 30 to 44 ownership or rental units, at least 12.5% of the total proposed dwelling units shall be affordable.

(5) For development of 45 or more ownership or rental units, at least 15% of the total proposed dwelling units shall be affordable.

(6) The following schedule is provided for allocating affordable units given a particular range of total lots in a subdivision or total units in a multi-family development.

Total Units	Minimum Affordable Units
6 to 9	1
10 to 19	2
20 to 29	3
30 to 44	12.5%
45 and greater	15%

(7) For the calculation of AHUs per Subsection D(1) through (6), fractions of one-half (1/2, 0.5) dwelling unit or more shall be rounded up to the nearest whole number, while lesser fractions shall be rounded down a fractional unit. For example, a proposed development of:

(a) 50 housing units (15% minimum) would require 7.5 affordable units, rounded up to eight units 16%.

(b) 35 housing units (12.5% minimum) would require 4.375 affordable units, rounded down to four total affordable units (11.4%).

E. Preservation of affordability.

(1) All ownership developments shall be subject to a permanent affordable housing restriction and/or regulatory agreement, ensuring that the AHUs shall remain affordable in perpetuity, or so long as allowed by law, and each affordable unit shall be conveyed subject to a deed rider acceptable to and approved by the Town and EOHLC and granting the Town such rights as may be required to ensure that said AHUs remain affordable in perpetuity and be counted toward the Upton subsidized housing inventory. In addition, no certificate of occupancy permit shall be granted for any home-ownership development containing affordable home-ownership units prior to the recording of the affordable housing restriction and/or regulatory agreement at the Registry of Deeds, as the SPGA shall deem appropriate.

(2) All multi-family rental developments with affordable housing units shall be subject to a regulatory agreement, ensuring that the AHUs shall remain affordable in perpetuity, or so long as allowed bylaw. Said regulatory agreement shall be approved by the Town and EOHLC. In addition, no certificate of occupancy permit shall be granted for any multi-family rental developments containing affordable home-ownership units prior to the recording of the regulatory agreement at the Registry of Deeds, as the SPGA shall deem appropriate.

(3) In the event that any rental unit is converted to a condominium ownership unit, the condominium unit shall be restricted in perpetuity as per Subsection E(1) and (2) above to ensure that it remains affordable to income-eligible households as prior to the condominium conversion.

(4) The Upton Affordable Housing Trust or its agent or designee shall monitor, oversee, and administer the details for all re-sale or re-lease of any affordable units in the Town.

F. Timing of construction for affordable units.

(1) The construction of affordable units shall be commensurate with the construction of market-rate units per the schedule in Subsection D(1) through (7) above. Should projects be built in phases, each phase shall contain the same proportion of affordable units to market-rate units as the overall development.

(2) The building permit for the last market-rate unit shall not be issued until all affordable units have been constructed, unless an alternate construction schedule has been approved by the SPGA.

G. Siting of affordable units. The affordable units created under this bylaw shall be proportionally distributed throughout the proposed project, in terms of location, size, and type.

(1) Affordable units shall be provided within the development that requires the affordable units unless the requirements of this section are satisfied through a payment-in-lieu of providing affordable units.

(2) Their siting shall be integrated within the development along with the locations of the other dwellings, rather than segregated or concentrated in one area.

(3) The AHUs shall not be situated in less desirable locations than market-rate units and shall, on average, be no less accessible to public amenities such as transportation, recreation or open spaces, and shopping or other businesses.

(4) The location of each and every AHU shall be identified on the site plans and approved by the Planning Board pursuant to § 300-9.4 of the Zoning Bylaw. In the case of multi-family dwellings, the locations of affordable units shall be identified on the building floor plans for each and every structure of this type and approved by the SPGA.

H. Minimum design and construction standards. The exterior appearance of the affordable units shall be compatible with and essentially indistinguishable from the other units in the development. The AHUs shall be designed with similar features and built with comparable quality materials with respect to the market-rate dwellings built.

I. Minimum lot size. The average lot size for affordable home units shall be comparable to those of their market-rate counterparts within the development.

J. Payment-in-lieu-of-units. As an alternative to the requirements of Subsection D and to the extent allowed by law, an applicant may provide a payment to the Upton Affordable Housing Trust ("AHT") to be used for the production of affordable housing in lieu of constructing ownership units within the proposed development.

(1) Payment-in-lieu-of-units ("PILU"). The applicant for development subject to this bylaw may choose a payment in lieu of the construction or provision of affordable ownership units to the AHT at the sole discretion of the SPGA. The fees shall be paid in increments prior to the issuance of a building permit for each and every unit, or otherwise at the sole discretion of the SPGA.

(2) Calculation of PILU. The fee of an affordable ownership unit shall be equal to 80% of the average listing price of comparable market-rate units of the same bedroom count within the proposed development. The SPGA shall make the final determination of the PILU.

(3) PILUs are not applicable to affordable rental units. All rental units proposed within a multi-family development must be constructed and dedicated as affordable pursuant to § 300-7.7J(5).

(4) The incremental payments shall be equal to: the PILU as calculated for a single ownership unit in Subsection K(2) multiplied by the total number of affordable ownership units subject to PILU, divided by the total number of ownership units in the subject development. For example, a proposed development of 15 ownership units requires two affordable units per Subsection E. If the projected average sales price of each unit is $500,000, the total amount of the PILUs is $400,000 multiplied by two units, i.e., $800,000. The incremental cost is $800,000 divided by 15 units, i.e., $53,333 per unit.

(5) Timing of payment before issuance of building permits. Payment shall be received by AHT prior to issuance of building permit for each unit to be constructed.

(6) Revised calculation before issuance of building permits. The PILU calculation shall be confirmed with current market rates for the proposed development within 60 days' prior to issuance of building permit.

(7) Creation of affordable units. PILUs made to AHT in accordance with this section shall be used only for purposes of providing affordable housing for low- or moderate-income households. Using these payments, affordable housing may be provided through a variety of means, including but not limited to the provision of favorable financing terms, subsidized prices for purchase of sites, additional affordable units within existing or proposed developments, and other initiatives allowed under the Municipal Affordable Housing Trust Fund Law (MGL c. 44, § 55C).

(8) If the AHT has been dissolved or is otherwise no longer in existence as of the time the application has been stamped received by the Town Clerk, then PILUs are to be paid to the Town and held in escrow for affordable housing production. Funds in escrow shall be transferred commensurate to the AHT upon its re-establishment.

K. Combining construction with payment-in-lieu-of-units. A combination of construction of dwelling units and payment of fee-in-lieu of-units may be combined by the applicant to meet a single project's requirement if granted approval by the SPGA.

L. Local preference. To the maximum extent permitted by law, including the regulations of EOHLC, any IHSP granted hereunder shall include a condition that a preference for Upton residents, Town of Upton employees, employees of schools and businesses located within Upton, and families of students attending schools within Upton shall be included as part of the lottery and marketing plan for the affordable units.

M. Marketing plan for affordable units. Applicants creating affordable units under this bylaw are required to select qualified homebuyers or renters via lottery under an affirmative fair housing marketing plan prepared and submitted by the applicant and approved by EOHLC and the SPGA. This plan shall include a description of the lottery or other process to be used for selecting buyers. The plan shall be in conformance with federal and state fair housing laws in effect on the date of the special permit or other permit application with the Town of Upton. No building permit for a development subject to the Upton Inclusionary Zoning Bylaw shall be issued unless the SPGA has determined that the applicant's affirmative marketing plan complies with this requirement. The affirmative marketing costs for the affordable housing units shall be the responsibility of the applicant. The applicant shall also submit the affirmative marketing and resident selection plan for review by the AHT.

N. Related fees. The SPGA is authorized to retain professional consultants to advise the SPGA on any and all aspects of the application, the project's compliance with this bylaw, and to determine whether AHUs authorized by an IHSP will be included in the Town's SHI. The SPGA may require the applicant to pay reasonable costs to be incurred by the SPGA for the employment of outside consultants pursuant to SPGA regulations, as authorized by G.L. c. 44, § 53G.

O. Conflict with other bylaws. The provisions of this bylaw shall be considered supplemental of existing zoning bylaws. To the extent that a conflict exists between this section and others, the more restrictive section, or provisions therein, shall apply.

P. Severability. If any provision of this section is held invalid by a court of competent jurisdiction, the remainder of this section shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the Upton Inclusionary Zoning Bylaw.