Article 8 Option Zoning

Applicability. Where a petitioner or applicant chooses to seek to obtain a special permit pursuant to this section, which special permit would authorize an increase in the permissible intensity of a particular use in the proposed development, the petitioner or applicant shall be subject to the provisions of this section. Increases in the intensity of use shall include an increase of gross floor area or the addition of uses that result in an increase in intensity of use.

Incentive contributions. If the permit granting authority grants a special permit for an increase in the maximum lot coverage intensity of use in a business or Commercial 1 through Commercial 6, said authority shall require the applicant to make a contribution into a Traffic Safety and Infrastructure Fund ("fund"). The rate of contribution shall be $3 per square foot of gross floor area of a building whose primary use shall be for office or retail space, and the rate of contribution shall be $1 per square foot of gross floor area of a building whose primary use will be for industrial, manufacturing, warehousing, product and material distribution or similar purposes. The primary use of a building or buildings, for the purpose of this section, shall be deemed to be office or retail use where the total square foot floor area used for office or retail purposes, considered either individually or where both uses are added together, constitutes more than 20% of the entire gross square foot area of the building or buildings in question. Otherwise, the primary use of the building or buildings shall be deemed for a use other than office or retail, and the rate of contribution shall be $1 per square foot of gross square foot area.

Fund administration. Said Traffic Safety and Infrastructure Fund shall be established in the Town Treasury and shall be kept separate and apart from other monies by the Town Treasurer/Collector. Any monies in said fund shall be expended at the direction of the Select Board, for the purposes mentioned below without further appropriation. All monies which are collected as a result of any contribution to this fund shall be transferred to the principal of said fund, and the Town Treasurer/Collector shall be custodian of the fund and may deposit the proceeds in a bank or invest the same in such securities as are legal for the investment of funds of savings banks under the laws of the commonwealth or in federal savings and loan associations situated in the commonwealth. Any interest earned thereon shall be credited to and become part of such fund.

Fund expenditures. Any monies in the fund may be expended only by a majority vote of the entire membership of the Select Board and shall be appropriated only for the purpose of maintaining and improving traffic safety, and for the purpose of maintaining and improving the infrastructure of the Town, which shall include those Town services directly involving traffic regulation and control, road improvements (including widening), bridge construction, playground and park development, water supply, sewer services, streetlighting, public walkways and other related public works, including new construction where needed. The cost of land takings necessary to accomplish any of the purposes listed herein shall be considered a proper purpose for the expenditure of monies from this fund. No monies in this fund shall be used for any purpose not included or directly related to the purposes listed above. To the extent that it is feasible, monies contributed by a certain applicant for a special permit for an increase in intensity of use shall be spent on Town services in the geographical area which is most directly impacted by the proposed building or buildings which are the subject of said special permit.

Payment schedule. The payment of the required contribution shall be made in accordance with the following schedule: The amount of the initial payment shall be determined by the permit granting authority, and the payment of said amount and the delivery of an irrevocable letter of credit for the balance shall be prerequisite conditions of the issuance of the building permit. Thereafter, the Select Board may requisition against the letter of credit at any time, but not more frequently than once every 60 days. The balance, if any, shall be paid immediately at the time of, and shall be a prerequisite condition to, the issuance of the occupancy permit. The petitioner or applicant may, at any time, make a lump-sum payment of the entire required contribution, if he so desires.

Escrow pending fund creation.

If said Traffic Safety and Infrastructure Maintenance Fund has not been authorized or created at the time any payment under this section becomes due, the applicant shall make the payment to the Town of Norfolk. The Town of Norfolk shall place any payments received, on account of said Traffic Safety and Infrastructure Maintenance Fund, into an escrow account to be held therein for the benefit of said fund until such time as the said fund is established. Any monies being held in escrow pursuant to this section shall forthwith be transferred to said fund.

Said monies shall be paid by all applicants seeking a special permit for maximum lot coverage increased intensity of use in Business 1 through Business 4 or Commercial 1 through Commercial 6. Furthermore, all contributions shall be paid in full before the granting of an occupancy permit.

Scope.

As used in this section, a "special permit" for an increase in maximum lot coverage intensity of use shall mean a special permit where the applicant is requesting permission to build or develop a building, buildings or off-street parking where the gross square footage proposed exceeds the maximum lot coverage percentage allowed in said zone as a matter of right. For the purposes of this section, "as a matter of right" shall mean the right to develop a particular lot or parcel without having to obtain a special permit for such increase in intensity of use.

Except as provided in § 310-7.4 of this bylaw, any change of use of any building or part thereof or any increase in the number of buildings or in the square footage of gross floor area size of any individual building shall require the issuance of a new special permit.

In exercising its jurisdiction under this section, the Zoning Board of Appeals shall conform to all requirements or procedures applicable to a permit granting authority when deciding requests for special permits under MGL c. 40A as amended, including requirements thereof for public notice and hearings.

§ 310-8.2 Open space preservation.

Purpose. The purposes of this section are:

To preserve open space for conservation, recreation, agriculture and forestry;

To preserve significant natural, historical and archaeological resources;

To preserve and foster the Town of Norfolk's rural and scenic character;

To promote development that is in harmony with natural features and resources, the Town's historic and traditional landscapes, the existing and probable future use of adjacent land, and the general intent of the Zoning Bylaw; and

To establish flexible residential development standards and procedures that will support these objectives.

Overview and approach.

This section of the Zoning Bylaw provides an alternative method of subdividing land for residential development. This "open space preservation" method allows the Planning Board to approve reductions in the area, frontage and/or setbacks of individual lots in a development in return for setting aside a specified amount of land as permanent open space. The required permanent open space must be at least 25% of the total tract area, and may be more than 25% depending on the actual reduction in the average lot area.

In addition to setting aside open space for protection, the open space preservation approach differs from the conventional subdivision approach in the way that lots are designed. In simple terms, a standard subdivision can be designed by dividing the total tract area into lots that conform to minimum requirements of the Zoning Bylaws and roads that comply with the design standards of the Subdivision Rules and Regulations.[1] In contrast, the design of an open space preservation development begins with the identification of sensitive or significant natural and scenic features that are to be conserved. Locations for individual houses are then established on the remaining developable area, and lot lines are drawn around the building sites.

Editor's Note: See Ch. 325, Subdivision of Land and Site Plan Approval Regulations.

A well-designed open space preservation development will usually be preferable to a standard subdivision, because it can be more sensitive to the landscape and can contribute to a Town-wide system of open space linkages. Therefore, in order to encourage landowners to use this optional approach, the bylaw allows a modest increase in the maximum number of dwelling units compared to a conventional subdivision.

The Planning Board may approve an open space preservation development if it determines that such a development would be better for the Town than a conventional subdivision. The special permit decision is made on the basis of a concept plan, and is followed by review of a definitive subdivision plan under the Board's rules and regulations.

General requirements.

The Planning Board may authorize by special permit an open space preservation development as an alternative to conventional subdivision.

To be eligible for the open space preservation development option, a tract of land shall contain at least five acres, shall be located within the Residence 1, 2 or 3 (R-1, R-2, or R-3) Districts, and shall be serviced by Town water.

The maximum number of building lots permitted in an open space preservation development shall be equal to the number of building lots which could be developed through a conventional subdivision of the tract, plus 10%. The burden of proof shall be upon the applicant in determining the allowable number of building lots, which shall be demonstrated through submission of a preliminary plan of the conventional subdivision. The Planning Board reserves the right to challenge the status of any lot.

For the purpose of open space preservation development under this section, the Planning Board may permit lots on directly opposite sides of a street to qualify as a single tract of land. To permit such division of a tract of land by a street, the Planning Board must find that this would comply with the purposes of this section and not result in any more dwelling units than would be possible in accordance with the provisions of this bylaw if the lots on each side of the street were developed separately. If the Board approves a tract of land divided by a street, it may permit the dwelling units to be concentrated on one side of the street and the permanent open space to be concentrated on the opposite side of the street.

No lot shown on a plan for which a special permit is granted under this section may be further subdivided, unless such special permit lapses or is rescinded.

Design principles and development standards.

Open space preservation developments shall be designed to preserve and protect sensitive natural resources such as wetlands, streams and floodplains.

A buffer area of natural vegetation of at least 100 feet in width shall be maintained or created adjacent to surface waters and wetlands.

A buffer area free of residential structures of at least 200 feet in width shall be maintained adjacent to surface waters.

Open space preservation developments shall be designed to preserve and protect important scenic and cultural features, including steep slopes, mature woodlands, prime farmland, meadows, wildlife habitats, historic and archaeological sites, and scenic views.

Buildings shall be sited within any woodland contained in the parcel or along the edges of the open fields adjacent to any woodland so as to reduce any impact upon the site's natural, scenic and cultural resources, and to enable new construction to be visually absorbed by the natural landscape features.

Buildings shall be sited in locations least likely to interrupt scenic vistas as seen from public roadways.

Open space preservation developments shall be designed in relation to their surroundings, so as to preserve existing wildlife corridors and ecosystems, and to be consistent with the Town's historical development patterns.

The landscape shall be preserved in its natural state, insofar as practicable, by minimizing tree and soil removal. 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, 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.

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 or off the subject parcel.

All landscaped or usable open space 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.

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.

(8)

Where an open space preservation development is created adjacent to an existing farm, or where the permanent open space in the development is intended to be used for agricultural uses, the development should be designed so as to protect the future viability of the land for farming.

Buildings and streets should be placed on the least fertile soils for agricultural uses, and in a manner which maximizes the usable area remaining for such agricultural use.

The open space preservation development should be laid out in such a manner that the common boundary between the new house lots and agricultural land is minimized in length, in order to reduce potential conflicts between the two uses.

Buffer zones at least 75 feet in width shall be maintained between residential and agricultural uses and shall be planted with native shrubs and trees to create an effective barrier separating yards from fields and pastures.

(9)

Septic systems shall be placed on the most suitable soil for subsurface septic disposal.

Design process. Design of an open space preservation development shall follow the four-step process described in this subsection. This process emphasizes principles of good landscape design and recognizes the intrinsic importance of the natural, scenic and cultural resources on the site. Applicants shall demonstrate to the Planning Board that this design process was performed by a registered landscape architect and was considered in determining the layout of proposed open space, house lots, and streets.

Step One: Identify conservation areas and potentially developable areas. The open space preservation development shall, to the extent feasible, preserve the most sensitive and noteworthy natural, scenic, and cultural resources on the property.

First, identify and delineate resource areas to be protected, including:

Resource areas regulated by state or federal law, including wetlands and floodplains;

Unprotected elements of the natural landscape, such as steep slopes, mature woodlands, prime farmland, meadows and wildlife habitats; and

Important cultural features such as historic and archeological sites and scenic views.

Then, delineate potentially developable areas of the site. To the maximum extent feasible, these shall consist of land outside the resource areas identified above.

Step Two: Locate house sites. Locate the approximate sites of individual houses within the potentially developable area and include the delineation of private yards and shared amenities, so as to reflect an integrated community, with emphasis on consistency with the Town's historical development patterns. The number of homes enjoying the amenities of the development should be maximized.

Step Three: Align streets and trails.

Align streets in order to provide vehicular access to each house in the most reasonable and economical way. When lots and access streets are laid out, they shall be located in a way that minimizes adverse impacts on open space. The creation of single-loaded residential access streets is encouraged, in order that the maximum number of homes in new developments may enjoy views of open space. Wetlands crossings are strongly discouraged.

Additionally, new trails should be laid out to create internal and external connections to existing and/or potential future streets, sidewalks, and trails.

Step Four: Delineate lot lines. Draw in the lot lines, where applicable. These are generally drawn midway between house locations.

Intensity requirements.

The Planning Board may grant a reduction of all intensity regulations of the underlying zoning regulations for all portions of an open space preservation development if the Planning Board finds that such reduction will result in better design and improved protection of natural and scenic resources, and will otherwise comply with this bylaw, provided that the open space preservation development as a whole shall meet the minimum average requirements in Subsection F(2) and in no instance shall any lot deviate from the minimum requirements in Subsection F(3). Any appurtenances such as accessory buildings and swimming pools shall comply with the dimensional requirements of the underlying zoning district.

Minimum average dimensional requirements. Minimum average frontage of all lots in the open space preservation development: 100 feet. Minimum average building setback from public ways within the open space preservation development: 30 feet.

Minimum dimensional requirements for individual lots within the open space preservation development.

Minimum lot area: 20,000 square feet.

Minimum lot frontage: 50 feet.

Minimum building setbacks:

From any boundary line of the open space preservation development: 30 feet.

From the permanent open space: 30 feet.

From a public way within the open space preservation development: 20 feet.

From a lot line within the open space preservation development: 25 feet.

Regardless of the setback requirements specified in Subsection F(3), all dwellings shall be separated from each other by at least 50 feet.

The Planning Board may require larger setbacks than specified in Subsection F(3) if it finds that such increased setbacks are required to promote the purposes of this section.

Lots having reduced area or frontage shall not have frontage on a street other than a street created by the open space preservation development.

Where the tract contains a preexisting residential structure, the area and frontage of the lot on which such structure is located after development of the open space preservation development shall not be reduced below the minimum lot size and minimum frontage required in the underlying zoning district.

Streets and utilities.

All streets, sewage and drainage facilities, and other utilities shall be designed and constructed in compliance with the Town of Norfolk Subdivision Rules and Regulations.[2]

Editor's Note: See Ch. 325, Subdivision of Land and Site Plan Approval Regulations.

Exceptions to the Subdivision Rules and Regulations may be authorized by the Planning Board in granting a special permit hereunder, provided that the Board determines such exceptions are in the public interest and are not inconsistent with the purposes of this section.

Permanent open space.

Requirement to provide permanent open space. A tract of land developed as an open space preservation development shall contain land set aside as permanent open space for the use of the open space preservation development residents or the general public, as further specified in this subsection.

Minimum required area of permanent open space.

The minimum required amount of permanent open space shall be computed as follows:

0.80 x T x (1 - A/M)

Where:
T	=	Total area of the tract of land
A	=	Average area of all building lots in the development
M	=	Minimum lot size from § 310-5.1B (Schedule of Dimensional Regulations)
In no case, however, shall the permanent open space be less than 25% of the total area of the tract of land.

The minimum required area of permanent open space shall not contain a greater percentage of wetlands (as defined in MGL c. 131) or land included within the Floodplain Protection District (see § 310-4.5) than the percentage of such areas found in the overall tract of land on which the open space preservation development is located.

Design of permanent open space.

Permanent open space shall be planned as large, contiguous parcels whenever possible. Strips or narrow parcels of permanent open space shall be permitted only when necessary for providing access to the permanent open space from a public way, or if the Planning Board finds that a vegetated buffer strip along the site's perimeter is appropriate and consistent with the purpose of open space preservation development.

Permanent open space may be set aside in more than one parcel, provided that the size, shape and location of such parcels are suitable for the designated uses.

If the tract of land abuts adjacent permanent open space or undeveloped lots, the permanent open space shall be connected with such adjacent permanent open space and with such undeveloped abutting lots.

The permanent open space shall include adequate upland access from a way or street.

Use of the permanent open space.

The permanent open space shall be dedicated and used for natural resource protection, recreation, park purposes, outdoor education, agriculture, horticulture or forestry, or for any combination of such uses. No other uses shall be allowed in the permanent open space, except as follows:

A portion of the permanent open space may be also be used for the construction of leaching areas associated with septic disposal systems serving the open space preservation development or for water supply wells serving the open space preservation development, if the Planning Board determines that such use will enhance the specific purpose of open space preservation and promote better overall site planning. Septic disposal easements shall be no larger than reasonably necessary. If any portion of the permanent open space is used for the purpose of such leaching areas or wells, the Planning Board shall require adequate assurances and covenants that such facilities shall be maintained by the lot owners within the open space preservation development.

A portion of the permanent open space may also be used for ways serving as pedestrian walks, bicycle paths and emergency access or egress to the open space preservation development or adjacent land, if the Planning Board determines that such a use will enhance the specific purpose of open space preservation and promote better overall site planning, and if the Planning Board finds that adequate assurances and covenants exist to insure proper maintenance of such facilities by the owner of the permanent open space.

The permanent open space may be subject to easements for the construction, maintenance, and repair of utility and drainage facilities serving the open space preservation or adjacent parcels.

Notwithstanding other requirements of 310 CMR 22.02 as it relates to Zone II wellhead protection, the permanent open space may be included in the area required for the purpose of the computation of the capacity of septic systems.

The permanent open space shall remain unbuilt upon, provided that an overall maximum of 5% of such land may be subject to pavement and structures accessory to the dedicated use or uses of the permanent open space.

Areas to remain as naturally existing woods, fields, meadows or wetlands shall be maintained and may be improved in accordance with good conservation practices.

The proposed use of the permanent open space shall be specified on a land use plan, and appropriate dedications and restrictions shall be part of the deed to the permanent open space.

The Planning Board shall have the authority to approve or disapprove particular uses proposed for the permanent open space in order to enhance the specific purposes of open space preservation, and to further efforts to equitably distribute a variety of open space benefits throughout the community.

Ownership of permanent open space.

The permanent open space shall be conveyed in whole or in part to the Town of Norfolk and accepted by it; or to a nonprofit organization, the principal purpose of which is the conservation of open space and/or any of the purposes and uses to which the permanent open space is to be dedicated; or to a corporation or trust owned or to be owned by the owners of the dwelling units within the open space preservation. The Planning Board shall approve the form of ownership of the permanent open space.

If any portion of the permanent open space is not conveyed to the Town of Norfolk, a perpetual restriction, approved by the Planning Board and enforceable by the Town of Norfolk, shall be imposed on the use of such land, providing in substance that the land be kept in its open or natural state and that the land shall not be built upon or developed or used except in accordance with provisions of an open space preservation development as set forth herein and, if applicable, as further specified in the decision of the Planning Board governing the individual open space preservation development. If the applicant, with the approval of the Planning Board, keeps the open space in private ownership subject to the imposition of a conservation restriction, the applicant shall be responsible for obtaining the approval of the Executive Office of Energy and Environmental Affairs (EEA) relative to the restriction, including the submission of the proposed form of restriction, all application forms, inspection reports, photographs, maps or other supporting documentation as EEA may require. The Planning Board may require as a condition of any special permit issued under this section that the conservation restriction be accepted by the Conservation Commission or Select Board, approved by EEA, and recorded in the Registry of Deeds or Land Court, before any building permit is issued for any lot within the open space preservation development.

[Amended 5-10-2022 ATM by Art. 21]

The proposed ownership of all permanent open space shall be shown on the land use plan for the open space preservation development.

At the time of its conveyance, the permanent open space shall be free of all encumbrances, mortgages or other claims, except as to easements, restrictions and encumbrances required or permitted by this bylaw.

Maintenance of permanent open space. If the permanent open space is to be held by a homeowners' association, a management plan shall be prepared establishing responsibilities and schedules for maintenance of the permanent open space.

Procedures.

General. An application for an open space preservation special permit shall cover the entire open space preservation development.

Preapplication.

Conference. The applicant is very strongly encouraged to request a preapplication review at a regular business meeting of the Planning Board. The purpose of a preapplication review is to minimize the applicant's costs of engineering and other technical experts, and to commence negotiations with the Planning Board at the earliest possible stage in the development. At the preapplication review, the applicant may outline the proposed open space preservation development, seek preliminary feedback from the Planning Board and/or its technical experts, and set a timetable for submittal of a formal application. At the request of the applicant, and at the expense of the applicant, the Planning Board may engage technical experts to review the informal plans of the applicant and to facilitate submittal of a formal application for an open space preservation development special permit.

Submittals. In order to facilitate review of the open space preservation development at the preapplication stage, applicants are strongly encouraged to submit the site context plan [described in Subsection I(3)(b) below] and the site analysis plan [described in Subsection I(3)(c) below]. In addition, applicants are invited to submit additional information that will assist the Planning Board to understand the proposed development, which may include preliminary versions of the concept plan and/or yield plan.

Site visit. Applicants are encouraged to request a site visit by the Planning Board and/or its agents in order to facilitate preapplication review of the open space preservation development. If one is requested, the Planning Board shall invite the Conservation Commission, Board of Health, and other appropriate boards and committees.

Design criteria. The design principles, process and standards set forth in Subsections D through H should be discussed by the parties at the preapplication conference and site visit.

Application. An application for a special permit for an open space preservation development shall consist of five parts: applications form(s), site context plan, existing conditions/site analysis plan, concept plan, and yield plan. Additional information reasonably necessary to make the determinations and assessments cited herein shall be provided, including existing site contour plans and current soil maps.

Application form. The application shall be submitted on the form(s) provided by the Planning Board in accordance with the rules and regulations of the Board.

Site context plan. The site context plan illustrates the parcel in connection to its surrounding neighborhood. Based upon existing data sources and field inspections, it should show various kinds of major natural resource areas or features that cross parcel lines or that are located on adjoining lands. This plan enables the Planning Board to understand the site in relation to what is occurring on adjacent properties.

Site analysis plan. The site analysis plan familiarizes officials with existing conditions on the property. Based upon existing data sources and field inspections, this plan locates and describes noteworthy resources that should be left protected through sensitive subdivision layouts. These resources include wetlands, riverfront areas, floodplains and steep slopes, but may also include mature, under-graded woodlands, hedgerows, farmland, unique or special wildlife habitats, historic or cultural features (such as old structures or stone walls), unusual geologic formations and scenic views into and out from the property. By overlaying this plan onto a development plan the parties involved can clearly see where conservation priorities and desired development overlap or conflict.

Concept plan. The concept plan shall be prepared by a registered landscape architect, or by a multidisciplinary team of which one member must be a registered landscape architect, and shall address the general features of the land, and give approximate configurations of the lots, open space, and roadways. The concept plan shall incorporate the design principles described in Subsection D and the design process described in Subsection E when determining a proposed design for the development.

Yield plan. The yield plan shall show the maximum number of lots that could be placed upon the site under a conventional subdivision. The yield plan shall contain the information required for a concept plan as set forth above. The proponent shall have the burden of proof with regard to the number of lots shown on the yield plan.

Planning Board action.

Evaluation criteria. In evaluating the proposed open space preservation development, the Planning Board shall consider:

The general purpose and objectives of this bylaw;

The existing and probable future development of surrounding areas;

The appropriateness of the proposed layout of streets, lots and structures; and

The proposed layout and use of the permanent open space in relation to the proposed dwelling units in the open space preservation development, adjoining public or private permanent open space or other open space, or the topography, soils and other characteristics of the tract of land in question.

Findings. The Planning Board may grant a special permit for an open space preservation development only if it finds that the open space preservation development:

Is consistent with the general purpose and intent of the Zoning Bylaw and with the specific purposes of this section;

Complies with all the requirements of this section, other applicable requirements of the Zoning Bylaw and, where applicable, the construction and design standards of the Norfolk Subdivision Regulations;[3]

Editor's Note: See Ch. 325, Subdivision of Land and Site Plan Approval Regulations.

Is in harmony with the existing and probable future uses of the area and with the character of the surrounding area and neighborhood;

Is superior to a conventional plan in preserving open space, minimizing environmental disruption, and allowing for more efficient provision of services; and

[5]

Will not exceed by more than 10% the number of house lots that could be developed under standard lot area and frontage requirements.

Conditions of approval. In granting a special permit, the Planning Board may require such changes in the proposed development plans and may impose such conditions and safeguards as it deems necessary to secure the objectives of this bylaw, and to protect the health, safety and welfare of the inhabitants of the neighborhood and of the Town of Norfolk. Such conditions may include, without limitation:

Approval of any wetlands delineation by an order of conditions/request for determination of applicability by the Norfolk Conservation Commission;

Measures to ensure the maintenance of scenic views and vistas;

Designation of no-cut or limited clearing areas in lots; and

Granting of easements providing and defining rights of public access.

Permanent open space ownership. The Planning Board shall state in its decision the ownership and management of the permanent open space, and said open space ownership shall be recorded in the Registry of Deeds.

Site plan approval for open space and recreation uses. Specific approval of the uses allowed in the permanent open space and recreational structures such as tennis courts, swimming pools, accessory clubhouses, or any other structures shall be submitted to the Planning Board for site plan approval.

(f)

Relationship between special permit concept plan and definitive subdivision plan. The open space preservation special permit shall be reconsidered if there is substantial variation between the definitive subdivision plan and the concept plan. If the Planning Board finds that a substantial variation exists, it shall hold a public hearing on the modifications to the concept plan. A "substantial variation" shall be any of the following:

Any increase in the number of building lots;

A decrease of more than 5% in the open space acreage;

Any change in the lot layout which results in the potential relocation of a building site by more than 100 feet, or by more than 50 feet if any part of the lot is within 300 feet of the boundary of the open space preservation development;

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; and/or

[6]

Significant changes in the wastewater management systems.

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 Planning Board. A new or amended special permit will be required if the Planning Board determines any proposed change to be substantial.

§ 310-8.3 Affordable housing development.

No land for which a special permit for an open space preservation has been granted shall be further subdivided, unless such special permit lapses or is rescinded.

Building permits. No building permit for any structure within an approved open space preservation development shall be issued without the written approval of the Planning Board.

Rules and regulations. The Planning Board may adopt and amend reasonable rules and regulations for the administration of this section, including a schedule of fees.

[Amended 6-27-2020 ATM by Art. 20; 5-8-2021 ATM by Art. 29; 5-8-2021 ATM by Art. 22; 5-10-2022 ATM by Art. 21; 11-12-2025 STM by Art. 13]

Purpose and intent. The purpose of this bylaw is to encourage development of new housing that is affordable to low- and moderate-income households. At minimum, affordable housing produced pursuant to this § 310-8.3 shall be eligible for inclusion in the Town's Subsidized Housing Inventory as kept by the Executive Office of Housing and Livable Communities (EOHLC) or the successor agency thereto.

Applicability. In any residential project containing six or more dwelling units, within any district and under any portion of the Zoning Bylaws, the developer shall be required to provide not less than 10% affordable housing units. This bylaw does not apply to any development for which a complete application for a special permit, a subdivision of land, or a plan of land that does not require Planning Board approval MGL c. 41, § 81P, has been submitted to the Town Clerk prior to the adoption of this bylaw by Town Meeting. No project may be divided or phased to avoid the requirement of this section. A fractional unit of 0.5 or more shall be rounded up to the next whole unit.

*	The construction of affordable units shall be commensurate with the construction of market-rate units. Should projects be constructed in phases, each phase shall contain the same proportion of affordable units to market-rate units as the overall development.

Special permit. The development of any project set forth in Subsection B (above) shall require the grant of a special permit from the Planning Board. A special permit shall be granted if the proposal meets the requirements of this bylaw. An application shall be filed simultaneously for any project set forth in Subsection B or within 90 days after said project(s) is approved and no appeals taken. If appeal is taken, a special permit does not need to be applied for until said appeal is resolved. The application procedure for the special permit shall be as defined in § 310-7.4.

Mandatory provision of affordable units.

As a condition of approval for a special permit, the applicant shall contribute to the local stock of affordable unit in accordance with the following requirements:

In a division of land or multiple unit development subject to this bylaw, affordable housing units as set forth in § 310-8.3B shall be provided for as set forth below:

Constructed or rehabilitated on the locus subject to the special permit (see § 310-8.3E); or

Constructed or rehabilitated on a locus different than the one subject to the special permit (see § 310-8.3F); or

Contribution of funds to the Norfolk Municipal Affordable Housing Trust Fund to be used for the creation of affordable housing in lieu of construction and offering affordable units within the locus of the proposed development. For the purposes of this bylaw, the cash payment per affordable unit required shall be a minimum of $350,000 per required affordable housing unit. The Planning Board may consult with the Norfolk Affordable Housing Trust about the payment in lieu amount as to whether or not a payment in lieu is preferable to an affordable unit on or off site. Where the calculation of affordable units results in a fractional unit below 0.5, a cash payment may be made as provided in this section on a pro rata basis. The cash payment formula and timetable may be adjusted by the SPGA from time to time through the issuance of guidelines or regulations. If the SPGA issues a special permit to authorize a cash payment in lieu of units and the Board of Trustees of Norfolk Municipal Affordable Housing Trust Fund accepts said contributions, the payment shall be paid to the Norfolk Affordable Housing Trust Fund prior to the issuance of any building permits for the development or prior to the sale of any lots, if applicable. Alternatively, the SPGA may allow payment of said contributions according to a specified timetable in proportion to the rate of development or sale of lots.

The applicant may offer, and the SPGA may accept, any combination of the § 310-8.3D(1)(a)[1] through [3] requirements, provided that in no event shall the total number of units provided be less than the equivalent number of affordable units required by this bylaw.

As a condition for the granting of a special permit, all affordable housing units shall be subject to an affordable housing restriction and a regulatory agreement in a form acceptable to the Planning Board. The regulatory agreement shall be consistent with any applicable guidelines issued by the EOHLC and shall ensure that affordable units can be counted towards the Norfolk's Subsidized Housing Inventory.

The regulatory agreement shall also address all applicable restrictions of § 310-8.3H of this bylaw. The special permit shall not take effect until the restriction, the regulatory agreement and the special permit are recorded at the Registry of Deeds and a copy provided to the Planning Board.

Provisions applicable to affordable housing units on- and off-site.

Siting of affordable units. All affordable units constructed or rehabilitated under this bylaw shall be situated within the development so as not to be in less desirable locations than market-rate units in the development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate units. The affordable units shall be located within the subdivision unless otherwise waived by the SPGA. If such a waiver is granted, it shall be subject to § 310-8.3F (Provision of affordable housing units off-site). The affordable units shall not be replaced with market-rate units within the subdivision unless the developer demonstrates, to the satisfaction of the SPGA, that doing so will create a clear benefit to the Town.

Minimum design and construction standards for affordable units. Affordable housing units shall be integrated with the rest of the development and shall be compatible in design, appearance, construction, and quality of materials with other units.

Timing of construction or provision of affordable units or lots. Where feasible, affordable housing units shall be provided coincident to the development of market-rate units.

Marketing plan for affordable units. Applicants under this section shall submit a marketing plan or other method approved by the Town through its local Comprehensive Plan, to the SPGA for its approval, which describes how the affordable units will be marketed to potential home buyers or tenants. This plan shall include a description of the lottery or other process to be used for selecting buyers or tenants.

Provision of affordable housing units off-site. As an alternative to the requirements of Subsection E, an applicant subject to this section may develop, construct or otherwise provide affordable units equivalent to those required by Subsection D off-site. All requirements of this section that apply to on-site provision of affordable units shall apply to provision of off-site affordable units. In addition, the location of the off-site units to be provided shall be approved by the SPGA as a condition of the special permit review and approval process. If off-site affordable units are approved, the SPGA may allow replacement of affordable units on-site with equivalent market-rate units if the developer demonstrates, to the satisfaction of the SPGA, that doing so will create a clear benefit to the Town.

Maximum incomes and selling prices; initial sale.

To ensure that only eligible households purchase affordable housing units, the purchaser of an affordable unit shall be required to submit copies of the last three years' federal and state income tax returns and certify, in writing and prior to transfer of title, to the developer of the housing units or his/her agent, and within 30 days following transfer of title, to the local housing trust, community development corporation, housing authority or other agency as established by the Town that his/her or their family's annual income level does not exceed the maximum level as established by the commonwealth's EOHLC, and as may be revised from time to time.

The maximum housing cost for affordable units created under this bylaw is as established by the commonwealth's EOHLC, Local Initiative Program, or as revised by the Town.

Preservation of affordability; restrictions on resale. Each affordable unit created in accordance with this section shall have limitations governing its resale. The purpose of these limitations is to preserve the long-term affordability of the unit and to ensure its continued availability for affordable income households. The resale controls shall be established through a restriction on the property and shall be in force in perpetuity.

Right of first refusal to purchase. The purchaser of an affordable housing unit developed as a result of this section shall agree to execute a deed rider prepared by the Town, consistent with model riders prepared by EOHLC, granting, among other things, the municipality's right of first refusal to purchase the property in the event that a subsequent qualified purchaser cannot be located.

§ 310-8.4 Priority development site permitting.

The SPGA shall require, as a condition for special permit under this section, that the applicant comply with the mandatory set-asides and accompanying restrictions on affordability, including the execution of the deed rider noted in Subsection H(1) above. The Building Commissioner/Zoning Enforcement Officer shall not issue an occupancy permit for any affordable unit until the deed restriction is recorded.

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

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

Proof of eligibility and inclusion. No special permit issued under this section shall be effective unless and until the applicant provides evidence that the approved affordable units are eligible for inclusion on the Town's Subsidized Housing Inventory as kept by the EOHLC.

[Amended 5-10-2022 ATM by Art. 21]

This section is established under MGL c. 43D, Expedited Permitting, and applies to specific priority development sites (PDS) which have been designated by prior Town Meeting approval. The 43D statute requires the municipality to issue decisions on all PDS projects within 180 days of an application being deemed complete. This includes but is not limited to orders of conditions and wetland decisions issued by the Conservation Commission, special permits issued by the ZBA and/or Planning Board, site plan review issued by the Planning Board, flammable materials license issued by the Fire Chief, Historical Commission decisions and Title 5 and septic decisions by the Board of Health.[1] Building permits and approval not required (ANR) plan approval and subdivisions under the Subdivision Control Law[2] are not affected by this statute.

Council established. There shall be established a Development Review Coordination Council (DRCC) consisting of members who reside in Norfolk or work for the Town of Norfolk, who shall be sworn to the faithful performance of their duties. This Council will review 43D priority development site (PDS) applications.

Council members.

The Development Review Coordinating Council shall be comprised of the following:

Fire Chief or designee.

Zoning Enforcement Officer.

Police Chief or designee.

Chair of the Board of Health or designee.

Chair of the Conservation Commission or designee.

(f)

Chair of the Planning Board or designee.

(g)

Chair of the Zoning Board of Appeals or designee.

(h)

Representative of the Select Board.

(i)

DPW Director or designee.

(j)

Town Administrator.

(k)

43D contact person.

At the discretion of the Town Administrator, other Town boards/committees/departments/agencies, including but not limited to Design Review Board, Historical Commission, or their agents and the Town's Engineer and Planner, may also be represented.

The mission statement. The Council shall be available to meet with developers, businesses, property owners and/or their agents who have submitted an application for a development project within a designated PDS. The Council shall review plans and applications to determine whether they are deemed complete to start the 180-day time line. The goal is to encourage private investment in Norfolk by providing for more coordinated project review and permitting procedures.

Convened. The Council shall be convened by the 43D contact person or upon request of any Council member based upon an application for development of a PDS.

Procedures. The Council may establish internal procedures and develop other tools to facilitate permitting review and coordination.

Operating guidelines. The Council may establish its own operating guidelines relative to scheduling, participation and coordination.

Editor's Note: See 310 CMR 15.00.

§ 310-8.5 Town Hill/Pondville MBTA Communities Multi-Family Overlay District.

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

[Added 5-15-2024 ATM by Art. 25; amended 5-14-2025 ATM by Art. 34]

Purpose. The purpose of the Town Hill/Pondville MBTA Communities Multi-family Overlay District (THPMOD) is to allow multifamily housing as of right in accordance with Section 3A of the Zoning Act (Massachusetts General Laws Chapter 40A). This zoning provides for as-of-right multifamily housing to accomplish the following purposes:

Encourage the production of a variety of housing sizes and types to provide equal access to new housing throughout the community for people with a variety of needs and income levels.

Support vibrant neighborhoods by encouraging an appropriate mix and intensity of uses to support an active public space that provides equal access to housing, jobs, gathering spaces, recreational opportunities, goods, and services within a half-mile of a transit station.

Locate housing within walking distance to Norfolk Station and within walking distance to the Route 115/Route 1A commercial corridor to promote general public health, reduce the number of vehicular miles traveled, support economic development, and meet community-based goals.

Minimize impacts of new development by promoting new housing options in strategic locations and through reuse opportunities.

Promote commercial and residential development to increase vibrancy in Norfolk Town Center.

Support public investment in public transit and pedestrian- and bike-friendly infrastructure.

Increase the municipal tax base through private investment in new residential developments.

Establishment and applicability.

The THPMOD is an overlay district have a land area of approximately 89 acres in size that is superimposed over the underlying zoning district(s) and is shown on the Zoning Map.

Applicability of the THPMOD. An applicant may develop multifamily housing located within overlay district in accordance with the provisions of this section.

Underlying zoning. The regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the respective underlying zoning district(s) shall remain in full force, except for uses allowed as of right in the THPMOD. Uses that are not identified in § 310-8.5C are governed by the requirements of the underlying zoning district(s). The Planning Board shall have the authority to waive the underlying zoning district(s) requirements that conflict with the purposes of § 310-8.5 and/or make development infeasible.

Use permitted as of right.

Multifamily housing.

Dimensional requirements.

The maximum allowable density is 18 dwelling units per acre for the THPMOD.

All dimensional requirements pursuant to §§ 310-9.2, 310-9.4A and B, 310-10.2, and 310-10.4 shall apply unless waived by the Planning Board.

Off-street parking requirements.

All the off-street parking requirements pursuant to §§ 310-6.7, 310-6.8, 310-9.6, and 310-10.6 shall apply unless waived by the Planning Board.

Site plan approval.

All project(s) within the THPMOD are subject to § 310-6.11.

Affordable housing.

All multifamily housing developments in the THPMOD containing 10 or more dwelling units, whether new construction, substantial rehabilitation, expansion, reconstruction or residential conversion (an "applicable project") shall contain not fewer than 10% affordable housing units.

For purposes of calculating the required number of units of affordable housing within a particular development, a fractional unit shall be rounded down to the next whole number.

The affordable units shall be available to households earning income up to 80% of area median income (AMI).

All affordable units must be eligible for inclusion on EOHLC's Subsidized Housing Inventory.

No project may be divided or phased to avoid the requirements of this section.

Affordable units shall be:

Integrated with the rest of the development and shall be compatible in design, appearance, construction, and quality of exterior and interior materials with the other units and/or lots;

Dispersed throughout the development;

Located such that the units have equal access to shared amenities, including light and air, and utilities (including bicycle storage and/or electric vehicle charging stations) within the development;

Located such that the units have equal avoidance of any potential nuisances as market rate units within the development;

Distributed proportionately among unit sizes; and

(f)

Distributed proportionately across each phase of a phased development.