Town of Millbury, MA Article 4 SPECIAL REGULATIONS

Section 41 Home Occupations.

[Bylaws of 5-5-2009, Art. 34; Bylaws of 5-6-2014, Art. 34]

Home occupations are permitted if no more than 25% of the floor area of the residence is used for the occupation, not more than one person not a member of the household is employed on the premises in the occupation, there is no exterior display or storage or other variations from the residential character of the premises other than one non-illuminated wall sign or freestanding sign not exceeding two square feet in area, traffic generated does not exceed that normally expected in a residential neighborhood, and all parking required to service the occupation is provided off-street, other than within a required front yard. No equipment, process or activity shall be used in such home occupation which creates noise, vibration, glare, noxious odors, and electrical interference or otherwise disrupts the neighborhood integrity.

Section 42 Assisted Living Facility.

[Bylaws 5-1-2007, Art. 51; Bylaws of 5-5-2009, Art. 48]

42.1 Applicability.

The Planning Board may grant a special permit for the construction and occupancy of an Assisted Living Facility (ALF), provided that it is served by public water, in a Residential I, Residential II, Residential III, Suburban I, Suburban II, Suburban III, Suburban IV, Bramanville Village, Business I, Business II and Industrial I District subject to the requirements set forth herein. In Residential and Suburban Districts, an ALF shall be located on at least three contiguous acres. In all other eligible districts, the minimum lot size shall control.

42.2 Purpose and Intent.

The purpose of this section is to provide a mechanism for the approval of:

1. Assisted living facilities (ALF) within a residential environment that offer supportive services to individuals who are unable to live independently in the community by offering supervision and/or assistance with basic activities of daily life, such as, but not limited to, dressing, bathing, toileting, and nutrition; and

2. The development of ALF in a manner that encourages the renovation and rehabilitation of older, existing buildings; and

3. The development of ALF in a manner harmonious with the surrounding land uses while protecting natural resources and open space.

42.3 Use Requirements.

Accessory uses for in-house residential services may be provided including, but not limited to, the following: beauty and barber salons, recreation, social services, physical fitness and therapy services, adult day care or adult day health facility, nondenominational chapel; library, bank automated teller machine, management offices, hospice residence, food service, small convenience store, cleaning and housekeeping, laundry, transportation, education; provided, however, that such accessory uses shall be designed for the primary use of the residents and staff of the ALF. Such accessory uses may not be designed for or used as a general business by the general public. Such accessory uses shall not have exterior advertising display.

42.4 Professional and Technical Review.

The Board may hire professional and technical consultants to assist the Board in analyzing an ALF to ensure compliance with all relevant laws, bylaws and regulations. Such assistance may include, but not be limited to, analyzing an application, or monitoring or inspecting a project or site for compliance with the Board's decision or regulation. The expenses for engaging professional and technical assistance and review in connection with an ALF shall be borne by the Applicant.

42.5 Application Procedure.

Applicants are required to submit a special permit application and development plan, conforming to the requirements of this bylaw. The development plan shall include a site plan and associated documents specified under Section 12.4, Site Plan Review, and the following additional information:

1. A plan at a scale of one inch equals 40 feet showing the topography of the site at a minimum of one-foot intervals, as well as vegetation and special features, including wetlands, perennial streams and ponds, trees of more than eight-inch caliper, rock outcroppings, stone walls, outstanding vistas, archaeological and historic features, slopes in excess of 15%, existing and proposed trails and paths, open vistas, biological or wildlife habitats, and proposed conservation and recreation easement areas;

2. A proposed development schedule showing the beginning of construction, the rate of construction and development, including stages, if applicable, and the estimated date of completion;

3. Information pertaining to any organization which the Applicant proposes to form where the development is to be a condominium development, including forms and plans to be used to organize and manage the same, for approval as to form by Town Counsel;

4. Copies of all proposed covenants, easements, and other restrictions which the Applicant proposes to grant to the Town, the Conservation Commission, utility companies, any condominium organization and the owners thereof, including plans of land to which they are intended to apply, for approval as to form by Town Counsel;

5. Any and all other information that the Planning Board may reasonably require in form acceptable to it to assist in determining whether the Applicant's proposed development plan meets the objectives of this section.

42.6 Design Standards.

In addition to the Design Standards set forth in Section 12.4, Site Plan Review, the following design standards shall apply to all ALFs and shall govern the development and design process.

1. Open Space Requirements: At least 35% of the parcel containing the ALF shall be contiguous open space. The Planning Board may require that at least half of the open space be left in a natural state. Not less than 50% of the land preserved for open space shall contain buildable land as defined in Section 44.11.

2. Buffer Areas: In all districts, a buffer area of 50 feet shall be provided at the perimeter of the property, except for driveways necessary for access and egress to and from the site; and a buffer of 100 feet shall be provided at certain resource areas on or adjacent to the tract including lakes, ponds, wetlands, streams, and rivers.

The Planning Board may waive, reduce or increase the buffer requirements where it determines that a larger or smaller buffer (or no buffer) is necessary, or will suffice, to accomplish the objectives set forth herein. Buffer areas shall be retained in their natural vegetative state to the maximum extent feasible.

3. On-site Pedestrian Circulation. Walkways or trails shall be provided to link residences with parking areas, accessory uses, and adjacent land uses where appropriate. Walkways or trails shall be attractively designed with proper regard for convenience, safety, adequate connectivity, and completeness of access to the various amenities and facilities on the site and to pathways on adjacent sites.

4. Protection of Natural and Cultural Features. All natural and cultural features, such as stone walls, trees, wooded areas, water courses, scenic points, and historic spots, shall be preserved as much as possible. Any clearance, backfilling, cutting, thinning or other disturbance to trees eight inches or greater in diameter measured four feet above finished ground level, located within the minimum front setback distance, shall be prohibited unless deemed proper by the Board. Any such proposed clearance shall be shown on the plan and written reasons therefor may be requested by the Board.

5. Access Ways and Associated Infrastructure. The access way(s) and associated infrastructure within the site shall be adequate for the intended use and vehicular traffic and shall conform to the Design and Construction Standards specified for a sub-collector in the Millbury Rules and Regulations Governing the Subdivision of Land. Access ways and associated infrastructure shall be perpetually owned and maintained by an association of unit owners or by the Applicant and his successors in interest.

6. Building Configuration. An ALF may consist of a single building or multiple buildings containing residential units and ancillary service facilities (i.e., kitchens, dining rooms, recreation areas, nursing stations, reception areas, and management offices). If multiple buildings are proposed, they shall be clustered together.

7. Parking. The applicant shall provide adequate parking to serve all anticipated uses on the property, with information detailing the method of computation of parking spaces. The minimum number of parking spaces provided on the site shall be 0.7 parking spaces per dwelling unit in an ALF. All parking areas shall be screened from view from adjacent residentially zoned or occupied premises located outside the site, including public ways.

8. Utilities. All dwelling units shall be served by public water, municipal sewer service or an on-site waste treatment facility (package treatment plant) approved by the Massachusetts Department of Environmental Protection (DEP).

9. Emergency Systems. The ALF shall have an integrated emergency call, telephone and other communications system to provide monitoring for its residents. There shall be sufficient site access for public safety vehicles. A plan shall be approved by the Fire Department for the emergency evacuation of the residents with emphasis on ensuring the safety of residents with physical impairments.

42.7 Maximum Number of Units.

The maximum number of units in an ALF shall not exceed 15 per acre of parcel size.

42.8 Density Bonus.

Applicants are encouraged to provide dwelling units permanently restricted to occupancy by persons who qualify as low or moderate income, as those terms are defined for the area by the Commonwealth's Department of Housing and Community Development. Such affordable units shall be integrated into the overall development of the ALF so as to prevent the physical segregation of such units. For every affordable unit, the applicant may add two market rate units, provided that in no event shall the total number of units exceed 40% of the maximum number of units prescribed in Section 42.7.

42.9 Dimensional Requirements.

Structures within an ALF shall adhere to the dimensional requirements specified in Article 2 of the Millbury Zoning Bylaws, except as follows:

1. The minimum separation between structures shall be 20 feet;

2. The maximum height of any structure shall be 35 feet and three stories.

42.10 Conversion of Existing Structures.

Notwithstanding any other provision(s) of this section, the Planning Board may authorize the appropriate reuse of buildings no longer needed or suitable for their original use, and to permit reuse as an ALF when compatible with the character of the neighborhood. Applicants wishing to convert existing structures to ALFs may do so, subject to a special permit, where such building(s) is located on a lot with at least 30,000 square feet of area. The Planning Board may permit expansion of the structure to the degree reasonably necessary to construct entryways and features to comply with A.D.A. requirements and fire escape and fire protection features.

Section 43 Motor Vehicle Services.

Motor vehicle service stations shall be granted a Special Permit only in conformity with the following:

1. No location shall be approved if a vehicular entrance or exit will be so located as to create unusual hazard. Egressing vehicles shall have at least 400 feet visibility in each travel direction, and no vehicular entrance or exit shall be located within 10 feet of a side lot line or within 50 feet of the intersection of sidelines of intersecting streets. Entrances and exits shall occupy not more than 40% of lot frontage, and shall be clearly channeled through use of curb planting areas or similar devices.

2. No location shall be approved if a vehicular entrance or exit will be so located as to cross a major pedestrian flow, such as sidewalks serving churches, schools, recreation areas, or compact retail districts.

3. There shall be adequate space off-street for not fewer than two cars to await service per filling position, and no service building shall be located within 40 feet of a street line.

4. Car Wash Requirements. Automatic car washes shall provide space for not less than 15 cars per washing lane to queue off-street, and where wastewater does not discharge directly into a public sewer, shall provide positive means of preventing water pollution.

Section 44 Open Space Community.

[Bylaws of 5-2-2006, Art. 49; Bylaws of 5-4-2010, Art. 19]

44.1 Applicability.

The Planning Board may grant Site Plan Approval for the construction and occupancy of an Open Space Community in a Residential I, Residential II, Residential III, Suburban I, Suburban II, Suburban III, and Suburban IV District, provided that the community contains at least 10 contiguous acres. The tract may be a subdivision or a division of land pursuant to Massachusetts General Laws Chapter 41, Section 81P, provided, however, that an Open Space Community may also be permitted where intended as a condominium on land not so divided or subdivided.

44.2 Purpose and Intent.

Primary purposes for Open Space Community, hereafter "OSC," are to advance the goals and policies of the Town of Millbury Master Plan and open space and recreation plan (both as most recently updated); to allow for greater flexibility and creativity in the design of resident developments; to facilitate the permanent protection of open space and natural, historic, and scenic resources; and to encourage a more economical and efficient form of development that is less sprawling, consumes less open land, does not tax community services unduly, respects a site's physical characteristics, and minimizes the total amount of disturbance to the site.

44.3 Use Requirements.

Uses to be permitted or permitted by Special Permit shall be as specified in Article 2. However, the Planning Board may, upon issuance of a site plan review special permit in accordance with Section 12.4, permit retail sales and services establishments and offices deemed by the Planning Board to primarily service the residents of the OSC in an OSC that contains at least 75 dwelling units. Not more than 5% of the overall non-business zoned land area of the OSC tract shall be allocated to such use, and at no time shall the gross floor area of all structures occupied for such uses exceed 5% of the gross floor area of all structures occupied within the non-business zoned portions of the development tract.

44.4 Multiple Dwellings on Any Lot.

The Planning Board may permit the erection of multiple single, two family and three family buildings designed or available for use for dwelling purposes on a lot within an OSC upon submission and approval of a plan in full conformance with this bylaw and Section 5.3 of the Millbury Rules and Regulations Governing the Subdivision of Land.[1]

[1] Editor's Note: See Section 5.3 of Chapter S, Subdivision of Land.

44.5 Professional and Technical Review.

The Board may hire professional and technical consultants to assist the Board in analyzing an OSC to ensure compliance with all relevant laws, bylaws and regulations. Such assistance may include, but not be limited to, analyzing an application, monitoring or inspecting a project or site for compliance with the Board's decision or regulation, or inspecting a project during construction or implementation. The expenses for engaging professional and technical assistance and review in connection with an OSC shall be borne by the Applicant.

44.6 Application Procedure.

1. Pre-Application Review. The applicant shall request a pre-application review with the Technical Review Committee and a second pre-application review with the Planning Board. The Technical Review Committee consists of the Town Planner, Director of Public Works, Building Inspector, Fire Chief, Police Chief, Sewer Superintendent, and a representative from the Planning Board and the water company overseeing the municipal system. The Planning Board will invite the Board of Health, the Conservation Commission and other interested persons, commissions and boards to attend the second pre-application meeting with the Planning Board and provide feedback to the applicant. The purpose of a pre-application review is to minimize the applicant's costs of engineering and to commence negotiations with the Planning Board and other departments, boards and commissions at the earliest possible stage in the development. In order to facilitate pre-application review, the applicant shall submit the pre-application materials specified in the Rules and Regulations Governing an Open Space Community. The applicant shall also request a site visit by the Technical Review Committee and Planning Board. The Planning Board shall notify the Board of Health, Conservation Commission, and other interested persons, commissions and boards about the site visit and invite them to attend.

2. Open Space Community Site Plan. Any person seeking approval for an OSC site plan shall file with the Planning Board an application meeting all the requirements of this section and the requirements of the Rules and Regulations Governing an Open Space Community. In accordance with the Millbury Planning Board Fee Schedule, a nonrefundable filing fee and technical review fee shall be paid to the Town of Millbury. The technical review fee shall be paid to the Town of Millbury for deposit into a special account established by the Town Treasurer under M.G.L. Chapter 44, Section 53G. The balance of this account shall at no time be less than 1/2 the initial deposit, and the applicant shall deposit with the Treasurer such additional funds as are required to restore the account to the amount of the initial deposit upon notice from the Board, by first class mail, that the amount on deposit has been decreased by the expenditures described herein to an amount at or below 1/2 of the initial deposit. If the applicant fails to restore the account balance and the balance is insufficient to pay incurred professional and technical review fees, the Board shall send the invoice directly to the applicant. The Board shall not authorize additional professional or technical work until outstanding invoices are paid. Ninety days following the Board's issuance of a denial or Certificate of Completion, any excess amount in the account attributable to that project, including any interest accrued, shall be repaid to the applicant or the applicant's successor in interest.

The application shall contain an OSC Site Plan consisting of a Sketch Plan and a Yield Plan. Incomplete plans shall not be considered submittals and shall not be considered the start of any time limits within which the Board is required to act.

Within seven days of submission of a completed application, the Planning Board shall refer the application to the Conservation Commission, Fire Department, Building Department, Highway Department, Sewer Department, Police Department, and other applicable boards, committees or departments for review and comments. The parties receiving copies of the application shall submit written recommendations to the Planning Board within 45 days of receipt of the application. Failure to report to the Planning Board within 45 days shall be deemed a lack of opposition thereto.

a. Sketch Plan. The Sketch Plan shall be prepared by an interdisciplinary team that shall include a certified landscape architect, registered professional engineer, and registered land surveyor, and may also include a traffic engineer, architect, hydrologist, hydrogeologist, biologist, and other environmental professionals. The Sketch Plan shall address the general features of the land as specified in the Planning Board's Rules and Regulations Governing an Open Space Community. The Sketch Plan shall incorporate the Four-Step Design Process, in accordance with Section 44.8, and the Design Standards in accordance with Section 44.9.

b. Yield Plan. The basic maximum number of units shall be derived from a Yield Plan. The Yield Plan shall show the maximum number of dwelling units that could be placed upon the site in a conventional subdivision in full conformance with zoning, subdivision regulations, health codes, wetlands bylaws and other applicable requirements. The Yield Plan shall contain the information required in Rules and Regulations Regarding an Open Space Community. The proponent shall have the burden of proof with regard to the basic maximum number of dwelling units resulting from the design and engineering specifications shown on the Yield Plan.

44.7 Density Bonus.

The number of dwelling units permitted on the site may exceed the basic maximum number derived from the Yield Plan specified in Section 44.6.2.2 by 20%, in the aggregate, given the following circumstances (computations shall be rounded to the lowest number):

1. For every four dwelling units permanently restricted to occupancy by persons or families who qualify as low or moderate income, as those terms are defined for the area by the Commonwealth's Department of Housing and Community Development, one dwelling unit may be added as a density bonus; provided, however, that this density bonus shall not exceed 10% of the basic maximum number.

2. For every four age-restricted dwelling units, one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed 5% of the basic maximum number.

3. For the construction of passive and/or active recreation facilities that are available for public use, one dwelling unit may be added per two acres of recreation land or per 2,500 feet of trail; however, this density bonus shall not exceed 5% of the basic maximum number.

4. For each additional 5% of the site (over and above the required 50%) set aside as open space), one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed 5% of the basic maximum number.

5. For every five acres of prime agricultural soils or active farmland preserved at the site, one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed 5% of the basic maximum number.

6. For every four dwelling units in which alternative renewable energy (i.e., solar power, wind power, hydroelectric power, and other sources deemed acceptable by the Planning Board) supplies at least 50% of the total annual energy requirements for heating and hot water for that dwelling unit, one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed 5% of the basic maximum number.

44.8 Design Process.

At the time of application for an OSC, applicants are required to demonstrate to the Planning Board that the following Design Process was performed by a certified Landscape Architect and Professional Engineer and used to determine the layout of proposed streets, house lots and open space.

1. Identifying Conservation Areas. Identify and delineate Primary Conservation Areas (such as wetlands, riverfront areas and floodplains regulated by state or federal law) first, Secondary Conservation Areas (unregulated elements of the natural landscape such as agriculturally significant soils or farms, aquifers, unique or sensitive wildlife habitats, unusual geologic formations, steep slopes, mature forests, meadows, scenic views, and cultural features such as historic and archeological sites) second, and the Potentially Developable Area last. To the maximum extent possible, the Potentially Developable Area shall consist of land outside identified Primary and Secondary Conservation Areas.

2. Locating House Sites. Locate the approximate sites of individual houses within the Potentially Developable Area as well as private yards and shared amenities so as to reflect an integrated community. The number of homes enjoying the amenities of the development (including conservation areas) should be maximized.

3. Aligning the Streets and Trails. Align the streets in order to access the house lots. Trails shall be laid out to create internal and external connections to existing and/or potential streets, sidewalks and trails.

4. Draw in the lot lines. The Planning Board has the right to waive this requirement in an OSC that utilizes condominium ownership.

44.9 Design Standards.

In addition to the Design Standards set forth in Section 6 of the Millbury Rules and Regulations Regarding the Subdivision of Land,[2] the following Generic and Site Specific Design Standards shall apply to all OSCs and shall govern the development and design process:

1. Generic Design Standards:

a. The orientation of individual building sites shall be such as to maintain maximum natural topography and cover. To the maximum extent possible, topography, tree cover and natural drainage ways 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 or off the subject parcel.

c. Proposed buildings and associated development shall be compatible with surroundings, terrain, and the scale and architecture of existing buildings that share a functional or visual relationship to the proposed buildings.

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

e. All open space that is not set aside for wildlife habitat and resource protection 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.

2. Site Specific Design Standards:

a. Mix of Housing Types. The OSC may consist of any combination of single-family, two-family and three-family residential structures.

b. Additional Criteria for Multifamily Development:

i. The design and location of the structure on the site shall be consistent with the visual scale and character of single-family development.

ii. No more than two bedrooms shall be permitted per multifamily dwelling unit.

c. Orientation of Residential Structures. Residential structures shall be oriented toward the street providing lot frontage or, in the case of a condominium development, toward the street serving the premises.

d. Buffer Areas. A buffer area of 100 feet shall be provided at the following locations: (a) perimeter of the property where it abuts residentially zoned and occupied properties; (b) certain resource areas on or adjacent to the tract including lakes, ponds, wetlands, streams, rivers, agricultural or recreational ball fields; and (c) existing public ways. No vegetation in this buffer area will be disturbed, destroyed or removed, except for normal maintenance of structures and landscapes approved as part of the project. The Planning Board may waive, reduce or increase the buffer requirement where it determines that a larger or smaller buffer (or no buffer) is necessary, or will suffice, to accomplish the objectives set forth herein.

e. Drainage. There shall be no adverse impacts to abutting properties from any increase in volume of stormwater runoff including erosion, silting, flooding, sedimentation or impacts to wetlands, ground water levels or wells. Insofar as possible, low impact development best management practices shall be utilized such that the site's natural features and environmentally sensitive areas, such as wetlands, native vegetation, mature trees, slopes, natural drainage courses, permeable soils, floodplains, woodlands and soils are preserved. Use of stormwater management components that provide filtration, treatment and infiltration such as vegetated areas that slow down runoff, maximize infiltration and reduce contact with pave surfaces are strongly encouraged.

f. Groundwater Recharge and Quality Preservation. Ground water recharge shall be maximized and ground water quality shall be protected. Various techniques may be required to maximize recharge and create a hydrologically functional lot or site, including the following: vegetated open channel systems along roads; rain gardens; buffer strips; use of amended soils that will store, filter and infiltrate runoff; bioretention areas; use of permeable pavement. In addition, reduction of impervious surfaces where possible, reduction of heat island effects, and use of water quality units such as grease traps or gas/oil separators will be encouraged.

g. Landscaping. The applicant shall submit a conceptual landscape plan for all structural surface stormwater management facilities, parking areas with more than 10 spaces, dumpsters and storage areas.

h. Parking. Parking areas with more than 10 spaces shall be screened from public view.

i. On-site Pedestrian and Bicycle Circulation. Walkways and bicycle paths shall be provided to link residences with parking areas, recreation facilities (including parkland and open space) and adjacent land uses where appropriate.

[2] Editor's Note: See Section 6 of Chapter S, Subdivision of Land.

44.10 Common Open Space Requirements.

Common open space shall comprise a minimum of 50% of the tract. The Planning Board may require that at least half of the common open space be left in a natural state. Any proposed common open space, unless conveyed to the Conservation Commission, shall be subject to a recorded restriction enforceable by the Town, providing that such land shall be perpetually kept in an open state, that it shall be preserved exclusively for the purposes set forth herein, and that it shall be maintained in a manner to ensure that it is suitable for its intended purposes.

1. Not less than 50% of the land preserved for common open space shall contain buildable land as defined in Section 44.11.

2. The common open space shall be of a shape, dimension, character, and location suitable for use by all residents of the OSC.

3. The common open space shall be large and contiguous. Contiguous open space may be separated by a roadway or accessory amenity. The Planning Board may waive this requirement for all or part of the required open space where it is determined that allowing non-contiguous open space will promote the goals of this bylaw and/or protect identified primary and secondary conservation areas.

4. The common open space shall be used for the following purposes or a combination thereof: conservation, forestry, horticulture, agriculture, historic preservation, outdoor education, and active and passive recreation. The common open space shall have at least 40 feet of frontage to permit suitable access for such purposes. The Planning Board may permit up to 5% of the open space to be paved or built upon for structures accessory to the dedicated use or uses of such open space. Subsurface wastewater and stormwater management systems serving the OSC may be located within the open space provided that the Board finds that such uses will not be detrimental to the character, quality or use of the open space. Surface stormwater management systems, such as retention and detention ponds, shall not count towards the minimum required common open space.

5. Common open space shall not include driveways, roads or ways necessary for access and egress to the site.

6. The common open space shall be conveyed to:

a. The Conservation Commission;

b. A nonprofit organization, the principal purpose of which is the conservation of open space and any of the purposes for such open space set forth above;

c. A homeowner's association owned jointly or in common by the owners of lots within the OSC. If such homeowner's association 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 homeowner's association which shall provide for mandatory assessments for maintenance expenses to each dwelling unit. Such homeowner's association shall be deemed to have assented to allow the Town to perform maintenance of such open space and facilities, if the homeowner's association 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 homeowner's association as to the inadequate maintenance, and, if the homeowner's association fails to complete such maintenance, the Town may perform it. If the Town performs maintenance, the owners of lots within the OSC shall pay the cost thereof and the cost shall constitute a lien upon their properties until said cost has been paid. Each individual deed, and the deed or trust or articles of incorporation, shall include provisions designed to effect these provisions. Documents creating such homeowner's association shall be submitted to the Planning Board for approval, and shall thereafter be recorded at the Worcester Registry of Deeds.

44.11 Buildable Land Area.

The "buildable land area" shall be calculated by a registered land surveyor or professional engineer and shall be equal to the total area encompassed by the overall development plan, minus:

1. Land within a floodplain as defined by Section 36.1.

2. Fresh water wetlands, as defined by Section 40, Chapter 131, Massachusetts General Laws.

3. Land having slopes in excess of 25%.

4. Land previously prohibited from development under a conservation restriction held by the Conservation Commission or a conservation land trust.

5. Land otherwise prohibited from development by local or state bylaw, regulation, or statute. Not more than 5% of the land designated for roads or lots for dwellings or other development within the Open Space Community shall fall outside the boundaries of the "Buildable Land Area."

44.12 Dimensional Requirements.

Applicants are encouraged to modify the lot size, shape and other dimensional requirements specified in Article 2, Section 23, for lots in an OSC. The following limitations apply:

1. No lot for a single-family or two-family structure shall contain less than 5,000 square feet of land area. No lot for a three-family structure shall contain less than 7,500 square feet of land area.

2. No lot for a single-family or two-family structure shall contain less than 60 feet of frontage, and no lot for a three-family structure shall contain less than 100 feet of frontage.

3. No lot for housing structures shall have frontage on a way other than one created within an OSC.

4. The minimum frontage for the overall site subject to OSC shall be 50 feet.

5. Housing structures shall be at least 20 feet apart.

6. Maximum building height shall be 30 feet.

44.13 Decision of the Planning Board.

The Planning Board shall, within 65 days from receipt of a complete OSC site plan application, hold a public hearing and issue a written site plan decision within 90 days from the close of the public hearing. The Board may impose conditions to ensure that the site plan complies with generic and detailed design standards and requirements of the Planning Board's Rules and Regulations Governing an Open Space Community. The decision shall be upon a majority of the Board. The appeal of any decision of the Board shall be made in accordance with the provisions of MGL Chapter 41, Section 81BB. A copy of the decision shall be filed with the Town Clerk and shall be forwarded to the applicant by certified mail. Site plan approval shall lapse one year from the date the Board votes to endorse a site plan unless the applicant has submitted an OSC definitive plan application, or within three years unless building permits have been issued. Prior to the lapse of this period, an applicant may make a written application requesting a time extension for the site plan, by providing a rationale for said request for a time extension. For good cause, such approval may be granted by the Board by issuing a written extension following a public hearing.

44.14 Relationship Between the OSC Site Plan and OSC Definitive Subdivision Plan.

The issuance of OSC Site Plan approval allows the applicant to submit a definitive subdivision plan, in conformity with Section 5.3 of the Millbury Rules and Regulations Governing the Subdivision of Land.[3] In accordance with Section 32.6 of the Town of Millbury Zoning Bylaws, any OSC Site Plan approval issued by the Planning Board shall specifically state that the Definitive Subdivision Plan shall substantially comply with the Site Plan.

The Planning Board may find that a substantial variation exists between the OSC Site Plan and the Definitive Subdivision Plan. A substantial variation shall be any of the following:

1. An increase in the number of 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; and/or

6. Significant changes in the wastewater management systems if such changes affect the quality or quantity of open space or the designed layout.

If the Planning Board determines that the Definitive Subdivision Plan does not substantially comply with the OSC Site Plan, the Board may disapprove the Definitive Subdivision Plan for failure to comply with the site plan provision requiring that the Definitive Subdivision Plan substantially comply with the OSC Site Plan.

The Planning Board may conditionally approve an OSC Definitive Subdivision Plan that does not substantially comply with the OSC Site Plan. Such conditional approval must identify where the plan does not substantially comply with the OSC Site Plan and shall require that the OSC Site Plan be amended to be in compliance with the significant changes identified by the Planning Board. A public hearing shall be held on the modifications to the OSC Site Plan. The public hearing on the application to amend the OSC Site Plan shall only discuss the significant changes identified by the Planning Board in their conditional approval of the OSC Definitive Subdivision Plan. These are the only considerations that the Planning Board may take into account in deciding whether to amend the OSC Site Plan.

[3] Editor's Note: See Section 5.3 of Chapter S, Subdivision of Land.

Section 45 (Reserved) [1]

[1] Editor's Note: Former Section 45, Swimming Pools, was repealed by the Bylaws of 5-5-2009, Art. 49.

Section 46 Accessory Uses.

[Bylaws 4-1-1978, Art. 40; Bylaws 5-1-2007, Art. 47; Bylaws 5-1-2012, Art. 24]

46.1 Accessory Scientific Uses.

Uses, whether or not on the same parcel as activities permitted as a matter of right, accessory to activities permitted as a matter of right, which activities are necessary in connection with scientific research or scientific development or related production, may be permitted upon the issuance of a Special Permit by the Board of Appeals provided the granting authority finds that the proposed accessory use does not substantially derogate from the public good.

46.2 Accessory Dwelling Units.

1. Applicability. The Planning Board may grant a special permit authorizing the construction of an accessory dwelling unit within a new or existing owner-occupied, single-family dwelling or building accessory thereto in any Residential and Suburban District located on a lot fully conforming to all zoning requirements for its district or on a legal, pre-existing, nonconforming lot and/or within a legal pre-existing, nonconforming single-family structure, subject to the following regulations and conditions.

2. Purpose and Intent. The purposes of this bylaw are:

a. To provide an opportunity for homeowners who can no longer physically or financially maintain their single-family home to remain in homes they might otherwise be forced to leave;

b. To provide housing units in single-family neighborhoods that are appropriate for persons at various stages of their life cycle;

c. To provide housing units for persons with disabilities;

d. To make housing units available to moderate income households who might otherwise have difficulty finding housing;

e. To protect the stability, property values, and to insure the appearance of single-family residential neighborhoods is not negatively impacted; and

f. To eliminate the construction of illegal, unregulated apartment units.

3. Use and Dimensional Requirements.

a. The unit will be a complete, separate housekeeping unit containing both kitchen and bath.

b. Only one accessory dwelling unit shall be created per lot.

c. The principal dwelling or accessory structure to be altered or constructed shall maintain the appearance of a single-family structure or accessory structure.

d. Any new separate outside entrance serving an accessory dwelling unit shall be located on the side or in the rear of the building.

e. The gross floor area of an accessory dwelling unit shall not exceed 800 square feet.

f. At least two off-street parking spaces shall be available for use by occupants of each accessory dwelling. Off-street parking shall be provided in a fashion as is consistent with the character of a single-family residence. No parking space shall be located within a street right-of-way.

g. The construction of any accessory dwelling unit shall be in conformity with the State Building Code, Title V of the State Sanitary Code and other local bylaws and regulations.

h. Accessory dwelling units proposed on lots containing a legal, pre-existing, nonconforming single-family structure shall be within the living area of the dwelling part of the pre-existing structure, shall not be permitted to increase the total square footage of the pre-existing structure, and shall not alter the footprint of the pre-existing structure for the purposes of creating a new accessory dwelling unit.

i. In order to encourage the development of housing units for disabled and handicapped individuals and persons with limited mobility, the Planning Board may allow reasonable deviation from the Use and Dimensional Requirements stated herein where necessary to install features that facilitate access and mobility for disabled persons.

4. Application Procedure. The procedure for the submission and approval of a special permit for an accessory dwelling in an owner-occupied, single-family dwelling shall be the same as prescribed in Section 12.4, Site Plan Review, and Section 14, Special Permits.

5. Quota. All applications for a special permit pursuant to this section shall be acted upon in the order in which they are filed. The Planning Board may issue, in order of submission of a complete application, a maximum number of 15 Accessory Dwelling Unit special permits within a calendar year.

Section 47 Aquifer and Watershed Protection Overlay District.

[Bylaws 5-4-2010, Art. 26]

47.1 Purpose and Intent.

The purpose of this Aquifer and Watershed Protection Overlay District is to:

1. Promote the health, safety and general welfare of the community by ensuring an adequate quality and quantity of drinking water for the residents, institutions and businesses of the Town of Millbury;

2. Preserve and protect existing and potential sources of drinking water supplies;

3. Conserve the natural resources of the Town of Millbury; and

4. Prevent temporary and permanent contamination of the environment.

47.2 Scope of Authority.

The Aquifer and Watershed Protection Overlay District shall be considered as overlaying any other zoning district. This overlay district shall apply to all new construction, reconstruction or expansion of existing buildings and new or expanded uses. Applicable activities and uses in a portion of one of the underlying zoning districts that fall within the Aquifer and Watershed Protection Overlay District shall additionally comply with the requirements of the Aquifer and Watershed Protection Overlay District Bylaw. Uses prohibited in the underlying zoning districts shall not be permitted in the Aquifer and Watershed Protection Overlay District.

47.3 Definitions.

AQUIFER

Geologic formation composed of rock, sand or gravel that contains significant amounts of potentially recoverable water.

AQUIFER AND WATERSHED PROTECTION OVERLAY DISTRICT

That area of land defined as such herein and shown on the Town's zoning map.

CMR

Code of Massachusetts Regulations.

DEP

Massachusetts Department of Environmental Protection

HAZARDOUS WASTE

Any substance or mixture of physical, chemical or infectious characteristics posing a significant, actual or potential hazard to water supplies or other hazards to human health if such substance or mixture were discharged to land or water. Hazardous materials include, without limitation, synthetic organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalis, solvents and thinners in quantities greater than normal household use; and all substances defined as hazardous or toxic under M.G.L. c 21C and 21E and 310 CMR 30.00.

IMPERVIOUS SURFACE

Material or structure on, above or below the ground that does not allow precipitation or surface water to penetrate directly into the soil.

LANDFILL

A facility established in accordance with a valid site assignment for the purposes of disposing solid waste into or on the land, pursuant to 310 CMR 19.00g.

M.G.L.

Massachusetts General Law.

NON-SANITARY WASTEWATER

Wastewater discharges from industrial and commercial facilities containing wastes from any activity other than collection of sanitary sewage including, but not limited to, activities specified in the Standard Industrial Classification (SIC) Code set forth in 310 CMR 15.004(6).

OPEN DUMP

A facility operated or maintained in violation of the Resource Conservation and Recovery Act [42 U.S.C. § 4004(a)(b)], or state regulations and criteria for solid waste disposal.

PETROLEUM PRODUCT

Petroleum or petroleum by-product including, but not limited to, fuel oil, gasoline, diesel, kerosene, aviation jet fuel, aviation gasoline, lubricating oils, oily sludge, oil refuse, oil mixed with other wastes, crude oils, or other liquid hydrocarbons regardless of specific gravity. Petroleum product shall not include liquefied petroleum gas including, but not limited to, liquefied natural gas, propane or butane.

POTENTIAL DRINKING WATER SOURCES

Areas that could provide significant potable water in the future.

RECHARGE AREAS

Areas that collect precipitation or surface water and carry it to aquifers. Recharge areas include DEP approved Zone I, Zone II, or Zone III areas.

SEPTAGE

The liquid, solid and semi-solid contents of privies, chemical toilets, cesspools, holding tanks, or other sewage waste receptacles. Septage does not include any material that is hazardous waste as defined by 310 CMR 30.000.

SLUDGE

The solid, semi-solid, and liquid residue that results from a process of wastewater treatment or drinking water treatment. Sludge does not include grit, screening or grease and oil which are removed at the head-works of a facility.

TREATMENT WORKS

Any and all devices, processes and properties, real or personal, used in the collection, pumping transmission, storage, treatment, disposal, recycling, reclamation, or reuse of waterborne pollutants, but not including any works receiving a hazardous waste from off the site of the works for the purpose of treatment, storage or disposal.

VERY SMALL QUANTITY GENERATOR

Any public or private entity, other than residential, which produces less than 27 gallons (100 kilograms) a month of hazardous waste or waste oil, but not including any acutely hazardous waste as defined in 310 CMR 30.136.

WASTE OIL RETENTION FACILITY

A waste oil collection facility for automobile service stations, retail outlets and marinas which is sheltered and has adequate protection to contain a spill, seepage, or discharge of petroleum waste produces in accordance with M.G.L. c. 21, § 52A.

ZONE I

The DEP designated protective radius around a public water system well or well-field.

ZONE II

The DEP approved area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions that can be realistically anticipated as defined in 310 CMR 22.00.

ZONE III

That area beyond the Zone II from which surface water and groundwater drain into the Zone II, as defined in 310 CMR 22.00.

47.4 Establishment of Aquifer and Watershed Protection Overlay District and District Boundary Disputes.

1. There are hereby established within the Town of Millbury, as delineated on the Zoning Map, certain aquifer and watershed protection areas designated as A and B, consisting of aquifers or recharge areas, which together shall constitute the Aquifer and Watershed Protection Overlay District. The District includes all areas within the District designated by the DEP as "Zone II," and one area designated as "Zone III."

2. As necessary, the Building Inspector shall determine, by consulting the Zoning Map, what portion of a particular lot or parcel of land, if any, is located within the District. The Building Inspector's determination may be appealed to the Board of Appeals in accordance with M.G.L. c. 40A, § 8.

3. The burden of proof shall be upon the owner disputing the Building Inspector's determination. In response to such a dispute, the Board of Appeals may engage a professional engineer, registered land surveyor, hydrologist, geologist or soil scientist to confirm the boundaries of the District with respect to individual parcels of land, and may charge the owner(s) for the cost of the investigation.

4. Where the boundary line of the Aquifer and Watershed Protection Overlay District divides a lot or parcel, the requirements established by this bylaw shall apply only to the portion of the lot or parcel located within the District.

47.5 Permitted Uses.

All uses expressly permitted in the underlying zoning districts, except as otherwise prohibited herein, are permitted within the Aquifer and Watershed Protection Overlay District, provided that all necessary permits, orders or approvals required by local, state or federal law are also obtained.

47.6 Prohibited Uses.

The following uses are prohibited within the Aquifer and Watershed Protection Overlay District:

1. Landfills and open dumps as defined in 310 CMR 19.006;

2. Automobile graveyards and junkyards, as defined in M.G.L. c. 140B, § 1;

3. Landfills receiving only wastewater and/or septage residuals including those approved by the Department pursuant to M.G.L. c. 21, §§ 26 through s. 53; M.G.L. c. 111, § 17; M.G.L. c. 83, §§ 6 and 7, and regulations promulgated thereunder;

4. Facilities that generate, treat, store or dispose of hazardous waste that are subject to M.G.L. c. 21C and 310 CMR 30.00, except for:

a. Very small quantity generators as defined under 310 CMR 30.000;

b. Household hazardous waste centers and events under 310 CMR 30.390;

c. Waste oil retention facilities required by M.G.L. c. 21, § 52A;

d. Water remediation treatment works approved by DEP for the treatment of contaminated waters;

5. Petroleum, fuel oil, and heating oil stations and terminals including, but not limited to, those listed under Standard Industrial Classification (SIC) Codes 5983 and 5171, not including liquefied petroleum gas;

6. Storage of liquid hazardous materials, as defined in M.G.L. c. 21E and/or liquid petroleum products unless such storage is:

a. Above ground level and on an impervious surface; and

b. Either in container(s) or aboveground tanks(s) within a building or outdoors in covered container(s) or aboveground tank(s) in an area that has a containment system designed and operated to hold either: 10% of the total possible storage capacity of all containers or 110% of the largest container's storage capacity, whichever is greater;

7. Storage of sludge and septage, unless such storage is in compliance with 310 CMR 32.30 and 310 CMR 32.31;

8. Storage of deicing chemicals unless such storage, including loading areas, is within a structure designed to prevent the generation and escape of contaminated runoff or leachate;

9. Storage of animal manure unless covered or contained within a structure designed to prevent the generation and escape of contaminated runoff or leachate;

10. Earth removal, consisting of the removal of soil, loam, sand, gravel or any other earth material to within four feet of historical high groundwater as determined from monitoring wells and historical water table fluctuation data compiled by the United States Geological Survey, except for excavation for building foundations, road or utility works;

11. Discharge to the ground of non-sanitary wastewater including industrial and commercial process waste water, except:

a. The replacement or repair of an existing treatment works that will not result in a design capacity greater than the design capacity of the existing treatment works;

b. Treatment works approved by the Department designed for the treatment of contaminated ground or surface water and operating in compliance with 3.14 CMR 5.05(3) or 5.05(13); and

c. Publicly owned treatment works;

12. Stockpiling and disposal of snow and ice containing deicing chemicals brought in from outside the district;

13. Storage of chemical fertilizers, as defined in M.G.L. c. 128, § 64, unless such storage is within a structure designed to prevent the generation and escape of contaminated runoff or leachate;

14. All other uses not expressly permitted pursuant to this bylaw, either by right or by special permit.

47.7 Uses and Activities Requiring a Special Permit.

The following uses and activities are permitted only upon the issuance of a special permit by the Board of Appeals under such conditions as they may require:

1. Those activities that involve the handling of toxic or hazardous materials in quantities greater than those associated with normal household use, permitted in the underlying zoning (except as prohibited under Section 47.6). Such activities shall require a special permit to prevent contamination of groundwater.

2. Any use that will render impervious more than 15% or 2,500 square feet of any lot or parcel, whichever is greater. A system for groundwater recharge must be provided which does not degrade groundwater quality. For non-residential uses, recharge shall be by storm water infiltration basins or similar system covered with natural vegetation, and dry wells shall be used only where other methods are infeasible. For all non-residential uses, all such basins and wells shall be preceded by oil, grease, and sediment traps to facilitate removal of contamination. Any and all recharge areas shall be permanently maintained in full working order by the owner.

47.8 Procedures for Issuance of Special Permit.

1. The Special Permit Granting Authority (SPGA) under this bylaw shall be the Board of Appeals. The SPGA may grant a special permit if it determines that the intent of this bylaw, as well as its specific criteria, are met. The SPGA shall not grant a special permit under this section unless the petitioner's application materials include, in the SPGA's opinion, sufficiently detailed, definite and credible information to support positive findings in relation to the standards given in this section.

2. Upon receipt of the special permit application, the SPGA shall transmit one copy to the Millbury Planning Board, Board of Health, Conservation Commission, Department of Public Works, and Water District for review and comment. Failure to respond in writing within 35 days of receipt shall indicate approval, or no desire to comment. The necessary number of copies of the application shall be furnished by the applicant.

3. The SPGA may grant the required special permit only upon finding that the proposed use meets the following standards, those specified in Section 47.6 of this bylaw, and any regulations or guidelines adopted by the SPGA. The proposed use must:

a. In no way, during construction or thereafter, adversely affect the existing or potential quality or quantity of water that is available in the Aquifer and Watershed Protection District;

b. Be designed to avoid substantial disturbance of the soils, topography, drainage, vegetation, and other water-related natural characteristics of the site to be developed.

c. The applicant shall file 10 copies of a site plan and attachments. The site plan shall be drawn at a proper scale as determined by the SPGA and shall be stamped by a professional engineer. All additional submittals shall be prepared by qualified professionals. The site plan and its attachments shall at a minimum include the following information where pertinent:

i. Provisions to protect against the discharge of hazardous materials or wastes to the environment due to spillage, accidental damage, corrosion, leakage or vandalism, including spill containment and clean-up procedures;

ii. Provisions for indoor, secured storage of hazardous materials and wastes with impervious floor surfaces;

iii. Evidence of compliance with the Massachusetts Hazardous Waste Regulations, 310 CMR 30.00;

iv. Proposed down-gradient location(s) for groundwater monitoring well(s), should the SPGA deem the activity a potential groundwater threat.

47.9 Dimensional Requirements.

Within Area B of the Overlay District, no lot shall be built upon or changed in size or shape except in conformity with the following:

Minimum Lot Area	Minimum Lot Frontage	Minimum Yards Front/Rear/Side	Maximum Lot Coverage	Maximum Building Height
80,000 sf	200 ft.	25 ft./10 ft./10 ft.	30%	30 ft.

47.10 Enforcement.

1. Written notice of any violations of this bylaw shall be given by the Building Inspector to the responsible person as soon as possible after detection of a violation or a continuing violation. Notice to the assessed owner of the property shall be deemed notice to the responsible person. Such notice shall specify the requirement or restriction violated and the nature of the violation, and may also identify the actions necessary to remove or remedy the violations and preventive measures required for avoiding future violations and a schedule of compliance.

2. A copy of such notice shall be submitted to the Town of Millbury's Board of Appeals, Planning Board, Board of Health, Conservation Commission, Department of Public Works, and Water District. The cost of containment, clean-up or other action of compliance shall be borne by the owner and operator of the premises.

47.11 Severability.

A determination that any portion or provision of this overlay protection district is invalid shall not invalidate any other provisions thereof, nor shall it invalidate any special permit previously issued thereunder.

Section 48 Route 146 Highway Corridor Overlay District.

[Bylaws of 5-7-1991, Art. 50; Bylaws of 5-6-2014, Art. 40; Bylaws 5-1-2018/5-2-2018, Art. 31]

48.1 Purpose.

The purpose of the Route 146 Highway Corridor Overlay District (the "146 HCOD") is to provide for orderly development that is conductive at highway interchanges; encourage economic growth while avoiding serious negative effects locally and in the region by encouragement of the most appropriate use of adjacent corridor lands; maintain the scenic natural and historical features of the area; and maintain the safe, efficient movement of traffic throughout the corridor by the orderly development of the land, in order to promote the health, safety, and general welfare of present and future generations of Millbury citizens.

48.2 Location.

The exact location shall be determined by the official map called "Route 146 Highway Corridor Overlay District." This map will not act to rezone parcels unless they conform under the overlay district regulations and obtain a Special Permit from the Planning Board.

48.3 Classified Uses.

All uses within the 146 HCOD shall be subject to the use limitations as described in Sections 48.3 through 48.34 of this section. All uses exclusively permitted shall be permitted only where incorporated into a coordinated development with an aggregate lot area so designated by the node classification chart.

48.31 Node Classification I.

Node classification I shall be any parcel in the 146 HCOD which contains a minimum lot area of 16 contiguous acres.

1. Uses Permitted by Special Permit:

a. Theaters, museums, cultural and/or social community facilities, convention centers;

b. Research and development;

c. Business and professional offices;

d. Child/elderly day care facility;

e. Retail sales and services;

f. Restaurant;

g. Motel or hotel;

h. Parking to service a permitted use but not having more than one commercial vehicle or any construction equipment or any truck over 1 1/2 tons;

i. Personal services;

j. Indoor and outdoor recreational facilities;

k. Multifamily dwellings;

l. Registered Marijuana Dispensary in accordance with Section 52;

m. Marijuana Retailer in accordance with Section 52.

2. Prohibited Uses:

a. Trucking terminals;

b. Commercial or institutional laundries or dry-cleaning facilities;

c. Outdoor or underground storage or disposal of engine lubricants, coolants and antifreeze;

d. Motor vehicle service stations;

e. All used and/or new vehicle sales including but not limited to motor vehicles, all terrain vehicles, recreational vehicles.

48.32 Node Classification II.

Node classification II shall be any parcel in the 146 HCOD which contains a minimum lot area of four contiguous acres.

1. Uses Permitted by Special Permit:

a. Business or professional offices;

b. Research and development;

c. Retail sales and services;

d. Personal services;

e. Restaurant; except the use of drive up windows and/or counter service;

f. Motel or hotel;

g. Commercial amusements and recreation;

h. Registered Marijuana Dispensary in accordance with Section 52;

i. Marijuana Retailer in accordance with Section 52.

2. Prohibited Uses:

a. All used and/or new vehicle sales including but not limited to motor vehicles, all terrain vehicles, recreational vehicles;

b. Trucking terminals;

c. Commercial or institutional laundries or dry-cleaning facility;

d. Outdoor or underground storage or disposal of engine lubricants, coolants, and antifreeze;

e. Restaurants with drive through service and/or counter service.

48.33 Uses Allowed by Right (Node or Underlying).

If there is no node application, then the underlying uses will be permitted.

48.34 Mixed Use.

A concentration of complementary land uses that combine uses in a compact area, in one or separate structures on the same node, are strongly encouraged. These uses would be physically integrated by road and pedestrian systems. All uses allowed by the Route 146 Highway Corridor Overlay District require access be obtained on accessory roads.

48.4 Open Space.

In reviewing the appropriateness of the open space, the Planning Board shall consider the following criteria. The extent to which environmental features (including, but not limited to, wetlands, streams, other water bodies, and wildlife habitats) are protected, open space area should be provided in large expanses, avoiding small strips and areas unless there are reasons for these strips caused by physical site features. Whenever possible, open space should be coordinated with adjacent land and walking paths should be created. Open space should be used to create and enhance the entrance to Millbury and the Blackstone Valley and shall not include heated spaces, driveways, parking areas, garages, portals, carports, accessory buildings, or any improvement surfaces. For educational, institutional, and other uses allowed in the district, the open space, setback, and landscaping standards set forth in this section shall apply.

48.41 Greenways.

Open space shall be located where it abuts or is in proximity to adjacent open space land. These open space parcels may form an extensive greenway. Uses could include bicycle paths, hiking trails, wildlife corridors, and scenic vistas.

48.42 Open Space Swapping.

The applicant may meet the open space requirements set forth in these regulations by the purchase of development rights to lands off site in the following manner:

	Provided	Required
Abutting the Blackstone River and Canal	1	1
Abutting Town Conservation Land	2	1
Land in the Town of Millbury	3	1

Lands which are to be swapped as open space shall be turned over to the Town or its designee via a manner meeting with the Planning Board's approval. The applicant shall submit a site plan of said lands indicating compliance of the lot area definition. Said plan is to be stamped by a professional engineer and signed by a botanist, in order to assure dimensional and coverage requirements.

48.5 Buffers.

Any structure or parking area shall be located at least 50 feet from any property line of a lot containing an existing residence and shall meet the performance standards listed in the site plan review. Contiguous buildings, either jointly or separately owned, do not require a separation or buffers between them.

48.51 Berms.

A four-foot-high, twenty-five-foot wide earth berm with deciduous or evergreen trees shall be placed between residential and suburban properties. Said berm shall also be placed between Route 146 and accessory roads.

48.6 Parking.

48.61 Parking Areas.

Parking areas shall be screened from any adjacent residential uses. To the extent feasible, parking areas shall be shared with adjacent businesses. For developments which make a long term commitment to actively promote employee and public use of transit, ridesharing, and other means to reduce single occupant vehicle trips, minimum parking standards may be reduced by a percentage to be determined by the Planning Board based upon the adequacy of trip reduction plans.

Driveways and parking areas shall be paved with concrete, bituminous concrete, or other similar material. Surface treated parking areas and driveways shall be prohibited. Curbs and gutters shall be installed around the perimeter of all driveways and parking areas. Drainage shall be designed so as to not interfere with pedestrian traffic. Granite curbing shall be installed on all radii and in front of sidewalks abutting buildings.

48.62 Parking Spaces.

There shall be a maximum of eight rows with a nine-foot linear island separating each eight-row field. Retention of original trees is encouraged in the islands.

48.63 Distance from Buildings.

A minimum of eight feet will be maintained between any building, or contiguous building, including any walkway immediately adjacent thereto, and the parking area. This space is to be reserved for plant material, either existing or planned.

48.64 Illumination.

Drives and parking areas shall be illuminated in such a way that there shall be no glare for motorists, pedestrians, or adjoining premises.

48.65 Number of Spaces.

1. Hotel, motel, lodging house: one space per guest unit.

2. Offices, stores: one space per 200 square feet of gross leasable floor area, but not fewer than three spaces per retail establishment.

3. Restaurant, place of assembly: one space per four seats.

4. Nursing home/hospital: one space per two beds plus one space per 1 1/4 employees per shift.

5. Industrial, wholesale: one space per 1 1/4 employees per shift.

6. Research and Development: one space per 1,000 square feet gross floor, but not fewer than three spaces per establishment.

Handicap parking spaces shall be provided according to regulations set by the Commonwealth of Massachusetts.

48.66 Accommodation of Vehicles.

All uses shall provide parking spaces adequate to accommodate the vehicles of occupants, employees, members, customers, clients, residents, and visitors to the premises, as determined by the Planning Board.

48.67 Mixed Use Parking.

In the case of mixed uses, the parking spaces required shall be the sum of the requirements for the various individual uses computed separately. Parking spaces for one use shall not be considered as providing the required parking for any other use.

48.68 Multiple Parking Areas.

Parking lots over 200 spaces shall consider the creation of multiple separated parking areas. These areas shall be separated by landscaping elements and/or differences in grade, and shall be naturally screened from one another.

48.7 Landscaping.

A comprehensive landscaping program coordinating each individual lot or parcel in and within the 146 HCOD is essential for the visual enhancement of the corridor; and to protect and promote the appearance, character, and economic values of land along the corridor and surrounding neighborhoods. The purpose and intent of such landscaping requirements is also to reduce the visibility of paved areas for adjacent properties and streets, moderate climate effects, minimize noise and glare, and enhance public safety by defining spaces to influence traffic movement. Landscaping will reduce the amount of stormwater runoff and provide transition between neighboring properties.

48.71 Parking Area Landscaping.

Parking areas shall be landscaped in the following manner: A landscaped buffer strip at least 15 feet wide, continuous except for approved driveways, shall be established adjacent to the 146 HCOD to visually separate parking and other uses from the highway. The buffer strip shall be planted with grass, medium height shrubs, and shade trees (minimum four-inch caliper, planted at least every 50 feet along the road frontage). At all street or driveway intersections, trees or shrubs shall be set back a sufficient distance from such intersections so that they do not present a traffic visibility hazard.

One deciduous shade tree (minimum three-inch caliper) must be planted in linear landscaped islands as defined in Section 48.62.

All landscaped areas shall be properly maintained. Shrubs or trees which die shall be replaced within one growing season.

48.8 Grading and Topography.

48.81 Natural Topography.

Efforts shall be taken to maintain the continuity of the natural topography when building on any site. Cut and fill shall be avoided in all instances possible, and structures shall be designed and sited to fit naturally into the topography rather than radically altering the topography to conform to structures or other side uses. Except in areas where terracing is used, when excavation is necessary, grading shall be done in such a way that the resulting contours follow in smooth natural curves that conform to the curves of the surrounding landscape. Straight or angular slopes or cuts which interrupt natural topography shall not normally be allowed.

48.82 Changes in Topography.

Abrupt changes in topography near lot lines which might otherwise result in excessive water runoff, erosion, or hazards, shall not be allowed in excess of the following conditions, except by Special Permit:

1. Where adjacent lot is lower in elevation than the lot for which permit is sought, no slope or terrace exceeding 50% slope or cut rock slope exceeding a vertical to horizontal ratio of 12:1 shall be allowed within 25 feet of the lot line;

2. Where adjacent lot is higher than the elevation of the lot in question, slope or terrace exceeding 50% slope or cut rock slope exceeding a vertical to horizontal ratio of 12:1 shall be allowed within 10 feet of the lot line;

3. Retaining walls of design and construction approved by the Planning Board and not exceeding 12 feet in height or cut rocks exceeding 20 feet in height may be built on lot lines, but only where there is insufficient room to use properly stabilized slopes;

4. Means for preventing erosion during construction shall be specified to the satisfaction of the Planning Board on plans submitted for building and special permits;

5. Upon completion of grading and replacement of top-soil, all slopes shall be stabilized by adequate groundcover or other approved means to prevent erosion and to retard excessive runoff. The following guidelines are recommended:

a. Slopes greater than 35% should be avoided in most cases; slopes between 30% and 35%, rip-rap or terracing should be used; slopes between 20% and 30%, sod, or established vegetation or seedlings in association with webbing material placed over the soil; slopes between 4% and 20%, plant seed in association with fiber mulch placed over the soil, or gravel;

b. Topography which slopes from one lot across another shall be graded so as to minimize run-off directly onto lower lots. In no case shall conditions be created which channel excessive amounts of surface drainage directly onto major yard spaces or buildings on lower lots;

c. Natural slopes shall be retained insofar as possible when siting structures. Finish contours shall direct surface drainage around structures rather than directly against them, using swales or other approved means. No grading or siting of structures shall be performed which creates poorly drained areas;

d. Where slopes are steep (greater than 15%), terracing should be employed using properly stabilized slopes or retaining walls;

e. No portion of any lot whose slope equals or exceeds 20% shall be built upon without a Special Permit.

48.9 Dimensional Standards.

48.91 Building Separation.

While there are no precise side and rear yard requirements in node classification I and II in terms of specific depth, except as required for projects abutting existing residential structures, all structures and site features must conform to the Massachusetts Building Code with respect to building separation and fire walls and conform to the Millbury site plan performance standards.

The open space requirement is used in order to provide the flexibility to protect significant environmental resource features, such as wetlands and streams, major trees and vegetation, and scenic views, to maintain significant open space areas for the enjoyment of the residents and business patrons; and to promote a variety of site plans thereby avoiding a highway strip appearance.

48.92 Multiple Buildings.

Not more than one principal building shall be erected on a lot unless the Planning Board determines that access to additional buildings is adequate to meet safety concerns.

48.93 Dimensional Requirements.

All principal buildings erected in the 146 HCOD shall be located on a lot such that all of the requirements set forth herein are conformed to, except where specifically exempted by this bylaw.

48.94 Dimensional Schedule.

Minimum Lot Area (See Node Classifications)	Node I: A minimum of 16 contiguous lot area acres Node II: A minimum of 4 contiguous lot area acres
Minimum Lot Frontage	150 ft.
All Nodes, Side Yard	0-50* ft., as determined by site plan review
All Nodes, Rear Year	0-50* ft., as determined by site plan review
All Nodes, Front Yard	50 ft. setback, excluding access road
Minimum Open	25%, excluding parking
Maximum Height	100 ft., contingent on site location
Floor to Area Radio/Maximum Building Height:
Classification	F.A.R.
Node I	3.0
Node II	2.0

Notes:
*	As described in Section 48.50, Buffers.

48.10 Performance Standards.

48.101 View of Highway.

Large work area doors or open bays shall not open toward or face the highway. Heating, ventilating, and air conditioning equipment, duct work, air compressors, and other fixed operating machinery shall be screened from view and where possible will not be visible from the highway.

48.102 Building Materials.

Buildings shall be designed to use, to the greatest extent feasible, buildings materials that are compatible with the surrounding environment, such as rock, stone, brick and wood. Mirrored glass with a reflectance greater than 20% is prohibited.

48.103 Utilities.

All utility lines such as electric, telephone, or other similar lines shall be installed underground. This requirement shall apply to lines serving individual sites as well as to utility lines necessary within the project. All junction and access boxes shall be screened with appropriate landscaping. All utility pad fixtures and meters would be shown on the site plan. The necessity for utility connections, meter boxes, etc., should be recognized and integrated with the architectural elements of the site plan.

48.104 Divided Property.

Persons with property divided by the highway corridor district boundary are required to comply with the district standards only for that segment of the property within the boundary or as adjusted above.

48.105 Disturbance of Natural Feature.

Except under an approved order of conditions issued by the Millbury Conservation Commission pursuant to the provisions of Massachusetts General Laws, Chapter 131, and the regulations promulgated thereunder, no disturbance of any natural feature of land shall occur within 100 feet of the centerline of any brook, stream, or river; nor within 100 feet of the normal high water line of any lake, pond, marsh, swamp, or bog.

48.11 Site Plan Review and Approval.

Notwithstanding any contrary provision in this section, no building permit for any building intended to be used in any node classification development shall be issued until the applicant shall have been granted site plan approval as provided in this section. No building permit for any other building permitted under this section shall be issued until the applicant shall have been granted site plan approval pursuant to the Millbury Route 146 Highway Corridor Overlay District site plan review and the Millbury site plan review bylaw.

48.12 Signage.

The purpose of the sign regulations set forth in this section shall be to protect public and private investments in buildings and open space, to encourage signs which, by their location and design, are harmonious to the buildings and sites which they occupy, and which eliminate excess and confusing sign display, and to eliminate potential hazards to motorists and pedestrians. The provisions of this section shall apply to the construction, erection, alteration, use, location, and maintenance of all signs located out-of-doors, to those signs affixed on any part of a building for the express purpose of being visible from the exterior of the building.

48.121 Area of Sign.

The area of a sign shall be considered to include all lettering, wording, and accompanying designs and accompanying designs and symbols, together with the background on which they are displayed, any frame around the sign, and any "cutouts" or extensions, but shall not include any supporting structure or bracing.

48.122 Prohibited Signs.

Flashing signs, roof signs, signs containing moving parts, and signs containing reflective elements which sparkle in the sunlight are not permitted. Signs indicating the current time and/or temperature are permitted, providing they meet all other provisions of this bylaw.

In no case shall any sign exceed 200 square feet.

Three-dimensional signs are not permitted.

Additional signage requirements shall be determined using the criteria listed in the site plan review procedures.

48.13 Tree Protection.

Removal of endangered or valued trees will not normally be permitted. Trees included in this category:

1.	American Elm (Ulmus americana)
2.	Laurel Oak (Quercus laurifolia)
3.	Life Oak (Quercus virginiana)

Considerable damage to or the death of trees may result if more than six inches of soil is added around the base of the tree, more than 30% of circumferential bark is removed or more than 30% of the root system is removed. In addition, asphalt paving, building construction, and soil compaction too close to trees may cause their destruction. Accordingly, it shall be the responsibility of the developer to institute alternative site designs to assure the best chance of tree survival whenever these criteria cannot be adhered to. Those trees designated for preservation in accordance with the provisions of this bylaw as shown on the approved landscape plan shall be marked with bright blue ribbons encircling the tree trunk at a height of four feet above the ground, and a four-foot high-barricade will be constructed around the tree at a drip line prior to the start of construction.

As a condition of approval under this bylaw, the applicant may be required to plant replacement trees for trees approved for removal as part of the final plan. In requiring replacement trees, the following will be considered: the intended use of the property, the existing or predevelopment trees coverage, size and types, the number, size, type and location of natural trees proposed for preservation by the applicant, and the grading, road, building parking and drainage requirements of the project.

Any healthy existing tree may be included for credit towards the requirements of this section. One new tree shall be planted for each preserved tree that has been credited and which dies within three years of construction.

All existing trees on the site shall be shown on the required landscape plan, or where there are groups of trees, said stands may be outlined. Trees desired to be removed shall be clearly delineated on the landscape plan.

48.131 Removal.

Development of land for different uses and intensity of uses will often times necessitate the removal of trees to accommodate roads, parking, buildings and facilities. It is the expressed intent of this section that every effort be made through the design, layout, and construction of development projects to incorporate and save as many trees as possible.

No person shall cut, destroy, move or remove any living, disease-free tree of any species, have a trunk with a diameter of eight inches or larger, measured 4 1/2 feet from the base, in conjunction with any development of land governed by this section unless and until such removal or destruction has been approved under the provisions of this section.

No person shall cut or clear land of trees for the sole purpose of offering land for sale.

48.132 Clear-Cutting.

Except for property classified for tree farming, the clear-cutting of trees is prohibited. The term "clear-cutting" as used herein shall mean the cutting of more than 75% of the trees six inches in trunk diameter or larger. Clear-cutting pursuant to an approved development plan shall require the planting of replacement trees as indicated in the detailed landscape plan accompanying the development application.

48.133 Survey.

A survey of all trees of applicable size shall be made and submitted in conjunction with the development site layout. All trees proposed for removal shall be clearly noted. The tree survey shall be certified by either a land surveyor, engineer, or landscape architect registered in Massachusetts.

The requirement for a tree survey is waived when preliminary site evaluation by the applicant reveals the ability to accomplish the proposed project without removal of any trees eight inches in diameter or larger. The applicant shall submit a written statement that no trees will be removed and his permit will indicate no tree removal as a condition thereof.

48.14 Bonuses.

Elderly and child day-care facilities shall not be included as part of the F.A.R. Where a demonstrated need is being satisfied for elderly and child day care facilities, the applicant shall receive a F.A.R. density increase of 0.25. The Planning Board shall have the ability to waive the required open space to a minimum of 15% for design which it feels complements the integrity of the community and the valley.

48.15 Waivers.

The Planning Board may waive requirements listed under parking, landscaping, grading, and topography, and tree protection based upon the size and scope of the project. Waivers which are sought must be requested in written form prior to the pre-submittal conference.

48.16 

Applicant Procedures.

1. The parcel shall be in single or consolidated control at the time of application and shall have the minimum acreage stipulated for the type of node classification;

2. A site plan shall be presented for the entire parcel, and shall be subject to approval by the Planning Board;

3. Uses shall be contained in one continuous building except that groupings of buildings may be allowed by the Planning Board where such groupings are consistent with the safety of the users of the development and are further consistent with the overall intent of this section;

4. The development shall be served by a public/private water system, adequate in terms of fire protection and domestic use;

5. A common architectural theme shall be reflected in the building by means of building materials, architectural style, sign controls and color coordination. Elevations of all proposed structures shall be in keeping with the historic, cultural, and natural environmental character of Millbury and the Blackstone Valley and shall be prepared by an architect registered in Massachusetts showing building materials and colors.

6. Commercial uses shall be compatible and consistent with the character and needs of the Town.

The site plan shall be developed in the form of a mall, court, or park with walkways, shade trees, benches and appropriate amenities for the users of the development. All other pertinent Millbury zoning bylaws apply to the 146 HCOD unless superseded by this bylaw.

48.161 Pre-submittal Conference.

Applicants for special permit under this bylaw are required to meet with the Planning Board prior to submitting a formal application to review the district plan and its potential relationship to the proposed application. Notice of this conference shall be given to all residents in the district by first-class mail.

Imaginative and creative land use planning should be applied, with the aim of preventing the cumulative damage to the landscape, topography, and valuable and nonrenewable natural resources of Millbury.

48.162 Permit Application Requirements.

The applicant shall submit a concept plan, which shall describe the overall development plan. It shall address the general future of the land, and give approximate configurations of the lots and roadways.

The concept plan shall be discussed with the Planning Board and modified as needed according to the site plan review criteria. The applicant shall then submit a preliminary plan based upon the concept plan. The Planning Board shall grant or deny a special permit based upon the information contained in the preliminary plan. The applicant shall submit a definitive plan which shall incorporate comments made during the preliminary plan review.

The 146 HCOD special permit shall be reconsidered if there is substantial variation between the approved preliminary or definitive plan and the concept plan. A substantial variation shall be defined as an increase in the number of building lots, a decrease in the open space acreage, a change in the layout which covers buildings or roadways to be placed closer to a dwelling unit within 500 feet of the project, and/or a change in the development pattern which affects natural landscape features and open space. If the Planning Board finds that a substantial variation exists, it must hold a public hearing on the modifications of the concept plan or preliminary plan.

48.163 Site Design.

A site design prepared by a registered landscape architect or architect registered in Massachusetts, accompanied by the proper engineering and land survey documentation prepared by a Massachusetts registered engineer and land surveyor shall contain the following information. (The information need not be on a single sheet of paper).

48.164 Submittal Process.

The applicant for a professional building or mixed development special permit shall first submit 15 copies of a plan and application. All applications for a special permit under this section shall be referred by the Planning Board to the Board of Health, Conservation Commission, Building Inspector, Fire Chief, Police Chief, Highway Surveyor, Board of Selectmen, and other board/agency/department for its review and comments within 14 days of its submission to the Planning Board. Any such board or agency to which applications are referred for comment shall make its recommendations and send copies thereof to the Planning Board and the applicant within 35 days of receipt of the referral request from the Planning Board or there shall be deemed no opposition or desire to comment. The Planning Board shall not act upon said special permit until either comments from referred boards or agencies have been received or said 35 days from referral request have elapsed, whichever is sooner. In reviewing the request, the Planning Board shall determine if the development meets the standards described in the 146 HCOD overlay district.

Section 49 Scenic Roads.

49.1 Purpose.

These regulations are established pursuant to M.G.L. Chapter 40, Section 15(c) and are intended to ensure that:

1. Ways will be recommended for designation as scenic road on stated criteria;

2. Ways so designated will not be altered without following proper procedures and without adherence to proper considerations; and

3. Ways so designated will not be altered by the decision of any person, organization, or agency other than the Planning Board.

49.2 Definitions.

In the absence of contrary meaning established through legislature or judicial action pursuant to M.G.L. Chapter 40, Section 15C, the following terms contained in the statute shall be defined as follows:

CUTTING OR REMOVAL OF TREES

Shall mean the removal of one or more trees, trimming of major branches or cutting of roots, but not trimming or cutting of dead trees or dead branches. Trimming of roots sufficient in the Tree Warden's opinion to cause eventual destruction of a tree is included in this definition.

REPAIR, MAINTENANCE, RECONSTRUCTION, OR PAVING WORK

Shall mean any work done within the right-of-way by any person or agency, public or private. Within this definition is any work on any portion of the right-of-way which was not physically commenced at the time the road was designated as a scenic road. The review and approval of the construction of new driveways or alteration of existing ones shall be the responsibility of the Millbury Driveway Inspector.

ROAD

Shall mean the entire right-of-way of any used and maintained public way including the vehicular traveled way plus its necessary appurtenances, including bridge structures, drainage systems, retaining walls, traffic control devices and sidewalks, but not intersecting streets or driveways beyond the right-of-way. The right-of-way includes the area on and within the boundaries of the public way. When the boundary of the right-of-way is in issue so that a dispute arises as to whether or not certain trees or stonewalls or portions thereof are within or without the way, the trees or stone walls shall be presumed to be within the way until the contrary is shown.

TEARING DOWN OR DESTRUCTION OF STONE WALLS

Shall mean the destruction of more than 15 linear feet of stone wall involving more than one cubic foot of wall material per linear foot above existing grade, but shall not be construed to include temporary removal and replacement at the same location with the same materials.

TREES

Shall include a tree whose trunk has a diameter of four inches or more as measured one foot above the ground.

49.3 Criteria for Designation as a Scenic Road.

1. The Planning Board shall be responsible for the recommendation to the Town Meeting as to whether a road, other than a numbered road or a state road, should be designated as scenic.

2. Upon the receipt of a request to designate an accepted Town road as scenic, the Planning Board shall forward the request to the Historical Commission and the Conservation Commission for review and comment. Should either the Historical Commission or the Conservation Commission fail to make recommendation to the Planning Board within 45 days of the request for designation, such failure shall be deemed approval by that Commission.

3. The Planning Board, Historical Commission and Conservation Commission shall, in determining their recommendations as to which road(s) or portion(s) should be designated as scenic roads, consider the following criteria:

a. Preservation of natural resources;

b. Environmental and historic values;

c. Scenic and aesthetic considerations; and

d. Public safety.

49.4 Notification of Designation as Scenic Road.

Upon the designation at town meeting of any road as a scenic road the Planning Board shall take the following steps within 60 days of such designation.

1. Notify all municipal departments that may take any action with respect to such road;

2. Notify the State Highway Department;

3. Publish in the local paper by a news release that the road or roads have been so designated;

4. Indicate such designations on all maps currently in use by municipal departments;

5. Notify all utility companies or other such parties which may be working on the border of such road.

49.5 Procedures.

1. Filing. Any person, organization, state or municipal agency seeking the written consent of the Planning Board under M.G.L. Chapter 40, Section 15(c), regarding the cutting or removal of trees or the tearing down or destruction of stone walls or portions thereof on a scenic road shall file a request with the Planning Board, together with the following:

a. The text of a legal notice identifying the location of the proposed action in terms enabling readers to locate it with reasonable specificity on the ground without need for additional plats or references, and describing in reasonable detail the proposed changes to trees and stone walls;

b. A statement of the purpose or purposes for the changes proposed;

c. A list of owners of properties located in whole or in part within 100 feet of the proposed action;

d. Except in the case of Town agencies, a deposit sufficient to cover the cost of advertising and notification; and

e. Any further explanatory material as may be required by the Planning Board.

2. Notice. The Planning Board shall, as required by the statute, give notice of its public hearing by advertising twice in a newspaper of general circulation in the area. This notice shall contain a statement as to the time, date, place and purpose of the hearing with a reasonable description of the action proposed by the applicant. Copies of this notice shall also be sent to the Selectmen, the Conservation Commission, the Historical Commission, the Highway Surveyor, the Tree Warden and the owners of the property within 100 feet of the proposed action.

3. Timing of Notice. The first publication of the notice shall be as soon as feasible after the Planning Board receives the request from the applicant, and shall in all cases be at least 14 days before the hearing. The last publication shall occur, as required by statute, at least seven days prior to the hearing.

4. Timing of Hearing. The Planning Board shall hold a public hearing within 45 days of the Planning Board meeting at which a properly filed request is received. The date and time of the public hearing shall be set outside of normal weekday work hours (8:00 a.m. to 5:00 p.m., Monday through Friday) so as to encourage maximum citizen participation.

5. Timing of Decision. The Planning Board shall make a decision on the request within 21 days of the public hearing.

6. Public Shade Tree Act. Notice shall be given and Planning Board hearing shall be held in conjunction with those held by the tree warden acting under M.G.L. Chapter 87. The consent of the Planning Board to a proposed action shall not be regarded as inferring consent by the tree warden or vice versa. The Planning Board decision shall contain a condition that no work should be done until all applicable provisions of the Public Shade Tree Law, M.G.L. Chapter 87, have been complied with.

7. Performance Guarantee. Before endorsement of its approval on a plan, the Planning Board may require that the proposed work to be done, be secured by bond sufficient in form and amount in the opinion of the Planning Board to ensure satisfactory performance of the proposed work.

49.6 Considerations.

The Planning Board's decision on any application for proposed action affecting scenic roads shall be based on consideration of the following:

1. The degree to which the proposed action would adversely affect the scenic, aesthetic and historical values upon which the scenic road designation was originally based;

2. The necessity for the proposed action in terms of public safety, welfare, or convenience;

3. Availability of reasonable alternatives to the proposed action which could reduce or eliminate anticipated damage to trees or stone walls;

4. Whether the proposed action would compromise or harm other environmental or historic values;

5. Compensatory actions proposed, such as replacement of trees or walls;

6. Consistency of the proposed action with previously adopted Town plans and policies.

49.7 Severability.

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

49.8 Enforcement.

The building inspector may issue a citation for violations of these regulations. A failure to respond to properly issued citations, or the issuance of three or more citations, shall be construed as a major violation, subject to a fine of not more than $300. Each day that such violation continues shall constitute a separate offense.

49.9 General.

The Planning Board may adopt detailed regulations for carrying out provisions hereunder.

Section 50 Wind Energy Systems.

[Bylaws of 5-5-2009, Art. 36; Bylaws of 5-4-2010, Art. 25]

50.1 Applicability.

The erection, construction installation, operation, and modification of a Wind Energy System is subject to the requirements set forth herein. No more than three Wind Energy Systems shall be permitted on a single parcel or contiguous parcel(s) in common ownership. The Building Inspector may issue a building permit for a Small Wind Energy System in any zoning district. The Planning Board may grant a special permit for a Large Wind Energy System in Business and Industrial Districts, and in Residential and Suburban Districts if the Wind Energy System is located on municipal property or associated with a school or college, agricultural, horticultural or floricultural use, golf course, or public utility.

Wind monitoring or meteorological towers shall be permitted by-right in any zoning district subject to issuance of a building permit for a temporary structure. A permit for a temporary wind monitoring or meteorological tower shall be valid for a maximum of three years.

50.2 Purpose and Intent.

The purpose of this section is to promote the safe, effective and efficient use of Wind Energy Systems and to provide for their placement, design, construction, monitoring, modification and removal of so as to protect health and safety, control noise levels, prevent electromagnetic interference, and minimize their impacts on the character of neighborhoods, property values, and the scenic, historic, and environmental resources of the Town.

50.3 Definitions.

As used in this section, the following terms shall have the meanings indicated:

HEIGHT

The total height of the wind turbine measured from the land in its natural state, prior to grading or filling, to the tip of the rotor blade at its highest point, or blade-tip height.

RATED NAMEPLATE CAPACITY

The maximum rated output of electric power production equipment. This output is typically specified by the manufacturer with a "nameplate" on the equipment or specified as a requirement of the type and model number of the wind turbine.

ROTOR

The blades and hub of the wind turbine that rotate during turbine operation.

WIND ENERGY SYSTEM

All equipment, machinery and structures utilized in connection with the conversion of wind to electricity. This includes, but is not limited to, storage, electrical collection and supply equipment, transformers, service and access roads, and one or more wind turbines.

WIND MONITORING OR METEOROLOGICAL TOWER

A temporary tower equipped with devices to measure wind speeds and direction, used to determine the amount of wind power a site can be expected to generate.

WIND TURBINE

A device that converts kinetic wind energy into rotational energy that drives an electrical generator. A wind turbine typically consists of a rotor, electric generator, and tower.

50.4 Professional and Technical Review.

The Planning Board may hire professional and technical consultants to assist in analyzing special permit application to ensure compliance with all relevant laws, bylaws and regulations. Such assistance may include, but not be limited to, analyzing an application and monitoring or inspecting a project or site for compliance with the Planning Board's decision or regulation. The expenses for engaging professional and technical assistance and review in connection with a Wind Energy System shall be borne by the Applicant.

50.5 General.

Proposed Wind Energy Systems shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable electrical, construction, noise, safety, environmental, Federal Communications Commission (FCC), and Federal Aviation Administration (FAA) requirements and the requirements of the relevant utility to which the Wind Energy System may be connected.

50.6 Application Procedure.

Applicants are required to submit an application conforming to the requirements of this bylaw. The application shall include a site plan and associated documents specified under Section 12.4, Site Plan Review, as well as the following additional information:

1. A technical report from a qualified individual attesting that the site is feasible for wind power, that documents wind speed at the proposed site, that anticipates energy that will be created from the Wind Energy System, and that estimates the amount of energy necessary to serve the on-site uses;

2. Manufacturers' specifications for the proposed wind turbine, attendant facilities, and all related equipment;

3. Tower foundation blueprints or drawings signed by a Professional Engineer licensed to practice in the Commonwealth of Massachusetts;

4. Evidence that the utility company providing service to the site has been informed of, and, as necessary, approved the Applicant's intent to install an interconnected customer-owned generator. Off-grid systems shall be exempt from this requirement;

5. Pre- and post-construction simulation views of the site from at least four locations where the Wind Energy System will be visible through means of photographs, sketches and/or computer simulations;

6. Material describing a specific plan for a "balloon" or similar test, including the date and time, as well as a rain date and time, suitably and clearly described for inclusion in the legal notice for the newspaper and abutters' mailing. The test shall demonstrate the height of the proposed facility;

7. If lighting is required by the FAA, the Applicant shall provide a copy of the FAA's determination to establish the required markings and/or lights for the structure. The Applicant shall submit a plan indicating the horizontal foot candles at grade, within the property line and 25 feet beyond the property lines. The plan shall also indicate the location and types of luminaries proposed;

8. A proposed maintenance schedule for the Wind Energy System;

9. Emergency shutdown procedures for the Wind Energy System.

50.7 Design Standards and Siting Requirements.

In addition to the Design Standards set forth in Section 12.4, Site Plan Review, the following design standards shall apply to all Wind Energy Systems and shall govern the development and design process.

1. Setbacks. A Wind Energy System or Met Tower shall not be located closer to a property line than the height of the tower plus the height of the blade in its vertical position plus 50 feet. No inhabited structures, overhead utility lines, public or private roads or rights-of-way shall be located within the setback distance. No part of the Wind Energy System or Met Tower support structure, including guy wire anchors, but excluding access roads, may extend closer to the property boundaries than the standard structure setbacks for the zone where the land is located. The Planning Board may reduce the setback distances for the Wind Energy System if an abutting property owner(s) provides the Applicant with a recorded easement agreeing to the use limitations.

2. Noise. The Wind Energy System shall conform with the provisions of the Department of Environmental Protection's Division of Air Quality Noise Regulations (310 CMR 7.10). Except during short-term events such as high windstorms or utility outages, the sound created by said facility shall not exceed 64 decibels (dba) for Small Wind Energy Systems and 70 decibels (dba) for Large Wind Energy Systems as measured from the nearest property line. If noise levels are found to exceed allowable limits, the Building Inspector shall notify the owner of the property in writing to correct the violation. The Wind Energy System shall remain inactive until the noise violation is remedied. If the owner does not remedy the noise violation within 30 days, the Building Inspector shall require the facility to be relocated or removed.

3. Height and Rated Nameplate Capacity. Wind Energy Systems are subject to the following height and rated nameplate capacity:

a. Small Wind Energy Systems shall not exceed 75 feet in height and 20 kW rated nameplate capacity.

b. Large Wind Energy Systems shall not exceed 250 feet in height and 660 kW rated nameplate capacity. The Planning Board may allow this height and rated nameplate capacity to be exceeded as part of the special permit process if the project proponent can demonstrate that the additional height and/or rated nameplate capacity is needed and that the additional benefits of the higher tower and/or rated nameplate capacity outweigh any increased adverse impacts.

c. The maximum height of a Met Tower shall be 250 feet.

4. Unauthorized Access. The wind energy system shall be designed to prevent unauthorized access. For instance, the base of the tower may be enclosed by a fence and/or shall be designed and installed so as to not provide step bolts or a ladder readily accessible to the public for a minimum height of 12 feet above the ground.

5. Visual Impact. Installation of the Wind Energy System shall not create a substantially adverse visual impact. The Wind Energy System shall be sited in a manner that does not result in significant shadowing or flicker impacts. The Wind Energy System shall have a low reflective finish of an unobtrusive color. The Planning Board may require the structure to be painted or otherwise camouflaged to minimize visual impact.

6. A monopole tower shall be the preferred type of support.

7. Equipment Shelter. All equipment necessary to monitor and operate the wind facility shall be contained within the turbine tower unless technically infeasible, in which case ancillary equipment may be located outside the tower, provided it is contained either within an underground vault, or enclosed within a separate structure.

8. Lighting. Wind turbines shall be lighted only if required by the FAA. Lighting of other parts of the wind energy system, such as appurtenant structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties.

9. Electromagnetic Interference. The Wind Energy System shall cause no disrupting electromagnetic interference. If it is determined that a Wind Energy System is causing interference, the operator shall take the necessary corrective action to eliminate this interference, subject to the approval of the Building Inspector.

10. Telecommunications. A wind turbine tower may be used as a wireless communication facility, subject to the requirements of the Federal Communications Commission (FCC), Section 26 herein and the following additional requirements:

a. Antennas shall be flush-mounted to be in keeping with the design of the wind turbine tower.

b. All cabling associated with the wireless communication facility shall be contained within the tower structure or enclosed within a conduit painted to match the turbine mount.

11. Signs. No signs will be erected on the Wind Energy System except a sign identifying the Wind Energy System, the owner, the operator, and an emergency telephone number, no-trespassing signs, and any signs to warn of danger. All signs shall comply with Section 34 herein.

12. Natural Vegetation. Clearance of natural vegetation shall be limited to that which is necessary for the construction, operation and maintenance of the Wind Energy System.

50.8 Maintenance Requirements and Emergency Shutdown Procedures.

1. At all times the Applicant shall maintain the Wind Energy System and related equipment in good working condition and perform regular maintenance in accordance with the approved maintenance schedule. A record shall be kept of all maintenance performed, and said maintenance record shall be provided to Town officials whenever requested to verify maintenance or status.

2. Should the Wind Energy System fall into disrepair, the Applicant shall correct the deficiency within seven days. If the system is producing an unusual emission or condition, the Applicant shall address the situation within 24 hours or render the system inactive until the problem can be remedied.

3. Failure to properly maintain the Wind Energy System or correct other issues may result in revocation of the Special Permit, if applicable.

4. The Applicant shall provide a copy of the site plan and emergency shutdown procedures to the Emergency Management Director, Police Chief and Fire Chief prior to issuance of a Certificate of Completion. Upon request, the Applicant shall cooperate with local emergency services in developing an emergency response plan.

5. The Applicant or facility owner shall provide the Building Inspector with the contact information for a person responsible for responding to public inquiries and complaints throughout the life of the project and post this information in a visible location within 20 feet of the tower. This contact information shall be updated as necessary.

50.9 Removal Requirements.

1. The owner of the Wind Energy System shall submit a letter to the Building Inspector in December of each year confirming that the Wind Energy System is still in use and verifying compliance with standards of the bylaw and the Special Permit decision, if applicable. The owner shall notify the Building Inspector by certified mail on any proposed date of discontinued operations and plans for removal of the Wind Energy System.

2. A Wind Energy System that is not used for 12 successive months, or that has reached the end of its useful life, shall be deemed discontinued, and shall be removed by the owner. Upon a Notice of Discontinuance issued by the Building Inspector, the owner will have 30 days to provide sufficient evidence that the system has not been discontinued. Failure to provide such evidence to the Building Inspector within the time allowed shall be conclusive evidence that the Wind Energy System operation has been discontinued.

3. The owner shall dismantle and physically remove the Wind Energy System within 90 days from the date of discontinued operations. Removal of the system shall include the structure, foundation, transmission equipment, equipment shelter, fencing, and other appurtenances. All solid and hazardous wastes shall be disposed of in accordance with local and state waste disposal regulations. The site shall be re-vegetated to prevent erosion.

4. If the owner fails to remove the Wind Energy System in accordance with the requirements of this bylaw, the Town shall have the right, to the extent otherwise duly authorized by law, to enter the property and remove the Wind Energy System at the expense of its owner and the owner(s) of the site on which the system is located.

5. A Special Permit issued in accordance with this bylaw shall automatically expire if the Wind Energy System is discontinued or the system installation is not completed and commissioned within 12 months of the date that construction was initiated.

50.10 Performance Guarantee for Large Wind Energy Systems.

The Planning Board shall require surety, either in the form of an escrow account or other security, in an amount sufficient to assure satisfactory removal of the system and re-vegetation of the site. The cost estimate for removal and re-vegetation shall be prepared by the Planning Board's technical consultant and shall include a 25% contingency fee.

50.11 Waiver Provision.

The Board may waive strict compliance with any provision of this bylaw if it deems it in the public interest and determines that the intent of the bylaw has been maintained.

50.12 Modifications.

All material modifications to a wind energy system made after issuance of the special permit shall require submission of a modified special permit, applied for in accordance with all regulations applicable at the time such application is properly made.

Section 51 Large-Scale Ground-Mounted Solar Photovoltaic Installations.

[Bylaws of 5-1-2012, Art. 25; ATM Art. 29, 6-23-2020]

51.1 Applicability.

The Planning Board may grant site plan approval for the erection, construction, installation, operation and modification of a Large-Scale Ground-Mounted Solar Photovoltaic Installation in any zoning district subject to the requirements set forth herein.

51.2 Purpose and Intent.

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

51.3 Definitions.

As used in this section, the following terms shall have the meanings indicated:

LARGE-SCALE GROUND-MOUNTED SOLAR PHOTOVOLTAIC INSTALLATION

A solar photovoltaic system that is structurally mounted on the ground and is not roof-mounted, and has a minimum nameplate capacity of 250 kW DC.

RATED NAMEPLATE CAPACITY

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

SOLAR PARKING CANOPY

An elevated structure that hosts solar panels installed over parking lots or other hardscape area. Also may be called a "solar carport installation."

SOLAR PHOTOVOLTAIC SYSTEM

An electrical system that consists of an array of one or more photovoltaic modules, inverters, electrical components, and one or more electric loads.

51.4 General.

Large-scale ground-mounted solar photovoltaic installations shall be consistent with all applicable local, state and federal requirements, including but not limited to safety, construction, electrical, and communications requirements. All buildings and fixtures forming part of a solar photovoltaic installation shall be constructed in accordance with the State Building Code.

51.5 Application Procedure.

Applicants are required to submit an application conforming to the requirements of this bylaw. The application shall include a site plan and associated documents specified under Section 12.4, Site Plan Review, as well as the following additional information:

1. Blueprints or drawings of the solar photovoltaic installation signed by a Professional Engineer licensed to practice in the Commonwealth of Massachusetts showing the proposed layout of the system and any potential shading from nearby structures;

2. One- or three-line electrical diagram detailing the solar photovoltaic installation, associated components, and electrical interconnection methods, with all National Electrical Code and National Electrical Safety Code compliant disconnects and over current devices;

3. Manufacturers' specifications and installation manuals (if available) of the major system components to be used, including, but not limited to, the PV modules, mounting system, combiner box, disconnects, inverter(s);

4. Operation and Maintenance Plan which shall include measures for maintaining safe access to the installation, storm water controls, as well as general procedures for periodic inspections and operational maintenance of the installation;

5. Emergency shutdown procedures for the solar photovoltaic installation;

6. Evidence that the utility company that operates the electrical grid where the installation is to be located has been informed of the Applicant's intent to install an interconnected customer-owned generator. Off-grid systems shall be exempt from this requirement;

7. Proof of liability insurance.

51.6 Design Standards and Siting Requirements.

1. Dimensional Requirements. No part of the large-scale ground-mounted solar photovoltaic installation, including appurtenant structures, shall be located closer to a property line than 125 feet. Maximum lot coverage requirements shall be consistent for the district within which the installation is located.

2. Height Requirements. Freestanding solar panels located on the ground or attached to a framework located on the ground shall not exceed 12 feet in height above finished grade.

3. Appurtenant Structures. All appurtenant structures to large-scale ground-mounted solar photovoltaic installations, including but not limited to equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. Whenever reasonable, structures should be shielded from view by existing vegetation or plantings and/or joined or clustered to avoid adverse visual impacts.

4. Fencing. An eight-foot-tall security fence shall be installed around the entire perimeter of the large-scale ground-mounted solar photovoltaic installation.

5. Land Clearing. Clearing of natural vegetation shall be limited to what is necessary for the construction, operation and maintenance of the solar photovoltaic installation or otherwise prescribed by applicable laws, regulations and bylaws.

6. Screening. Landscaping shall be required to screen the solar photovoltaic installation and accessory structures from roadways, wetlands and adjacent uses. The width of the landscaped buffer shall be a minimum of 90 feet. Within the landscaped buffer, landscaping shall not be managed, maintained, trimmed or subject to selective removal for the purpose of additional solar gain. Where existing landscaping is insufficient for year-round screening purposes, the Planning Board will require installation of additional vegetation and/or fencing. The Planning Board may waive this requirement if it determines that there is no public benefit from such screening.

7. Lighting. Lighting shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties. Where feasible, lighting of the solar photovoltaic installation shall be directed downward and shall incorporate full cut-off fixtures to reduce light pollution.

8. Glare. No solar photovoltaic installation shall produce glare that would constitute a nuisance to occupants of neighboring properties or persons traveling neighboring roads.

9. Signs. No signs shall be erected on the solar photovoltaic installation except signs identifying the owner, the operator, the manufacturer, an emergency telephone number, safety signage, and warning signage. Special placards and signs shall be installed on all combiner boxes, inverters, transformers, disconnects, and panel feed breakers. This shall include the following placards:

WARNING — SOLAR INVERTER OUTPUT DISCONNECT

DO NOT RELOCATE THIS DEVICE

AC Disconnects located at: (i.e., Rear of maintenance shed)

A permanent sign shall be installed that shows the peak power, current, and voltages of each inverter, in lettering that is legible from a distance of three feet.

All signs shall comply with local utility requirements and Section 34 herein.

10. Network Interconnections and Power Lines. To the extent feasible, all network interconnections and power lines, to and from the facility, shall be located underground. Electrical transformers for utility interconnections may be aboveground if required by the utility provider.

51.7 Maintenance Requirements and Emergency Shutdown Procedures.

1. At all times the solar photovoltaic installation shall be maintained in good working condition and regular maintenance shall be performed in accordance with the approved maintenance schedule. A record shall be kept of all maintenance performed, and said maintenance record shall be provided to Town officials whenever requested to verify maintenance or status.

2. The owner or operator shall provide a copy of the site plan and emergency shutdown procedures to the Emergency Management Director, Police Chief and Fire Chief prior to issuance of an occupancy permit. The owner or operator shall cooperate with local emergency services in developing an emergency response plan.

3. The owner or operator shall provide the Building Inspector with the contact information for a person responsible for responding to public inquiries and complaints throughout the life of the project and post this information in a visible location at the installation. This contact information shall be updated as necessary.

51.8 Removal Requirements.

1. At least 30 days prior to the date of discontinued operations, the owner of the solar photovoltaic installation shall notify the Building Inspector by certified mail of any proposed date of discontinued operations and plans for removal of the solar photovoltaic installation.

2. A solar photovoltaic installation that is not used for 12 successive months, or that has reached the end of its useful life, shall be deemed discontinued, and shall be removed by the owner. Upon issuance of a Notice of Discontinuance by the Building Inspector, the owner shall have 30 days to provide sufficient evidence that the system has not been discontinued. Failure to provide such evidence to the Building Inspector within the time allowed shall be conclusive evidence that the solar photovoltaic installation has been discontinued.

3. The owner shall dismantle and physically remove the solar photovoltaic installation within 90 days from the date of discontinued operations. Removal of the system shall include:

a. Physical removal of all large-scale ground-mounted solar photovoltaic installation, structures, equipment, security barriers and transmission lines from the site.

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

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

51.9 Performance Guarantee.

The Planning Board shall require surety, either in the form of a bond or other security, in an amount sufficient to assure satisfactory removal of the system. The cost estimate for removal and re-vegetation shall be prepared by the Planning Board's technical consultant and shall include a 25% contingency fee. The Planning Board shall review the amount of the surety at five-year intervals to ensure that it is sufficient to guarantee satisfactory removal and re-vegetation. The Planning Board shall have the right, upon determination of discontinuance and failure to remove the installation within the ninety-day period identified in Section 51.8.3, but not the obligation, to claim the financial surety, and to the extent duly authorized by law enter the site and remove the facility in accordance with the requirements of this section.

51.10 Waiver Provision.

The Planning Board may waive strict compliance with any provision of this bylaw if it deems it in the public interest and determines that the intent of the bylaw has been maintained.

51.11 Modification.

All material modifications to a large-scale solar photovoltaic installation made after issuance of the site plan approval shall require submission of a modified site plan, applied for in accordance with all regulations applicable at the time such application is properly made.

Section 52 Recreational and Medical Marijuana Establishments.

[Bylaws of 5-27-1975, Art. 83(1); Bylaws of 4-3-1976, Art. 55; Bylaws of 4-2-1977, Art. 67, Sec. 3; Bylaws of 4-5-1986, Art. 51, Sec. 23; Bylaws of 6-6-1989, Art. 72, Sec. 3; Bylaws of 5-1-1990, Article 69; Bylaws of 5-3-1994, Art. 45; Bylaws of 5-3-1994, Art. 46; Bylaws of 5-4-1999, Art. 60; Addendum 6-8-2004; Bylaws of 5-2-2006, Art. 51; Bylaws 5-1-2007, Art. 48; Bylaws 5-5-2009, Art. 39; Bylaws of 5-5-2009, Art. 40; Bylaws 5-4-2010, Art. 24; Bylaws 5-6-2014, Art. 42; Bylaws 6-8-2004, Art. 46; Bylaws 5-1-2018/5-2-2018, Art. 29; Bylaws 5-1-2018/5-2-2018, Art. 33; Bylaws 5-1-2018/5-2-2018, Art. 34; Bylaws of 11-15-2022, Art. 7]

52.1 Applicability.

The Planning Board may grant a special permit authorizing a Marijuana Establishment or a Registered Marijuana Dispensary as provided under Article 1, Section 14.11, of the Millbury Zoning Bylaws in conformance with the following regulations, conditions and limitations. For the purpose of this section, the terms "Registered Marijuana Dispensary," "Marijuana Establishment," "Marijuana Cultivator," "Independent Testing Laboratory," "Marijuana Product Manufacturer," "Marijuana Retailer" and "Other Type of Licensed Marijuana-Related Business" shall be as defined in Article 5, Definitions.

52.2 Purpose and Intent.

The purposes of this section are:

1. To provide for the placement of Marijuana Establishments and Registered Marijuana Dispensaries in appropriate places and under conditions in accordance with the provisions of Massachusetts General Laws Chapter 94G;

2. To protect the health, safety, and general well-being of Millbury residents, the public, patients seeking treatment, customers seeking to purchase marijuana for recreational use, and patients seeking marijuana for medicinal purposes;

3. To minimize any adverse impacts of Marijuana Establishments and Registered Marijuana Dispensaries on abutters, residential neighborhoods and sensitive land uses;

4. To regulate the siting, design, security, safety, transfer, discontinuance, and quota of Marijuana Establishments and Registered Marijuana Dispensaries.

52.3 Design Standards and Siting Requirements.

The following restrictions shall apply to uses under this Section 52:

1. No Marijuana Establishment or Registered Marijuana Dispensary shall be located within 500 feet of the property boundary line of any lot in use as a licensed daycare center, public or private pre-school or school providing education in kindergarten or any of grades 1-12, church, library, park, or playground. No Marijuana Establishment or Registered Marijuana Dispensary shall be located within 500 feet of any lot in use as a Marijuana Establishment or Registered Marijuana Dispensary, except where the marijuana facility is operated by the same individual, organization, or affiliated organization. For purposes of this provision, distance shall be measured in a straight line from property boundary line to property boundary line;

2. A Marijuana Establishment or Registered Marijuana Dispensary shall be located within a fully-enclosed, permanent building and may not be located in a trailer, cargo container, motor vehicle or other similar non-permanent enclosure;

3. A Marijuana Establishment or Registered Marijuana Dispensary shall not have drive-thru service;

4. A Marijuana Establishment or Registered Marijuana Dispensary shall not be located within a building containing residential units;

5. No smoking, burning, consumption, or use of marijuana or Marijuana Products shall be permitted on the premises of a Marijuana Establishment or Registered Marijuana Dispensary with the exception of product testing performed at an Independent Testing Laboratory;

6. Marijuana, marijuana products, associated supplies, and/or promotional/advertising materials shall not be displayed or visible to a person from the exterior of a Marijuana Establishment;

7. A Marijuana Establishment or Registered Marijuana Dispensary shall not display signage or other marketing materials on the exterior of the building or in any manner visible from the public way, which, in the opinion of the Planning Board, may promote or encourage the use of marijuana or other drugs by minors;

8. A Marijuana Establishment or Registered Marijuana Dispensary shall be ventilated in such a manner that:

a. No pesticides, insecticides or other chemicals or products used in the cultivation or processing are dispersed into the outside atmosphere; and

b. No odor from marijuana or its processing can be detected by a person with an unimpaired and otherwise normal sense of smell at the exterior of the Marijuana Establishment/Registered Marijuana Dispensary or at any adjoining property;

9. The hours of operation of a Marijuana Establishment or Registered Marijuana Dispensary shall be determined by the Planning Board as a condition of the special permit.

52.4 Application Procedure.

Applicants are required to submit an application conforming to the requirements of Section 14 and this Section 52. The application shall include a site plan and associated documents specified under Section 12.4, Site Plan Review, as well as the following additional information:

1. The name and address of each owner of the facility/operation;

2. Copies of all documentation demonstrating appropriate application status under the state law, or registration or license, issued to the applicant by the Commonwealth of Massachusetts and any of its agencies for the facility;

3. Evidence that the applicant has site control and the right to use the site for a Marijuana Establishment or Registered Marijuana Dispensary in the form of a deed or valid purchase and sale agreement, or, in the case of a lease, a notarized statement from the property owner and a copy of the lease agreement;

4. A description of all activities to occur on site, including all provisions for the delivery of marijuana and related products;

5. Details showing all proposed exterior security measures for the premises, including lighting, fencing, gates and alarms, etc., which seek to ensure the safety of employees and patrons and to protect the premises from theft and other criminal activity. A letter from the Town of Millbury Police Chief, or his/her designee, acknowledging review and approval of the security plan for the Marijuana Establishment or Registered Marijuana Dispensary shall be submitted with the application. To the extent allowed by law, all such documents shall be confidential;

6. Details of the ventilation system.

52.5 Specific Findings Required.

In addition to the findings required under Section 12.46 and all other applicable sections of the Zoning Bylaws, the Planning Board shall not issue a special permit for a Marijuana Establishment or Registered Marijuana Dispensary unless it finds that the use:

1. Minimizes through design any adverse impacts on abutters and other parties in interest, as defined in M.G.L. Chapter 40A, Section 11;

2. Demonstrates to the satisfaction of the Planning Board that it meets all of the permitting requirements of all applicable agencies within the Commonwealth of Massachusetts and will comply with all applicable state laws and regulations;

3. Adequately addresses issues of site layout, security, ventilation, vehicular and pedestrian traffic, circulation, parking and queuing;

4. Satisfies all of the conditions and requirements set forth in this section.

52.6 Transfer/Discontinuance of Use.

1. A special permit granted under this Section 52 shall run with the applicant and shall be non-transferrable to another owner or operator without an amendment to the special permit following a noticed public hearing in accordance with M.G.L. c. 40A and the Zoning Bylaws;

2. Any Marijuana Establishment or Registered Marijuana Dispensary permitted under this section shall be required to remove all material, plants, equipment and other paraphernalia in compliance with 105 CMR 725.105(J) and (O) prior to the expiration of its Department of Public Health (DPH) Registration, immediately following revocation or voiding of its DPH Registration, or following the expiration, revocation or voiding of its license issued by the Cannabis Control Commission.

52.7 Quota.

All applications for a special permit pursuant to this section shall be acted upon in the order in which they are filed. The Planning Board shall limit the number of special permits issued for Marijuana Retailers such that the total number of active special permits for Marijuana Retailers shall not exceed 20% of the number of licenses issued within Millbury for the retail sale of alcoholic beverages not to be drunk on the premises where sold under Section 15 of Massachusetts General Law Chapter 138. Said number shall be rounded up to the next whole number. The Planning Board shall limit the number of special permits issued for Marijuana Establishments other than Marijuana Retailers to one.