Town of Townsend, MA Special Provisions

[Amended 1-17-1989 STM by Art. 37]

The following uses may be permitted as designated in Article VI, Land Use Regulations, provided they meet the following requirements in addition to any other requirements.

§ 145-35 Motels.

The density of motel units per acre shall be no more than five.

[Amended 5-18-1987 STM by Art. 22]

On each lot used for motel purposes there shall be provided front yard 60 feet in depth, rear and side yards each not less than 50 feet in depth.

A space not less than 20 feet shall be maintained open with grass, bushes, flowers or trees all along each side lot, rear lot and front lot, except for entrance and exit driveways, and such open space shall not be built on, nor paved nor used for parking.

No space within the required front yard depth shall be used for parking except as a temporary nature such as for registering. No parking spaces are allowed in required yard depths and all parking shall be at the side, rear or under the building for which it is intended.

Each motel site shall be provided with not more than two motor vehicle driveways for each abutting street which shall intersect the abutting street or streets at 90º.

Each rental unit shall contain not less than 250 square feet of habitable floor area.

Subject to Board of Appeals, uses such as but not limited to restaurants, convention facilities, health clubs, retail shops, beauty and barber shops are permitted within motels containing 100 or more units.

Hotels/motels in operation prior to January 1, 1970 have the capability to expand to a maximum density of 10 units per acre with or without individual kitchens.

[Added 4-29-1991 ATM by Art. 41]

§ 145-36 Accessory apartments in residential district.

[Added 1-17-1989 STM by Art. 38; amended 12-4-1990 STM by Arts. 9, 10, 11 and 12; 4-27-1991 STM by Arts. 7, 8 and 9; 5-7-2019 ATM by Art. 25]

Purpose. Recognizing the need to provide alternative affordable housing for family members and affordable housing for the Town, the following regulations are established for accessory apartments in a residential district. It is expressly understood that this section does not provide for "two-family" or "duplex" type housing.

An owner or owners of a single-family dwelling or of a single-family dwelling with a pre-existing outbuilding on the same lot in an RA or RB District may apply to the Board of Appeals for a special permit for the construction and occupancy of an accessory dwelling unit, hereinafter "accessory apartment," in such single-family dwelling or pre-existing outbuilding. In no case shall there be more than one accessory apartment established on a lot.

In accordance with the provisions of Article XI of this bylaw, and after due consideration of the report and recommendation of the Board of Health (see Subsection D), the Board of Appeals may grant a special permit as follows:

(1)

Procedures.

(a)

The applicant shall obtain and submit to the Board of Appeals a written report of the Board of Health, certifying that the conditions of § 145-36D have been met.

(b)

The Board of Appeals shall hold a public hearing on the application, in accordance with the procedures specified in MGL Chapter 40A and § 145-65.

(c)

The Board of Appeals shall give due consideration to the mandatory referral report of the Planning Board and, where its decision differs from the recommendation of the Planning Board, shall state the reasons therefor in writing.

(2)

Requirements for an accessory apartment.

(a)

Floor area; square footage.

[1]

The accessory apartment in a single-family dwelling is accessory to the principal residence. The floor area of the apartment shall be the lesser of: (1) 800 square feet or (2) 35% of the floor area of the principal residence and the apartment combined. The residence shall retain the appearance of a single-family structure. It shall be further required that the owner of the property shall occupy either the apartment or the principal residence as his/her primary residence, except for bona fide temporary absences.

[2]

The accessory apartment in a pre-existing outbuilding shall not exceed 800 square feet, shall not cause the external appearance of the structure in which the accessory apartment is located to be significantly altered from the appearance of the existing structure and shall not increase the footprint of the structure in which the accessory apartment is located. It shall be further required that the owner of the property shall occupy either the apartment or the principal residence as his/her primary residence, except for bona fide temporary absences.

(b)

Adequate provision has been made for the disposal of sewage, waste and drainage of such accessory apartment in accordance with the requirements of the Board of Health.

(c)

Adequate provision has been made for ingress and egress to the outside from such accessory apartment.

(d)

The construction and occupancy of the accessory apartment will not be detrimental to the neighborhood in which the lot is located.

(e)

The lot on which the accessory apartment and principal residence are located contains at least three quarters of an acre.

(f)

Adequate provisions have been made for off-street parking of motor vehicles in such a fashion as is consistent with the character of a single-family residence.

(g)

There is no other apartment on the lot on which the accessory apartment is to be located.

(h)

Any accessory apartment intended for occupancy by a person with a disability shall be subject to the provisions of MGL c. 40A, § 3.

In order to ensure compliance with Subsection C(1)(a) above, the applicant shall obtain and submit to the Board of Appeals prior to the hearing a written report of the Board of Health certifying that the conditions of Subsection C(2)(b) have been met.

Affordable Accessory Apartment Program.

(1)

The intent of this section of the bylaw is to document the availability of low to moderately priced housing that qualifies for inclusion on the Town's Subsidized Housing Inventory, thus allowing for access to a variety of housing to meet the needs of low- and moderate-income families, Town employees, the young and the elderly.

(2)

The Affordable Accessory Apartment Program is a public/private partnership to maintain local control over housing development and to increase the Town's supply of low- and moderate-income housing.

(3)

The Board of Appeals may approve a special permit for an affordable accessory apartment, according to the same procedures as in Subsection C(1), above. An affordable accessory apartment shall meet the requirements set forth in Subsection C(2) above, with the following conditions:

(a)

The affordable accessory apartment shall be approved by the Local Initiative Program (LIP) and comply with LIP requirements, including but not limited to those contained within the Comprehensive Permit Guidelines: M.G.L. Chapter 40B Comprehensive Permit Projects - Subsidized Housing Inventory, in effect on the date of application for a special permit and as may be amended from time to time thereafter;

(b)

Before the affordable accessory apartment may be occupied, the owner(s) of the property shall execute a Regulatory Agreement and Declaration of Restrictive Covenants for Affordable Accessory Apartment Rental ("Regulatory Agreement"), enforceable by DHCD and the Town, or other form of affordable housing restriction as may then be in effect under the Local Initiative Program. The Regulatory Agreement shall be recorded with the Middlesex South Registry of Deeds;

(c)

The Regulatory Agreement shall have a minimum term of 15 years;

[1]

The agreement shall terminate upon sale of the property, which, for purposes of this subsection, shall not include:

[a]

A mortgage deed to secure repayment of a loan; or

[b]

An interspousal transfer for nominal consideration where the transferor retains at least a 50% ownership interest in the property; or

[c]

A transfer to a trust for minimal consideration where the owner holds at least a 50% beneficial interest in the property.

[2]

An owner may voluntarily terminate the Regulatory Agreement prior to its expiration with 60 days' notice, in accordance with the restrictions in such agreement. The owner shall notify the Town and DHCD and record a notice of cancellation of the special permit at the Registry of Deeds. The termination of the Regulatory Agreement shall not take effect until the expiration of the current lease between the owner and the tenant occupying the affordable accessory apartment.

(d)

Upon termination of the agreement, additional restrictions shall apply regarding repayment to the Town of any funds received from the Town pursuant to a grant or loan agreement.

(e)

An affordable accessory apartment may not be rented to an owner's family member (currently defined in DHCD regulations and guidelines as a parent, grandparent, son, daughter, uncle, aunt, niece, nephew, or sibling);

(f)

The affordable accessory apartment shall be subject to DHCD regulatory requirements, including requirements relative to pricing, tenant income eligibility, affirmative fair housing marketing and tenant selection plan, and maintenance. In particular, the affordable accessory apartment shall be rented to income-qualified tenants selected through an open process established in accordance with the affirmative fair housing marketing plan, and the monthly rent shall not exceed the maximum affordable rent for a household of the appropriate size, as prescribed in the LIP affordable accessory apartment program guidelines and other applicable state regulations and requirements.

Any owner or owners of a single-family dwelling or a single-family dwelling with a pre-existing outbuilding in RA and RB Districts seeking a new or a renewal of an accessory apartment permit shall agree to abide by the terms of the Affordable Accessory Apartment Program defined in Subsection E above to ensure moderate income occupancy of the apartment thus created for a period of 15 years. The local housing agency or partnership shall permit deferral of the program if the homeowner wishes to accommodate initially a family member or members. For the purpose of this section, family member shall be defined as one of the blood, step or adopted relatives of the homeowner or spouse as follows: mother, father, sister, brother, son, daughter, uncle, aunt, grandmother, grandfather and/or their spouses. Should the family member "vacate" the accessory apartment, the agreement with the local housing agency or partnership shall be voided, providing the accessory apartment is discontinued and the dwelling reverts back to compliance with § 145-26A(1). Otherwise, an application shall be made under the Affordable Accessory Apartment Program defined in Subsection E above. Any apartment proposed hereunder shall comply with all applicable provisions of this § 145-36. Fines may be imposed by the Town for violation of this clause.

§ 145-37 Apartments.

[Amended 5-7-1986 STM by Art. 3; 1-17-1989 STM by Art. 39]

No apartment/multifamily structure as defined shall be constructed except in conformance with the requirements of this section and § 145-65. Apartments/multifamily structures shall require a special permit from the Board of Appeals. There shall be not more than one apartment/multifamily structure per building lot. The following shall be considered the minimum standards for apartment/multifamily development:

Zoning district allowed: RA, RB.

Minimum lot area: eight acres.

Minimum lot frontage: 500 feet.

Minimum front yard: 100 feet.

Minimum side yard: 60 feet.

Minimum rear yard: 60 feet.

Density: not to exceed one apartment unit per three acres in RA Districts; two acres in RB Districts.

Structure size: not to contain more than six units per each detached structure.

Maximum lot coverage: by buildings and pavement: 35% of gross upland land area.

§ 145-38 Mobile homes.

[Amended 5-7-1986 STM by Art. 4]

Mobile homes, as defined, may be placed on a lot for a period not to exceed 12 months for the sole purpose of allowing, specifically, the lot owner a temporary residence while a permanent residence is being constructed. Any such mobile home shall be subject to the provisions of the state and Townsend sanitary code, wetlands regulations and other appropriate ordinances or bylaws.

§ 145-39 Open space preservation development (OSPD).

[Amended 5-7-1986 STM by Art. 5]

Purpose. In order to provide for the public interest by the preservation of open space in perpetuity, variety in residential housing development patterns which allow for development more harmonious with natural features and Town growth policies than traditional residential development, to promote the maximum possible protection of open space, visual quality and watershed protection, and to encourage efficient provision of necessary utilities and community services, the following regulations are established for open space preservation development within the Town of Townsend. In making any and all determinations under this bylaw, the Planning Board shall always compare the impact of an open space development with potential conventional development, and may approve open space development only if the proposal is superior to a conventional development.

Applicability. Open space preservation development shall be allowed within Residence "A" and Residence "B" Zoning Districts subject to the requirements of this bylaw for those districts, and in accordance with the additional requirements specified herein.

General requirements.

(1)

Any parcel of land located within a zone permitting OSPD which would accommodate at least 10 dwelling units under the provisions of the underlying zoning district may be considered for an OSPD subject to a special permit issued by the Planning Board.

(2)

After an OSPD application has been submitted, no utility installations, no ditching, grading or construction of roads, no grading of land or lots, no excavation except for purposes of soil testing, no forest harvesting, no dredging or filling, and no construction of buildings or structures shall be done on any part of the development site until the application has been reviewed and approved as provided by these regulations.

(3)

No OSPD will be approved within an established single-family residential neighborhood if the Planning Board determines that such land use would have a detrimental effect upon the surrounding property.

(4)

It shall be the responsibility of an applicant for an OSPD special permit to demonstrate to the Planning Board that this form of land development will be as or more appropriate than traditional patterns of residential development for the particular site being considered.

Permitted uses.

(1)

Detached single-family dwellings, as defined, including all accessory uses allowed appurtenant thereto.

(2)

Uses permitted within the common open space as described in these regulations.

(3)

Recreational facilities for OSPD purposes.

Minimum requirements.

(1)

Density. The total area of the tract proposed for OSPD shall be at least 10 acres of contiguous upland. The total number of residential units allowable on a site proposed for OSPD shall not exceed the number of units that would be allowed in the zoning district in which the site is located. The burden of proof shall be upon the applicant in determining the allowable number of units. The total number of units allowed shall be determined by the following method:

(a)

Layout by a preliminary sketch plan showing the total number of lots which could be obtained by utilizing a conventional grid subdivision. The plan shall show all wetlands along the potential sites for home; and if individual septic systems and/or wells for drinking water would be necessary to serve the homes, then also the location of subsurface sewage disposal system and/or well on each lot. Where available, medium intensity soil survey maps, such as those available from the USDA Natural Resource Conservation Service, shall be provided. Furthermore, the SPGA may require the applicant to provide or pay for the creation of more detailed, high-intensity maps, or other data, if there is any indication of ledge, shallow soils, or other indication that the lots shown on the conventional plan may not be buildable as a practical matter. The applicant shall also provide financial data, based on the known data, including current housing prices and reasonable inflation and population projections, demonstrating that the conventional subdivision is financially viable, and could be completed and sold within the same time frame planned for the open space proposal.

[Amended 5-2-2000 ATM by Arts. 38 and 39]

(b)

Data proving that adequate provision for sanitary sewage can be provided to each lot in the conventional subdivision. If individual septic systems would be necessary to serve the homes, then the following data must be included:

[Added 5-2-2000 ATM by Art. 38]

[1]

Records of all soil tests performed on the site, whether or not performed by or on behalf of the applicant, on file with the Board of Health and the Nashoba Associated Boards of Health.

[2]

Soil test data meeting the requirements of the Board of Health which show that a subsurface sewage disposal system conforming with all current state and local requirements could be installed on each lot in the conventional subdivision.

(2)

Density regulations. The Planning Board may grant a reduction on all density regulations of the underlying zoning regulations for all portions of an OSPD, with the exception of height and front, side and rear yard setbacks, if the Planning Board finds that such reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with these regulations provided that in no instance shall any lot deviate from the following table of minimum requirements:

Table of Minimum Requirements
	Zoning District RA, RB
	With Town Water	Without Town Water
Minimum lot area	20,000 sq. ft.	48,000 sq. ft.
Minimum lot frontage	50 ft.	120 ft.

(3)

Frontage requirements. Frontage requirements for lots on the arc of the curve at the end of so called "cul de sacs" may be reduced to no less than 25% of the required minimum for the zoning district as established in Article VII of the bylaw.

[Amended 4-27-1991 STM by Art. 10]

(4)

Development standards. Prior to the issuance of a special permit for an OSPD, the applicant shall submit the information necessary to demonstrate that the following development standards have been met:

(a)

The development will not cause unreasonable traffic congestion or unsafe conditions both within and outside of the development and will comply with Town standards for parking, access, road design and construction.

(b)

The development will provide for and maintain convenient and safe emergency vehicle access to all buildings and structures at all times.

(c)

The nature of the soils and subsoils shall be suited for the intended purposes. This determination shall focus upon, but shall not be limited to the location, design and construction of roadways, buildings, septic systems and surface water drainage systems. Soil borings or test pits may be made to provide information on soil texture, color, percolation rates and depth to the groundwater table at its maximum elevation.

(d)

Anticipated stormwater runoff from the site shall not exceed peak runoff from the site prior to development. The applicant shall submit formal drainage calculations by a registered professional engineer for this purpose.

(e)

Proper soil erosion and sedimentation control measures shall be employed to minimize sedimentation and siltation of existing surface water bodies and wetlands. In areas where the land slopes downward towards any surface water body, or freshwater wetland, proposed filling, cutting, clearing or grading shall be minimized and all such development activities shall be carried out in such a way as to retain the natural vegetation and topography wherever possible. The Planning Board may require that an erosion and sedimentation control plan be submitted if significant erosion is anticipated in slope areas.

(f)

The site design shall preserve and, where possible, enhance the natural features of the property, including scenic views, by adapting the location and placement of structures and ways to the existing topography in order to minimize the amount of soil removal, tree cutting and general disturbance to the landscape and surrounding properties.

(g)

The development shall comply with all other provisions of the Subdivision Rules and Regulations of the Planning Board[1] and any other land use regulations of the Town in effect at the time of application, insofar as they are apt.

[1]

Editor's Note: See Ch. 175, Planning Board, Art. II, Subdivision Control.

(h)

The Planning Board may hire, at its discretion and at the project proponent's expense, a qualified firm or firms to evaluate the technical information presented to the Planning Board.

[Added 1-17-1989 STM by Art. 40]

(i)

Precast reinforced concrete or granite monuments shall be set at all angle points, beginnings and ends of curves, and at any other points as directed by the Board marking the perimeter of the open space. These concrete or granite monuments shall be a minimum of four feet in length, dressed to four inches square on top, with a three-eighths-inch drill hole in the center of the top. These bounds shall be set so the top is one to three inches above the finish grade, with the surrounding area compacted to the satisfaction of a review engineer representing the Town. The applicant shall deposit a certified check or cashiers check payable to the Town of Townsend in the amount totaling $300 per monument. The check shall be refunded after submission of a certificate from a registered land surveyor certifying that bound monuments have been accurately installed.

[Amended 4-27-1991 STM by Art. 11; 10-19-2010 STM by Art. 20; 11-15-2011 STM by Art. 17]

Open space use and design standards.

(1)

Lots for building purposes shall be grouped in clusters and within each cluster the lots shall be contiguous.

(2)

Within an OSPD, no less than 30% of the total land area shall be devoted to common open space. The common open space shall not include land set aside for roads and/or parking uses. No more than 50% of the common open space shall contain wetlands as defined by Massachusetts General Laws, Chapter 131, Section 40.

(3)

The common open space shall be designed and maintained in accordance with the following standards:

(a)

Naturally existing woods, fields, meadows and wetlands shall be maintained and improved in accordance with good conservation practices.

(b)

Common open space shall be planned as large, contiguous units whenever possible. Strips or narrow parcels of common open space shall be permitted only when necessary for access or as vegetated buffers along the site's perimeter.

(c)

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

(d)

No more than 20% of the common open space shall be covered by man-made impervious surfaces.

(e)

Common open space may be used for active and passive recreation, conservation, forestry, agriculture, natural buffers, structures necessary to approved uses, utilities and other facilities necessary for the convenience and enjoyment of the residents, subject to approval by the Planning Board.

(f)

There shall be a minimum setback of 50 feet between any common open space structures and all property lines of the site.

Common open space ownership and management.

(1)

Common open space in an OSPD shall be conveyed to: the Town and may be accepted by it for park or open space use; a nonprofit corporation, the principal purpose of which is the conservation of open space; or to a corporation or trust owned or to be owned by the owners of lots or residential units within the development. If a corporation or trust owned by the owners of lots or residential units is utilized, ownership thereof shall pass with the conveyances of the lots or units. In any case where such land is not conveyed to the Town, a restriction enforceable by the Town shall be recorded at the Middlesex District Registry of Deeds providing that such land shall be kept in open or natural state and not be built upon for residential use or developed for accessory uses such as parking or roadway.

(2)

If the common open space is not to be conveyed to the Town, the application for an OSPD special permit must include a program describing how the common open space will be maintained in perpetuity to standards satisfactory to the Planning Board. The applicant shall also provide as part of the common open space proposal an agreement empowering the Town to perform maintenance of the common open space in the event of failure to comply with the program included in the application pursuant to the preceding sentence providing that, if the Town is required to perform any maintenance work, the owners of lots or units within the OSPD shall pay the cost thereof and that the cost shall constitute a lien upon their properties until said cost has been paid.

Duration of approval. Notwithstanding anything to the contrary in this § 145-39, any special permit granted by the Planning Board for an OSPD shall become void within two years from the date of issue, which two years shall not include time required to pursue or await determination of an appeal referred to in Section 17 of Chapter 40A of the General Laws, unless any substantial part of the proposed construction work shall have been performed and proceeded in good faith continuously to completion, except for a good cause. All open space shall be dedicated at the time the special permit, as required, has been granted.

(1)

If at any time before, during or after construction of the proposed development unforeseen conditions make it necessary or preferable to modify the project as described in the approved definitive OSPD application, the Planning Board may authorize such modifications provided that they are within the spirit of the original proposal and comply with these regulations.

§ 145-40 Aquifer Protection Overlay District.

[Added 5-7-1986 STM by Art. 12; amended 6-5-1993 STM by Art. 8; 4-29-1997 ATM by Arts. 48, 49, 52 and 53; 11-11-2002 STM by Art. 30]

Findings. The Town of Townsend finds that:

(1)

The groundwater underlying this Town is the sole source of its existing and future drinking water supply;

(2)

The groundwater aquifer is integrally connected with, and flows into, the surface waters, lakes and streams which constitute significant recreational and economic resources of the Town used for swimming, fishing, and other water-related recreation;

[Amended 11-29-2005 STM by Art. 31]

(3)

Accidental spills and discharges of petroleum products and other toxic and hazardous materials and sewage effluent have repeatedly threatened the quality of such groundwater supplies and related water resources throughout towns in Massachusetts, posing potential public health and safety hazards and threatening economic losses to the affected communities.

Aquifer Protection Overlay District. Aquifer Protection Districts shall be defined as the aquifer boundaries shown on a map entitled "Distribution of Aquifers, Townsend, Mass., December 15, 1984, Nashua River Watershed Association" and shall be considered superimposed over any other district established in this bylaw.

Use regulation.

(1)

Prohibited uses. Except as hereinafter provided in Article IX, within the Aquifer Protection District the following uses are specifically prohibited: sanitary landfills, earth removal operations whereby earth or gravel is removed closer to the maximum high water table than seven feet (except as permitted in § 145-46 of the Townsend Zoning Bylaws), junkyards, facilities for the storage, dismantling, and sale of used motor vehicle parts, and any other uses requiring a Class III license, municipal sewage treatment facilities with on-site disposal of primary or secondary treated effluent, package sewage treatment plants, communal septic systems, car washes, road salt stockpiles, dumping of snow from outside the Aquifer Protection District, establishments providing services and repairs for boats, automobiles, trucks, motorcycles, or other vehicles propelled by internal combustion engines, metal plating, chemical and bacteriological laboratories, and storage, use, transportation or disposal of toxic or hazardous materials.

[Amended 11-29-2005 STM by Art. 31]

Density regulations. Residential dwellings shall only be permitted at a density not greater than that allowed by the underlying zoning district for single-family residential dwellings.

Special permit uses. Within the Aquifer Protection District the following shall be allowed only upon receipt of a special permit:

(1)

Any use involving storage or use of toxic or hazardous materials in quantities greater than associated with normal household use, provided that a closed recycling and reclamation system is used for all toxic or hazardous materials, or other means acceptable to the SPGA is used to isolate hazardous materials from the groundwater. In addition, the holder of any special permit under this section must provide evidence on an annual basis that the Town of Townsend is named as a loss payee on an appropriate environmental insurance policy.

(2)

Earth removal operations whereby earth or gravel is not removed closer to the maximum high water table than four feet. The special permit granting authority may restrict the use of lands excavated to within four feet of the high water table and set conditions on the further and future use of said land. All restrictions and conditions established by the special permit granting authority shall be noted as part of the special permit which shall be recorded with the property deed at the Middlesex County Registry of Deeds. Specific land use restrictions and/or conditions may be amended from time to time by the Board of Appeals should future circumstances warrant such amendment. Any amendment to said special permit shall require a public hearing and a decision-making procedure as established by MGL c. 40A, § 9.

Special permits.

(1)

Special permit granting authority. The special permit granting authority (SPGA) under this bylaw shall be the Board of Appeals. Such special permit shall be granted if the SPGA determines in conjunction with other Town agencies as specified in§ 145-65E that the intent of this bylaw as well as its specific criteria are met. In making such determination, the SPGA shall give consideration to the simplicity, reliability and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures failed. The SPGA shall explain any departures from the recommendations of the other Town agencies in its decision.

(2)

Special permit criteria. Special permits under Subsection E of this section shall be granted only if the SPGA determines that groundwater quality resulting from on-site waste disposal and other on-site operations will not fall below applicable federal or state standards for drinking and recreational water at the down-gradient property boundary.

(3)

Submittals. In applying for a special permit required by this section, the information listed below shall be submitted:

(a)

A complete list of all chemicals, pesticides, fuels and other actually or potentially toxic or hazardous materials, as well as the quantity, to be used or stored on the premises in quantities greater than those associated with normal household use, accompanied by a description of measures proposed to protect all storage container/facilities from vandalism, corrosion and leakage, and to provide for control of spills. Appropriate industry standard Material Safety Data Sheets pertaining to each item on the list must also be provided. Said list shall also be filed with the Hazardous Waste Coordinator (Fire Chief) or his designee and all of his pertinent regulations shall be complied with.

(b)

A description of actually or potentially toxic or hazardous wastes to be generated, indicating storage, disposal and groundwater protection methods.

(c)

Evidence of approval by the Massachusetts Department of Environmental Quality Engineering (DEQE) of waste treatment or disposal system or any wastewater treatment system over 15,000 gallons per day capacity.

Design and operations guidelines. The following design and operation guidelines shall be observed within the Aquifer Protection District.

(1)

Safeguards. Provision shall be made to protect against toxic or hazardous materials discharge or loss resulting from corrosion, accidental damage, spillage or vandalism through measures such as, but not limited to: prohibition of underground storage tanks; spill control provisions in the vicinity of delivery points; secured storage areas for toxic or hazardous materials; and indoor storage provisions for corrodible or dissolvable materials. For operations which allow the evaporation of toxic or hazardous materials into the interiors of any structures, a closed vapor recovery system shall be provided for each such structure to prevent discharge of contaminated condensate into the groundwater or into the atmosphere.

(2)

Location. Where the premises are partially outside of the Aquifer Protection District, potential pollution sources such as on-site waste disposal systems shall be designed as if the entire premises were inside the Aquifer Protection District.

(3)

Disposal. In any operation in which toxic or hazardous wastes will be used or stored in quantities greater than those associated with normal household use, the applicant must demonstrate the availability and feasibility of disposal methods which are in conformance with MGL c. 21C.

(4)

Drainage. All runoff from impervious surfaces shall be recharged on the site, diverted towards areas covered with vegetation for surface infiltration to the extent possible. Dry wells shall be used only where other methods are not feasible, and shall be preceded by oil, grease, and sediment traps to facilitate removal of contaminants.

Violations. Written notice of any violation of this bylaw shall be provided by the Hazardous Waste Coordinator (Fire Chief) or his designee to the owner or operator of the premises, specifying the nature of the violations and a schedule of compliance, including cleanup of any spilled materials. The Hazardous Waste Coordinator (Fire Chief) or his designee shall also notify the Board of Health, Conservation Commission, Police Chief, Building Inspector, SPGA, and DEP. This compliance schedule must be reasonable in relation to the public health hazard involved and the difficulty of compliance. In no event shall more than 30 days be allowed for either compliance or finalization and implementation of a plan for longer-term compliance. Until plans for compliance and implementation have been approved by the SPGA, all operations involving hazardous materials at the site shall be suspended.

Definition.

TOXIC OR HAZARDOUS MATERIALS

Any substance or mixture of such physical, chemical or infectious characteristics as to pose a significant, actual or potential hazard to water supplies, or other hazard to human health, if such substance or mixture were discharged to land, groundwater, or surface waters of this Town. Toxic or hazardous materials include, without limitation, organic wastes, acids and alkalis, pesticides, herbicides, solvents, thinners and wastes generated by activities such as (but not limited to) those listed below, are presumed to be toxic or hazardous unless and except to the extent that anyone engaging in such an activity can demonstrate the contrary to the satisfaction of the Board of Health and Hazardous Waste Coordinator (Fire Chief) or his designee. Storage, manufacture or other activities involving the use of:

(1)

Hydrocarbon fuels and solvents of any kind.

(2)

Airplane, boat and motor vehicle service and repair.

(3)

Chemical and bacteriological laboratory operation.

(4)

Cabinet making.

(5)

Dry cleaning.

(6)

Electronic circuit assembly.

(7)

Metal plating, finishing and polishing.

(8)

Motor and machinery service and assembly.

(9)

Painting, wood preserving and furniture stripping.

(10)

Pesticide and herbicide manufacturing and/or storage activities.

(11)

Photographic processing.

(12)

Printing.

§ 145-41 Squannacook River area of critical environmental concern.

[Added 5-7-1986 STM by Art. 13]

Purpose. The Town of Townsend, recognizing the need to affirm and implement the intent of state legislation establishing the Squannacook River Sanctuary Act (MGL c. 132A, § 17), namely to protect environmental values significant to flood control, the prevention of storm damage, the protection of waters containing fisheries and other public interests protected by the Wetlands Protection Act (MGL c. 131, §§ 40 and 40A) hereby adopts the following regulations.

Geographical applicability. This article will apply to the waters of the Squannacook River within the Town of Townsend and a buffer zone extending 300 feet landward from each bank (as defined in MGL c. 131, § 40) of the Squannacook River. For those lots or land parcels totally encompassed by this area so defined, this article's applicability will be limited to 100 feet landward of the edge of the wetlands, as defined by MGL c. 131, § 40.

(1)

In no event shall the geographical applicability of this section extend more than 300 feet landward from each bank (as defined in MGL c. 131, § 40) of the Squannacook River.

(2)

This section of the bylaw shall not apply to lands or structures used in the production of hydroelectric or mechanically applied water power, provided, however, that no use of such lands or structures shall be permitted which would violate the provisions of MGL c. 132A, § 17.

Regulation of construction. Within the above described area, there will be no construction of structures or removal of materials as regulated by § 145-46 of the Townsend Zoning Bylaws.

Regulation of vegetation alteration. Within the areas described in Subsection B of this section, there will be no clear cutting of existing vegetation and no more than minimal disruption of wildlife habitats. However, this section shall not apply in cases where the Conservation Commission determines that its application would adversely affect the purposes of MGL c. 131, § 40.

Site design requirements. Enlargement, reconstruction or modification of any structure permitted prior to the establishment of this bylaw shall conform to the following:

(1)

Runoff shall be directed towards areas covered with vegetation for surface infiltration. Catch basins and piped storm sewers shall be used only where other methods are infeasible.

(2)

Where the premises are partially outside of the above-noted areas, site design shall locate such potential pollution sources as on-site disposal systems as far from the edge of the Squannacook River as is feasible.

§ 145-42 Site plan review special permit.

[Added 5-7-1986 STM by Art. 14]

Purpose. Each use for which a site plan submission is required is a potentially significant addition to a developing or developed area of the Town, and to a residential, commercial, or industrial neighborhood. It is intended that the site plan for each use be prepared with due consideration for:

(1)

The purpose and intent of this Zoning Bylaw;

(2)

Coordination with and improvement of systems of vehicular and pedestrian access, drainage, water supply, sewage disposal, lighting, landscaping, wetlands, watercourses, buildings and other features that support the neighborhood and scenic roadways; and

[Amended 5-2-2023 STM by Art. 18]

(3)

Protection of the public health and wellness, safety, welfare, property values and the environment.

[Amended 5-2-2023 STM by Art. 18]

Applicability. Any change of use or increase in intensity of use which would under the parking schedule "Table of Minimum Requirements" of § 145-33 require five or more parking spaces, regardless of the number of parking spaces existing on the premises, shall be permitted only upon the issuance of a special permit from the special permit granting authority for site plan review in conformance with this section, § 145-65 and MGL c. 40A, §§ 9 and 11.

[Amended 1-4-2000 STM by Art. 11]

(1)

However, no such special permit is required for a change of use where the following conditions apply:

[Added 5-2-2000 ATM by Art. 17]

(a)

The site has been in compliance with a previously issued site plan review special permit under this section for at least the immediately preceding 12 months, and there have been no changes to the site that were not anticipated by the earlier permit.

(b)

The new use does not require more parking spaces than the number required by the previously issued site plan review special permit.

(c)

The Planning Board finds, by the same vote that would be required for issuing a special permit, and based on the actual history of the site, and after consulting with appropriate Town departments, including but not limited to the Police Department and the Board of Selectmen, that the earlier site plan review special permit adequately addresses the purpose of the site plan review special permit, and that the new use does not differ in ways that would invalidate the assumptions, findings, or conditions of the earlier permit.

[Amended 5-2-2023 STM by Art. 18[1]]

[1]

Editor's Note: This article also repealed former Subsection B(1)(d), added 11-15-2011 STM by Art. 13, which immediately followed this subsection and pertained to proposed ground-mounted solar energy facilities to be located within the Ground-Mounted Solar Energy District.

(2)

Before making the determination that a site is eligible for the exemption of Subsection B(1), the Building Inspector shall notify the Planning Board of the proposed change of use in a timely manner. The Planning Board may act on such determination without a public hearing. An applicant need not wait for such determination by the Building Inspector or Planning Board prior to filing an application for a new site plan review special permit.

[Added 5-2-2000 ATM by Art. 17]

Procedure. Applications for site plan review special permits shall be filed with the Town Clerk and the special permit granting authority as specified in § 145-65C of the Zoning Bylaws.

[Amended 4-25-1995 STM by Art. 11; 9-24-1996 STM by Art. 39; 1-4-2000 STM by Art. 11; 12-3-2014 STM by Art. 19; 5-2-2023 STM by Art. 18]

(1)

For applicable land disturbance as specified in Chapter 85 of the Townsend General Bylaw, a stormwater management application shall be filed in conjunction with this application to determine subjectivity to either a minor or major stormwater management permit. Refer to § 175-44, Stormwater management, erosion and sedimentation control plan (the stormwater plan) to determine requirements, with strict adherence to Chapter 85 of the Townsend General Bylaws, NPDES Phase II Stormwater Management, and its associated regulations.

Drawing requirements. Site design plans subject to site plan review special permit shall be prepared by a registered architect, landscape architect, professional land surveyor or professional engineer. The site design plan shall be prepared at a scale no less than one inch equals 20 feet and shall show all existing and proposed buildings, existing and proposed contour elevations, structures, parking spaces, driveway openings and driveways within a two-hundred-foot radius of the project, service areas, facilities for sewage, refuse, other waste disposal, and for surface water drainage, wetlands, surface water, areas subject to the one-hundred-year flood and landscape features such as trees, shrubs, fences, walls, planting areas, walks and lighting, both existing and proposed. The site plan shall also show the relation of the above features to adjacent ways and properties and contain a locus map at a scale not greater than one inch equals 2,000 feet. The site plan shall also show all contiguous land owned by the applicant or by the owner of the project site.

[Amended 9-24-1996 STM by Art. 40]

(1)

Special provisions for drawing requirements. The special permit granting authority may, at its option following a preliminary review, waive the requirement that site design plans be prepared by a registered architect, landscape architect, professional land surveyor or professional engineer. In considering applications for waivers, the special permit granting authority shall consider whether the proposed plans indicate any new construction or expansion of existing structures; whether there is a recorded survey plan in existence for the site showing the property bounds, existing structure and curb cuts; whether the proposed project requires any changes in or impact upon vehicular or pedestrian access, parking areas, drainage, water supply, sewage disposal, lighting, landscaping, wetlands, watercourses and lot contours. The waiver shall not remove the requirement that site design plans be drawn to scale and depict those items stated in Subsections C through G.

[Added 12-4-1990 STM by Art. 14; 1-4-2000 STM by Art. 11]

Access and circulation. Provisions shall be made for vehicular and pedestrian access to the project site and circulation upon the site in such a manner as to safeguard against hazards to traffic and pedestrians in the street and upon the site, to avoid traffic congestion on any street and to provide safe and convenient circulation in the street and upon the site. Access and circulation shall also conform to the following:

(1)

Where reasonable alternate access is available, the vehicular access to the site shall be arranged to avoid traffic use of local residential streets situated in or bordered by residential districts;

(2)

Where a site has frontage on two or more streets, the special permit granting authority may require that the access to the site be provided across the frontage and to the street where there is lesser potential for traffic congestion and for hazards to traffic and pedestrians;

[Amended 1-4-2000 STM by Art. 11]

(3)

Where necessary to safeguard against hazards to traffic and pedestrians and/or to avoid traffic congestion, provision shall be made for turning lanes, traffic directional islands, driveways and traffic controls within the streets;

(4)

Access driveways shall be of a design and have sufficient capacity to avoid queuing of entering vehicles on any street;

(5)

Driveways into the site shall have proper grade and alignment as well as transition grades and sight distances, for safe, convenient and efficient access and shall meet the street right-of-way line and travel way of the street in such a manner as to conform to the standard cross section for the street as determined by the Highway Superintendent and the Planning Board's Rules and Regulations for Subdivision Control;

[Amended 1-4-2000 STM by Art. 11]

(6)

Where topographic and other conditions are reasonably usable, provision shall be made for circulation driveway connections to adjoining sites of similar existing or potential use when such driveway connection will facilitate fire protection services and/or when such driveway will enable the public to travel between two existing or potential uses, open to the public generally, without need to travel upon a street;

(7)

There shall be no more than one driveway connection from any project site to any street, except that: separate entrance and exit driveways may be provided where necessary to safeguard against hazards and to avoid congestion and additional driveway connections may be provided, particularly for but not limited to large trucks and uses of extensive scope, if traffic flow in the street will be facilitated by the additional connection. Driveways shall not exceed 24 feet in width at the street line, or such lesser width as will be sufficient to accommodate the traffic to be generated unless a greater width is required by Town bylaw or the Commonwealth of Massachusetts.

Existing streets. Where the project site has frontage on an existing street, proper provision shall be made for grading and improvement of shoulders and sidewalk areas within the right-of-way of the street and for provision of curbs and sidewalks.

This section, Subsections A to G, is supplementary of other provisions of the Zoning Bylaw affecting access, circulation, design and landscaping of parking areas. Where the application of Subsections A to G imposes a greater restriction than imposed by other provisions of the Zoning Bylaw, the application of Subsections A to G shall control.

The special permit granting authority for this section shall be the Planning Board, except that if a use requires a special permit from the Zoning Board under § 145-26B(2), (3), (5) or (6) or § 145-27C, and requires at most eight parking spaces, and is not on a state highway or state numbered road then the special permit granting authority shall be the Zoning Board.

[Added 1-4-2000 STM by Art. 11]

§ 145-43 Antique shops.

[Added 9-25-1989 STM by Art. 4]

Recognizing the need to preserve and enhance historic structures in the Town of Townsend which are beyond historic district boundaries, and to protect and promote an important part of our cultural heritage, the Town of Townsend hereby enacts the following section to permit an antique shop to operate in residential districts without the requirement of its being an accessory use to a single-family dwelling:

The structure used must have been in existence prior to 1900. Any and all additions to the original structure must be in keeping with the original architectural style.

Sufficient off-street parking, as covered in the Table of Minimum Requirements in § 145-33 of this Bylaw under nonresidential retail sales and service, must be provided and such parking areas must be in keeping with the character of a single-family residence. Crushed stone may be considered as an acceptable paving surface for this use.

All work or sale of goods must be carried on inside the building used. There shall be no external change which alters the residential appearance. The residential character of the premises must be preserved.

There shall be no outside display except for a sign advertising such use which shall comply with Article X et seq. of the Townsend Zoning Bylaws pertaining to residential signs.

The products to be sold must be authentic antiques, as opposed to reproductions.

The Zoning Board of Appeals may impose on any special permit additional conditions, including but not limited to, number of employees permitted, hours of operations and screening plantings of abutting properties.

Before granting a special permit the Zoning Board of Appeals must conclude that the impact from traffic, lighting, and hours of operation will not have a negative impact on the residential neighborhood.

§ 145-44 Swimming pool enclosures.

[Added 5-18-1987 STM by Art. 24]

Any person owning land on which there is a swimming pool containing 24 or more inches of water in depth at any point, and/or covering a surface area of greater than 250 square feet, shall erect and maintain an enclosure surrounding the property or pool area sufficient to make such pool inaccessible to small children. Such enclosure must be constructed of a rigid material, be equipped with a self-latching gate with a latch that is inaccessible to small children from the outside, in case of an aboveground pool, a swing-up or removable ladder that prevents entry, and must not be less than four feet in height.

§ 145-45 Floodplain District.

[Amended 1-17-1989 STM by Art. 17]

The purpose of the Floodplain District is to ensure that development on land within the district will not endanger the health, safety and welfare of the occupants of land within the floodplain and of the public and to encourage the most appropriate use of the land in the community. The Floodplain District shall be considered to be superimposed over the other districts shown on the Zoning Map, as a recognition of the special hazards which exist in such areas.

In the Floodplain District uses otherwise permitted by this Bylaw in the zone in which the land is located shall be permitted only if they conform with the purposes cited above. No structure shall be erected for human occupancy, or to which flood-damageable sanitary facilities would be attached.

No dumping, filling, dredging, excavation, transfer or removal of any material which will reduce the natural floodwater storage capacity of the land or will interfere with the natural flow of water over the land or through the groundwater table shall be permitted. No activity which may pollute surface or groundwater due to flooding shall be permitted.

Notwithstanding the above, a permit may be issued for a development, which meets requirements as defined below, by the Board of Appeals after reasonable notice and a mandatory public hearing.

(1)

Any person desiring such a permit shall submit an application to the Board of Appeals, describing in detail the proposed use of the property and the work to be performed, accompanied by plans showing:

(a)

The location, boundaries, and dimension of the lot, existing and proposed structures, watercourses and drainage easements, fill, means of access, and sewage disposal facilities, and location of one-hundred-year flood lines;

(b)

Mean sea level elevation, with two-foot or less contour separation, of the existing and proposed land surface, of the cellar and the first floor, and sewage disposal facilities;

(c)

Test boring of sufficient depth to show location of peat, hardpan and other impervious material, and such percolation tests as are necessary.

(2)

Copies of the application shall be delivered by the applicant to the Board of Health, the Building Inspector, the Planning Board, and the Conservation Commission, who shall advise the Board of Appeals. No building permit shall be issued and no excavation or filling shall take place until the Board has issued a permit under this section or 90 days have elapsed after the receipt of the application without action thereon.

The Board shall issue a permit under this section if it finds that the proposed use of the premises will not endanger the health, safety, and welfare of the occupants of the development, of the floodplain, or of the public, as defined above, or it may issue a permit with such conditions as it deems necessary to protect health and safety or provide proper flood control or protection, or it may deny the application. The burden of showing that the proposed development will not endanger health, safety, or welfare of occupants or the general public, wherever the effects of said development may be felt, shall rest upon the developer, who shall provide such engineering and hydrological data as is reasonably necessary. The Board shall, as a condition of approval, require that effective notice be given to prospective purchasers, by signs or otherwise, of past flooding of said premises, the steps undertaken by the petitioner or his successor in title to alleviate the effects of the same, and the availability or unavailability of flood insurance for said property. Without limiting the generality of the foregoing, the Board shall ensure:

(1)

That the floor level of areas to be occupied by human beings as living or working space shall be at an elevation of at least three feet above the floodplain level, that the foundation footings or cellar level shall be at least four feet above the water table as measured in April or May of the year, that furnaces and utilities are protected from the effects of flooding, and that the structure will withstand the effects of flooding in accordance with the Building Code.

(2)

That the construction, use and/or change of grade of the proposed structures and their access roads will not obstruct or divert flood flow, reduce natural floodwater storage capacity, or increase stormwater runoff velocity so that water levels on other land are raised or danger from flooding increased.

(3)

That safe means of vehicular and pedestrian escape are provided in the event of flooding to the elevation of the floodplain.

(4)

That the proposed methods of drainage and sewage disposal will not cause pollution or endanger health, in the event of flooding.

(5)

In Zone AE, along watercourses within the Town of Townsend that have a regulatory floodway, as designated on the Middlesex County Flood Insurance Rate Maps, dated June 4, 2010 all encroachments, including fill, new construction, substantial improvements to existing structures and other development, are prohibited unless certification by a registered professional engineer is provided by the applicant demonstrating that such encroachment shall not result in any increase in flood levels within the community during the occurrence of the one-hundred-year flood.

[Amended 5-4-2010 ATM by Art. 26]

Nothing contained in this section shall limit the authority of the Board of Health with respect to premises in the Floodplain District or affect the applicability of the Building Code to any building in the Floodplain District.

The Board of Appeals shall refer to each of the reports submitted by the Board of Health, the Building Inspector, the Planning Board, and the Conservation Commission in review of the developer's application, for evaluation of the potential hazard of the proposed development to the health, safety, and welfare of occupants and the general public. The Board of Appeals should consider concurrence of the above board or officials as necessary prior to approving any applications.

The Floodplain District is herein established as an overlay district. The District includes all special flood hazard areas within the Town of Townsend designated as Zone A and AE, on the Middlesex County Flood Insurance Rate Map (FIRM) issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program. The map panels of the Middlesex County FIRM that are wholly or partially within the Town of Townsend are panel numbers 25017C0035E, 25017C0042E, 25017C0045E, 25017C0055E, 25017C0060E, 25017C0061E, 25017C0062E, 25017C0063E, 25017C0064E, 25017C0068E, 25017C0070E, 25017C0177E and 25017C0181E dated June 4, 2010. The boundaries of the District are defined by the one-hundred-year base flood elevations shown on the FIRM and further defined by the Middlesex County Flood Insurance Study (FIS) report dated June 4, 2010. The FIRM and FIS report are incorporated herein by reference and are on file with the Town Clerk.

[Amended 1-17-1989 STM by Art. 41; 5-4-2010 ATM by Art. 26]

All wetlands, as shown on the map as described in Subsection H will be treated and considered as floodplain for the purpose of this Bylaw.

In Zone A areas within the Town of Townsend on the Middlesex County Flood Insurance Rate Maps dated June 4, 2010, where the base flood elevation is not provided, the applicant shall use the best available federal, state, local or other floodway data to prohibit encroachments in floodways which would result in any increase in flood levels within the community during the occurrence of the base flood discharge. Base flood elevation data is required for all subdivision proposals or other developments greater than 50 lots, or greater than five acres, within unnumbered A Zones. This data shall be reviewed by the Building Inspector for its reasonable utilization toward meeting the elevation of flood proofing requirements, as appropriate, of the State Building Code.

[Amended 5-4-2010 ATM by Art. 26]

In a riverine situation, the Building Inspector shall notify the following of any alteration or relocation of a watercourse:[1]

[Added 5-4-2010 ATM by Art. 26]

(1)

Adjacent communities.

(2)

Bordering states.

(3)

NFIP State Coordinator.

Massachusetts Department of Conservation and Recreation

251 Causeway Street, Suite 600-700

Boston, MA 02114-2104

(4)

NFIP Program Specialist.

Federal Emergency Management Agency, Region 1

99 High Street, 6th Floor

Boston, MA 02110

[1]

Editor's Note: Within Subsections K and L, the subsection designations 1 through 4 were changed to (1) through (4), respectively, with the permission of the Town Clerk in order to maintain a consistent and appropriate numbering scheme within the Code.

All development in the Floodplain District, including structural and nonstructural activities, whether permitted by right or by special permit must be in compliance with Chapter 131, Section 40 of the Massachusetts General Laws and with the following:

[Added 5-4-2010 ATM by Art. 26]

(1)

The section of the Massachusetts State Building Code which addresses floodplain hazard zones (780 CMR 120.G).

(2)

Wetlands Protection Regulations, Department of Environmental Protection (310 CMR 10.00).

(3)

Inland Wetlands Restriction, Department of Environmental Protection (310 CMR 13.00).

(4)

Minimum requirements for the Subsurface Disposal of Sanitary Sewage, Department of Environmental Protection (310 CMR 15, Title 5).

Any variances from the provisions and requirements of the above-referenced state regulations may only be granted in accordance with the required variance procedures of these state regulations.

§ 145-46 Earth excavation special permit.

[Amended 5-7-1986 STM by Art. 1; 1-17-1989 STM by Arts. 20 and 42; 5-2-2006 ATM by Art. 30]

No person, firm or corporation shall excavate any amount over 20 cubic yards of soil, rock, sod, loam, peat, humus, clay, sand, earth, gravel or other minerals or materials from any land within the Town of Townsend without first obtaining a special permit from the special permit granting authority (SPGA) of the Town of Townsend as provided in the following sections. Special permit application forms shall be obtained through the Land Use Office or Town Clerk.

The SPGA under this bylaw shall be the Zoning Board of Appeals. Special permits shall only be granted in accordance with the procedure for notice, hearings, decisions and appeals set forth in MGL c. 40A, §§ 9 and 11 and the Zoning Board of Appeals' Rules and Regulations, including application forms. Any special permit granted hereunder shall lapse within one year if substantial use has not sooner commenced except for good cause proven to the SPGA.

A special permit shall not be required under this bylaw for the following types of excavation:

(1)

Excavation incidental to the construction of residential buildings for which all other permits have been issued, nor installation of walks, driveways, septic systems, swimming pools or other accessory uses to such buildings and expansions thereof, provided the quantity of material excavated shall not exceed that displaced by the portion of the building or accessory use below finished grade;

(2)

Excavation in the course of normal and customary agricultural use of land;

(3)

Excavation in the normal use of a cemetery;

(4)

Excavation activities lawfully permitted by right or by special permit at the time this bylaw is adopted may continue unless or until discontinued for more than 12 consecutive months. However, unless specifically authorized by new special permit:

(a)

The depth of excavation shall not be increased below the grade of the lowest point excavated on the effective date of this bylaw or as previously permitted, whichever is greater;

(b)

The total horizontal area of excavation of an active excavation operation shall be contained within the property limits of such operation on the effective date of this bylaw or as previously permitted, whichever is greater.

(5)

Excavation and replacement for individual homeowner landscaping with finish grades matching existing grades (maximum 200 cubic yards removal and replacement).

An application for an earth excavation special permit shall be in writing and shall contain an accurate description of the portion of land in which the excavation will take place, shall state fully the purpose of the excavation, and shall include any fees as determined from time to time by the SPGA. The SPGA may waive the below listed requirements (1) through (7) on residential parcels or lots. When required by the SPGA, the application, shall include plans drawn by a registered surveyor or engineer, at a scale of one inch equals 40 feet, or as determined appropriate, containing the following information:

(1)

Property lines, names and addresses of all abutters, including those across any way;

(2)

Existing contours at five-foot intervals in the area from which materials are to be excavated and in surrounding areas, or as determined appropriate;

(3)

Natural features such as wetlands, the one-hundred-year floodplain, ground cover and surface and groundwater. Water table elevation shall be determined by test pits and soil borings. A log of soil borings shall be included, taken to the depth of the proposed excavation, congruent with the size and geological makeup of the site;

(4)

A topographical map showing drainage facilities, final grades, and proposed vegetation and trees;

(5)

Erosion and sediment control plan;

(6)

A restoration plan including the amount and cost of proposed restoration materials;

(7)

The location of monitoring wells which have been used to establish the high water table. The highest elevation of the water table shall be determined by observation wells monitored during the months of April and May. The observation wells' location shall be determined by the Board of Health or its designated agent. The information concerning height of water table shall be gathered before application for a special permit is made to the SPGA.

The SPGA may require as a condition to the granting of the special permit that the applicant shall furnish a performance bond or other security satisfactory to the SPGA sufficient to ensure satisfactory performance of the requirements of this bylaw and such other conditions as may be imposed in the permit. No performance bond or other security if required shall be released in full or in part unless and until the SPGA is satisfied that all the conditions of the special permit have been satisfied, including all of the requirements of Subsections I and J.

The SPGA shall exercise its powers with due regard to:

(1)

The health, safety and general welfare of the inhabitants of the Town of Townsend;

(2)

Detriment to the neighborhood, including impact of traffic flow;

(3)

Effect on natural resources, including but not limited to the recharge of the water table or condition of the surface water.

The SPGA may impose on any permit conditions including, but not limited to, conditions upon methods of excavation, type and location of structures, fencing, hours of operation, area, location and depth of excavation, steepness of slopes, drainage, disposition of boulders and stumps, restoration and planting.

Every special permit shall contain the condition that inspection of the operation may be made at any reasonable hour by an agent of the SPGA to determine if conditions of the special permit are being enforced.

The following standards of operation shall apply to every excavation, in addition to conditions imposed under Subsection G, unless otherwise permitted herein:

(1)

No excavation, other than excavation necessarily incidental to a valid building permit or subdivision approval can be undertaken within 100 feet, measured horizontally, of an existing public way or an adjacent property line; said limit may be reduced by the SPGA.

(2)

No earth or gravel shall be excavated closer to the maximum high water table than seven feet. This depth to maximum high water table may be decreased by the SPGA to four feet, provided that the SPGA determines that based upon soils, groundwater flows, type of materials to be excavated, and any requirements that they may impose, such decrease in depth of excavation shall not be deemed to adversely affect the intent or purpose of this or other sections of the Townsend Zoning Bylaw. In determining the effect upon the Town of Townsend of increased earth or gravel excavation, the SPGA may require the applicant to submit a complete hydrological report, prepared by an individual or company selected by the applicant and approved by the SPGA. All costs incurred shall be borne by the applicant. Said hydrological report shall present in detail findings relative to soils by type, groundwater direction and velocity, geologic logs describing any lines of fine material and water table depth of the subject property. The SPGA may restrict the use of lands excavated to four feet of the high water table and set conditions on the further and future use of said land.

(3)

All topsoil and subsoil stripped from operation areas shall be stockpiled and used in restoring the area.

(4)

Any shelters or buildings erected on the premises for use by personnel or storage of equipment shall be screened from public view and shall be removed from the premises within 60 days after the special permit has expired or been revoked.

(5)

Hours of operation shall be between 8:00 a.m. and 4:30 p.m. on weekdays only. However, the SPGA may further limit hours of operation if, after weighing factors including impact on traffic flow and safety, it determines the public good will be served. Trucks may enter and leave the premises only within such hours. All loaded vehicles shall be suitably covered to prevent dust and contents from spilling and blowing from the load.

(6)

Trucking routes and methods shall be subject to approval of the Chief of Police insofar as he may regulate any industrial trucking.

(7)

All access roads leading to public ways shall be treated or paved with suitable material to reduce dust and mud for a distance of 200 feet back from the way. The operator shall clean up any spillage on public ways.

(8)

Access roads shall intersect a public way at right angles for a distance of no less than 50 feet and shall be constructed at an angle to the public way or with a curve so as to help screen the operation from public view. All access roads shall have at least 250 feet visibility in each travel lane entering a state numbered or maintained highway and at least 150 feet visibility on all other streets. Access roads shall not drain directly onto public ways.

Restoration shall be carried out according to the plans submitted, conditions of the special permit, and the following minimum conditions:

(1)

Restoration shall be carried on simultaneously with excavation, so that when any five acres have been cleared and stumped and five acres are in active mining operation. at least five acres shall be restored before work commences (including building haul roads) on the next contiguous five acres. Final restoration work shall be completed within 120 days after expiration or withdrawal of a permit or upon cessation of operations.

(2)

No slope shall be steeper than 2:1 (two feet horizontal to one foot vertical) (50%); 4:1 (four feet horizontal to one foot vertical) is preferred for erosion control and shall be required in sensitive areas.

(3)

Retained subsoil and topsoil shall be spread over the disturbed area and treated with appropriate fertilizer or other suitable material and seeded with an appropriate mixture of grass or legume mixture as prescribed by the Conservation District, Soil Conservation Service, United States Department of Agriculture and as determined appropriate by the SPGA after consultation with the above-noted agencies. Trees or shrubs of prescribed species will be planted to provide screening and reduce erosion during the establishment period.

(4)

Unless the special permit conditions expressly require alteration of drainage patterns, the land shall be left so that natural storm drainage shall leave the property at the original natural drainage points, and so that the total discharge at peak flow and the area of drainage to any one point is not increased.

(5)

Natural vegetation shall be left and maintained on undisturbed land for screening. noise reduction and erosion control purposes.

No special permit shall be issued for an initial period of more than three years. Upon application by the owner or applicant, the SPGA may in its discretion renew a special permit beyond the initial period (but not to exceed three years per renewal). No such special permit shall be issued unless the applicant has conformed to all requirements of the special permit.

§ 145-47 Open space multifamily development (OSMD).

[Added 4-25-1989 ATM by Art. 25]

Purpose. In order to provide for the public interest by the preservation of open space in perpetuity, variety in residential housing which allows for development more harmonious with natural features and to promote the maximum possible protection of open space, visual quality, and watershed protection, and to encourage efficient provision of necessary utilities and community services, the following requirements are established for open space multifamily development within the Town of Townsend. In making any and all determinations under this bylaw, the Planning Board shall always compare the impact of an open space development with potential conventional development, and may approve open space development only if the proposal is superior to a conventional development. The Planning Board shall be guided by the findings and recommendations of the Townsend Open Space Plan and Townsend's Housing Policy, as amended.

Applicability. Open space multifamily development shall be allowed within RA and RB Zoning Districts subject to the requirements of the Zoning Bylaw for those districts, and in accordance with the additional requirements specified herein.

General requirements.

(1)

After an OSMD application has been submitted, no utility installations, no ditching, grading or construction of roads, no grading of land or lots, no excavation except for purposes of soil testing, no forest harvesting, no dredging or filling, and no construction of buildings or structures shall be done on any part of the development site until the application has been reviewed and approved as provided by this section;

(2)

No OSMD will be approved within an established residential neighborhood if the Planning Board determines that such land use would have a detrimental effect upon the surrounding property;

(3)

It shall be the responsibility of an applicant for an OSMD special permit to demonstrate to the Planning Board that this form of land development will be more appropriate than traditional patterns of residential development for the particular site being considered.

Permitted uses.

(1)

Detached single-family dwellings, as defined, including all accessory uses allowed appurtenant thereto;

(2)

Two-family dwellings including all accessory uses allowed appurtenant thereto;

(3)

Apartment/multifamily building with six or fewer units per structure;

(4)

Uses permitted within the common open space as described in this section;

(5)

Recreational facilities for OSMD purposes.

Minimum requirements.

(1)

Density. The total area of the tract proposed for OSMD must be able to contain 10 dwelling units. The total number of dwelling units allowable on a site proposed for OSMD shall not exceed the number of units that would be allowed in the zoning district in which the site is located. The burden of proof shall be upon the applicant in determining the allowable number of dwelling units. The total number of units allowed shall be determined by the following method: layout by a preliminary sketch plan showing the total number of lots which could be obtained by utilizing a conventional grid subdivision of detached one-family dwelling units. The Planning Board may require information to substantiate the validity of the preliminary sketch plan. Where available, medium intensity soil survey maps, such as those available from the USDA Natural Resource Conservation Service, shall be provided. Furthermore, the SPGA may require the applicant to provide or pay for the creation of more detailed, high-intensity maps or other data, if there is any indication of ledge, shallow soils, or other indication that the lots shown on the conventional plan may not be buildable as a practical matter. The applicant shall also provide financial data, based on the known data, including current housing prices and reasonable inflation and population projections, demonstrating that the conventional subdivision is financially viable, and could be completed and sold within the same time frame planned for the open space proposal.

[Amended 5-2-2000 ATM by Art. 39]

(a)

The plan shall show all wetlands along with potential sites for homes; and if individual septic systems and/or wells for drinking water would be necessary to serve the homes, then also the location of a subsurface sewage disposal system and/or well on each lot.

[Added 5-2-2000 ATM by Art. 38]

(b)

The applicant shall submit data proving that adequate provision for sanitary sewage can be provided to each lot in the conventional subdivisions. If individual septic systems would be necessary to serve the homes, then the following data must be included:

[Added 5-2-2000 ATM by Art. 38]

[1]

Records of all soil tests performed on the site, whether or not performed by or on behalf of the applicant, on file with the Board of Health and the Nashoba Associated Boards of Health.

[2]

(2)

Density regulations. The Planning Board may grant a reduction on all density regulations of the underlying zoning regulations for all portions of an OSMD, with the exception of height and front, side and rear yard setbacks, if the Planning Board finds that such reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with this section, provided that in no instance shall any lot deviate from the following table of minimum requirements:

Table of Minimum Requirements
Zoning District RA, RB
Single-Family Dwellings
	With Town Water	Without Town Water
Minimum lot area	20,000 sq. ft.	48,000 sq. ft.
Minimum lot frontage	35 ft.	35 ft.
Two-Family Dwellings
	With Town Water	Without Town Water
Minimum lot area	30,000 sq. ft.	60,000 sq. ft.
Minimum lot frontage	35 ft.	35 ft.
Apartment/Multifamily Dwellings
	With Town Water	Without Town Water
Minimum lot area	48,000 sq. ft.	80,000 sq. ft.
Minimum lot frontage	35 ft.	35 ft.

(3)

Development standards. Prior to the issuance of a special permit for an OSMD, the applicant shall submit the information necessary to demonstrate that the following development standards have been met:

(a)

(b)

The development will provide for and maintain convenient and safe emergency vehicle access to all buildings and structures at all times.

(c)

The nature of the soils and subsoils shall be suited for the intended purposes. This determination shall focus upon, but shall not be limited to, the location, design and construction of roadways, buildings, septic systems and surface water drainage systems. Soil borings or test pits may be made to provide information on soil texture, color, percolation rates and depth to the groundwater table at its maximum elevation.

(d)

(e)

Proper soil erosion and sedimentation control measures shall be employed to minimize sedimentation and siltation of existing surface water bodies and wetlands. In areas where the land slopes downward toward any surface water body, or freshwater wetland, proposed filling, cutting, clearing, or grading shall be minimized and all such development activities shall be carried out in such a way as to retain the natural vegetation and topography wherever possible. The Planning Board may require that an erosion and sedimentation control plan be submitted if significant erosion is anticipated in slope areas.

(f)

(g)

The development shall comply with all other provisions of the Subdivision Rules and Regulations of the Planning Board and any other land use regulations of the Town of Townsend in effect at the time of application.[1]

[1]

Editor's Note: See Ch. 175, Planning Board.

(h)

The Planning Board may require, at the project proponent's expense, a qualified firm or firms to evaluate the technical information presented to the Planning Board.

(4)

Architectural standards. Specific architectural standards for construction within the OSMD shall be made part of the special permit and will be used to ensure conformity and compatibility between units and the existing neighborhood. Prior to the issuance of a special permit for an OSMD, the applicant shall submit the following information to demonstrate that the architectural standards have been met:

(a)

Building elevations;

(b)

Schedule of exterior materials;

(c)

Any other pertinent information the Planning Board deems appropriate.

Open space use and design standards.

(1)

Lots for building purposes shall be grouped in clusters and within each cluster the lots shall be contiguous;

(2)

Within an OSMD, no less than 60% of the total land area shall be devoted to common open space. The common open space shall not include land set aside for roads and/or parking uses. No more than 50% of the common open space shall contain wetlands as defined by MGL c. 131, § 40;

(3)

The common open space shall be designed and maintained in accordance with the following standards:

(a)

Naturally existing woods, fields, meadows and wetlands shall be maintained and improved in accordance with good conservation practices.

(b)

(c)

No more than 20% of the common open space shall be covered by man-made impervious surfaces.

(d)

Common open space may be used for active and passive recreation, conservation, forestry, agriculture, natural buffers, structures and utilities necessary to the aforementioned uses subject to approval by the Planning Board acting with due regard to the open space plan.

(e)

There shall be a minimum setback of 50 feet between any common open space structures and all property lines of the site.

Common open space ownership and management.

(1)

Common open space in an OSMD shall be conveyed to: the Town and may be accepted by it for a park or open space use; a nonprofit corporation, the principal purpose of which is the conservation of open space; or a corporation or trust owned or to be owned by the owners of lots or residential units within the development. If a corporation or trust owned by the owners of lots or residential units is utilized, ownership thereof shall pass with the conveyances of the lots or units. In any case where such land is not conveyed to the Town, a restriction enforceable by the Town shall be recorded at the Middlesex District Registry of Deeds providing that such land shall be kept in open or natural state and not be built upon for residential use or developed for accessory uses such as parking or roadway.

(2)

If the common open space is not to be conveyed to the Town, the application for an OSMD special permit must include a program describing how the common open space will be maintained in perpetuity to standards satisfactory to the Planning Board. The applicant shall also provide as part of the common open space proposal an agreement empowering the Town to perform maintenance of the common open space in the event of failure to comply with the program included in the application pursuant to the preceding sentence providing that, if the Town is required to perform any maintenance work, the owners of lots or units within the OSMD shall pay the cost thereof and that the cost shall constitute a lien upon their properties until said cost has been paid.

Duration of approval. Notwithstanding anything to the contrary in this § 145-47, any special permit granted by the Planning Board for an OSMD shall become void within two years from the date of issue, which two years shall not include time required to pursue or await determination of an appeal referred to in § 17 of MGL c. 40A, unless any substantial part of the proposed construction work shall have been performed or has proceeded in good faith continuously to completion, except for a good cause. All open space shall be dedicated at the time the special permit, as required, has been granted. If at any time before, during, or after construction of the proposed development unforeseen conditions make it necessary or preferable to modify the project as described in the approved definitive OSMD application, the Planning Board may authorize such modifications provided that they are within the spirit of the original proposal and comply with this section. All the provisions of MGL c. 40A, § 9, including the requirements of public hearing, shall be applicable to proceedings under this section.

§ 145-48 Affordable housing conditional density bonus.

[Added 4-25-1989 ATM by Art. 33]

Purpose and authority. This section is adopted pursuant to MGL c. 40A, § 9 in order to encourage various housing types for persons of various ages and income levels and create affordable housing, to help people who have lived and worked in Townsend and have been unable to obtain suitable housing at a reasonable price, and to maintain a stable economy by preventing the out migration of lower income groups who provide essential services. The Planning Board may issue a special permit which allows an increase in density through a partial relaxation of requirements of this bylaw but only in conjunction with procedures described in § 145-39, Open space preservation development, and § 145-47, Open space multifamily development, and shall require that a minimum of 30% of all units developed on the site be sold and maintained at affordable prices, according to the standards contained in Subsection C below. The Planning Board may not allow an increase in density beyond one total dwelling unit per acre. As a further incentive for the construction of affordable housing, the Board may, in its discretion, waive certain improvement requirements set forth in the Townsend Subdivision Rules and Regulations.[1]

[1]

Editor's Note: See Ch. 175, Planning Board, Art. II, Subdivision Control.

Definitions.

AFFORDABLE HOUSING DEVELOPMENT

A project requiring approval under this section.

AFFORDABLE HOUSING UNITS

Units which may be purchased or rented by those who meet the guidelines for maximum annual income for a low-income or moderate-income family. Low-income families shall have an income between 50% and 80% of the Townsend median income, and moderate-income families shall have an income between 80% and 120% of the Townsend median income. Affordability means that housing costs for a family shall not exceed 30% of their gross annual income in the previous calendar year. Housing costs include:

(1)

For homeowners: payments for principal and interest on a mortgage, real estate taxes, homeowner's insurance, and condominium fees, if any; or

(2)

For renters: rent including heat but not other utilities. In determining median income, the most recent data available from the Massachusetts Housing Partnership Program shall be used.

DESIGN STANDARDS

Specific design standards for construction within the plan shall be made part of the special permit and will be used to ensure conformity and compatibility between units. Other requirements for design shall be as required under §§ 145-39 and 145-47 of the Zoning Bylaw, and applicable sections of the Townsend Subdivision Rules and Regulations.

MODIFICATION OF STANDARDS

The minimum requirements of §§ 145-39E and 145-47E of the Townsend Zoning Bylaw may be modified upon a finding by the Board that such modification creates no adverse impacts on health, safety and welfare, and is found to be in the public interest because of the high quality of design that would result, and does not derogate from the intent of this bylaw.

NUMBER OF AFFORDABLE UNITS

The number of units allowed in excess of that permitted by underlying zoning will be subject to negotiation with the Planning Board and will be determined with due regard to the project approval requirements of this bylaw. In no case shall the maximum density increase beyond one total dwelling unit per acre.

PHASING

A schedule of construction must be submitted providing the timely delivery of the affordable units.

SALE PRICE

The sale price for the affordable units will be determined by reference to the most recent Massachusetts Housing Finance Agency (HOP) figures depicting the ability to purchase of target groups whose income is approximately 50% to 120% of the Town of Townsend median income figures.

[Amended 12-4-1990 STM by Art. 8]

Applicability. Density increases associated with the creation of affordable housing shall be allowed only within open space preservation developments, § 145-39 and open space multifamily developments, § 145-47.

Application requirements. Preliminary plan applications for proposed cluster residential developments are to be made to the Planning Board according to §§ 145-39 and 145-47 of the Townsend Zoning Bylaw. In addition to those requirements noted in §§ 145-39 and 145-47, a statement as to how the proposal conforms to the purposes and objectives of this bylaw shall be required for such preliminary submittals.

Site plan review.

(1)

Purpose. The purpose of the site plan review is to ensure that the design and layout of all developments occurring under Townsend's Affordable Housing Conditional Density Bonus Bylaw will constitute suitable development and will not result in a detriment to the neighborhood or the environment;

(2)

Applicability. Any affordable housing development which would, under the parking requirements, Article VIII, require five or more parking spaces, regardless of the number of parking places existing on the premises, shall be subject to the § 145-42, Site plan review;

(3)

Procedure. Applications under this section subject to site plan review shall adhered to the procedures for site plan review of § 145-42 of this bylaw, except that the Planning Board shall not require an additional special permit for site plan review but, rather, incorporate site plan review conditions in the special permit required under § 145-39 or 145-47.

Project approval requirements. The Planning Board will review all projects and will recommend approval of the special permit if, in the Board's sole discretion:

(1)

The Board is satisfied that the applicant has conformed to the development, architectural, and design standards of this bylaw, and will deliver the affordable units required under Subsections A and B of this Affordable Housing Bylaw;

(2)

The proposed development site plan is designed in its site allocation, proportions, orientation, materials, landscaping and other features as to provide a stable and desirable character, complimentary and integral with the site's natural features;

(3)

The Board makes a finding that such development, density increase, or relaxation of zoning standards does not have a material, detrimental effect on the character of the neighborhood or Town and is consistent with all performance standards of the Townsend Zoning Bylaw, including Subsections D and E above;

(4)

The proposed development is consistent with all municipal comprehensive plans and objectives.

Long-term affordability.

(1)

In order to maintain long-term affordability for low- and moderate-income home buyers, there shall be certain resale restrictions upon the unit's resale value. This resale price restriction will be incorporated into the deed conveying the property to the initial purchaser and will bind all subsequent purchasers for a period of 40 years after the initial conveyance;

(2)

The resale of "affordable housing units," as defined in Subsection B above, will be limited to a percentage of the unit's fair market value at the time of resale. This limitation will be determined by the percent below fair market value for which the home originally sold. This percentage shall be recorded as part of the deed restriction. All subsequent resales for a period of 40 years after the initial conveyance shall be discounted by this same percentage from the fair market value of the house at the time of the resale. Through agreement between the Planning Board and the developer, these parties may chose, at the time of the recording of the deed, to modify the differential by plus or minus 5% in order to assure that the target income groups' ability to purchase be kept in line with the unit's market appreciation and to provide a proper return on equity to the seller;

(3)

All deed restrictions will require that the homeowner give 90 days' notice to the local housing agency or partnership program of his or her intent to sell. If the local housing agency or partnership program fails to respond to the homeowner within 30 days to the effect that they are proceeding to find an eligible buyer, the homeowner may thereafter sell the home to anyone meeting income guidelines;

(4)

The Planning Board will designate either the local housing agency or partnership program as the authority which shall control long-term affordability under the requirements of this section, based on submission of information showing the agency's ability to carry out these restrictions and the administrative criteria and process by which the resales shall occur.

§ 145-49 Transfer of development rights (TDR).

[Added 4-25-1989 ATM by Art. 38]

Eligibility. Any owner of a lot or lots shown on a plan duly recorded at the Registry of Deeds shall be eligible to apply for a special permit to transfer a portion or all of the development rights on said lot or lots (hereinafter called "donor lots") to a different location (hereinafter called "receiving district") to be included as part of a subdivision requiring approval under MGL c. 41, the Subdivision Control Law, provided that the following requirements are met:

(1)

Each donor lot or portion thereof complies, in all respects, with the minimum requirements for obtaining a building permit by right or, in the opinion of the Planning Board, is a potentially subdividable lot of land given minimum zoning requirements, subdivision regulations and other pertinent regulations;

(2)

The owner or owners of the donor lot(s) record at the Registry of Deeds a covenant running with the land in favor of the Town of Townsend, forever prohibiting the construction or placement of any structure on said lot(s) except as provided for in Subsection A(3);

(3)

Donor lots may be used for passive recreation, conservation, forestry, agriculture, natural buffers.

Donor districts. Donor districts shall consist of:

(1)

Any contiguous parcels of land of at least five acres which qualify for or are currently assessed by the Town of Townsend or the Commonwealth of Massachusetts under the provisions of MGL c. 61A;

(2)

All land referred to in § 145-41B of the Townsend Zoning Bylaws; and

(3)

All land designated as a theoretical cone of influence to existing or proposed public supply wells, as is now or may be delineated on a map entitled "Recharge Areas of Existing and Potential Water Supplies, Townsend, Massachusetts, December 15, 1984, Nashua River Watershed Association," as amended; and

(4)

All land recommended for acquisition or protection in the Townsend Open Space Plan, as amended.

Receiving districts. Receiving districts shall consist of all land currently zoned RA or RB, except that receiving districts shall not include any land noted in Subsection B(1), (2), (3) or (4).

(1)

Receiving districts shall be eligible to "accept" donor lots according to the schedule of Subsection D, provided that the locus of the receiving district is the subject of a subdivision plan requiring Planning Board approval under the requirements of MGL c. 41, and a special permit under the requirements of § 145-39 or 145-47 of the Townsend Zoning Bylaws. No transfer of development rights shall be approved by the Planning Board into a receiving district locus not requiring subdivision approval.

(2)

In transferring development rights into a receiving district, the Planning Board may allow the minimum frontage, width and area standards of the total subdivision, including transferable lot rights, to be reduced according to the criteria specified in § 145-39 or 145-47.

Transferred development rights credits. Lots within donor districts shall be eligible to transfer their development rights to a receiving district. The assignable credit for the donor lot shall be 1.2 per buildable lot. Fractions of lots shall not be counted.

	Example: Ten lots within an RA donor district are transferred under this bylaw to an RB parcel within a receiving district. The RB parcel has suitable acreage under the provisions of the Land Space Requirements Table of the Zoning Bylaw for 20 lots. However, the transfer of 10 lots from the RA District to the RB District entitles the RB landowner to a two-lot bonus. Thus, the total number of lots possible in this example for the RB receiving district would be 32:
	10 x 1.2 =	12 from RA donor district
		+20 from RB district
		32 total potential lots

Special permit granting authority. The special permit granting authority for a transfer of development rights special permit shall be the Planning Board. The provisions of MGL c. 40A, §§ 9 and 11 and § 145-65 of the Townsend Zoning Bylaws shall apply to all special permits issued under this section.

§ 145-50 Subdivision phasing.

[Added 4-25-1989 ATM by Art. 59]

Applicability. Any provisions in this bylaw to the contrary notwithstanding, division of land into more than 25 lots in any twelve-month period shall be subject to the following regulations and conditions set forth herein.

Requirements. Whenever a new lot or lots are formed from a part of any other lot or lots, the assembly or separation shall be effected in such a manner as to conform with the requirements of this bylaw and shall be in accordance with the Subdivision Rules and Regulations of the Town of Townsend.[1]

[1]

Editor's Note: See Ch. 175, Planning Board, Art. II, Subdivision Control.

Division of land limitations. The division of a parcel or combined adjacent parcels of land in any zoning district shall not exceed 25 lots if resulting from division or combination of properties in any twelve-month period. This provision shall apply to all subdivision of land within the Town of Townsend even if approval under the Subdivision Control Law (MGL c. 41, §§ 81L and 81P) is not required.

Exceptions.

(1)

Division of land in excess of 25 lots as defined in Subsection C above may be allowed only if one of the following requirements are met:

(a)

The owner of said land covenants with the Planning Board that he will not build upon more than 25 lots in any twelve-month period. Said twelve-month period shall commence on the date of endorsement by the Planning Board. The covenant shall identify the lots that may be built upon in each twelve-month period. The covenant shall be recorded with all other pertinent documents with the definitive plan;

(b)

The owner of said land applies for and receives a special permit from the Planning Board in accordance with MGL c. 40A, §§ 9 and 11 to divide greater than 25 lots in any twelve-month period. The Planning Board shall grant a special permit for such division only if the Board determines that the probable benefits to the Town outweigh the probable adverse effects resulting from granting such permit.

(2)

In reviewing a special permit application under this section, the Planning Board shall consider the impact upon schools, other public facilities, traffic and pedestrian travel, availability and quality preservation of drinking water, adequacy of recreational facilities, open spaces and agricultural resources, preservation of unique natural features, housing for senior citizens and people of low and moderate income as well as master plan or growth management plans prepared by the Planning Board. MGL c. 40A, §§ 9 and 11 and § 145-65 of the Townsend Zoning Bylaw relating to the granting and denial of special permits shall be applicable to a special permit application under Subsection D(1)(b).

Uncompleted development rights granted by Subsection D(1)(a) may be carried forward to subsequent periods, but said carry forward shall not exempt nor exceed the covenant not to build on more than 25 lots in any twelve-month period.

Zoning change protection. Lots whose development has been subject to the covenant as provided for in Subsection D(1)(a) of this bylaw shall be governed by the applicable provisions of the Zoning Bylaw in effect at the time of the plan or plans endorsement by the Planning Board and for a period equivalent to that provided for by MGL c. 40A, § 6, except, however, the statutory protection afforded by MGL c. 40A, § 6, shall not commence until the lot or lots qualify for construction according to the terms of the covenant noted in Subsection D(1)(a) of this bylaw.

§ 145-51 Telecommunication and cellular towers.

[Added 4-29-1997 ATM by Art. 46]

Purpose. The purpose of this bylaw is to establish general guidelines for the siting of wireless telecommunication towers and facilities. The goals of this bylaw are: to minimize the adverse visual impacts of towers; to avoid damage to adjacent properties; to lessen impact on surrounding properties; to lessen impact on traffic; to encourage the location of towers on municipal land; to minimize the number of towers throughout the community; to require the co-location of new and existing tower sites; to encourage users of towers and facilities to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; to encourage users of towers and facilities to configure them in a way that minimizes the adverse visual impact of towers and facilities; and to make available all wireless telecommunication tower locations to local municipal agencies.

Permitting. No telecommunication or cellular tower may be erected without first obtaining a special permit from the special permit granting authority (SPGA). The SPGA under this bylaw shall be the Planning Board. Permits shall only be granted in accordance with the procedure for notice hearings, decisions and appeals set forth in Townsend Zoning Bylaw § 145-42 and MGL c. 40A, §§ 9 and 11. Any permit granted hereunder shall lapse within one year if substantial use has not commenced unless satisfactory reasons have been proven to the SPGA.

(1)

Towers shall be allowed in all zoning districts pursuant to this bylaw.

(2)

Expiration of permit. The special permit granted under this bylaw shall expire within five years of the date of issuance of the permit.

(3)

Amendments of existing special permits shall only require such additional information as pertains to the proposed changes and information pertaining to changes in the information provided for the existing special permit.

[Added 1-4-2000 STM by Art. 14]

(4)

Renewals of existing special permits under this bylaw shall not require the resubmission of items specified by § 145-42D and Subsection C of this section unless there has been a substantive change in the information or conditions from that used for the existing special permit, and provided further that a complete application for renewal of the special permit is submitted prior to the expiration of the existing special permit.

[Added 1-4-2000 STM by Art. 14]

Application. An application for a special permit under this bylaw shall be filed utilizing the forms and procedures described in § 145-42 (site plan review special permit) of the Townsend Zoning Bylaw. In addition to the requirements of § 145-42, the following shall also apply:

(1)

The site plan shall be prepared by a professional engineer and shall include the following minimum requirements:

(a)

Tower location, including guy wires, if any, and tower height.

(b)

Topography.

(c)

Other feasible sites, including existing sites, if any.

(d)

Fencing and landscaping.

(e)

Access and parking.

(f)

Lighting.

(g)

Areas to be cleared of vegetation and trees.

(h)

Site boundaries.

(i)

Abutters.

(j)

Eight view lines in a one-mile radius from the site, shown beginning at true North and continuing clockwise at forty-five-degree intervals.

(2)

A locus map will be prepared and shall show all streets, bodies of water, landscape features, historic sites, habitats for endangered species within 200 feet, and all buildings within 500 feet.

(3)

Reports prepared by one or more professional engineers, which shall:

(a)

Describe the tower and the technical, economic and other reasons for the tower design, and the need for the tower at the proposed location.

(b)

Demonstrate that the tower complies with all applicable standards of the federal and state governments.

(c)

Describe the capacity of the tower including the number and type of transmitter receivers that it can accommodate and the basis for the calculation of capacity.

(d)

Demonstrate that the tower and site comply with this regulation.

(e)

Describe the wireless telecommunications provider's master antenna plan, including detailed maps, showing the precise locations, characteristics of all antennas and towers and indicating coverage areas for current and future antennas and towers.

(4)

A copy of the requests made by the applicant to the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), Massachusetts Aeronautics Commission and the Massachusetts Department of Public Health to provide a written statement that the proposed tower complies with applicable regulations administered by the agency or that the tower is exempt from those regulations and a copy of the response from each agency. If such response is not received within 60 days, the application will be considered complete. The applicant shall send a subsequently received agency statement, if any, to the Planning Board.

(5)

On-site demonstration. Between plan submittal and the date of the public hearing, a balloon shall be put in place at the height of the proposed tower, for not less than 21 days. The balloon shall be of a size and color that can be seen from every direction for a distance of one mile. The balloon must be removed within seven days of the close of the public hearing.

Approval. A site plan review special permit shall be granted by the Planning Board in accordance with (MGL) Massachusetts General Law and the provisions of this bylaw relative to special permits. Any extension, addition of cells or construction of new or replacement towers or transmitters, other than those already provided for in the original site plan review, shall be subject to an amendment to the special permit, following the same procedure as for an original grant of a special permit.

[Amended 11-29-2005 STM by Art. 33]

Location and site requirements. The tower and its appurtenances shall be located in accordance with the Federal Communication Commission (FCC) and the Federal Aviation Administration (FAA) regulations in effect at the time of construction and further, that the operation shall comply with all requirements of these agencies during the entire period of operation. In addition, the tower and its facilities shall be located within the Town of Townsend as follows:

(1)

All wireless communication towers and facilities shall be sited on municipal land or in church steeples whenever feasible.

(2)

New towers shall be considered only upon a finding by the Planning Board that existing or approved towers cannot accommodate the wireless communication equipment planned for the proposed tower.

(3)

To the extent feasible all service providers shall co-locate on a single tower. Towers and accessory buildings shall be designed to structurally accommodate the maximum number of users.

(4)

Irrespective of the requirements of the Land Space Requirements Table,[1] the setback from property lines shall be a minimum of a distance at least equal to the height of the tower.

[1]

Editor's Note: The Land Space Requirements Table is included at the end of this chapter.

(5)

Setback from designated wetlands, water bodies and areas with a slope in excess of 5% shall be at least 100 feet.

(6)

Distance from all existing buildings shall be at least 500 feet.

(7)

Fencing shall be provided to control access to the base of the tower which fencing shall be compatible with the scenic character of the Town and shall not be of barbed wire or razor wire.

(8)

Access shall be provided to a site by a roadway that respects the natural terrain, does not appear as a scar on the landscape, and is approved by the Planning Board and the Fire Chief to assure emergency access at all times.

(9)

Consideration shall be given to design that minimizes erosion; construction on unstable soils; and steep slopes.

(10)

The applicant shall demonstrate to the satisfaction of the Planning Board that the location of the tower is necessary and that the size and height is the minimum necessary for the purpose.

(11)

There shall be no signs, except for announcement signs, no trespassing signs and a required sign giving a phone number where the owner can be reached on a twenty-four-hour basis. All signs shall conform to the sign requirements of Townsend Zoning Bylaw Article X, and shall be subject to conditions of the site plan review special permit.

(12)

Accessory uses shall be limited to one structure per use per tower, but shall not exceed 10 structures per tower. If more than one use, the accessory buildings shall be connected by a common wall. Each structure shall not exceed 400 square feet in size and 10 feet in height, and shall be of the same design and color.

(13)

To the extent feasible all network interconnections (from and to) the communications site shall be installed underground.

(14)

The tower shall minimize adverse visual effect on the environment and the people of Townsend. The Planning Board may impose reasonable conditions to ensure this result, including, but not limited to: painting, lighting standards and screening.

(15)

Clearing shall be performed in a manner that will maximize preservation of natural beauty and conservation of natural resources, which will minimize marring, and scarring of the landscape or silting of streams.

(a)

The time and method of clearing rights-of-way should take into account soil stability, the protection of natural vegetation, the protection of adjacent resources, such as the protection of natural habitat for wildlife, and appropriate measures for the prevention of silt deposition in watercourses.

(b)

Clearing of natural vegetation should be limited to that material which poses a hazard to the tower.

(c)

The use of "brush blades" instead of dirt blades on bulldozers is recommended in clearing operations where such use will preserve the cover crop of grass, low growing brush or other vegetation.

(d)

Areas should be cleared only when necessary to the operation, maintenance, and construction of the tower.

Development requirements. Visual impacts of the tower shall be minimized.

(1)

The applicant shall demonstrate that the proposed tower is no higher than necessary to accommodate transmitters and receivers.

(2)

All towers shall be monopole in type.

(3)

Silver paint or a galvanized finish shall be used on the tower above the tree line to blend with the landscape. Green paint to blend with the landscape shall be used to the tree line. A cellular tower constructed within 100 feet of a residential district shall be camouflaged.

(4)

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

(5)

Siting shall be such that the view of the tower from other areas of Town shall be as minimal as possible.

(6)

Shared use of towers is to be encouraged. When technically not practical, towers shall be separated on the site so that, if the support structure of one falls, it will not strike another.

(7)

The tower shall be designed to accommodate the maximum number of uses technologically practical.

(8)

There shall be a minimum of one parking space for each tower, to be used in connection with the maintenance of the tower and the site, and not to be used for the permanent storage of vehicles.

Conditions of use. Any tower or facility that is not operated for a continuous period of 12 months shall be considered abandoned. The owner of such tower and facility shall remove the same within 90 days of receipt of notice from the governing authority notifying the owner of such abandonment.

Performance guaranties.

(1)

Insurance in a reasonable amount determined and approved by the Planning Board after consultation at the expense of the applicant with one or more insurance companies shall be in force to cover damage from the structure, damage from transmissions and other site liabilities. Annual proof of said insurance shall be filed with the Town Clerk.

(2)

An initial bond shall be posted to cover construction costs and an annual maintenance bond shall be posted for the access road, site and tower(s) will be posted in an amount approved by the Planning Board.

(3)

Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission and the Federal Aviation Administration shall be filed with the Building Inspector by the special permit holder.

(4)

An initial cash bond in a reasonable amount determined and approved by the Planning Board shall be in force to cover removal of the tower when discontinued or obsolete.

(5)

Failure to post an approved bond and/or provide proof of insurance shall be grounds to revoke the site plan review special permit.

Exemptions. Exempted under this bylaw are private, noncommercial amateur radio operator (HAM) radio or CB towers used in accordance with the terms of any amateur radio service license issued by the Federal Communications Commission (FCC). These towers are still subject to the following conditions:

(1)

Require a building permit if over 70 feet above ground level.

(2)

The setback of the tower from any property bounds must be no less than the actual height of the tower rather than the height above the ground.

(3)

The tower must be removed upon loss or termination of said FCC license.

Waivers.

(1)

The Planning Board may waive strict adherence to sections of this bylaw if it finds that the safety and well-being of the public will not be adversely affected by such a waiver. For each waiver granted, the Planning Board will make a written record indicating that the proposed tower meets the purpose (Subsection A) of this bylaw.

(2)

All requests for waivers shall be made in writing on a separate sheet (or sheets) of paper and be attached to the site plan review special permit application and be presented at the time of the initial application.

(3)

Requests for waivers shall indicate the section number and the reason the applicant needs the waiver along with any documentation to support the request.

(4)

The Planning Board will grant requests for waivers only upon a four-fifths majority vote. Each request shall be voted on separately. The applicant shall have the right to withdraw the request at any time prior to the actual vote. Once a request for a waiver is withdrawn it may not be presented again for a period of year.

(5)

Requests for more than three waivers, including, in the case of an amendment or renewal, any waivers previously granted for the existing or any predecessor permits, will indicate to the Planning Board the following:

[Amended 1-4-2000 STM by Art. 14]

(a)

The site is inadequate for the proposed use.

(b)

The site plan is incomplete.

Invalidation. If any portion of this bylaw is declared to be invalid, the remainder shall continue to be in full force and effect.

§ 145-52 Outdoor lighting.

[Added 4-29-1997 ATM by Art. 45]

Purpose. This bylaw is intended to reduce the problems created by improperly designed and installed outdoor lighting. It is intended to eliminate glare, minimize light trespass and sky glow, reduce energy use of outdoor lighting by limiting the area that certain outdoor lighting fixtures can illuminate in the Town of Townsend.

Definitions. For the purposes of this bylaw, terms used shall be defined as follows:

DIRECT LIGHT

Light emitted directly from the lamp, off of the reflector or reflector diffuser or through the refractor or diffuser lens of a luminaire.

FIXTURE

The assembly that houses the lamp or lamps and can include all or some of the following parts: a housing, a mounting bracket or pole socket, a lamp holder, a ballast, a reflector or mirror, or a refractor or lens.

FLOOD OR SPOT LIGHT

Any light fixture or lamp that incorporates a reflector or a refractor to concentrate the light output into a directed beam in a particular direction.

GLARE

Light emitting from a luminaire with an intensity great enough to reduce a viewer's ability to see and in extreme cases causing momentary blindness.

HEIGHT OF LUMINAIRE

The vertical distance from the ground directly below the center line of the luminaire to the lowest direct light emitting part of the luminaire.

LAMP

The component of a luminaire that produces the actual light.

LIGHT TRESPASS

The shining of light produced by a luminaire beyond the boundaries of the property on which is it located.

LUMEN

A unit of luminous flux. One footcandle is one lumen per square foot. For the purposes of this bylaw the lumen output values shall be the initial lumen output ratings of a lamp.

LUMINAIRE

A complete lighting system including a lamp or lamps and a fixture.

OUTDOOR LIGHTING

The illumination of an outside area or object by any man-made device located outdoors that produces light by any means.

TEMPORARY OUTDOOR LIGHTING

The specific illumination of an outside area or object by any man-made device located outdoors that produces light by any means for a period of less than seven days with at least 180 days passing before the device is used again.

Regulations. All luminaires for private outdoor lighting installed in the Town of Townsend shall be in conformance with the requirements established by this bylaw.

(1)

The luminaire shall emit no direct light above a horizontal plane through the lowest direct light emitting part of the luminaire.

(2)

The luminaire shall be mounted at a height in feet equal to or less than the value 3 + (D/3) where D is the distance in feet to the nearest property boundary. The maximum height of the luminaire may not exceed 25 feet.

Exceptions.

(1)

Any flood or spot luminaire with a lamp or lamps rated at a total of 900 lumens or less and any other type of luminaire with a lamp or lamps rated at a total of 1,800 lumens or less may be used without restriction to light distribution or mounting height except that if any flood or spot luminaire rated at a total of 900 lumens or less aims, directs, or focuses direct light toward residential buildings on adjacent or nearby land or creates glare perceptible to persons operating motor vehicles on public ways, the luminaire shall be redirected or its light output controlled as necessary to eliminate such conditions.

(2)

Luminaires used for roadway illumination may be installed at a maximum height of 25 feet and may be positioned at that height up to the edge of any bordering property.

(3)

All temporary lighting needed by the Police Department, Fire Department or other emergency services as well as all vehicular luminaires shall be exempt from the requirements of this bylaw.

(4)

All hazard warning luminaires required by government regulatory agencies are exempt from the requirements of this bylaw except that all luminaires used must be shown to be as close as possible to the federally required minimum lumen output requirement for the specific task.

Nonconforming temporary outdoor lighting. Nonconforming temporary outdoor lighting may be permitted for a period of up to seven days upon issuance of a temporary lighting permit by the Building Inspector.

Outdoor recreational facilities. Illumination of outdoor recreational facilities (public or private), such as, but not limited to, football fields, soccer fields, baseball fields, softball fields, or tennis courts, shall not occur after 11:00 p.m., except to conclude a scheduled event that was in progress before 11:00 p.m. and circumstances prevented concluding before 11:00 p.m.

Effective date and grandfathering of nonconforming luminaires:

(1)

This bylaw shall take effect immediately upon approval by the voters of the Town of Townsend at an Annual or Special Town Meeting.

(2)

Any luminaire lawfully in place prior to the date of this bylaw shall be exempt from Subsection C of this bylaw until the luminaire is moved or replaced.

Violations, legal actions and penalties.

(1)

Violations and legal actions. If, after investigation, the Zoning Enforcement Officer finds that any provision of this bylaw is being violated, he shall give notice by hand delivery or by certified mail, return receipt requested, of such violation to the owner and/or to the occupant of such premises, demanding that violation be abated within 30 days of the date of hand delivery or of the date of receipt of the notice. If the violation is not abated within the thirty-day period, the Zoning Enforcement Officer may institute actions and proceedings, either legal or equitable, to enjoin, restrain or abate any violations of this bylaw and to collect the penalties for such violations.

(2)

Penalties. A violation of this bylaw, or any provision thereof, shall be punishable by a civil penalty of $25. Each day of violation after the expiration of the thirty-day period provided in Subsection H(1) shall constitute a separate offense for the purpose of calculating the civil penalty.

Invalidation. If any portion of this bylaw is declared to be invalid, the remainder shall continue to be in full force and effect.

§ 145-53 Adult use establishments.

[Added 9-9-1997 STM by Art. 8]

Purpose. It is the intent and purpose of this bylaw to regulate adult use establishments to promote the health, safety and general welfare of the citizens of Townsend and to guard against adverse secondary effects on the population of the Town. Furthermore, it is the intent and purpose to establish reasonable and uniform regulations to prevent any deleterious location and concentration of adult use establishments within the Town, thereby reducing the adverse secondary effects from such adult use establishments. The provisions of this bylaw have neither the purpose nor effect of imposing limitations or restriction on the content of any communicative materials. Similarly, it is not the intent nor effect of this bylaw to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. It is neither the intent nor effect of this bylaw to condone or legitimize the distribution of obscene material.

Definitions.

ADULT BOOKSTORE

An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other matter which are distinguished or characterized by their emphasis depicting, describing or relating to sexual conduct or sexual excitement, or which is obscene matter or obscene visual material, as these terms are defined in MGL c. 272, § 31 as amended.

ADULT CABARET

A nightclub, bar, restaurant, tavern, dance hall, or similar commercial establishment which presents or conducts public showings of:

(1)

Persons who appear in the state of nudity as defined in MGL c. 272, § 31 as amended; or

(2)

Live performances which are characterized by an emphasis depicting anatomical areas specified as less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola, and human genitals in a state of sexual arousal; or relating to sexual conduct or sexual excitement; or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended; or

(3)

Films, motion pictures, video cassettes, slides, photographic reproductions or any other visual media which are characterized by the depiction or description of anatomical areas specified as above, or relating to sexual conduct or sexual excitement or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended.

ADULT MOTION PICTURE THEATER

An enclosed building for one or more patrons used for presenting material (including, but not limited to, motion picture films, video cassettes, cable television, slides, or any other such visual media) distinguished by an emphasis on matter or visual material depicting, describing, or relating to sexual conduct or sexual excitement or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended.

ADULT PARAPHERNALIA STORE

An establishment having as a portion of its stock devices, objects, tools, or toys which are distinguished by their association with sexual activity, including sexual intercourse, sexual conduct or sexual excitement or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended, but not including contraceptives.

ADULT RETAIL ESTABLISHMENT

An establishment having as a substantial or significant portion of its stock in trade, books, magazines, pictures, periodicals, motion picture films, video cassettes, or coin-operated motion picture machines for sale, barter or rental which are distinguished or characterized by their emphasis on "matter" or "visual material" depicting, describing or relating to "sexual conduct," "obscene" matter, or which may be considered "obscene" as these terms are defined in MGL c. 272, § 31 as amended, or having for sale, rental or barter, any sexual devices including, but not limited to, devices depicting or representing any part of the human anatomy, or any other device, primarily designed, promoted, or marketed for physical stimulation, or the enhancement thereof, related to "sexual conduct" of any kind as this term is defined in MGL c. 272, § 31 as amended, including any and all chemical products, other than prescription drugs, so designed, promoted or marketed.

ADULT USE ADVERTISEMENT SIGN

An advertising sign or device which advertises an adult use establishment, adult bookstore, adult video store, adult cabaret, adult paraphernalia store, or adult motion picture theater and/or advertises live performances or the trade, rental or sale of material, distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended.

ADULT USE ESTABLISHMENT

Any adult bookstore, adult retail establishment or adult video store as defined below, or any other establishment having a portion of its business activity, stock in trade, or other materials for sale, rental or display, which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to sexual conduct as defined in MGL c. 272, § 31 as amended, including but not limited to the following: any adult cabaret, adult motion picture theater or adult paraphernalia store as set forth below.

ADULT VIDEO STORE

An establishment having as a substantial or significant portion of its stock in trade - for sale or rent - motion picture films, video cassettes, and similar audio/visual media, which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement or which is obscene matter or obscene visual material as these terms are defined in MGL c. 272, § 31 as amended.

OBSCENE ENTERTAINMENT

All entertainment which may be considered "obscene" as this term is defined by MGL c. 272, § 31 as amended.

SUBSTANTIAL OR SIGNIFICANT PORTION

The term "substantial or significant portion" as used herein shall mean any of the following:

(1)

Twenty percent or more of the business inventory or stock of merchandise for sale, rental distribution, or exhibition during any period of time; or

(2)

Twenty percent or more of the annual number of gross sales, rentals or other business transactions; or

(3)

Twenty percent or more of the annual gross business revenue; or

(4)

Twenty percent or more of the hours during which the establishment is open.

(5)

Any advertising, promotion, or other representation in any quantity by such establishment, including but not limited to newspaper, magazine, direct mail, or internet ads, that indicates that the establishment provides sexually oriented entertainment, merchandise, paraphernalia, etc., by an establishment for which sexually oriented inventory or stock in trade is less than 20% of the total inventory/stock in trade.

Zoning district.

(1)

The special regulations itemized in this section are for the purpose of preventing a concentration of adult use establishments in any one area of Town; to prevent the associated secondary effects of such establishments; and to promote the health, safety and welfare of the citizens of Townsend.

(2)

Adult use establishments are permitted only in the Industrial (ID) Zoning District as defined in the Town of Townsend Zoning Bylaw § 145-30.

Special permits.

(1)

No adult use establishment shall commence operations without first applying for and receiving a special permit from the special permit granting authority.

(2)

The special permit granting authority (SPGA) for the adult use establishment special permit shall be the Townsend Planning Board.

(3)

No adult use establishment special permit shall be granted if any boundary line of the proposed site is located less than 400 feet from the boundary line of any of the following:

(a)

Any numbered state highway.

(b)

Religious institutions including churches, parish houses, and rectories.

(c)

An establishment serving alcoholic beverages which are consumed on its premises.

(4)

No adult use establishment special permit shall be granted if any boundary line of the proposed site is located less than 1,500 feet from the boundary line of any of the following:

(a)

Another adult use establishment;

(b)

Public or private nursery schools;

(c)

Public or private day-care centers;

(d)

Public or private kindergartens;

(e)

Public or private elementary schools;

(f)

Public or private middle or secondary schools;

(g)

Playgrounds or parks;

(h)

A hotel, motel, motor court or lodging house;

(i)

An establishment selling alcoholic beverages;

(j)

An establishment licensed under MGL c. 138, § 12;

(k)

A municipal building or use;

(l)

A cemetery;

(m)

A commercial amusement center or park;

(n)

A hospital or nursing home;

(o)

An historic district as described in Chapter 54, Historic Districts, of the Town of Townsend General Bylaws.

(p)

No permits shall be granted for an adult use establishment in an area otherwise properly zoned if the specific location is within a fifteen-hundred-foot radius of an interstate highway ramp where said ramp intersects with a Town, state, or private road.

(5)

No adult use establishment special permit shall be granted if any boundary line of the proposed site is located less than 300 feet from the boundary line of any of the following:

(a)

A residential zoning district or residence.

(6)

The SPGA shall apply the following criteria in the granting of a special permit under this section:

(a)

Adult use establishments shall not be allowed within a building containing any other uses.

(b)

No adult use establishment shall be located within 100 feet of a public or private way.

(c)

The structure in which adult use establishments is open to the public shall be limited as follows: adult bookstore, adult paraphernalia store, adult video store or similar adult use establishments shall not be open before 9:00 a.m. nor later than 9:00 p.m.; adult motion picture theater, adult cabaret club and similar adult use establishments shall not be open before 4:00 p.m. nor later than 11:00 p.m.

(d)

No adult use establishment may have visible from the exterior of the premises any flashing lights.

(e)

At all times when an adult entertainment establishment is open for business, the entire area of the premises must be continually illuminated to the degree of not less than one footcandle measured 30 inches from the floor except those portions of the room covered by furniture.

(f)

The sale, dispensing or consumption of alcoholic beverages is prohibited on a premises where an adult use establishment exists.

(g)

There shall be no more than one adult use establishment permit for up to 30,000 residents of Town as listed in the latest federal census. A second adult use establishment permit shall not be issued until there are more than 30,000 residents in the Town as listed in the latest federal census.

(h)

No adult use establishment permit shall be allowed to display for advertisements or other purpose, any signs, placards or other like materials to the general public on the exterior of the building, or on the interior through glass or other like transparent material.

(i)

No one under the age of 18 years of age shall be allowed on the premises.

(j)

Obscene merchandise or services shall not be available for use, rent, or sale.

(k)

No one, including employees and patrons, shall be permitted on the premises while such person is unclothed or in such state of attire as may be considered "nudity" as that term is defined in MGL c. 272, § 31, as amended, except an entertainer hired by the owner thereof.

(l)

For the first year of a new adult use establishment permit, two uniformed police officers shall be on duty, at the expense of the owner, at any establishment where live entertainment takes place. At the end of this one-year period, the number of uniformed police officers required shall be based upon a written recommendation to the Planning Board by the Chief of Police. However, at no time shall there be less than one uniformed police officer on duty.

(m)

No hostess or other employees or persons may mingle with the patrons, while such hostess or other person is unclothed or in such state of attire as may be considered "nudity" as this term is defined in MGL c. 272, § 31, as amended.

(n)

No person shall be employed or permitted to perform an act or acts, or to simulate an act or acts of "sexual conduct" or engage in any activity which may be considered causing or encouraging a state of "sexual excitement" as defined in MGL c. 272, § 31, as amended.

(o)

The permitted uses specifically exclude disseminating or offering to disseminate adult material or matter to minors or suffering minors to view displays of such matter or material.

(p)

Entertainers are required to remain in a designated area such as a stage during performances and are prohibited from mingling with patrons during their performances.

(q)

All entertainers shall register their "stage" name, legal name, social security number and address with the Town of Townsend Chief of Police.

(7)

No special permit for an adult use establishment shall be issued to any person convicted of violating MGL c. 119, § 63 as amended, or MGL c. 272, § 28 as amended nor may any person convicted of such violations be employed or contracted to work in a managerial, supervisory, or directorial role for such establishment, nor may any such person be a partner.

(8)

An applicant for a special permit to operate an adult use establishment must file an application on a form approved by the SPGA per requirements in § 145-65C of these Zoning Bylaws. Such form shall require any information required by the SPGA, but shall include as a minimum:

(a)

Name, address, home and business telephone numbers and social security numbers of the legal owner(s) of the establishment;

(b)

Name, address, home and business telephone numbers and social security numbers of all persons having lawful, equity of security interests in the establishment;

(c)

Name, address, home and business telephone numbers and social security numbers of all manager(s), assistant managers, and other supervisory personnel;

(d)

The number of proposed employees, including performers;

(e)

Proposed security precautions, including fire suppression.

(f)

Physical layout of the premises in a format established by the SPGA; but no less than a scale drawing by a registered engineer or architect.

(g)

The exact use(s) to be made of the premises.

(h)

Any information that may be required to perform lawful background checks on any of the individuals listed above. The SPGA is permitted but not required to have such checks performed.

(9)

Term of permit.

(a)

No special permit for the operation of an adult use establishment shall be issued for a period of greater than two years.

(b)

No adult use establishment may operate after the expiration of such special permit.

(10)

Renewal.

(a)

An application for renewal of a special permit for the operation of an adult use establishment must be made prior to the expiration of the previously granted permit. Any application made after the expiration of the special permit shall be treated as a new application.

(b)

No adult use establishment may operate after the expiration of its special permit. Violations of this provision are grounds for denial of renewal.

(c)

For the purposes of renewal only, the following requirements of this Subsection D are waived if the relevant other establishment, use, or way came into being after the issuance of the original special permit for operation of an adult use establishment (where "original" means the most recent permit issued that was not a renewal).

[1]

Subsection D(3)(b) and (c).

[2]

Subsection D(4)(b), (c), (d), (g), (h), (i), (j), (l), (m), (n), (o) and (p), except that these provisions shall not be waived if the other establishment is publicly owned or if any owner of the adult use establishment seeking the renewal has any interest (equity or otherwise) in the other establishment.

[3]

Subsection D(5)(a).

[4]

Subsection D(6)(b).

Site plan review.

(1)

Adult use establishments require site plan approval from the Town of Townsend Planning Board.

(2)

The application for site plan approval for an adult use establishment must be filed per §§ 145-42 and 145-65 of the Townsend Zoning Bylaws on the "special permit for site plan review" form approved by the Planning Board. Such form shall contain any information required by the Planning Board, but shall include as a minimum all information required of the special permit to operate an adult use establishment as specified in Subsection D(8).

(3)

Adult use establishments may be permitted under this section only on lots not less than three times the lot size required in the Industrial (ID) Zone per the Land Space Requirements Table.[1] However, in no case shall the lot be less than 135,000 square feet.

[1]

Editor's Note: The Land Space Requirements Table is included at the end of this chapter.

(4)

The Planning Board shall determine that the proposed site will meet, or be altered to meet, all provisions of this Zoning Bylaw including coverage, densities, buffer areas and parking requirements.

(5)

Additional requirements.

(a)

Appearance of buildings for adult uses shall be consistent with the appearance of buildings in similar (but not specifically "adult") uses in Townsend, and shall not employ unusual color, graphics, lighting or building design which would attract attention to the premises.

(b)

There shall be a minimum yard depth of 100 feet for front, rear, and side yards.

(c)

There shall be a minimum 60 feet of landscape buffer of dense shrubbery on the rear, side and front yards as prescribed by the Planning Board, specifically designed to minimize the impact of the adult use establishment on abutting properties and the general public.

(d)

No adult use establishment may have visible, from outside the establishment, any flashing or moving lights.

(e)

The adult use advertisement sign may only be located on the building in which the adult use establishment is operating. The sign may only contain the name of the adult use establishment and the hours of operation.

(f)

No adult use establishment shall erect a freestanding sign, nor may any such establishment advertise on a freestanding accessory sign.

(g)

No adult use advertisement sign may contain any moving, flashing, or animated lights, or visible moving or movable parts, or changeable type.

(h)

Appropriate fencing to restrict public access to the adjacent properties is required.

(i)

Lighting of the exterior of the building and parking lot to reduce congestion, improve public safety and increase visibility for public safety is required, as specified by the Planning Board using criteria found in Town of Townsend Zoning Bylaws § 145-52, Outdoor lighting.

(j)

The parking area and all the driveways or other areas that accommodate vehicles must be paved as specified by the Planning Board.

Noncompliance.

(1)

Noncompliance with any of the conditions of the special permit or of any Town of Townsend Zoning Bylaw, or of any state law, shall be deemed to be a violation of the special permit. If more than two violations occur within 180 days of each other, suspension of all special permits and licenses granted shall occur for a period of 180 days following a public hearing by the SPGA.

(2)

Repeated abuses (more than two public hearings in two years, not counting any hearing at which the hearing board finds that all accusations are without merit) shall result in complete revocation of permits and licenses following a public hearing by the SPGA. If such a revocation occurs, the applicant must wait five years before reapplying for an adult use establishment special permit.

Severability. If any provision of this bylaw or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of the bylaw, or the application of such other provisions which can be given effect without the invalid provision or application thereof.

§ 145-54 Groundwater Protection District.

[Added 4-28-1998 ATM by Art. 33]

Purpose of district. The purpose of this Groundwater Protection 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 Townsend;

(2)

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

(3)

Conserve the natural resources of the Town; and

(4)

Prevent temporary and permanent contamination of the environment.

Scope of authority. The Groundwater Protection District is an overlay district superimposed on the zoning districts. The Groundwater Protection District shall be defined as the recharge areas identified as Zone II and Zone III, as delineated on a map entitled “Groundwater Protection Overlay Map,” dated April 1998 a map entitled “Zone II Delineation, Witches Brook Wells,” dated June 1999 and a map entitled “Harbor Trace Well, Townsend, Massachusetts,” dated November 2004 and endorsed by the Department of Environmental Protection on March 31, 2006. This overlay district shall apply to all new construction, reconstruction, or expansion of existing buildings and new or expanded uses as set forth in Subsection F. Applicable activities or uses in a portion of one of the underlying zoning districts which fall within the Groundwater Protection District must additionally comply with the requirements of this district. Uses that are prohibited in the underlying zoning districts shall not be allowed in the Groundwater Protection District.

[Amended 5-2-2000 ATM by Art. 19; 5-4-2010 ATM by Art. 25]

Establishment and delineation of Wellhead Protection District. For the purposes of this district, there are hereby established within the Town certain wellhead and groundwater protection areas, consisting of aquifers or recharge areas which are delineated on maps. These maps are identified in Subsection B. These maps are hereby made a part of the Townsend Zoning Bylaw and are on file in the office of the Town Clerk.

[Amended 5-2-2000 ATM by Art. 19]

Definitions. For the purposes of this section, the following terms are defined below:

AQUIFER

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

GROUNDWATER PROTECTION DISTRICT

The zoning district defined to overlay other zoning districts in the Town of Townsend and includes specifically designated recharge areas.

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.

MINING

The removal or relocation of geologic materials such as topsoil, sand, gravel, metallic ores, or bedrock.

POTENTIAL DRINKING WATER SOURCES

Areas which could provide significant potable water in the future.

RECHARGE AREAS

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

TOXIC OR HAZARDOUS MATERIAL

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 in the Town of Townsend. Toxic or hazardous materials include, without limitation: synthetic organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalis, and all substances defined as toxic or hazardous under MGL c. 21C and 21E and 310 CMR 30.00, and also include such products as solvents and thinners in quantities greater than normal household use.

ZONE I

The four-hundred-foot protective radius around a public water supply well.

ZONE II

The area of an aquifer which contributes water to a well under the most severe recharge and pumping conditions that can be realistically anticipated (180 days of pumping at safe yield with no recharge from precipitation), as defined in 310 CMR 22.00, and as drawn on the maps identified in Subsection B.

[Amended 5-2-2000 ATM by Art. 19]

ZONE III

The land area beyond Zone II from which surface water and groundwater drain into Zone II, as defined in 310 CMR 22.00, and as drawn on the maps identified in Subsection B.

[Amended 5-2-2000 ATM by Art. 19]

District boundary disputes. If the location of the district boundary in relation to a particular parcel is in doubt, resolution of boundary disputes shall be through a special permit application to the Zoning Board of Appeals. Any application for a special permit for this purpose shall be accompanied by adequate documentation. The burden of proof shall be upon the owner(s) of the land to show where the bounds should be located. The Zoning Board of Appeals will engage at the request of the owner(s), or at the discretion of the Zoning Board of Appeals, a professional engineer, hydrologist, geologist, or soil scientist to determine more accurately the boundaries of the district with respect to individual parcels of land, and may charge the owner(s) for the cost of the investigation. The determination of the location and extent of Zones II and III shall be in conformance with the criteria set forth in 310 CMR 22.00, in the DEP's Guidelines and Policies for Public Water Systems, and approved by the Department of Environmental Protection.

Use regulations. These regulations shall not apply to existing structures or uses in the Groundwater Protection District, but shall apply to any change of use or substantial extension of such use and to any new construction or substantial expansion of existing buildings. In the Groundwater Protection District the following regulations shall apply:

(1)

Allowed uses.

(a)

Zone I. Only uses related to the operation and maintenance of the public water supply are allowed in the Zone I defined in 310 CMR 22.00.

(b)

Zones II, III. The following uses are allowed within the remainder of the Groundwater Protection District, provided that all necessary permits, orders, or approvals required by local, state, or federal law are also obtained:

[1]

Conservation of soil, water, plants, and wildlife;

[2]

Outdoor recreation, nature study, boating, fishing, and hunting where otherwise legally permitted;

[3]

Foot, bicycle and/or horse paths, and bridges;

[4]

Normal operation and maintenance of existing water bodies and dams, splash boards, and other water control, supply and conservation devices;

[5]

Maintenance, repair, and enlargement of any existing structure, subject to Subsection F(2), Prohibited uses, and Subsection F(3), Uses and activities requiring a special permit.

[6]

Residential development, subject to Subsection F(2), Prohibited uses, and Subsection F(3), Uses and activities requiring a special permit.

[7]

Farming, gardening, nursery, conservation, forestry, harvesting, and grazing subject to Subsection F(2), Prohibited uses, and Subsection F(3), Uses and Activities requiring a special permit.

[8]

Construction, maintenance, repair, and enlargement of drinking water supply related facilities such as, but not limited to, wells, pipelines, aqueducts, and tunnels.

(2)

Prohibited uses. The following uses are prohibited in all of the district.

(a)

Landfills and open dumps as defined in 310 CMR 19.006;

(b)

Automobile graveyards and junkyards, as defined in MGL c. 140B, § 1;

(c)

Individual sewage disposal systems that are designed in accordance 310 CMR 15.00 to receive more than 110 gallons of sewage per quarter acre under one ownership per day, or 440 gallons of sewage on any one acre under one ownership per day, whichever is greater, provided that:

[1]

The replacement or repair of a system, which will not result in an increase in design capacity over the original design, or the design capacity of 310 CMR 15.00, whichever is greater, shall be exempted;

[2]

In cluster subdivisions the total sewage flow allowed shall be calculated based on the number of percable lots in the entire parcel;

(d)

Facilities that generate, treat, store, or dispose of materials as defined in this bylaw, Subsection D, toxic or hazardous material, except for the following:

[1]

Very small quantity generators as defined under 310 CMR 30.00;

[2]

Household hazardous waste centers and events under 310 CMR 30.00;

[3]

Waste oil retention facilities required by MGL c. 21, § 52A;

[4]

Water remediation treatment works approved by DEP for the treatment of contaminated ground or surface waters;

(e)

Storage of liquid petroleum products, except the following:

[1]

Normal household use, normal outdoor maintenance, and heating of a structure;

[2]

Waste oil retention facilities required by statute, rule, or regulation;

[3]

Emergency generators required by statute, rule, or regulation;

[4]

Treatment works approved under 314 CMR 5.00 for treatment of ground or surface waters; provided that such storage, listed in Subsection F(2)(e)[1] through [4] above, is in freestanding containers within buildings, or above ground with secondary containment adequate to contain a spill the size of the container's total storage capacity.

(f)

Storage of sludge and septage;

(g)

Storage of de-icing chemicals, or mixtures, unless such storage, including loading areas, is within a structure designed to prevent the generation and escape of contaminated runoff or leachate;

(h)

Storage of animal manure unless covered or contained in accordance with the specifications of the Natural Resource Conservation Service and the Townsend Board of Health Manure Management requirements;

(i)

Earth removal, consisting of the removal of soil, loam, sand, gravel, or any other earth material (including mining activities) within seven feet of historical high groundwater (as determined in accordance with Townsend Zoning Bylaw § 145-46, Earth removal) except for excavations for building foundations, roads, or utility works;

(j)

Treatment or disposal works subject to 314 CMR 5.00, for wastewater other than sanitary sewage, except for the following:

[1]

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;

[2]

Treatment works approved by the Department of Environmental Protection designed for the treatment of contaminated groundwater;

[3]

Sewage treatment facilities in those areas with existing water quality problems when it has been demonstrated to both the Department of Environmental Protection's and the Board of Health's satisfaction that these problems are attributable to current septic problems and that there will be a net improvement in water quality.

(k)

Stockpiling and disposal of snow, ice and sand containing de-icing chemicals if brought in from outside the Groundwater Protection District;

(l)

Storage of commercial fertilizers, as defined in MGL c. 128, § 64, unless such storage is within a structure designated to prevent the generation and escape of contaminated runoff or leachate;

(m)

The use of septic system cleaners which contain toxic or hazardous chemicals;

(n)

Storage of hazardous materials, as defined in Townsend Zoning Bylaw § 145-54D, toxic or hazardous material;

(o)

Industrial and commercial uses which discharge process wastewater on site.

(3)

Uses and activities requiring a special permit. The following uses and activities are allowed only in Zones II and III and only if allowed in the underlying zoning district and only upon the issuance of a special permit by the Zoning Board of Appeals under such conditions as they may require:

(a)

Enlargement or alteration of existing uses that do not conform to the Groundwater Protection District, subject to MGL c. 40A, § 9 and 310 CMR § 21 and Townsend Zoning Bylaws Article XI, Appeals, Special Permits and Variances, and Article V, Nonconforming Uses.

[Amended 5-7-2002 STM by Art. 18; 10-21-2003 STM by Art. 34]

(b)

Those activities that involve the handling of toxic or hazardous materials in quantities greater than those associated with normal household use, allowed in the underlying zoning [except as prohibited under Subsection F(2)].

(c)

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

(d)

The application of pesticides, including herbicide, insecticides, fungicides, and rodenticides, for non-domestic or non-agricultural uses in accordance with state and federal standards. If applicable, the applicant will provide documentation of compliance with a yearly operating plan (YOP) for vegetation management operations under 333 CMR 11.00 or a Department of Food and Agriculture approved pesticide management plan or integrated pest management (IPM) program under 333 CMR 12.00;

(e)

The application of fertilizers for non-domestic or non-agricultural uses. Such applications shall be made in a manner so as to minimize adverse impacts on groundwater due to nutrient transport, deposition, and sedimentation;

(f)

The construction of dams or other water control devices, ponds, pools or other changes in water bodies or courses, created for swimming, fishing, or other recreational uses, agricultural uses or drainage improvements. Such activities shall not adversely affect water quality or quantity.

Procedures for issuance of special permit.

(1)

The special permit granting authority (SPGA) under this bylaw shall be the Zoning Board of Appeals. 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. The SPGA shall document the basis for any departures from the recommendations of the other Town boards or agencies in its decision.

(2)

The SPGA may grant the required special permit only upon finding that the proposed use meets the following standards, those specified in Subsection F of this section and § 145-65F of the Townsend Zoning Bylaws. 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 Groundwater 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.

(3)

The applicant shall file the requisite number of plans and attachment copies as specified in the SPGA's rules and regulations. The plans shall be drawn at a proper scale as determined by the SPGA and be stamped by a professional engineer. All additional submittals shall be prepared by qualified professionals. The plans and attachments shall, at a minimum, include the following information where pertinent:

(a)

A complete list of chemicals, pesticides, herbicides, fertilizers, fuels, and other potentially hazardous materials to be used or stored on the premises in quantities greater than those associated with normal household use;

(b)

For those activities using or storing such hazardous materials, a hazardous materials management plan shall be prepared and filed with the Hazardous Waste Coordinator and Board of Health. The plan shall include:

[1]

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 cleanup procedures;

[2]

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

[3]

Evidence of compliance with the regulations of the Massachusetts Hazardous Waste Management Act 310 CMR 30, including obtaining an EPA identification number from the Massachusetts Department of Environmental Protection.

[4]

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

Violation.

(1)

Written notice of any violations of this section shall be given by the Zoning Enforcement Officer pursuant to Townsend Zoning Bylaw Article XIII, Enforcement and Penalties. 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. A copy of such notice shall be submitted to the Town Clerk.

(2)

The cost of containment, cleanup, or other action of compliance shall be borne by the owner and operator of the premises.

Severability. Determination that any portion or provision of this Groundwater Protection District Bylaw is invalid shall not invalidate any other portion or provision thereof, nor shall it invalidate any special permit previously issued thereunder.

§ 145-54.1 Age-restricted development.

[Added 5-8-2021 ATM by Art. 23]

Purpose. The purpose of this section is to provide for a variety of housing types, settings, and residential services to meet the needs of people as they age.

Applicability.

(1)

In a Residential Aquifer District (RA), Residential B District (RB), Commercial District (C), Neighborhood Commercial District (NCD), Downtown Commercial District (DCD), or Outlying Commercial District (OCD), the Planning Board may grant a special permit for an age-restricted development in accordance with this § 145-54.1 on any tract of land meeting the following requirements.

(a)

Two or more acres of land;

(b)

Minimum of 100 feet of frontage on a public way; and

(c)

Public water available at the street frontage.

(2)

An age-restricted development is intended for people age 55 or over. As such, buildings and site improvements in an age-restricted development shall provide for guest parking, public meeting areas, and universal design in accordance with the provisions of this section.

Basic requirements.

(1)

An age-restricted development shall comply with the following density regulations:

Use	Maximum Density	Maximum Building Height (feet)
Cottage dwellings or two-family dwellings	4 units/acre	32
Townhouse dwellings	8 units/acre	32

(2)

Dwelling units can be attached, detached or any combination of these types.

(3)

Buildings shall comply with a minimum setback of 20 feet from other structures in the development.

(4)

For cottage dwellings, two-family dwellings, and townhouses, the minimum setback shall be 30 feet from all property lines in RA and RB Districts unless the Planning Board determines that a reduced setback is necessary to achieve the purposes of this section and will not have a detrimental impact on the neighborhood.

(5)

Nothing in this section shall preclude the Planning Board from reducing or waiving minimum setback requirements between buildings or internal lots created within the age-restricted development upon demonstration of the applicant of just cause.

(6)

No dwelling unit in an age-restricted development shall have more than two bedrooms.

(7)

The minimum common open space in the development shall be 30% of the lot area, and not more than 25% of the required minimum common open space shall consist of wetlands. The upland open space shall be contiguous and usable by residents of the development. A permanent conservation restriction running to or enforceable by the Town shall be recorded for the common open space area and shall include restrictions that the land be retained in perpetuity for conservation or passive recreation.

(8)

Minimum off-street parking requirements shall be:

(a)

Residential parking: two spaces per unit.

(b)

Guest parking: one space per three units.

Age-appropriate design. An age-restricted development shall be designed to provide housing options in a setting that encourages and supports aging in community. Units must be accompanied by common meeting areas, guest parking, and be designed for people as they age. At minimum, these terms mean that an age-restricted development shall have the following features:

(1)

Cottage, two-family, and townhouse units shall provide for:

(a)

At least one zero-step entrance;

(b)

Doorways with a thirty-six-inch clear passage space;

(c)

Master bedroom and an accessible en suite bathroom located on the same floor as the kitchen, living room, and dining room, all being on the same floor as the zero-step entrance;

(d)

Master bedroom and en suite bathroom designed and equipped for seniors and people with mobility impairments; and

(e)

Parking.

(2)

Outdoor facilities, such as walkways, gardens, and recreation areas, shall be designed for universal access.

Development standards. As part of the Planning Board's special permit review process, the Board shall evaluate the proposed age-restricted development for conformance to the following minimum design standards:

(1)

Architectural planning and design shall incorporate energy efficient design techniques, such as natural heating and cooling systems, use of sun and wind energy generation systems, and so forth.

(2)

Structures located near the project property lines shall be designed and located in a manner that reflects consistency and compatibility with neighboring areas, and shall include appropriate use of building density, heights, and design to minimize any intrusion on neighbors.

(3)

Outdoor recreation or gathering areas, particularly those that may generate significant noise and/or light and glare, shall be located to minimize intrusion on neighboring properties.

(4)

Structures shall be clustered to reduce site disturbance and protect open spaces as well as naturally and environmentally sensitive areas.

(5)

Building design shall avoid use of long, unbroken facades, and shall include use of balconies, offset walls, trellises and other design elements to provide visual interest.

(6)

Building design, colors, and materials shall generally correspond to the natural setting of the project site and to any prevalent design styles that may occur in neighborhoods within the general project area.

(7)

The developer has applied for and received a stormwater management permit from the Planning Board in accordance with the Town's General Bylaw Chapter 85, NPDES Phase II Stormwater Management. Adequate provision will be made for the disposal of sewage, waste, and drainage in accordance with the requirements of the Board of Health.

Procedures.

(1)

The special permit application, public hearing, and decision procedures shall be in accordance with § 145-65 of this Zoning Bylaw.

(2)

The applicant shall submit an age-restricted development special permit application together with the size, form, number, and contents of the required plans and any supplemental information as required in the Planning Board's Rules and Regulations.

Decision. The SPGA may grant a special permit for an age-restricted development pursuant to and in accordance with § 145-65F of this Zoning Bylaw, and upon a finding by the Board that the age-restricted development meets the purposes, requirements, and development standards of this § 145-54.1.

Duration. Special permits granted under this section shall lapse in accordance with § 145-65G of this Zoning Bylaw.