Zoning Recodification and Updates

Proposed Zoning Bylaw Changes for Special Town Meeting

ARTICLE #	SECTIONS	TOPIC
Article 4	Sections 1-4	Replace Existing with Updated Sections 1) Authority and Purpose 2) Definitions 3) Establishment of Districts 4) Use Regulations
Article 5	Sections 8.5, 6.2.7, 6.15	Regulations to be moved to General Bylaws.
Article 6 and 7	Sections 8.5, 6.2.7, 6.15 and 6.1, 7.0	Deletions and Renumbering
Article 8	Section 6	Update General Regulations
Article 9	Section 7 and 12	Update and move Administration and Procedures Regulations
Article 10	Section 6.1 and 7	Update Nonconforming Uses and Structures Regulations
Article 11	New	Add new Adult Entertainment Establishment Regulations
Article 12	Section 9.1	Replace existing with updated Residential Conservation Cluster Bylaw
Article 13	New	Add new Senior Housing Regulations
Article 14	Section 9.1	Update Accessory Dwelling Unit Regulations
Article 15 and 16	Section 9.1 and 4.2	Modify ADU Bylaw and modify Use Table regarding ADU Bylaw

Rationale:

For more than two years, the Planning Board has been working to update the Zoning Bylaw in order to improve its ease of use and to make bylaw current. Several proposed changes advance issues identified in the Master Plan as well. All changes will need to be approved at Town Meeting on April 25, 2022 (LCD changes only) and Fall Special Town Meeting before they are effective.

If you have comments, please send them to Gail Hunter at hunterg@manchester.ma.us for distribution to the board. Comments will be read, but the board does not respond over email. Comments will be acknowledged in the public meetings.

Summary of Proposed Changes for Fall Special Town Meeting (Overview):

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Section	Proposed Zoning Bylaw Changes The following is an overview of the substantive changes to the Zoning Bylaws that the Planning Board is recommending to the town for passage. They will be discussed at the public hearing in May, revised, and final wording brought to Town Meeting on June 11^th for a final vote.
1. Authority and Purpose	Old: Section 1 briefly addressed the authority & purpose of the bylaws. New: The new Section 1 revises the old section and adds scope, applicability, procedures and other additional administrative matters. It is a brief section.
2. Definitions	Old: Section 2 had only 11 definitions in it. Other definitions were in various parts of the bylaws and were therefore hard to find. Some definitions needed improvement. New: In the new Section 2 we added about 80 definitions including, among others, affordable housing; dwelling types; day care; building size, height & lot dimensions; land uses such as hotels, junk yards, clinics, agricultural uses; and types of senior housing. The definition of lot width is now simpler and clearer. All definitions are now gathered into the same bylaw section. Why: This improves the clarity of terms used in our laws making them easier to use and understand for homeowners as well as making them easier for the town to administer fairly, avoiding the need for legal or professional counsel to understand them.
3. Districts	Old: Section 3 defined the zoning districts & zoning map. New: No changes to the districts have been made. District D has been clarified as 2 districts. Lot lines and lots in multiple districts have been clarified.
4. Use Regulations	Old: Section 4 was a lengthy narrative description of all land uses including single family, general, limited commercial, in-law apartments, flood control, flood plain, ground & surface water overlay, wireless facilities & helicopter uses. New: The new Section 4 includes a comprehensive table, similar to that used in most towns throughout the state, which clearly defines all allowed land uses in all zoning districts. Minor changes were made to a few land uses including accessory uses. Swimming pools will be allowed as of right without the requirement of a special permit as long as specific criteria have been met. Why: The easy-to-use table clearly & simply defines what uses are allowed by right or by special permit.
5: Dimensional Regulations	Old: Section 5 covers rules for frontage, setbacks from lot lines and height restrictions. New: No changes have been made but a table has been created for ease of use.
6: General Regulations	Old: Section 6 was lengthy and covered a number of unrelated issues such as parking, signage, non-conforming uses, site plan & site clearing review. Many of the provisions were overly complicated, redundant and inconsistent. New: Some of the parts of Section 6 are being moved such as: curb cuts, junk cars and stormwater management to the General Bylaws. Non-conforming use is moving to Section 7. Curb cuts will be referred to as driveway entrances and reviewed with specific criteria by the DPW. Junk car regulations will not change. Stormwater Management will have minor changes bringing it into compliance with current State standards. The required parking space size is being reduced to more standard dimensions, thus decreasing the amount of paved area in town, but other parking requirements remain the same. Signage regulations remain unchanged. Performance based development standards replace the existing prescriptive ones for use in site plan and special permit review. They will work in conjunction with the special permit review criteria found in the new Section 12. Topographic change will be referred to as site clearing with a clearer purpose statement but the regulations remain the same. Why: A single set of design standards will provide guidance for developers and others needing site plan approval, and will provide specific direction to Town boards for their review. Most towns review curb cuts with their DPW, Highway or Traffic Departments only and no special scrutiny is necessary.
7. Non- Conforming Uses and Structures	Old: The current Section 7 is brief and covers administrative issues such as permits, code enforcement and the Board of Appeals (ZBA). It is being moved to the new Section 12. New: The new Section 7 concerns non-conforming uses only. Previously this was addressed in Section 6. A certain amount of changes will be allowed without obtaining a special permit for single and two-family structures as long those changes conform in all respects with the zoning bylaws. Reconstruction, demolition and abandonment of nonconforming structures is addressed. The new regulations will bring the Bylaw into compliance with case law and avoid the risk of lawsuits and appeals. Why: About three quarters of the properties in town do not fully comply with current zoning and are considered non-conforming. Issues addressed are whether special permits should be required for normal changes to non-conforming uses. Excessive changes will still require a special permit and the ZBA will have more flexibility in approving modifications of grandfathered properties that are non-conforming.
8. Special Regulations	Old: This is a new bylaw section. New: We are obligated to allow Adult Entertainment but are allowed to regulate it which we do so here. Regulations are needed to require standards of operation for such establishments. It will only be allowed in the Limited Commercial District by Special Permit Why: Without regulations, the town is vulnerable to an unregulated adult entertainment establishment.
9. Special Residential Regulations	Old: This is a new bylaw section governing specific residential uses. Residential Conservation Cluster (RCC) which was previously in Section 9, In-law Apartments (ADU’s) which were previously in Section 6, and Senior Housing which is a new allowed land use. The existing RCC is not easy to use, requires 5 acres of land and provides little benefit for the town. The existing ADU law requires special permits and other requirements which have severely discouraged their creation. New: The revised ADU law allows their creation ‘by right’ as long as they comply with specific regulations such as: limited size to 900 sq. ft.; owner occupancy requirement; a minimum 6 month lease; an annual cap of 20 new units per year; it eliminates the requirement of being an employee in order to reside in them; and it allows for ADU’s that do not comply if they receive a special permit from the ZBA. The revised RCC offers continues to allow for clustered housing with no increase in density. The new provision also allows for less expensive housing, preserving more open space, and adding to town amenities by specifying density bonuses for providing affordable housing, open space, or town amenities. The new Senior Housing provision is intended to encourage the development of assisted living and long-term car for seniors and to create health care, housing and other supportive services for our senior population. Any proposed senior facility will require a special permit. Why: These changes will promote greater diversity of housing opportunities as recommended by the Master Plan. There are no current provisions for senior housing in the bylaw.
10. Special Districts	Old: This is a new bylaw section created at the Nov. 2021 Town Meeting and includes the Flood Control District, Flood Plain District and Water Resource Overlay District regulations. New: No new changes are proposed.
11. Energy Regulations	Old: This is a new bylaw section including the existing regulations for wind and solar systems. New: No new changes are proposed.
12. Administration and Procedures	Old: This is a new bylaw section that replaces Section 7 of the current bylaw which includes administrative and procedural requirements. The current administrative section is somewhat confusing and neglects to describe the role of the Planning Board New: The roles, powers and organizational framework of the Building Inspector, Zoning Board of Appeals and Planning Board will be clarified. The procedures and criteria for reviewing special permits and site plan review will be simplified and strengthened. The ZBA will be authorized to grant “special accommodation” for handicapped individuals, as required by State Law.
General Bylaw Modifications	Old: No changes are being proposed to the existing General Bylaws beyond adding zoning bylaws from Section 6 to them. New: Curb cuts will be referred to as Driveway Entrances and reviewed based on specific criteria by the DPW. Most towns already review these by their DPW, Highway or Traffic Departments only. Junk car regulations are relocated here and will not change. Stormwater Management will have minor changes bringing it into compliance with current State standards.
	Prepared for the Planning Board by Gary Gilbert & Chris Olney

Section

Proposed Zoning Bylaw Changes

The following is an overview of the substantive changes to the Zoning Bylaws that the Planning Board is recommending to the town for passage. They will be discussed at the public hearing in May, revised, and final wording brought to Town Meeting on June 11^th for a final vote.

1. Authority

and Purpose

Old: Section 1 briefly addressed the authority & purpose of the bylaws.

New: The new Section 1 revises the old section and adds scope, applicability, procedures and other additional administrative matters. It is a brief section.

2. Definitions

Old: Section 2 had only 11 definitions in it. Other definitions were in various parts of the bylaws and were therefore hard to find. Some definitions needed improvement.

New: In the new Section 2 we added about 80 definitions including, among others, affordable housing; dwelling types; day care; building size, height & lot dimensions; land uses such as hotels, junk yards, clinics, agricultural uses; and types of senior housing. The definition of lot width is now simpler and clearer. All definitions are now gathered into the same bylaw section.

Why: This improves the clarity of terms used in our laws making them easier to use and understand for homeowners as well as making them easier for the town to administer fairly, avoiding the need for legal or professional counsel to understand them.

3. Districts

Old: Section 3 defined the zoning districts & zoning map.

New: No changes to the districts have been made. District D has been clarified as 2 districts. Lot lines and lots in multiple districts have been clarified.

4. Use

Regulations

Old: Section 4 was a lengthy narrative description of all land uses including single family, general, limited commercial, in-law apartments, flood control, flood plain, ground & surface water overlay, wireless facilities & helicopter uses.

New: The new Section 4 includes a comprehensive table, similar to that used in most towns throughout the state, which clearly defines all allowed land uses in all zoning districts. Minor changes were made to a few land uses including accessory uses. Swimming pools will be allowed as of right without the requirement of a special permit as long as specific criteria have been met.

Why: The easy-to-use table clearly & simply defines what uses are allowed by right or by special permit.

5: Dimensional

Regulations

Old: Section 5 covers rules for frontage, setbacks from lot lines and height restrictions.

New: No changes have been made but a table has been created for ease of use.

6: General

Regulations

Old: Section 6 was lengthy and covered a number of unrelated issues such as parking, signage, non-conforming uses, site plan & site clearing review. Many of the provisions were overly complicated, redundant and inconsistent.

New: Some of the parts of Section 6 are being moved such as: curb cuts, junk cars and stormwater management to the General Bylaws. Non-conforming use is moving to Section 7.

Curb cuts will be referred to as driveway entrances and reviewed with specific criteria by the DPW. Junk car regulations will not change. Stormwater Management will have minor changes bringing it into compliance with current State standards.

The required parking space size is being reduced to more standard dimensions, thus decreasing the amount of paved area in town, but other parking requirements remain the same. Signage regulations remain unchanged.

Performance based development standards replace the existing prescriptive ones for use in site plan and special permit review. They will work in conjunction with the special permit review criteria found in the new Section 12. Topographic change will be referred to as site clearing with a clearer purpose statement but the regulations remain the same.

Why: A single set of design standards will provide guidance for developers and others needing site plan approval, and will provide specific direction to Town boards for their review. Most towns review curb cuts with their DPW, Highway or Traffic Departments only and no special scrutiny is necessary.

7. Non-

Conforming

Uses and

Structures

Old: The current Section 7 is brief and covers administrative issues such as permits, code enforcement and the Board of Appeals (ZBA). It is being moved to the new Section 12.

New: The new Section 7 concerns non-conforming uses only. Previously this was addressed in Section 6. A certain amount of changes will be allowed without obtaining a special permit for single and two-family structures as long those changes conform in all respects with the zoning bylaws. Reconstruction, demolition and abandonment of nonconforming structures is addressed. The new regulations will bring the Bylaw into compliance with case law and avoid the risk of lawsuits and appeals.

Why: About three quarters of the properties in town do not fully comply with current zoning and are considered non-conforming. Issues addressed are whether special permits should be required for normal changes to non-conforming uses. Excessive changes will still require a special permit and the ZBA will have more flexibility in approving modifications of grandfathered properties that are non-conforming.

8. Special

Regulations

Old: This is a new bylaw section.

New: We are obligated to allow Adult Entertainment but are allowed to regulate it which we do so here. Regulations are needed to require standards of operation for such establishments. It will only be allowed in the Limited Commercial District by Special Permit

Why: Without regulations, the town is vulnerable to an unregulated adult entertainment establishment.

9. Special

Residential

Regulations

Old: This is a new bylaw section governing specific residential uses. Residential Conservation Cluster (RCC) which was previously in Section 9, In-law Apartments (ADU’s) which were previously in Section 6, and Senior Housing which is a new allowed land use. The existing RCC is not easy to use, requires 5 acres of land and provides little benefit for the town. The existing ADU law requires special permits and other requirements which have severely discouraged their creation.

New: The revised ADU law allows their creation ‘by right’ as long as they comply with specific regulations such as: limited size to 900 sq. ft.; owner occupancy requirement; a minimum 6 month lease; an annual cap of 20 new units per year; it eliminates the requirement of being an employee in order to reside in them; and it allows for ADU’s that do not comply if they receive a special permit from the ZBA.

The revised RCC offers continues to allow for clustered housing with no increase in density. The new provision also allows for less expensive housing, preserving more open space, and adding to town amenities by specifying density bonuses for providing affordable housing, open space, or town amenities.

The new Senior Housing provision is intended to encourage the development of assisted living and long-term car for seniors and to create health care, housing and other supportive services for our senior population. Any proposed senior facility will require a special permit.

Why: These changes will promote greater diversity of housing opportunities as recommended by the Master Plan. There are no current provisions for senior housing in the bylaw.

10. Special

Districts

Old: This is a new bylaw section created at the Nov. 2021 Town Meeting and includes the Flood Control District, Flood Plain District and Water Resource Overlay District regulations.

New: No new changes are proposed.

11. Energy

Regulations

Old: This is a new bylaw section including the existing regulations for wind and solar systems.

New: No new changes are proposed.

12. Administration and Procedures

Old: This is a new bylaw section that replaces Section 7 of the current bylaw which includes administrative and procedural requirements. The current administrative section is somewhat confusing and neglects to describe the role of the Planning Board

New: The roles, powers and organizational framework of the Building Inspector, Zoning Board of Appeals and Planning Board will be clarified. The procedures and criteria for reviewing special permits and site plan review will be simplified and strengthened.

The ZBA will be authorized to grant “special accommodation” for handicapped individuals, as required by State Law.

General Bylaw Modifications

Old: No changes are being proposed to the existing General Bylaws beyond adding zoning bylaws from Section 6 to them.

New: Curb cuts will be referred to as Driveway Entrances and reviewed based on specific criteria by the DPW. Most towns already review these by their DPW, Highway or Traffic Departments only.

Junk car regulations are relocated here and will not change.

Stormwater Management will have minor changes bringing it into compliance with current State standards.

Prepared for the Planning Board by Gary Gilbert & Chris Olney

Section 1. Authority and Purpose

CURRENT SECTION 1

1.1 Authority

The Zoning By-Law of the Town of Manchester-by-the-Sea is adopted pursuant to and under the authority of Chapter 40A of the General Laws as amended by Chapter 808 of the Acts of 1975, The Zoning Act.

1.2 Purpose

The purpose of this By-Law is the promotion and protection of the public health, safety, convenience, and general welfare of the inhabitants of the Town of Manchester-by-the-Sea and of the public generally by:

- encouraging the most appropriate use of land and water within the Town;

- preventing overcrowding of land;

- preventing undue concentration of population on the one hand, and preventing excessive scattering of population on the other;

- encouraging various lot sizes and housing types for persons of various age and income levels;

- minimizing traffic hazards and congestion;

- providing for adequate light, air, and sanitation;

- reducing hazards from fire, flood, panic, and other dangers;

- assisting in the economical provision, utilization and expansion for all services provided to the public, including streets, drainage, water supply, sewage disposal, schools, parks and open spaces;

- preventing blight and pollution of the environment;

- maintaining and enhancing the natural and historical amenities of Manchester-by-the-Sea; and

- conserving the value of land and buildings.

Section 2. Definitions

CURRENT SECTION 2

As used in this By-Law, the following terms shall have the following meaning:

2.1 Accessory

A building, structure or use which is subordinate to, and the use of which is customarily incidental to, and is located on the same lot with the principal building, structure or use to which it is accessory.

2.2 The Zoning Act

Chapter 40A of the Massachusetts General Laws, as amended by Chapter 808 of the Acts of 1975, The Zoning Act, and any amendments thereafter.

2.3 Building

A structure having a roof (including an awning or similar covering) adapted to permanent or continuous occupancy for assembly, business, education, industrial, institutional, residential or storage purposes. The term "building" shall be construed where applicable as if followed by the words "or portion thereof".

2.4 Dwelling

A detached building designed or arranged to accommodate one or more dwelling units and separated by side yards from any other structure except accessory buildings. Except as expressly provided in section 4.1.9.1 (employee), not more than one dwelling shall be built or maintained on a lot.

2.5 Dwelling Unit

A building or portion thereof occupied or suitable for occupancy as a residence and arranged for the use of one or more individuals living as a single housekeeping unit, but not including a trailer, mobile home or recreational vehicle which is designed to be mounted on wheels, whether or not on a permanent foundation.

2.6 Lot

The whole area of a single parcel of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings. A lot for the purpose of this Zoning By-Law may or may not coincide with a lot of record title.

2.7 Special Permit

A specific authorized use within this Zoning By-Law that may be granted upon application to the designated special permit granting authority.

Section 3. Districts

CURRENT SECTION 3

3.1 Districts

For the purpose of this By-Law, the Town of Manchester-by-the-Sea is hereby divided into the following zoning districts [See Maps]:

Single Residence District A

Single Residence District B

Single Residence District C

Residence District D

Single Residence District E [Added 2000]

General District

Limited Commercial District [Amended 1987]

3.2 Zoning Map

The location and boundaries of the zoning districts are shown on the following identified zoning maps as they may be hereinafter amended, and are collectively referred to as "The Zoning Map":

"Map of the Town of Manchester, Massachusetts, Showing Zoning Districts," originally drawn by Charles A. Fritz on October 2, 1954, with reference to earlier map of December 7, 1944, accepted by the Town on February 13, 1945 and later amended to March 12, 1973 (scale: 1 inch equals 800 feet); and "Town of Manchester Natural Resources Map," consisting of a set of 8 maps prepared by Autometrics Division of Raytheon Corporation, dated April 1974 and adopted as part of the Zoning By-Law in May 1976 (scale: inch equals 600 feet), a composite map (scale: 1 inch equals 1,000 feet), and an index map (scale: 1 inch equals 2,000 feet). [Amended 1987] [See Maps]

3.3 Zoning Map Interpretation

For the purposes of interpretation of the Zoning Map, the following shall apply:

3.3.1 Boundaries which appear to follow streets, railroads, wood roads or brooks shall coincide with the center line thereof.

3.3.2 Boundaries which appear to follow a property or lot line, the exact location of which is not indicated by means of dimensions shown in figures, shall coincide with the property or lot line.

3.3.3 Boundaries which appear to run parallel to the sidelines of streets shall be regarded as parallel to such lines. Dimensions shown in figures placed upon said map between such boundary lines and sidelines of public or private ways are the distances in feet of such boundary lines from such lines.

3.3.4 [Deleted 1987]

The frontage of a lot is the unbroken distance measured along the street line perimeter of the lot (also referred to as “street frontage”) and constitutes all or a portion of the front lot line which runs between one side line of the lot to the other side line.

For purposes of determining whether a lot has the applicable frontage specified in the column headed “Minimum Frontage” in Section 5.4, the frontage of a lot shall be the lesser of (1) its unbroken street frontage, or (2) the unbroken distance measured along a line which marks the required front setback from the front lot line as specified in the column headed “Minimum Front Setback” in Section 5.4. In the case of a lot abutting on more than one street, such lot shall be required to have such applicable minimum frontage on only one street.” [Amended 2007]

Section 4. Use Regulations

CURRENT SECTION 4

4.1 Single Residence Districts

In a single Residence District no building or land shall be used and no building shall be erected or altered which is intended or designed to be used for any purpose except one or more of the following:

4.1.1 A dwelling having not more than one dwelling unit.

4.1.2 Non-nuisance agricultural, horticultural and floricultural uses, except those requiring a special permit pursuant to Section 4.1.10(1). [Amended 2007]

4.1.3 Church and related use.

4.1.4 Educational use, not conducted for profit.

4.1.5 The taking of boarders or the leasing of rooms for not more than four (4) persons by a family residing on the premises with common cooking and living facilities, providing there is no sign or display to advertise such use. (But it shall not be permissible to construct or operate overnight camps.)

4.1.6 Municipal parks, playgrounds and other municipal recreational uses, municipal wells, water storage and processing and sewage lift stations, and related buildings and parking facilities.

4.1.7 The office of a doctor, dentist or other member of a recognized profession provided there is no display or advertising except for a small professional sign not over one square foot in area.

4.1.8 Customary home occupations including home-cooking, dressmaking, millinery, hairdressing, and other similar occupations, by a person resident on the premises, provided there is no visible display of goods from the street and no exterior advertising, except an announcement sign of not more than two square feet in area, and provided such occupation shall not be carried on in an accessory building.

4.1.9 Accessory use on the same lot with and customarily incident to any of the above permitted uses, or to the uses permitted in accordance with the following section 4.1.10, and not detrimental to a residential neighborhood, including specifically the following:

4.1.9.1 As part of an existing garage, stable or other existing structure approved by special permit of the Board of Appeals, family living quarters for and to be occupied only by an employee of the owner occupant of the dwelling while such garage, stable or other existing structure, approved by the Board of Appeals, is an accessory use. Said employee must be employed on the premises. [Amended 1983]

4.1.9.2 The garaging or maintaining on any lot of not more than 1 commercial vehicle.

4.1.10 Any of the following uses, if authorized by special permit issued by the Zoning Board of Appeals or by the Planning Board, as specified below, and in accordance with the provisions of Section 7.5 (Special Permits) and subject to appropriate conditions, limitations and safeguards stated in writing by the Zoning Board of Appeals or the Planning Board, whichever is authorized to act on the matter (the SPGA), and made a part of the special permit: [Amended 2007]

(a) Private Club, not conducted for profit; Planning Board is the SPGA

(b) Cemetery, not conducted for profit; Planning Board is the SPGA

(c) The garaging or maintaining of more than 4 automobiles when accessory to a dwelling; Zoning Board of Appeals is the SPGA

(d) Charitable or philanthropic use, hospital, sanitarium, nursing, rest or convalescent home, not conducted for profit, or other similar use; Planning Board is the SPGA

(e) Public utility or public communications building not including a service station or outside storage of supplies; Planning Board is the SPGA

(f) A permanent swimming pool or a tennis or similar court when accessory to a dwelling; Zoning Board of Appeals is the SPGA

(g) The offices within a single building for not more than three medical doctors, subject to the following conditions: (i) the Board of Appeals determines that there is a need in the Town for such offices within a single building, that there is no reasonably available and suitable office space for such doctors within a single building, or land for such a building, in a district other than a Residence District, and that there is adequate and safe off-street parking for doctors and their staffs and patients; (ii) there is no display or advertising except for a small professional sign for each doctor not over one square foot in area; (iii) no more than one building with offices for more than one doctor shall be permitted in the Residence Districts; and (iv) site plan approval is required as provided for in Section 6.5 (Site Plan Approval). Zoning Board is the SPGA.

(h) Wind energy conversion systems (windmills). Planning Board is the SPGA [Added 1982] [Amended 2000, 2007] (See 5.3)

The raising or keeping of livestock, including poultry, horses, or cows. The Planning board is the SPGA [added 2005]

(j) Matters (including the construction or alteration of any structure or the use thereof) all or any part of which is within tideland lying below Mean High Water (per U.S. Geodetic Survey) for which an application for a state license under Section 18 of Gen. Laws Chapter 91 is required thereunder to be submitted for comments to the Planning Board. The Planning Board is the SPGA. [added 2006]

4.2 Residence District D

4.2.1 The uses and accessory uses permitted in Residence District D shall be the same as those specified and defined in Section 4.1 for Single Residence Districts. In addition, a dwelling having not more than two dwelling units is permitted, except as is provided in Sections 4.2.2 and 4.2.3.

4.2.2 Purpose:

To allow for a diversity in dwelling unit construction, and to continue an historic pattern of settlement within the downtown portion of town, this By-Law allows for the construction and/or conversion of structures into two dwelling units, provided the new or converted structures are appropriate in terms of bulk, shape and location on the lot and relationship to abutting properties.

4.2.3 Applicability: [See Maps]

Within that portion of Residence District D included within a line running one hundred (100') feet from, and parallel to, the easterly and westerly sidelines of Pine Street, the northerly and southerly sidelines of Pleasant Street, the westerly sideline of School Street, the northerly sideline of Pleasant Street Extension, the easterly sideline of Arbella Street, and the northerly sidelines of Lincoln Street, specifically defined as the area depicted in Article 21 of the 1985 Annual Town Meeting, the conversion of a single-family residence in existence on the lot as of May 6, 1991 to a two-dwelling unit structure and the construction of a two-dwelling unit are permitted, if authorized by a special permit issued by the Zoning Board of Appeals in accordance with Section 7.5 (Special Permits) and M.G.L. Chapter 40A, Section 9, provided the conditions listed below are met. As a condition of a grant of a special permit, the Zoning Board of Appeals may impose reasonable conditions on the construction or conversion of a two-dwelling structure, if in the Board's opinion, said conditions will ensure that the development is suitable and in compliance with the purpose of this By-Law. The conversion of a structure existing on the lot as of May 6, 1991, that does not involve any increase in the size, height or volume of the structure, including the construction of exterior stairways, porches, patios or decks, shall not require a special permit.

(a) The units within the structure shall connect with the municipal sanitary sewer;

(b) The new or expanded structure is appropriate in terms of bulk, shape, location on the lot and relationship to abutting properties and existing structures within the immediate and general neighborhood;

(d) The converted two-unit structure may not be substantially different in character from the existing building, except in a case where changes in building facade or design would better reflect the overall character of the surrounding neighborhood;

(e) The resulting structure will be in harmony with the surrounding neighborhood.

4.2.4 Filing Requirements:

Applicants for a special permit under this section shall file with the Zoning Board of Appeals thirteen (13) copies of written and graphic materials sufficient to describe the building appearance and position on the lot after construction, as well as location(s) for vehicular parking. At a minimum, these materials shall include exterior architectural drawings, stamped by a registered architect, depicting the appearance and location on the lot relative to front, side and rear yard setbacks, and the proximity to existing structures of the new or converted structure. The drawings shall also include before and after alterations in topography, if any, greater than two (2) vertical feet. The Zoning Board of Appeals may request additional information if it determines that such information is necessary to evaluate the impact of the proposed development on the surrounding neighborhood.

4.2.5 Decisions:

The Zoning Board of Appeals shall take action on a special permit application under this section in accordance with the procedures of M.G.L. Chapter 40A, Section 9 and Section 7.5 of the Zoning By-Law, with the exception that a public hearing shall be held within thirty (30) days after the filing of a complete application with the Town Clerk, and the Zoning Board of Appeals at a regularly scheduled Zoning Board of Appeals meeting. The Zoning Board of Appeals shall take final action on the special permit application within thirty (30) days following the close of the above-noted public hearing. In the event that a decision is not filed with the Town Clerk within seventy-five (75) days of the filing date, the application shall be deemed to be approved. [1991] [2001]

4.3 General District

In a General District no building or land shall be used and no building shall be erected or altered except for the following uses:

4.3.1 Uses and accessory uses permitted in Residence Districts.

4.3.2 Municipal and utility uses.

4.3.3 Retail, professional, office, service, restaurant and similar uses.

4.3.4 Yacht storage, construction and service and related uses.

4.3.5 Fish and shellfish landing, storage and handling (but not a fish processing or similar plant).

4.3.6 Public parking or garaging of automobiles not incidental to another permitted use if authorized by a special permit issued by the Planning Board in accordance with the provisions of Section 7.5 (Special Permits).

4.3.7 Greenhouse and nursery uses for horticultural or floricultural purposes.

4.3.8 Printing and publishing and similar uses.

4.3.9 Accessory use on the same lot with and customarily incident to a use permitted by this Section 4.3, including off-street parking provided in accordance with Section 6.2 (Off-Street Parking and Driveway/Curb Cut Regulations).

4.3.10 An existing dwelling which is altered or reconstructed so as to contain not more than 3 dwelling units. Such alteration or reconstruction shall not include an increase in floor area or volume. Except for shed dormers, individual dormers are not considered to be an increase in volume.

4.3.11 A new or enlarged existing dwelling containing not more than 4 dwelling units if authorized by a special permit issued by the Planning Board in accordance with the provisions of Section 7.5 (Special Permits); in addition, the following stated provisions shall also apply. After the required public hearing, the Planning Board shall find and determine that such dwelling and use, including the site, plans and designs of the dwelling and any accessory buildings, constitute a desirable development in and will not be detrimental to the neighborhood, and subject further to the following conditions:

4.3.11.1 Each unit shall have independent cooking facilities.

4.3.11.2 No living quarters shall be located so that the floor elevation is more

than 36 inches below the finished exterior grade. [Amended 2007]

4.3.11.3 The dwelling and to the extent appropriate any accessory building shall connect with a municipal sanitary sewer;

4.3.11.4 The density shall not exceed the rate of 15 dwelling units per acre of lot except for a dwelling constructed or enlarged on a lot of less than 12,000 square feet existing on January 25, 1974;

4.3.11.5 Such other conditions and restrictions as the Planning Board may prescribe in the interest of the Town in carrying out the purposes of this By-Law.

4.4 Limited Commercial District

Within the Limited Commercial District no building, structure, or land shall be used and no building or structure shall be erected or altered, except for the following uses. Site plan review approval is required from the Planning Board, as provided for in Section 6.5 Site Plan Approval (See also 5.7 Limited Commercial District):

4.4.1 Business and professional offices and office buildings;

4.4.2 Recreational club or facilities operated for profit;

4.4.3 Municipal use;

Any accessory use in an accessory building when completely screened from the abutting streets or lots;

4.4.5 Large-scale Ground-mounted Solar Photovoltaic Installations.

4.4.6 By Special Permit from the Planning Board, and limited to the land area west of Pine Street, a/k/a Pipe Line Road, laboratories and establishments devoted to scientific research and development; light manufacturing, assembly and processing of materials related thereto and incidental accessory uses. Such a use will be permitted only if the following conditions, in addition to the requirements specified in Sections 6.9 and 7.5 of the Zoning By-Law are met:

(a) The applicant shall prove to the satisfaction of the Planning Board, based in part on the advice of the Conservation Commission, the Board of Health, and the Department of Public Works, that such use and facilities will not adversely affect the environment or public health. These requirements are in addition to those described in Section 5.10 of the Zoning Bylaw.

(b) Expenses incurred by the Planning Board in connection with the Special Permit, including the reasonable fees and expenses of any consultants retained by the Planning Board, shall be borne by the applicant for the Special Permit.

(c) It shall be a condition of any Special Permit granted under this section that the applicant shall file with the Planning Board on an annual basis evidence that all federal, state and town licenses, permits and standards have been obtained or met for handling, use, storage and disposal of any regulated substances as defined in Section 4.9.4.3 of the Zoning Bylaw.

(d) In considering the Special Permit application, the Planning Board shall apply relevant design and operating guidelines noted in Section 4.9.6.5 of the Zoning Bylaw, including subsection (f) regarding alterations and expansion. [1997]

4.4.7 By special permit from the Planning Board, Medical Marijuana Treatment Centers, as defined by Section 8.3.3 of the Zoning By-Law.

Section 5. Dimensional Regulations

CURRENT SECTION 5

5.1 Adequate Frontage

In issuing building permits for construction on lot(s) with frontage considered by the Building Inspector to provide impractical vehicular access, or otherwise satisfying only technical and not practical frontage compliance, the Building Inspector shall be empowered to ensure that said lot(s) have access to that portion of the lot(s) to be constructed upon by means of easement or so-called "common driveways" which are, in his opinion and in the opinion of the Planning Board, of adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land, and for the installation of municipal services to serve such land and buildings erected or to be erected thereon and which meet the design standards contained in Section 6.2.8 of these By-laws. No more than two lots shall be served by a common driveway without a special permit from the Planning Board. [Amended 1987, 2001, 2007]

5.2 Area

For purposes of this Section 5.0 the area of a lot shall not include:

The area within the limitation of the street.
Tideland lying below Mean High Water (per U.S. Geodetic Survey), except that such tideland shall be included for determining minimum setbacks (see Sections 5.4 and 5.6).

[Added 2006]

5.3 Setback

In the case of a lot abutting on more than one street, the minimum front setback shall be applicable to each street. The minimum setback requirements shall not apply to the projections of steps, eaves, chimneys and cornices, window sills or belt courses. The minimum setback for a wind energy conservation system from property lines or easements must be at least one (1) times the height of the energy conservation system. [Added 1982] (See 6.2.5)

5.4 Minimum Area and Dimensional Requirements

Except as provided in Section 5.6 (Accessory Structure) and 5.7 (Limited Commercial District), no building shall be erected on or moved to a lot having less than the minimum applicable frontage and area shown on the table below, and no building shall be located on a lot closer to the front, rear and side lines of the lot than the minimum setback distances shown on the table below. No lot shall be changed as to size or shape so as to result in the violation of the requirements set forth in the table below.

DISTRICT MINIMUM MINIMUM MINIMUM MINIMUM MINIMUM MINIMUM LOT AREA FRONTAGE LOT FRONT SIDE REAR

(SQ. FT.) WIDTH SETBACK SETBACK SETBACK

Single Res.

District A 22,500 150 ft. 125 ft. 30 ft. 20 ft. 40 ft

Single Res.

District B 15,000 75 ft 60 ft. 20 ft. 15 ft. 20 ft.

Single Res.

District C 45,000 150 ft. 125 ft. 30 ft. 20 ft. 40 ft.

Res. District D 6,000 60 ft. 50 ft 10ft. 10 ft. 10 ft.

Single Res.

District E 90,000 150 ft. 125 ft. 30 ft. 20 ft. 40 ft.

General

District 6,000 60 ft. 50 ft. 5 ft 10 ft. 10 ft.

In the case of a lot abutting on more than one street, the minimum front setback shall be applicable to each street. (See Section 5.3)

_____________________________________________________________________________

LOT COVERAGE REQUIREMENTS

DISTRICT BY STRUCTURES MAXIMUM % LOT

COVERAGE BY STRUCTURES AND

IMPERVIOUS SURFACES

Single Residence

District A 15% 30%

Single Residence

District B 20% 35%

Single Residence

District C 15% 25%

Residence District D 40% 50%

Single Residence

District E 15% 25%

General District 40% 70%*

*Except as noted within Section 4.3 of the Zoning By-Law.

5.5 Height Regulations

No structure shall be erected or altered so that it exceeds 2-1/2 stories or so that the vertical distance measured from the highest point of the roof to the mean pre-construction grade exceeds thirty-five (35) feet, whichever is the lesser. Chimneys, spires or towers not used for human occupancy may extend ten (10) feet above these height limits. Mean pre-construction grade is defined as a reference plane representing the average elevation of pre-construction ground adjoining the building at all exterior walls. A half story is defined as a story with a sloping roof, the area of which story at a height of four (4) feet above the floor does not exceed two-thirds of the floor area of the story immediately below it.” (Amended 2001)

5.6 Accessory Structure

Notwithstanding the foregoing provisions of this Section 5.0, no accessory structure shall be erected or altered so that it exceeds one and one-half (1 1/2) story as defined in Section 5.5 above or twenty-five (25) feet, whichever is lesser. Accessory structures shall be set back from any street on which the lot has frontage at least the applicable minimum front setback for such lot plus ten (10) feet. [Amended 1982, 1986, 1987, 1989, 2007]

ACCESSORY STRUCTURES

DISTRICT MINIMUM DISTANCE FROM FRONT

SIDE AND REAR LOT LINES

Single Residence

District A 10 ft. *

Single Residence

District B 5 ft. *

Single Residence

District C 15 ft. *

Residence District D 5 ft. *

Single Residence

District E 15 ft. *

General District 5 ft. *

*Accessory structures shall be set back from the street(s) on which the lot has frontage at least

the applicable minimum from setback for such lot plus ten (10) feet.

5.7 Limited Commercial District

Notwithstanding the foregoing provisions of this Section 5.0, the following requirements shall be met in the Limited Commercial District (See also Section 4.4 Limited Commercial District):

5.7.1 Each business, defined as a single use under one ownership, shall be located on a lot of not less than five (5) acres and a minimum width at all points of not less than five hundred (500) feet.

5.7.2 The structures on the lot shall cover not more than twenty percent (20%) of the area of the lot, and at least twenty-five percent (25%) of the area of the lot shall be of natural or landscaped area. Not more than twenty-five percent (25%) of the area shall be used for parking.

5.7.3 All structures shall be set back from any street at least one hundred and fifty (150) feet, and from any other lot line at least one hundred (100) feet.

5.8 Special Exception

Any increase in area, frontage, width, yard, or depth requirements of this By-Law shall not apply to a lot for a dwelling having not more than two (2) dwelling units which, at the time of recording or endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to existing requirements and had less than the proposed requirements but at least five thousand (5,000) square feet of area and fifty (50) feet of frontage.

5.9 Blank

5.10 Performance Requirements within Limited Commercial District

Recognizing that the portion of Manchester-by-the-Sea zoned Limited Commercial may contribute significant recharge to the town's municipal drinking water supply, and recognizing further that inappropriate development, or development with inappropriate safeguards may threaten said water supply, no special permit or site plan approval for any use within the Limited Commercial District shall be granted without adherence to the following guidelines:

5.10.1 Design and Operations Guidelines: The following design and operation guidelines shall be observed within the Limited Commercial District.

5.10.1.1 Safeguards: Provisions 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: prohibition of underground fuel storage tanks; spill control provisions in the vicinity of chemical or fuel 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 such structure to prevent discharge of contaminated condensate into the ground water.

5.10.1.2 Disposal: For any toxic or hazardous wastes to be produced 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 Chapter 21C, MGL.

5.10.1.3 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 all contaminants.

5.10.2 Definition:

5.10.2.1 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 or waters of this town. Toxic or hazardous materials include, without limitation, organic chemicals, petroleum products, heavy metals, radio-active or infectious wastes, acids and alkalies, and include products such as pesticides, herbicides, solvents and thinners. Wastes generated by the following activities, without limitation, 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 the Board of Selectmen:

* Airplane, boat and motor vehicle service and repair

* Chemical and bacteriological laboratory operation

* Cabinet making

* Dry cleaning

* Electronic circuit assembly

* Metal plating, finishing and polishing

* Motor and machinery service and assembly

* Painting, wood preserving and furniture stripping

* Pesticide and herbicide application

* Photographic processing

* Printing [Added 1987]

Section 6. Special Provisions

CURRENT SECTION 6

6.1 Nonconforming Uses

6.1.1 Existing Use:

Any structure or use lawfully existing at the time of the adoption of this By-Law or any amendment hereto and any use or structure lawfully begun in respect of which a building or special permit has been issued before the first publication of notice of public hearing on this By-Law or any amendment hereto may be continued or completed although such structure or use does not conform to the provisions hereof, provided that, in the case of the issuance of a building or special permit, construction or operation hereunder shall conform to the provisions of this By-Law or any amendment hereto unless the construction or use has commenced within a period of six months after the issuance of the permit and that in cases involving construction such construction is continued through to completion as continuously and expeditiously as is reasonable.

6.1.2 Changes, Extensions and Alterations:

A nonconforming structure or use may be changed, extended or altered, provided that in each case the Board of Appeals grants a special permit therefor after finding that such change, extension or alteration is not substantially more detrimental or injurious to the neighborhood than the existing nonconforming structure or use. The above requirement does not apply to such an extension, alteration, re-construction or structural change to a single family or two family residential structure that does not increase the nonconforming nature of that structure. [Added 1984]

6.1.3 Restoration:

Restoration of a nonconforming structure which has been damaged by fire, flood or other casualty or by vandalism may be made without conformance to the provisions of this By-Law or amendment hereto, provided that such restoration shall have commenced within six months of the date the damage was sustained and that such restoration continue through to completion as continuously and expeditiously as is reasonable, and provided that the structure as restored shall not exceed 100% of the floor area of the structure immediately prior to the damage unless the Board of Appeals grants a special permit therefor in accordance with Section 7.5 (Special Permits) after finding that such restoration is not substantially more detrimental or injurious to the neighborhood than the structure immediately prior to such damage.

6.1.4 Abandonment:

Any structure or lot, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district and the nonconforming use may not be thereafter resumed. A nonconforming use or structure not used for a period of 2 years shall be deemed abandoned and shall not again be revived or such structure used except in conformity with all applicable provisions of this By-Law or any amendment hereto.

6.2 Off-Street Parking and Driveway/Curb Cut Regulations

The following shall apply to all premises in all districts:

6.2.1 Performance Requirement:

Off-street parking must be provided to service the net increase in parking demand created by new construction, additions or change of use.

6.2.2 Number of Spaces:

The standards below must be met without counting any existing parking necessary for existing activities to meet these requirements. Off-street parking spaces shall be designed with minimum dimensions of 9 feet by 20 feet.

Use - Unit of Measure Number of Off-Street

Parking Spaces

Residential:

One dwelling unit 2

Two dwelling units 3

Three dwelling units 5

Four dwelling units 6

Retail or service (other than automotive service station):

150 sq. ft. of gross sales or service floor area 1

Automotive service station:

100 sq. ft. of area in service bays 1

Professional or other office:

300 sq. ft of gross floor area 1

Club or other recreational activities:

Each three persons reasonably expected to be using

the facility during a period of full utilization 1

Restaurant or bar:

Four seats of rated capacity 1

Printing, yacht yard or similar facility:

Each 3 employees on duty during normal work period 1

Each company car or truck 1

All other uses: Parking spaces adequate to accommodate all normal demand as determined by the Building Inspector, with the advice of the Planning Board. [Amended 2006]

6.2.3 Location:

Required parking shall be either on the same premises as the activity it serves, or located within 300 feet of the building entrance on a separate parcel, not separated by a street having right-of-way width of 60 feet or more, and in a zoning district allowing the activity it serves.

6.2.4 Backing:

Parking areas shall be designed and located so that their use does not involve vehicles backing onto a public way or way utilized for public access.

6.2.5 Setbacks:

No part of any private parking area shall be located within a required front yard as noted in Section 5.4, Minimum Front Setback, except that no part of any private parking area shall be located within fifty (50') feet of any street within the Limited Commercial District and, within the Limited Commercial District only, no part of any private parking area shall be located within two hundred (200') feet of the state layout of Route 128, nor shall any private parking area be located within (5') feet of any property line except that where a lot has frontage on more than one street, thus establishing more than one front yard, the Planning Board may, as part of the Site Plan Review process, designate one front yard as the primary front yard and then reduce the front yard setback requirements for parking on non-primary front yards. Any such reduction shall be limited to only those situations where the applicant needs the reduction to meet the parking requirements for the proposed use and never less than five (5') feet from any property line.

6.2.6 Parking Lot Plantings:

Parking lots containing (5) or more parking spaces shall have at least one (1) tree per five (5) parking spaces, such trees to be located either within the lot or within (5') feet of it. Such trees shall be at least two (2") inches trunk diameter, with not less than forty (40) square feet of unpaved soil or other permeable surface area per tree. At least five (5%) percent of the interior of any parking lot having twenty (20) or more spaces shall be maintained with landscaping, including trees, in plots of at least four (4') feet in width. Trees in soil plots shall be so located as to provide visual relief and sun and wind interruption within the parking area and to assure safe patterns of internal circulation. [Added 1988]

Driveways/Curb Cuts: No person shall construct a driveway or entrance

from the traveled portion or from the curb of any street or way open to public use in the Town of Manchester-by-the-Sea for the purpose of passing to or from abutting property nor cut any curbing for any purpose without applying for and receiving a permit from the Planning Board, under such conditions and restrictions as the Board shall determine to be necessary to protect public safety, to prevent erosion and sedimentation, to assure proper drainage and for related purposes. The applicant shall: (a), at least seven days prior to filing the application, mail a notice (in the form specified by the Planning Board) to all property owners within one hundred feet of the locus for which a driveway/curb cut is sought as such property is identified in the most recent information available at the Assessor’s Office, (b) certify in such application that such notice has been mailed, (c) attach to such application a list of the names and addresses of those notified, and file the application (with the filing fee, as established by the Planning Board) with the Planning Board by submission to the Town Clerk. [Amended 2007]

This subsection shall not apply to the construction of any street in a subdivision, which is approved by the Planning Board pursuant to the Subdivision Control Law. Failure by the Planning Board to act within thirty (30) days after receipt of an application shall be deemed to be approval.

6.4 Signs

Advertising and other signs shall be permitted only as expressly provided in Sections 4.1.7, 4.1.8 and this Section 6.4. Signs shall also be subject to the applicable provisions of the General By-Laws of the Town of Manchester-by-the-Sea.

6.4.1 No flashing or animated signs shall be permitted in any district. No illuminated sign of any kind shall be permitted in a Residence District.

6.4.2 A real estate sign not over 6 square feet in area advertising for sale or rent the property on which it is placed is permitted in any district.

6.4.3 In the General District and Limited Commercial District, the following signs are permitted:

6.4.3.1 One firm name sign for each firm or enterprise located in a building, no larger than 5 feet by 20 feet, attached to or flush to the building;

6.4.3.2 One nonilluminated announcement sign no larger than 3 feet by 3 feet, at the entrance or gates of a building.

6.4.3.3 One nonilluminated sign for each firm or enterprise located in a building, no larger than 2 feet by 6 feet, located at least 50 feet from any street.

6.4.4 In the General District, in addition to the signs permitted by Section 6.4.3 one or more signs for advertising a business conducted on the premises is permitted, not projecting above the building on the premises and no larger than one square foot for each linear foot of frontage up to a maximum of 100 square feet.

6.5 Site Plan Approval

6.5.1 Purpose:

The purpose of Site Plan Review is to ensure that the design and layout of certain developments permitted as a matter of right or by special permit will constitute suitable development and will not result in a detriment to the neighborhood or the environment. In considering a site plan the Planning Board shall assure:

(a) Protection of adjacent areas against detrimental or offensive uses on the site by provisions of adequate surface water drainage, buffers against lighting, sight, sound, dust, vibration, and allowance of sun, light, and air;

(b) Convenience and safety of vehicular and pedestrian movement within the site and in relation to adjacent areas;

(d) Protection of environmental features on the site and in adjacent areas;

(e) Promotion of appropriate arrangement of structures within the site and in relation to existing structures within the district and neighborhood;

(f) Coordination with and improvement of systems of vehicular and pedestrian access, drainage, water supply, sewage disposal, lighting, landscaping, wetlands, water courses, buildings and other features that support the neighborhood;

(g) Compliance with all applicable sections of the Zoning By-Laws.

6.5.2 Applicability:

Any new development, expansion, or change in use other than a single-family or two-family residence which would under the parking schedule "Off-Street Parking and Driveway/Curb Cut Regulations" of Section 6.2, require at least five (5) but less than ten (10) parking spaces, regardless of the number of parking spaces existing on the premises and irrespective of whatever the number of parking spaces created shall be reduced by action of the Board of Appeals or otherwise, shall be subject to Site Plan Review by the Planning Board (See Section 6.9 - Site Plan Review Special Permit).

6.5.3 Procedure:

Applications for building permits for construction subject to Site Plan Review shall be accompanied by a Site Plan Review application form and seven (7) prints of the plans of the proposal. The Building Inspector shall forward one copy to the Planning Board for their review and shall not approve any application subject to this section without receipt of written plan approval from the Planning Board, unless thirty (30) days elapse from the date of transmittal of plans to the Planning Board without receipt of such review from the Planning Board.

6.5.4 Application Requirements:

Plans subject to Site Plan Review shall be prepared by a Registered Architect, Landscape Architect, or Professional Engineer. The site plan shall be prepared at a scale no greater than 1"=40', and shall show all existing and proposed buildings, existing and proposed contour elevations, structures, parking spaces, driveway openings, driveways, service areas, facilities for sewage, refuse and other waste disposal and for surface water drainage, wetlands, surface water, areas subject to the 100-flood, and landscape features such as fences, walls, trees and planting areas, walks and lighting, both existing and proposed. The site plan shall also show the relation of locus map at a scale not greater than 1"=2,000'. The site plan shall also show all contiguous land owned by the applicant or by the owner of the property. The applicant shall submit material as may be required regarding measures proposed to prevent pollution of surface or ground water, soil erosion, increased runoff, changes in groundwater level, and flooding. The applicant shall submit such material as may be required regarding design features intended to integrate the proposed new development into the existing landscape, to enhance aesthetic assets, and to screen objectional features from neighbors. The applicant shall submit such material as may be required regarding the projected traffic-flow patterns into and upon the site for both vehicles and pedestrians and an estimation of the projected number of motor vehicle trips to and from the site for an average day and for peak hours.

6.5.5 Costs Incurred:

Expenses incurred by the Planning Board in connection with site plan review, including the reasonable fees and expenses of any consultants retained by the Planning Board, shall be borne by the applicants for site plan approval.

6.5.6 Decision.

Plans shall be approved provided that the Planning Board determines that, subject to any conditions that may be imposed, the requirements of Section 6.2 will be satisfied, and that no other conflicts between the proposal and the Zoning By-Laws have been observed. [Amended 1987]

6.6 Blank [Reflecting Antennas Deleted 2021]

6.7 Special Provision for Open Space Planning

6.7.1 Purpose:

For the purpose of encouraging the preservation of open space and promoting the more efficient use of land in harmony with its natural features and the economical and efficient street, utility, and public facility layout, installation, construction and maintenance, efficient allocation, distribution, and maintenance of common open space and overall compatibility with the character of surrounding areas in Single Residence District A,C or E. The Planning Board may, subject to this Section 6.7, and after notice and hearing in accordance with the law, grant a Special Permit authorizing exceptions from a lot area and lot frontage requirements specified in Section 5.4. in Single Residence A, C, or E Districts.

6.7.2 Condition to Special Permit:

No Special Permit shall be granted under the foregoing Section 6.7.1 unless the following conditions are met

6.7.2.1 The minimum size of a parcel to be considered for development shall be ten (10) acres in the Single Residence District A and twenty (20) acres in the Single Residence District C and Single Residence District E.

6.7.2.2 Prior to or included with an application for a Special Permit the applicant shall submit to the Planning Board such plans, studies and data sufficient to enable the Planning Board to make a determination as to the number of lots which could be created on said parcel without a Special Permit.

6.7.2.3 The number of building lots on any plan for which a Special Permit is granted under this Section 6.7 shall not exceed the number of lots which could be created on said parcel without such permit.

6.7.2.4 There shall be excluded from the calculation of the number of lots in Section 6.7.4 all areas of the parcel which the Planning Board finds are not buildable because of the conditions such as steep slope, presence of wetlands, poor drainage or water supply problems or a combination of the foregoing. The Planning Board may rely upon findings and recommendations of the Board of Health and the Conservation Commission.

6.7.2.5 Every lot laid out under this Section shall conform to the following:

In Single Residence District A, 16,500 sq. ft. minimum area, 75 ft. minimum frontage.

In Single Residence District C and Single Residence District E, 22,500 sq. ft. minimum area, 75 ft. minimum frontage.

6.7.2.6 Every lot shall be connected to municipal sewer and water, unless the Planning Board, after consultation with the Board of Health, determines that other suitable provisions for sewer and water have been made.

6.7.2.7 Limitation of Subdivision:

No lot shown on a plan, for which a permit is granted under this section, may be further subdivided and a notation to this effect shall be shown on the plan.

6.7.2.8 Each building lot shall contain a house site which is in the harmony with the general intent of the Zoning By-Law.

6.7.2.9 No plan shall be approved unless the Planning Board, following its public hearing and consultation with the Fire Chief, Department of Public Works and Selectmen, determines that access to public or private ways affected by the development will be adequate in light of the anticipated traffic.

6.7.2.10 All studies, plans, design criteria with regard to all engineering aspects of a plan submitted under the Section shall conform to the Subdivision Rules and Regulations of the Town of Manchester-by-the-Sea.

6.7.2.11 All procedural matters with regard to notice and hearing shall conform to Section 7.5 of the Zoning By-Laws of the Town of Manchester-by-the-Sea.

6.7.3 Open Land:

6.7.3.1 All land shown on a plan for which a Special Permit is granted that is not included in building lots shall be open land. Provisions shall be made by agreement, duly executed in form, suitable for recording that such open land shall be:

(a) Owned and maintained either by a trust or association, or in common by the owners of the lots.

(b) Subject to restrictions which shall be contained in a covenant duly recorded with and referred to on the approved plan, unlimited by time that such open land shall be used only for conservation in its natural state, walking, or other passive recreational activities in harmony with the intent of this By-Law.

(c) Adequately distributed throughout the parcel and accessible to all residential lots without crossing through private property.

(d) Designed to preserve natural features such as topography, vegetation, views, vistas, access to water courses and water bodies, and incorporate them into the total development scheme.

6.7.3.2 The manner of ownership of such land shall be determined by the applicant after consultation with the Planning Board.

6.7.3.3 At least 30% of the gross area of a parcel for consideration under this By-Law must be dedicated to open land as referred to in Subsection 6.7.4.l and be of such type and in such a configuration as to meet the intent of the By-Law.

6.7.4 Determination of Buildable Lots:

6.7.4.1 The number of lots which can be developed shall be determined using the following formula: total acreage of tract, minus areas considered to be unbuildable, multiplied by .7, divided by the zoning district lot area requirements in which the parcel is located, as provided in Section 5.4 of the Zoning By-Law.

6.7.5 Land in Two or More Districts:

6.7.5.1 If the land shown on the plan includes land located in two or more districts, it shall be considered lying within the districts having the largest area and frontage requirements.

6.7.6 Further Restrictions:

6.7.6.1 The Planning Board may impose further restrictions upon a parcel, or parts thereof, as a condition to granting the Special Permit.

6.7.7 Recording of Restrictive Agreement:

6.7.7.1 No building or structure shall be erected pursuant to any Special Permit to this Section 6.7 until and unless the restrictive agreement provided for in Section 6.7.3.1 shall have been duly recorded in the Registry of Deeds.

6.7.8 Relation to Subdivision Control Act:

A Special Permit issued hereunder by the Planning Board shall not be a substitute for compliance with the Planning Board's Rules and Regulations or the Subdivision Control Act. The Planning Board, by granting a Special Permit, is not obligated to approve any definitive plan nor reduce any time periods for the Board's consideration under the Subdivision Control Act. [Added 1984]

6.8 Blank [Planned Residential Development Deleted 2021]

6.9 Site Plan Review Special Permit

6.9.1 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. The purpose of site plan review special permit is to ensure the design and layout of certain developments permitted as a matter of right or by special permit will constitute suitable development and will not result in a detriment to the neighborhood or the environment. It is intended that the site plan for each use be prepared with due consideration for:

(b) Convenience and safety of vehicular and pedestrian movement within the site and in relation to adjacent areas;

(d) Protection of environmental features on the site and in adjacent area;

(e) Promotion of appropriate arrangement of structures within the site and in relation to existing structures within the district and neighborhood;

(g) Compliance with all applicable sections of the Zoning By-Laws.

6.9.2 Applicability:

Any new development, expansion, or change of use other than a single-family or two-family residence which would, under the parking schedule "Off-Street Parking Regulations" of Section 6.2, require ten (10) 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 Planning Board for Site Plan Review. A special permit shall be granted only if the permit-granting authority finds that it is consistent with the purposes outlined in Section 6.9.1 of this By-Law.

6.9.3 Procedure:

The Special Permit Granting Authority (SPGA) under section 6.9 of this By-law shall be the Planning Board. Special Permits under this section 6.9 shall be granted only in conformance with this Section 6.9 and Section 7.5 of the Manchester Zoning By-law and the requirements of MGL Chapter 40A, Section 9. Applications shall be accompanied by at least seven (7) prints of the plans of the proposal. [amended 2005]

6.9.4 [Section 6.9.4 is intentionally omitted] [2005]

6.9.5 Application Requirements:

Plans subject to Site Plan Review shall be prepared by a Registered Architect, Landscape Architect, or Professional Engineer. The site plan shall be prepared at a scale no greater than 1"=40', and shall show all existing and proposed buildings, existing and proposed contour elevations, structures, parking spaces, driveway openings, driveways, service areas, facilities for sewage, refuse and other waste disposal and for surface water drainage, wetlands, surface water, areas subject to the 100-flood, and landscape features such as fences, walls trees and planting areas, walks and lighting, both existing and proposed. The site plan shall also show the relation of locus map at a scale not greater than 1'=2.000'. The site plan shall also show all contiguous land owned by the applicant or by the owner of the property. The applicant shall submit such material as may be required regarding measures proposed to prevent pollution of surface or ground water, soil erosion, increased runoff, changes in groundwater level, and flooding. The applicant shall submit such material as may be required regarding design features intended to integrate the proposed new development into the existing landscape, to enhance aesthetic assets, and to screen objectional features from neighbors. The applicant shall submit such material as may be required regarding the projected traffic-flow patterns into and upon the site for both vehicles and pedestrians and an estimation of the projected number of motor vehicle trips to and from the site for an average day and for peak hours.

6.9.6 Expenses Incurred:

6.9.7 Performance Guarantee:

As a condition of the granting of special permits for any uses requiring a special permit under this section, the Planning Board shall require that construction and site alteration permitted and specified by said special permit be secured by one, or in part by one and in part by the other, of the following methods, which method may be selected and from time to time varied by the applicant upon receiving written approval from the Planning Board:

6.9.7.1 By a proper bond or deposit of money or negotiable securities sufficient in the opinion of the Planning Board to secure performance of the construction of buildings, parking areas and appurtenances thereto required for completion of the project as noted in the special permit and shown on any accompanying plans. The Planning Board shall require that said construction shall be completed within a specific period of time; or

6.9.7.2 By a covenant executed and duly recorded by the owner of record, running with the land, whereby said construction will be completed before such buildings or appurtenances thereto may be eligible for an occupancy permit as required by Section 7.3 of the Manchester-by-the-Sea Zoning By-Laws.

6.9.8 Release of Guarantee:

Performance bonds, deposits or covenants may be released in whole or from time to time, in part, when the work has been satisfactorily completed in the opinion of the Planning Board. The Planning Board shall then release the interest of the town in such bond and return the bond or the deposit to the person who furnished the same or release the covenant by appropriate instrument duly acknowledged which shall be recorded at the Essex County Registry of Deeds. Request for all releases shall be by certified, return receipt letter to the Planning Board and the Town Clerk and shall outline that portion of the work to be released and shall be accompanied by an engineer's or surveyor's certification that the work has been done in accordance with the requirements of the granted special permit. If the Planning Board determines that said construction or site alteration has not been completed, it shall specify in a notice sent by registered mail to the applicant and to the Town Clerk, the details wherein said construction or site alteration fails to comply with the special permit and upon failure to do so within forty-five (45) days after the receipt by said Town Clerk of said request by the applicant, all obligations under the bond shall cease and terminate by operation of law, any deposit shall be returned, and such other covenant shall become void. In the event that said forty-five day period expires without such specification, or without the release and return of the bond or return of the deposit or release of the covenant as aforesaid, the said Town Clerk shall issue a certificate to such effect, duly acknowledged, which may be recorded.

6.9.9 Other Regulations:

This Section 6.9 is supplementary to the other existing Zoning By-Laws affecting the access, circulation, design and landscaping of parking areas. Where the application of Section 6.9 imposes a greater restriction than is imposed by other Zoning By-Laws, the application of Section 6.9 shall control.

6.9.10 Decision:

Plans shall be approved provided that the Planning Board determines that subject to any conditions that may be imposed the requirements of Section 6.2 will be satisfied, and that no other conflicts between the proposal and the Zoning By-Laws have been observed. [Added 1987]

6.10 Blank [Water Resource Protection District Heading Deleted 2021]

6.11 Blank [Development Scheduling; Sewer Connection Limitation Deleted 2021]

6.12 Blank [Division of Land and Development of Multiple Dwellings Deleted 2021]

6.13 [SB1] Blank [Residential Conservation Cluster Renumbered to 9.2]

6.14 Blan,k [Inclusionary Housing Renumbered to 9.4]

Stormwater Management Special Permit [Added 2007]

6.15.1 Purpose and intent

A. Regulation of discharges to the municipal separate storm sewer system (MS4) is necessary for the protection of the Town of Manchester-by-the-Sea’s water bodies and groundwater, and to safeguard the public health, safety, welfare and the environment. Increased and contaminated stormwater runoff associated with developed land uses and the accompanying increase in impervious surface are major causes of impairment of water quality and flow and contamination of drinking water supplies, erosion of stream channels, alteration or destruction of aquatic and wildlife habitat, and flooding.

B. This By-Law establishes stormwater management standards for the final conditions that result from development and redevelopment projects, as well as construction activities, to minimize adverse impacts offsite and downstream which would be borne by abutters to development projects and the general public.

C. The goals and objectives of this By-law are:

1. To require practices to control the flow of stormwater from new and redeveloped sites into the Town storm drainage system in order to prevent flooding and erosion;

2. To protect groundwater and surface water from degradation;

3. To promote groundwater recharge;

4. To prevent pollutants from entering the Town’s municipal separate storm sewer system (MS4) and to minimize discharge of pollutants from the MS4;

5. To ensure adequate long-term operation and maintenance of structural stormwater best management practices so that they work as designed;

6. To comply with state and federal statutes and regulations relating to stormwater discharges; and

7. To establish the Town’s legal authority to ensure compliance with the provisions of this By-law through inspection, monitoring, and enforcement.

6.15.2 Definitions

Alteration of drainage characteristics: Any activity on an area of land that changes the water quality, force, direction, timing or location of runoff flowing from the area. Such changes include: change from distributed runoff to confined, discrete discharge; change in the volume of runoff from the area; change in the peak rate of runoff from the area; and change in the recharge to groundwater on the area.

Best management practice (BMP): An activity, procedure, restraint, or structural improvement that helps to reduce the quantity or improve the quality of stormwater runoff.

Clearing: Any activity that removes the vegetative surface cover.

Development: The modification of land to accommodate a new use or expansion of use, usually involving construction.

Disturbance of land: Any action that causes a change in the position, location, or arrangement of soil, sand, rock, gravel or similar earth materials.

Grading: Changing the level or shape of the ground surface.

Grubbing: The act of clearing land surface by digging up roots and stumps.

Impervious surface: Any material or structure on or above the ground that prevents water infiltrating the underlying soil. Impervious surface includes (without limitation) roads, paved parking lots, sidewalks, and rooftops.

Massachusetts Stormwater Management Policy: The Policy issued by the Department of Environmental Protection, and as amended, that coordinates the requirements prescribed by state regulations promulgated under the authority of the Massachusetts Wetlands Protection Act G.L. c. 131 § 40 and Massachusetts Clean Waters Act G.L. c. 21 §. 23-56. The Policy addresses stormwater impacts through implementation of performance standards to reduce or prevent pollutants from reaching water bodies and control the quantity of runoff from a site.

Municipal Separate Storm Sewer System (MS4) or Municipal storm drain system: The system of conveyances designed or used for collecting or conveying stormwater, including any road with a drainage system, street, gutter, curb, inlet, piped storm drain, pumping facility, retention or detention basin, natural or man-made or altered drainage channel, reservoir, and other drainage structure that together comprise the storm drainage system owned or operated by the Town of Manchester-by-the-Sea.

Operation and Maintenance Plan: A plan setting up the functional, financial and organizational mechanisms for the ongoing operation and maintenance of a stormwater management system to insure that it continues to function as designed.

Outfall: The point at which stormwater flows out from a point source that is a discernible, confined and discrete conveyance into waters of the Commonwealth.

Outstanding resource waters (ORWs): Waters designated by Massachusetts Department of Environmental Protection as ORWs. These waters have exceptional sociologic, recreational, ecological and/or aesthetic values and are subject to more stringent requirements under both the Massachusetts Water Quality Standards (314 CMR 4.00) and the Massachusetts Stormwater Management Standards. ORWs include vernal pools certified by the Natural Heritage Program of the Massachusetts Department of Fisheries and Wildlife and Environmental Law Enforcement, all Class A designated public water supplies with their bordering vegetated wetlands, and other waters specifically designated.

Owner: A person with a legal or equitable interest in property.

Person: An individual, partnership, association, firm, company, trust, corporation, agency, authority, department or political subdivision of the Commonwealth or the federal government, to the extent permitted by law, and any officer, employee, or agent of such person.

Point source: Any discernible, confined, and discrete stormwater conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, or container from which pollutants are or may be discharged.

Redevelopment: Development, rehabilitation, expansion, demolition or phased projects that disturb the ground surface or increase the impervious area on previously developed sites.

Runoff: Rainfall, snowmelt, or irrigation water flowing over the ground surface.

Stormwater management plan: A plan required as part of the application for a Stormwater Management Permit. See Section 6.15.7.

Stormwater: Storm water runoff, snow melt runoff, and surface water runoff and drainage.

TSS: Total suspended solids.

6.15.3 Authority

This By-Law is adopted under authority granted by the Home Rule Amendment of the Massachusetts Constitution, the Home Rule statutes and pursuant to the regulations of the federal Clean Water Act found at 40 CFR 122.34.

6.15.4 Applicability

A. No person may undertake a construction activity, including clearing, grading and excavation that results in a land disturbance that will disturb equal to or greater than one acre of land or will disturb less than one acre of land but is part of a larger common plan of development that will ultimately disturb equal to or greater than one acre of land draining to the Town’s municipal separate storm sewer system without a special permit from the Planning Board.

B. Activities or land uses that otherwise require a special permit from the Planning Board shall not be required to obtain an independent special permit under to this Section 6.15 provided that the applicable terms, conditions and requirements of this Section 6.15 are imposed within the special permit issued by the Planning Board.

C. Exemptions:

1. Normal maintenance and improvement of land in agricultural use as defined by the Wetlands Protection Act regulation 310 CMR 10.04;

2. Maintenance of existing landscaping, gardens or lawn areas associated with a single family dwelling;

3. The construction of fencing that will not substantially alter existing terrain or drainage patterns;

4. Construction and installation of utilities other than drainage (gas, water, electric, telephone, etc.) which will not alter terrain or drainage patterns;

5. As authorized in the Phase II Small MS4 General Permit for Massachusetts, storm water discharges resulting from the activities identified in Section 6.15.4 that are wholly subject to jurisdiction under the Wetlands Protection Act and demonstrate compliance with the Massachusetts Storm Water Management Policy as reflected in an Order of Conditions issued by the Conservation Commission are exempt from compliance with this Section 6.15.

6. Large-Scale Ground-Mounted Solar Photovoltaic Installations.

6.15.5 Administration

A. The Planning Board shall administer, implement and enforce this By-Law pursuant to G.L. c.40A s.9 and Section 7.5 of the Zoning By-Law.

6.15.6 Permits and procedure

A. Filing Application. The site owner or his agent shall file a completed application package for a Stormwater Management Special Permit (SMSP) as follows: one copy (with the filing fee) with the Town Clerk and ten (10) additional copies with the Planning Board (by delivery with the above copy to the Town Clerk). Permit issuance is required prior to any site altering activity. While the applicant can be a representative, the permittee must be the owner of the site. Each copy of the SMSP Application package shall include:

1. a completed Application Form with original signatures of all owners;

2. a list of abutters, certified by the Assessors Office;

3. the Stormwater Management Plan and project description as specified in Section 6.15.7 of this By-law;

4. the Operation and Maintenance Plan as required by Section 6.15.8 of this By-Law;

B. Entry. Filing an application for a special permit grants the Planning Board, or its agent, permission to enter the site to verify the information in the application and to inspect for compliance with the resulting special permit.

C. Other Boards. The applicant for a Stormwater Management Special Permit shall deliver a copy of the application package, within three (3) business days of filing the application with the Planning Board, to each of the Board of Health, Conservation Commission and Department of Public Works, and shall file a certificate of such delivery with the Planning Board.

D. Fee Structure. The Planning Board is authorized to establish an application form and filing fees, and to retain, at the applicant’s expense, Registered Professional Engineers or other professional consultants to review and advise the Board on any or all aspects of these plans.

E. Public Hearing. The Planning Board shall hold a public hearing in accordance with G.L. c.40A ss. 9 and 11.

F. Actions. The Planning Board’s action, rendered in writing, shall consist of either:

1. Approval of the Stormwater Management Special Permit Application based upon determination that the proposed plan meets the Standards in Section 6.15.7 and Section 7.5 of this By-law and will adequately protect the water resources of the Town and is in compliance with the requirements set forth in this Section 6.15;

2. Approval of the Stormwater Management Special Permit Application subject to any conditions, modifications or restrictions required by the Planning Board which will ensure that the project meets the Standards in Section 6.15.7 and Section 7.5 of this By-law and adequately protects water resources, set forth in this Section 6.15;

3. Disapproval of the Stormwater Management Special Permit Application based upon a determination that the proposed plan, as submitted, does not meet the Standards in Section 6.15.7, Section 7.5 of this By-Law or adequately protect water resources, as required herein.

G. Project Completion. At completion of the project the permittee shall submit as-built record drawings of all structural stormwater controls and best management treatment practices required for the site. The as-built drawing shall show deviations from the approved plans, if any, and be certified by a Registered Professional Engineer.

6.15.7 Stormwater Management Plan

A. The Stormwater Management Plan shall contain sufficient information for the Planning Board to evaluate the environmental impact, effectiveness, and acceptability of the measures proposed by the applicant for reducing adverse impacts from stormwater. The Plan shall be designed to meet the Massachusetts Stormwater Management Standards as set forth in Part B of this section and DEP Stormwater Management Handbook Volumes I and II. The Stormwater Management Plan shall fully describe the project in drawings, and narrative.

B. The Plan shall include:

1. A locus map,

2. The existing zoning, and land use at the site,

3. The proposed land use,

4. The location(s) of existing and proposed easements,

5. The location of existing and proposed utilities,

6. The site's existing and proposed topography with contours at 2 foot intervals,

7. The existing site hydrology,

8. A description and delineation of existing stormwater conveyances, impoundments, and wetlands on or adjacent to the site or into which stormwater flows,

9. A delineation of 100-year flood plains, if applicable,

10. Estimated seasonal high groundwater elevation (November to April) in areas to be used for stormwater retention, detention, or infiltration,

11. The existing and proposed vegetation and ground surfaces with runoff coefficient for each,

12. A drainage area map showing pre-construction and post-construction watershed boundaries, drainage area and stormwater flow paths,

13. A description and drawings of all components of the proposed drainage system including:

a. locations, cross sections, and profiles of all brooks, streams, drainage swales and their method of stabilization,

b. all measures for the detention, retention or infiltration of water,

c. all measures for the protection of water quality,

d. the structural details for all components of the proposed drainage systems and stormwater management facilities,
e. notes on drawings specifying materials to be used, construction specifications and

f. expected hydrology with supporting calculations.

14. Proposed improvements including location of buildings or other structures, impervious surfaces, and drainage facilities, if applicable,

15. Timing, schedules, and sequence of development including clearing, stripping, rough grading, construction, final grading, and vegetative stabilization,

16. A maintenance schedule for the period of construction, and

17. Any other information requested by the Planning Board.

C. Standards

Projects shall meet the Standards of the Massachusetts Stormwater Management Policy, which are as follows:

1. No new stormwater conveyances (e.g. outfalls) may discharge untreated stormwater directly to or cause erosion in wetlands or water of the Commonwealth.

2. Stormwater management systems must be designed so that post-development peak discharge rates do not exceed pre-development peak discharge rates.

3. Loss of annual recharge to groundwater should be minimized through the use of infiltration measures to the maximum extent practicable. The annual recharge from the post-development site should approximate the annual recharge rate from the pre-development or existing site conditions, based on soil types.

4. For new development, stormwater management systems must be designed to remove 80% of the average annual load (post development conditions) of Total Suspended Solids (TSS). It is presumed that this standard is met when:

a. suitable nonstructural practices for source control and pollution prevention are implemented;
b. stormwater management best management practices (BMPs) are sized to capture the prescribed runoff volume; and

c. stormwater management BMPs are maintained as designed.

5. Stormwater discharges from areas with higher potential pollutant loads require the use of specific stormwater management BMPs (see Stormwater Management Volume I: Stormwater Policy Handbook). The use of infiltration practices without pretreatment is prohibited.

6. Stormwater discharges to critical areas must utilize certain stormwater management BMPs approved for critical areas (see Stormwater Management Volume I: Stormwater Policy Handbook). Critical areas are Outstanding Resource Waters (ORWs), swimming beaches, cold water fisheries and recharge areas for public water supplies.

7. Redevelopment of previously developed sites must meet the Stormwater Management Standards to the maximum extent practicable. However, if it is not practicable to meet all the Standards, new (retrofitted or expanded) stormwater management systems must be designed to improve existing conditions.

8. Erosion and sediment controls must be implemented to prevent impacts during disturbance and construction activities.

9. All stormwater management systems must have an Operation and Maintenance Plan to ensure that systems function as designed.

10. Appropriate stormwater management controls shall be in place and operative throughout the construction phase of the project.

When one or more of the Standards cannot be met, an applicant may demonstrate that an equivalent level of environmental protection will be provided.

D. Reporting Requirements

The applicant shall prepare and submit semi-annual reports to the Planning Board for the first two (2) years after issuance of the Certificate of Completion, and annual reports thereafter demonstrating compliance with the terms and conditions of the special permit received from the Planning Board.

6.15.8 Operation and Maintenance Plans

A. An Operation and Maintenance Plan (O&M Plan) is required at the time of application for all projects. The O&M Plan shall be designed to ensure that compliance with the Permit, this By-Law and the Massachusetts Surface Water Quality Standards, 314 CMR 4.00 are met in all seasons and throughout the life of the system. The Planning Board shall make the final decision of what maintenance option is appropriate in a given situation. The Planning Board will consider natural features, proximity of site to water bodies and wetlands, extent of impervious surfaces, size of the site, the types of stormwater management structures, and potential need for ongoing maintenance activities when making this decision. The O&M Plan shall remain on file with the Planning Board and shall be an ongoing requirement. The O&M Plan shall include:

1. The name(s) of the owner(s) for all components of the system.

2. Maintenance agreements that specify:

a. The names and addresses of the person(s) responsible for operation and maintenance;

b. The person(s) responsible for financing maintenance and emergency repairs;

c. A Maintenance Schedule for all drainage structures, including swales and ponds;

d. A list of easements with the purpose and location of each; and

e. The signature(s) of the owner(s).

3. Stormwater Management Easement(s):

a. Stormwater management easements shall be provided by the property owner(s) as necessary for:

(i). access for facility inspections and maintenance,

(ii) preservation of stormwater runoff conveyance, infiltration, and detention areas and facilities, including flood routes for the 100-year storm event, and

(iii) direct maintenance access by heavy equipment to structures requiring regular cleanout.

b. The purpose of each easement shall be specified in the maintenance agreement signed by the property owner(s).

c. Stormwater management easements are required for all areas used for off-site stormwater control, unless a waiver is granted by the Planning Board.

d. Easements shall be recorded with the Essex County South Registry of Deeds prior to issuance of a Certificate of Completion by the Planning Board.

4. Changes to Operation and Maintenance Plans

a. The owner(s) of the stormwater management system must notify the Planning Board of changes in ownership or assignment of financial responsibility.

b. The maintenance schedule in the Maintenance Agreement may be amended to achieve the purposes of this by-law by mutual agreement of the Planning Board and the Responsible Parties. Amendments must be in writing and signed by all Responsible Parties. Responsible Parties shall include owner(s), persons with financial responsibility, and persons with operational responsibility.

6.15.9 Surety

The Planning Board may require the permittee to post before the start of land disturbance or construction activity, a surety bond, irrevocable letter of credit, cash, or other acceptable security. The bond shall be in an amount deemed sufficient by the Planning Board to ensure that the work will be completed in accordance with the permit. If the project is phased, the Planning Board may release part of the bond as each phase is completed in compliance with the permit but the bond may not be fully released until the Board has received the final inspection report as required below and issued a Certificate of Completion. Where the applicant is simultaneously seeking approval from the Planning Board pursuant to the Subdivision Control Law, the performance bond provisions of G.L. c.41 s.81-U shall supersede the requirements of Section 6.15.9 provided that in the opinion of the Planning Board the performance bond so executed includes sufficient protections to the Town for work to be completed pursuant to this Section 6.15.

6.15.10 Inspections

The Planning Board shall cause the project site to be inspected by its representative at the following stages:

1. Initial Site Inspection: prior to approval of any plan.

2. Erosion Control Inspection: to ensure erosion control practices are in accord with the filed plan.

3. Bury Inspection: prior to backfilling of any underground drainage or stormwater conveyance structures.

4. Final Inspection: After the stormwater management system has been constructed and before the surety has been released, the applicant must submit a record plan detailing the actual stormwater management system as installed. The Planning Board shall cause the system to be inspected by its representative to confirm its "as-built" features. This inspection shall also evaluate the effectiveness of the system in an actual storm. If the inspection finds the system to be adequate, the Planning Board shall issue a Certificate of Completion.

If the system is found to be inadequate by virtue of physical evidence or operational failure, even though it was built as called for in the Stormwater Management Plan, it shall be corrected by the permittee before the performance guarantee is released. If the permittee fails to act the Town may use the surety bond to complete the work.

6.15.11 Certificate of completion

The Planning Board will issue a letter certifying completion upon receipt and approval of the final inspection reports and/or upon otherwise determining that all work of the special permit has been satisfactorily completed in conformance with the special permit and this Section 6.15.

6.15.12 Severability

If any provision, paragraph, sentence, or clause of this By-law shall be held invalid for any reason, all other provisions shall continue in full force and effect.

6.16 Topographical Changes and Land Clearing Special Permit [Residential Districts] [Added 2007]

6.16.1 Purpose:

It is intended to encourage the conservation of open space, and the general

topographical layout of the land, promote less land clearing, grading and excavation

especially in rocky, hilly terrain, preserve existing wetlands, recharge areas, rivers,

streams, marshes, historic sites, unique geological and botanical areas or features, trails, paths and open-space links, specimen trees, wildlife habitat and contiguous forested areas, and preserve natural vegetative buffer zones abutting neighboring parcels. The object is to enhance the quality of life for the residents of the lot, the immediate neighborhood, and the Town generally, and to discourage unnecessary or excessive removal of rock. It is intended that the site plan will be prepared with due consideration for the foregoing and for protection of adjacent areas against detrimental or offensive uses on the site by provisions for adequate surface water drainage, buffers against lighting, sight, sound, dust, vibration, and the allowance of sun, light and air.

6.16.2 Applicability:

6.16.2(a) Definitions (for purposes of this Section 6.16):

Each lot within the Single Residence Districts A, B, C, and E, and Residence District D, consists of two parts. One part [the “Setback Area”] is that portion of the lot from its exterior boundaries to the lines delimiting its minimum front, side and rear building setbacks as prescribed by Section 5.4. The other part [the “Interior Area”] is the rest of the lot. That portion of the Setback Area of a lot between the lines delimiting its minimum side building setbacks from its front exterior boundaries to the line delimiting its minimum front building setback, all as so prescribed, is the “Central Front Setback Area”; and the remaining portion of the Setback Area is the “Side/Rear Setback Area”.

“Green Activities” means planting, trimming, harvesting, additions, subtractions or other changes of, in or to the trees, shrubs, grass, plants, vegetation or other non-nuisance agricultural, horticultural, floricultural or silvicultural products. Without limitation of the generality of the foregoing, “Green Activities” include the annual addition of up to twelve (12) inches of soil or other material to any area.

“Ledge” means a boulder or rock formation, whether or not cracked or broken into contiguous pieces, (1) which has a volume of three (3) or more cubic yards, or (2) the removal of all or any part of which, in the opinion of the Building Inspector or as proposed by the lot owner, normally would involve either blasting or hoe-ramming. Such Ledge is an exposed ledge if its uncovered surface area is fifty (50) or more square feet.

“Authorized Structures/Drives Activities” means construction, maintenance or other changes (A) within the layout of any street, or sidelines of any easement for any common driveway on which the lot has frontage, or (B) under the Subdivision Rules and Regulations or this Zoning By-Law within the footprint of buildings and other structures, and sidelines of driveways and turnarounds, authorized (with specific reference to any ledge removal permitted) by either the Planning Board or the Zoning Board of Appeals or (C) within the footprint of a residential building, provided that any excavation does not exceed a depth of fifteen (15)feet from the pre-construction grade and is authorized by a building permit issued by the Building Inspector.

“Septic Activities” means construction, maintenance or other changes in a septic system authorized (with specific reference to any ledge removal permitted) after a public hearing by the Board of Health.

“Utilities Activities” means construction, maintenance or other changes in water, gas, sewer, electric, telephone, cable and other utilities installed underground within one or more trenches each not exceeding 4 feet in width (the number and location of such trenches to be as determined by the Planning Board under the Subdivision Rules and Regulations, otherwise by the Building Inspector) extending (a) from the front exterior boundary of the lot through the Center Front Setback Area to structures within the Interior Area, and/or (b) between structures within the lot.

6.16.2(b) General:

As described in this Section 6.16.2, and except for certain de minimus or excluded activities, a special permit is required from the Planning Board for certain ledge removal and/or other topographical changes or disturbances within the Setback Area or (different criteria) the Interior Area of a lot in the residential zoning districts [Single Residence Districts A, B, C, and E, and Residence District D].

6.16.2(c) Exclusions:

No such special permit under this Section 6.12 is required for any or all of the following (collectively, the “Excluded Activities”):

(i) Authorized Structures/Drives Activities; and/or

(ii) Septic Activities; and/or

(iii) Utilities Activities; and/or

(iv) Green Activities.

6.16.2(d) Setback Area Special Permits:

Topographical changes (other than Excluded Activities) within the Setback Area for any lot in Single Residence Districts A, B, C, and E, and in Residence District D, may not be made without a special permit from the Planning Board if such changes:

(1) Involve within the Setback Area removal of either any portion of any pre-construction exposed ledges or more than 5 feet vertically or horizontally of other ledges; and/or

(2) Result in a change in elevation (from the pre-construction elevation) of more than 5 feet at any point (otherwise than within the footprint of any structure) within the Setback Area; and/or

(3) Result in the excavation, deposit or removal of more than 20 cubic yards of earth, clay, sand, gravel and rock within the Setback Area, whether or not any such material so excavated, deposited or removed is relocated elsewhere either within the Setback Area or the lot; and/or

(4) Disturb more than 10% of the Setback Area.

6.16.2(e) Interior Area Special Permits:

Topographical changes (other than Excluded Activities) within the Interior Area for any lot in Single Residence Districts A, B, C, and E, and in Residence District D, may not be made without a special permit from the Planning Board (in addition to any Earth Removal Permit which may be required under Article XII of the Town’s General By-Law) if such changes:

(1) Involve within the Interior Area removal of any portion of any pre-construction exposed ledges; and/or

(2) Result in a change in elevation (from the pre-construction elevation) of more than 10 feet at any point (otherwise than within the footprint of any structure) within the Interior Area; and/or

(3) Result in the excavation, deposit or removal of more than 100 cubic yards of earth, clay, sand, gravel and rock within the Interior Area, whether or not any such material so excavated, deposited or removed is relocated elsewhere either within the Interior Area or the lot; and/or

(4) Disturb more than 30% of the Interior Area.

6.16.3 Procedure:

Special Permits under this Section 6.16 shall be granted only if the Planning Board finds that it is consistent with the purpose and intent outlined in Section 6.16.1 of this By-Law and in conformance with this Section 6.16 generally and Section 7.5 of the Manchester-by-the-Sea Zoning By-Law and the requirements of MGL Chapter 40A, Section 9. Each application shall be in the form and number of copies prescribed by the Planning Board, and shall be filed [each with a site plan as proposed for the lot] with the Planning Board by submission to the Town Clerk, together with such filing fee as the Planning Board shall determine. Applicants are encouraged to discuss their proposals informally with the Planning Board prior to filing.

6.16.4 Application Requirements:

Plans subject to Special Permit approval under this Section 6.16 shall be prepared by a Registered Architect, Landscape Architect, or Professional Engineer. The lot identification shall include its Assessors Map and Lot numbers. The site plan for the lot shall be prepared at a scale no greater than 1"=40', and shall show (except as otherwise prescribed or waived by the Planning Board) all existing and proposed contour elevations (at two (2) foot contour line intervals), structures, parking spaces, driveway openings, service areas, facilities for sewage, refuse and other waste disposal and for surface water drainage, wetlands, vernal pools, streams, ponds and other surface water, areas subject to the 100-year flood, and landscape features such as exposed ledges, fences, walls, trees (having a diameter, 4 1/2 feet from the ground, exceeding 6 inches), planting areas, walks and lighting, both existing and proposed. The site plan also shall show the relation of locus map at a scale not greater than 1”=2,000'. The site plan also shall show all contiguous land owned by the applicant or by the owner of the property, and shall identify all abutters, by name and Assessors Map and Lot numbers. The applicant shall submit such material as may be required by the Planning Board regarding measures proposed to prevent pollution of surface or ground water, soil erosion, increased runoff, changes in groundwater level, and flooding, and regarding design features intended to integrate the proposal into the existing landscape, to preserve the same, to enhance aesthetic, and to screen objectionable features from neighbors.

6.16.5 Expenses Incurred:

Expenses incurred by the Planning Board in connection with an application under this Section 6.16, including the reasonable fees and expenses of any consultants retained by the Planning Board, shall be paid by the applicant for such Special Permit.

[SB1]Can we simply omit and renumber the remainder of 6.0

Section 7. Administration

CURRENT SECTIONS

[NOTE: THE ADMINIISTRATION SECTION WILL BE MOVED TO A NEW SECTION 12]

[THE NEW SECTION 7 WILL BE REGULATING NONCONFORMING USES. THE CURRENT LANGUAGE REGULATING NONCONFORMING USES IS CURRENTLY 6.1, AND IS SHOWN BELOW.]

[ THE CURRENT LANGUAGE REGULATIONG ADMINISTRATION FOLLOWS AND IS ALSO SHOWN ADJACENT TO THE NEW SECTION 12 FOR EASY COMPARISON.]

6.1 Nonconforming Uses

6.1.1 Existing Use:

6.1.2 Changes, Extensions and Alterations:

6.1.3 Restoration:

6.1.4 Abandonment:

7.0 Administration (TO BE MOVED TO A NEW SECTION 12)

7.1 Permits/Enforcement

The office of the Building Inspector is responsible for the enforcement of this By-Law and the issuance of building permits. He shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of this Zoning By-Law and no permit shall be granted for a new use of a building, structure or land which use would be in violation of this By-Law. Where a permit or variance may be granted with conditions, such conditions shall be imposed and made part of the record.

7.2 Enforcement Request

If the Building Inspector is requested in writing to enforce these By-Laws against any person allegedly in violation of same, and the Building Inspector declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act and the reasons therefor within fourteen (14) days of receipt of such request.

7.2.1 Penalties:

Any person violating any provision of this By-Law, upon conviction, shall be fined $300 for each offense, and each day that such violation continues shall constitute a separate offense. [Added 1987; Amended 1989]

7.3 Certificate of Occupancy

No use or occupation of land for any purpose for which a certificate of occupancy is required shall be made, in whole or in part, until such a certificate has been issued by the Inspector of Buildings stating that the use of land and structure, if any, complies with this By-Law and other applicable codes in effect at the time of issuance.

7.4 Board of Appeals

7.4.1 Appointment; Organization:

The Board of Appeals, also known as the Zoning Board of Appeals, shall consist of five regular members and two associate members appointed by the Board of Selectmen for three year terms. The regular members shall be appointed such that the term of at least one member shall expire each year. Vacancies shall be filled in the same manner as appointments. The Board of Appeals shall elect one of its members as chairman and one of its members as clerk, each to serve for a one year term. The two associate members shall be appointed such that their terms do not expire the same year. [Amended October 2017]

7.4.2 Removal:

A member may be removed only for cause by the Board of Selectmen and only after a written statement of the facts on which removal for cause is based has been presented to such member and a public hearing has been held at which the member has been afforded the opportunity to be heard.

7.4.3 Jurisdiction:

The Board of Appeals of the Town of Manchester-by-the-Sea is hereby designated as the Zoning Board of Appeals and as the permit granting authority mandated by The Zoning Act. In addition to the other powers and responsibility granted by other applicable provisions of the General Laws or by this By-Law, the Board of Appeals shall hear and decide appeals in accordance with Section 7.4.5 of this By-Law, petitions for variances in accordance with Section 10 of The Zoning Act and Section 7.4.6 of this By-Law, and applications for special permits with respect to matters as to which it is designated in this By-Law as the special permit granting authority.

7.4.4 Procedure:

The Board of Appeals shall be governed by the procedural requirements of The Zoning Act and other applicable provisions of the General Laws. The Board of Appeals shall adopt rules, not inconsistent with the provisions of this By-Law and The Zoning Act or other applicable provisions of the General Laws, for the conduct of its business and shall file a copy of such rules with the Town Clerk. Decision on an appeal (Section 7.4.5) or variance (Section 7.4.6) must be made within 100 days of the date of filing. Failure to make a decision within 100 days shall be deemed to be a grant of the appeal or variance. [amended 2005]

7.4.5 Appeals:

An appeal may be taken to the Board of Appeals by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any officer or board of the Town of Manchester-by-the-Sea under The Zoning Act or this By-Law, by any regional planning agency in whose area the Town of Manchester-by-the-Sea is situated, or by any person including an officer or board of the Town of Manchester-by-the-Sea or of an abutting city or town aggrieved by an order or decision of any officer or board of the Town of Manchester-by-the-Sea in violation of any provisions of The Zoning Act or of this By-Law.

7.4.6 Variance:

The Board of Appeals may grant upon appeal or upon petition with respect to particular land or structures a variance from specific requirements of this By-Law only where, after notice and a public hearing, as required by The Zoning Act, the Board of Appeals specifically finds that, owing to circumstances relating to the soil conditions, shape or topography of land or structures, and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this By-Law would involve substantial hardship, financial or otherwise, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this By-Law. The Board of Appeals may not grant a variance authorizing a use or activity not otherwise permitted in the district in which land or structure is located, except that this limitation shall not apply to land or structures located in the Limited Commercial District or General District. The Board of Appeals may impose such conditions, safeguards and limitations, both of time and of use, as it deems appropriate upon the grant of any variance, but excluding any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner. Any rights authorized by a variance which are not exercised within one year from the date of grant of such variance shall lapse and may be reestablished only after notice and a new hearing pursuant to this Section.

7.4.6.1 Use Variances - Requirements:

No variance authorizing a use or activity not otherwise permitted in the Limited Commercial District shall occur without a written finding by the Board of Appeals that, in addition to the requirements set forth in Section 7.4.6, the specific considerations (1-7) outlined in Section 7.5.2 of the Manchester-by-the-Sea Zoning By-Law have been addressed. [Added 1987]

7.5 Special Permits

7.5.1 Certain uses are designated in this By-Law as requiring a special permit. A special permit shall not reverse, vary or alter any applicable provision of this By-Law. The Board of Selectmen, Planning Board and the Board of Appeals are hereby designated as the special permit granting authorities mandated by Zoning Act. The board authorized in this By-Law to grant a special permit for a specified use is herein designated as the special permit granting authority for that use. [Amended 1987]

7.5.2 No special permit shall be granted unless the applicable special permit granting authority finds the proposed uses in harmony with the purpose and intent of this By-Law and will not be detrimental or injurious to the neighborhood in which it is to take place and that all requirements or conditions for the grant of the special permit have been satisfied. No special permit shall be granted unless the special permit granting authority determines that the proposed use will not be detrimental to the surrounding neighborhood in light of each of the following factors:

(a) Adequacy of the site in terms of size for the proposed use;

(b) Suitability of the site for the proposed use;

(d) Impact on neighborhood visual character, including views and vistas;

(e) Adequacy of method of sewage disposal, source of water and drainage;

(f) Adequacy of utilities and other public services;

(g) Impact on public or private water supplies, wildlife habitats and other natural resource issues deemed appropriate by the special permit granting authority.

The special permit granting authority shall also make such further findings as may otherwise be required by this By-Law, and may attach such conditions or safeguards or limitations on the grant of the special permit as it finds to be appropriate and reasonable to protect the surrounding neighborhood, including but not limited to

(aa) Setback requirements greater than the minimum required by this By-Law;

(bb) Requirements as to installation of screening, fencing or other means of protecting adjacent property;

(cc) Modification of the exterior features or appearance of any structure;

(dd) Limitation as to size, number of occupants, or method and time of operation of any proposed use;

(ee) Regulation of number, design and location of access drives and other traffic features;

(ff) Requirement of off-street parking and other special features;

(gg) Installation of mechanical or other devices to limit noise, light, odor or other objectional aspects of use; and

(hh) Requirement for surety bonds or other security for the performance of any conditions attached to the special permit. [Amended 1987]

7.5.3 An applicant for a special permit shall file an application with the applicable special permit granting authority, together with such other plans, specifications and documents as may be required by rules adopted by the special permit granting authority pursuant to Section 7.5.6, and shall file a copy thereof with the Town Clerk and with any other officers, boards or commissions required by this By-Law. Within 65 days of such filing with the Town Clerk or the special permit granting authority, whichever shall first occur, the special permit granting authority shall hold a public hearing.

7.5.4 Failure of the special permit granting authority to act within 90 days following the public hearing shall be deemed to be the grant of the special permit applied for and the applicant shall be entitled to whatever documents are necessary to evidence such permit.

7.5.5 Any special permit granted under this By-Law shall lapse within a period of time, to be specified by the permit granting authority, not to exceed two years from the date of issue, unless, in the case of special permit for a building or structure, construction has commenced, or in the case of any other use of or activity upon land such use or activity has commenced.

7.5.6 The special permit granting authority shall be governed by the procedural requirements of The Zoning Act and other applicable provisions of the General Laws. Each special permit granting authority shall adopt rules, not inconsistent with the provisions of this By-Law and The Zoning Act or other applicable provisions of the General Laws, for the conduct of its business and shall file a copy of such rules with the Town Clerk.

7.6 Other By-Laws, Rules or Regulations

The provisions of this By-Law shall be construed as being additional to and not as annulling, limiting or lessening to any extent whatsoever the requirements of any other By-Law, rule or regulation, provided that, unless specifically exempted, where this By-Law is more stringent it shall control.

7.7 Validity

The invalidity of one or more sections, subsections, sentences, clauses or provisions of this By-Law shall not invalidate or impair the By-Law as a whole or any other part hereof.

7.8 Referral

In addition to those applications for a special permit which require Site Plan Review Special Permit under Section 6.9, the Board of Appeals, Board of Selectmen and Planning Board shall refer a special permit application to the Board of Health, Conservation Commission, and the Department of Public Works for written comments and recommendations before taking final action on said Special Permit application. The Special Permit Granting Authority may refer a Special Permit application to any other town agency/board/department for comments and recommendations if it so desires before taking final action on said Special Permit application. A public hearing on said referral shall not be required. Any such Board or Agency to which applications are referred for comment shall make its recommendations and send copies thereof to the Special Permit Granting Authority and the applicant within thirty-five (35) days of receipt of the referral request by said board or agency or there shall be deemed no opposition or desire to comment. The Special Permit Granting Authority shall not act upon said special permit until either comments from referred board or agencies have been received, or said thirty-five (35) days have elapsed, whichever is sooner. Applications referred to more than one board or agency may be reviewed jointly by said boards or agencies. [Added 1988]

7.9 Planning Board Fees and Expenses [added 2007]

7.9.1 Scope:

Section 7.9 applies to each application or request [“Application”] filed with or otherwise submitted to the Planning Board for determination, approval, consent, grant, permit, special permit or other decision by the Planning Board [“Permit”].

7.9.2 Filing Fees:

The Planning Board shall determine the filing fee for Applications for which a fee is not otherwise provided or specified, which filing fee in its discretion the Board may waive or reduce in any particular matter when appropriate.

7.9.3 Expenses:

In connection with any such Application to the Planning Board, all expenses for advertising, recording and filing of documents, and for the reasonable fees (and expenses) for the employment of outside consultants as the Planning Board shall select, if and when it shall determine to do so, shall be borne by the applicant. The applicant shall be advised of the selection of an outside consultant, and of the sum to be deposited with the Town in a special account for the reasonable fees for the employment of the same. Such special account shall be established and dealt with consistent with MGL c.44 Section 53G.

The applicant may make an administrative appeal from the Planning Board’s selection of any such outside consultant, such appeal to be made to the Town’s Board of Selectmen and limited to claims that the consultant selected has a conflict of interest or does not possess the minimum required statutory qualifications (which, as specified in MGL c.44 Section 53G are either an educational degree in or related to the field at issue or 3 or more years of practice in the field at issue or a related field). To the extent permitted by law and consistent with MGL c.44 Section 53G, any required time limits for action on an Application by the Planning Board shall be extended by the duration of such administrative appeal, and if no decision is made by the Town’s Board of Selectmen within one month following the filing of such administrative appeal, the selection made by the Planning Board shall stand.

Section 8. Special Regulations

CURRENT SECTION 8

Section 8.1 Personal Wireless Telecommunication Service Facilities

8.1.1 Definitions

(1) The term "Personal Wireless Telecommunication Service" means commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services;

(2) The term "Personal Wireless Telecommunication Service Facilities" means facilities for the provision of personal wireless telecommunication services.

8.1.2 Purpose and Intent

The increasing use of business and personal devices relying on Personal Wireless Telecommunication Service Facilities, often referred to as Wireless Telecommunications Service Facilities, has generated a significant number of applications for the placement, construction and modification of such facilities throughout the Commonwealth and the Cape Ann region. Therefore, and in reliance on the Town's authority under M.G.L. c.40A, and under the Massachusetts State Constitution and in keeping with its responsibilities to protect public health, public welfare and public safety, the Town hereby adopts this Bylaw.

8.1.3 Special Permit

All Personal Wireless Telecommunication Service Facilities shall require a Special Permit from the Planning Board.

This Bylaw creates an allowed use by Special Permit of the Planning Board for Personal Wireless Telecommunication Service Facilities. The Planning Board shall determine the minimum lot dimensions and set backs appropriate to the use proposed.

No special permit shall be granted by the Planning Board, unless, in its judgment, following input from other municipal boards, departments, agencies and their staff, the Board determines that reasonable measures shall be or already have been taken to comply with the requirements of Section 7.5 and to:

(1) mitigate against potential negative impacts on visual quality upon neighboring properties by incorporating reasonable design, siting and screening methods; and

(2) protect against potential damage to neighboring properties from tower/structure failure or collapse and falling ice.

(3) obtain a financial surety to cover the costs of (a) the remediation of damage to the landscape which occurs during the clearing of the site, and (b) the removal of the facilities and the remediation of the landscape, should the facility cease to operate, as provided in section 4.10.5 below; and

(4) provide for testing and monitoring of radio frequency emissions, as follows:

(a) Pre-testing. After a special permit is granted and before the applicant's Personal Wireless Telecommunication Service Facility begins transmission, the applicant shall pay for an independent consultant, hired by the Town, to test and monitor the ambient or background levels of radio frequency emissions around the proposed facilities site, using established protocols.

(b) Post-testing. After transmission begins, the owner(s) of any Personal Wireless Telecommunication Service Facilities located on any site shall pay for an independent consultant, hired by the Town, to test and monitor the radio frequency emissions from the site, using established protocols. Such testing and monitoring shall take place annually.

(c) Excessive emissions. Should the testing and monitoring of a facility site reveal that the site exceeds any applicable federal, state or local regulations, the owner(s) of all Facilities at that site shall be so notified. Any Personal Wireless Telecommunication Service Facility which does not comply with all applicable federal, state, and local regulations shall be removed upon failure to bring the facility into compliance within thirty (30) days from receipt of written notice.

8.1.4 Limited Commercial District

Within the Limited Commercial District, Personal Wireless Telecommunication Service Facilities under 200 feet in height and less than 10 feet in diameter above 35 feet above the ground shall be exempt from Section 5.5 of the Manchester-by-the-Sea Zoning Bylaws.

8.1.5 Cessation of Use

At the Planning Board's discretion within six (6) months of the cessation of use of any facility for use as a Personal Wireless Telecommunication Service Facility, the facility, all support buildings and/or structures, all foundations and pads and any other items installed under this Special Permit shall be removed by the owner/operator and the site shall be restored to a condition equal to or surpassing that which existed prior to construction.

8.1.6 Validity

The invalidity of one or more sections, subsections, sentences, clauses, or provisions of this Bylaw shall not invalidate or impair the Bylaw as a whole or any part thereof. [Adopted 1997; amended 1998]

8.2 Helicopter landing, storage or parking facilities

In accordance with the Town’s authority to regulate land and waterway uses and structures, the Town of Manchester-by-the-Sea hereby determines that it is in the public interest to regulate the on-the-ground placement and storage of helicopters.

Applicants shall be required to obtain a special permit from the Planning Board to use any lot or seaway for helicopter landing, storage or parking within the Town of Manchester-by-the-Sea. However, nothing herein shall prevent a temporary helicopter landing area for emergency purposes, such as air ambulance, search and rescue, fire fighting and similar public safety operations. [Adopted 2003]

8.3 Regulation Of Marijuana Businesses

8.3.1 Purpose

The purposes of this By-Law are:

to exercise lawful oversight and regulation of Medical Marijuana Treatment Centers (also known as Registered Marijuana Dispensaries) and Marijuana Establishments, together referred to herein as Marijuana Businesses, consistent with Chapter 369 of the Acts of 2012, An Act To Ensure Safe Access to Marijuana, Chapter 55 of the Acts of 2017, all regulations which have or may be issued by the Department of Public Health and/or the Cannabis Control Commission, including, but not limited to 105 CMR 725.00 et seq. and 935 CMR 500.00, et seq., and the Town's regulatory powers; and to limit the siting and operation of Marijuana Businesses to locations appropriate to such use, and to regulate such use through conditions necessary to protect community safety while ensuring legitimate patient access.

8.3.2 Applicability

The commercial cultivation, production, processing, assembly, packaging, retail or wholesale sale, trade, distribution or dispensing of marijuana is prohibited unless permitted as a Marijuana Business under this By-Law.
No Marijuana Business shall be established except in conformity with this By-Law and all applicable laws and regulations, including such regulations as may be promulgated by the Board of Health; and the requirements of 105 CMR 725.00 et seq. and 935 CMR 500.00, et seq.
Nothing in this By-Law shall be construed to supersede any state or federal laws or regulations governing the sale and distribution of narcotic drugs.

8.3.3 Definitions

Where not expressly defined in the Zoning By-law, terms used in this bylaw shall be interpreted as defined in G.L. c.94I and G.L. c.94G and regulations promulgated and/or incorporated thereunder, and otherwise by their plain language.

Marijuana Business means a Medical Marijuana Treatment Center, Marijuana Establishment, or any combination or part thereof.

Marijuana Establishment: A marijuana cultivator, independent testing laboratory, marijuana product manufacturer, marijuana retailer, or any other type of licensed marijuana-related business for the non-medical, including recreational use of marijuana, as set forth in G.L. 94G, and any regulations promulgated thereunder.

Medical Marijuana Treatment Center as defined by 105 CMR 725.000, et al., as it may be amended or superseded, and pursuant to all other applicable state laws and regulations, means a not-for-profit entity registered under 105 CMR 725.100, otherwise known as a Registered Marijuana Dispensary (RMD), that acquires, cultivates, possesses, processes (including development of related products such as edible MIPs, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers Marijuana, products containing Marijuana, related supplies, or educational materials to registered qualifying patients or their personal caregivers, as those terms are defined under 105 CMR 725.004. Unless otherwise specified, RMD refers to the site(s) of dispensing, cultivation, and preparation of Marijuana.

Special Permit Granting Authority (SPGA) pursuant to this By-Law shall be the Planning Board.

8.3.4 Eligible Locations

1. Marijuana Businesses may be allowed by Special Permit in the Limited Commercial Zoning District, subject to all requirements of this Zoning By-Law, the requirements of the Board of Health, and applicable state laws and regulations.

8.3.5 General Requirements and Conditions

The following requirements and conditions shall apply to all Marijuana Businesses:

All Marijuana Businesses must obtain a special permit from the Planning Board pursuant to the requirements of Section 6.4 (Signs), 6.9 (Site Plan Review Special Permit), Section 7.5 (Special Permits) and the requirements of Section 6.19. The Planning Board may grant a single special permit incorporating the requirements of Sections 6.4, 6.9, 7.5 and 6.19 for a Marijuana Business.

No Special Permit shall issue without demonstration by the applicant of compliance with all applicable state laws and regulations, and with all local regulations.

No Marijuana Business shall be located within 300 feet of a residential zoning district, or within 500 feet of any lot containing a school, child care facility, or playground.

No smoking, burning or consumption of any product containing Marijuana or Marijuana-infused products shall be permitted on the premises of a Marijuana Business except as may be expressly permitted by law.

No products shall be displayed in the facilities windows or be visible from any street or parking lot.

Signs for all Marijuana Businesses shall, at a minimum, comply with Section 6.4 of the Zoning By-Law, the provisions of 105 CMR 725.105(L) ("Marketing and Advertising Requirements"), the provisions of 935 CMR 500 et seq., and the terms and conditions of the specia1 permit issued pursuant to Section 6.19, et seq.

8.3.6 Special Permit Requirements

A Marijuana Business shall be allowed only by Special Permit in accordance with G.L. c. 40A, s. 9; with the requirements of Section 7.5 et seq. of the Zoning By-Law, with the terms and conditions of the special permit issued pursuant to Section 6.19, et seq. and with the additional requirements contained in this Section (6.19.6), below.

1.Uses. A Special Permit for a Marijuana Business shall be limited to one or more of the uses for which RMD’s and Marijuana Establishments are authorized to engage in by law.

2. Application. In addition to the application requirements set forth in the rules of the Special Permit Granting Authority, a Special Permit application for a Marijuana Business shall include the following:

The name and address of each owner of the establishment and property owner;
Copies of all required licenses and permits issued to the applicant by the Commonwealth of Massachusetts and any of its agencies for the establishment;
Evidence of the applicant’s right to use the site for the establishment, such as a deed, or lease;
Proposed security measures for the Marijuana Business demonstrating compliance with all requirements of 105 CMR 725.110, "Security Requirements for Registered Marijuana Dispensaries," including but not limited to secure storage areas, limited access areas, security and alarm systems compliant with 105 CMR 725.110(D), and the requirements of 935 CMR 500 et seq. A copy of the approved security measures shall be provided to the Police Department.

The above information may be confidential and exempt from the provisions of G.L. c. 66, and as such shall not be part of the public record.

E. As applicable, the Proposed Operations and Maintenance Manual for the Medical Marijuana Treatment Center demonstrating compliance with all requirements of 105 CMR 725.110, "Security Requirements for Registered Marijuana Dispensaries," including but not limited to procedures for limiting access to the facility to persons authorized under 105 CMR 725.110(A); and procedures for transport of Marijuana and/or MIPs as provided under 105 CMR 725.110(E).

Pursuant to 105 CMR 725.200 (C), the above information may be confidential and exempt from the provisions of G.L. c. 66, and as such shall not be part of the public record.

Hours of Operation. The hours of operation of a Marijuana Business shall be established by the Special Permit Granting Authority.
Term of a Special Permit. Special Permits shall be valid for a period of two (2) years from the effective date of the special permit.
Transferability of a Special Permit. Special Permits may be transferred only with the approval by the Special Permit Granting Authority, in the form of an amendment to the Special Permit, conditioned upon satisfactory submission of all information required for an original Special Permit.
Renewals. A Special Permit may be renewed for successive two (2) year periods provided that a written request for renewal is made to the Special Permit Granting Authority not less than three (3) months prior to the expiration of the then-existing term. Any request for a renewal of a Special Permit shall be subject to publication notice requirements as required for an original application for a Special Permit. Such notice shall state that the renewal request will be granted unless, prior to the expiration of the existing Special Permit, a written objection, stating reasons for such objection, is received by the Special Permit Granting Authority.

6.1. If any such objection is received, the Special Permit Granting Authority shall hold a public hearing on the renewal request and shall proceed in a manner consistent with the proceedings required for an original application.

6.2. The Special Permit shall remain in effect until the conclusion of the public hearing and decision of the Special Permit Granting Authority either granting or denying the Special Permit renewal request.

6.3. In granting any renewal, the Special Permit Granting Authority may alter or impose additional conditions, and/or may provide for revocation of the Special Permit if any identified violations of this By-Law or any other applicable regulation are not corrected within a specified time period.

8.3.7 Severability

If any provision of this Section or the application of any such provision to any person or circumstance shall be held invalid, the remainder of this Section, to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, and to this end the provisions of this Section are severable. [Added 2015] [Amended 2018]

8.4 Common Driveways

Frontage along the length of any way in existence when the Subdivision Control Law became effective in Manchester-by-the Sea shall in no way be used as frontage as specified in the Zoning By-Law unless the way meets the following minimum standards. Furthermore, no common driveway shall be accepted as a public road; nor shall the Town under any circumstances be held liable for construction, reconstruction, maintenance, or snow removal on any common driveway, unless by contract duly entered into by the Town and all landowners served by the common driveway.

Common driveways shall be built in accordance with the following standards:

Minimum driveway width: 16’(18’ if over 100’ in length) residential

use; 24’ all other uses. [Amended 2007]

2. Maximum driveway grade of 10%.

3. Maximum driveway length of 500’.

The common driveway, at its intersection with the street, must provide a leveling off area with a slope no greater than 1% for the first 20’ and a slope no greater than 5% for the next 30’.

These standards may be waived when, in the opinion of the Planning Board, such action is in the public interest and not inconsistent with the purpose and intent of the Zoning By-Law and these design standards.” [Amended 2001]

8.5 Junk Cars

No person in charge or control of any real estate within the Town, whether as owner, tenant, occupant, lessee or otherwise, shall allow any partially dismantled, nonoperating, wrecked or junked motor vehicles to remain on such property longer than 60 days without a valid windshield sticker, so-called, issued and displayed in accordance with the requirements of Chapter 90, Section 7A of the General Laws as amended, and the rules and regulations of the Registrar of Motor Vehicles, unless a permit therefor has been obtained from the Zoning Board of Appeals. The Board shall not issue a permit unless it finds that such vehicle on said premises will not constitute a hazard to the safety or welfare of the inhabitants of the Town nor will otherwise nullify or substantially derogate from the intent or purpose of this By-Law. No such permit shall be required for a vehicle in an enclosed building nor for a vehicle on the property of a lawful business or farming enterprise necessary to such operation, or for motor vehicles at the place of business of a holder of a class license under Sections 58 and 59 of Chapter 140 of the General Laws.

Section 9. Special Residential Districts

CURRENT SECTION 9

9.1 Special Housing Provisions

9.1.1 Purpose:

This By-Law permits the construction of accessory dwelling units in Single Residence Districts A, B, C, and E in order to meet the following objectives:

(a) To facilitate the availability of suitable private housing for moderate and lower income, elderly and younger citizens of the Town while preserving the existing character of single family districts.

(b) To make it financially possible for existing homeowners to stay in their homes.

(d) To provide regulations that are enforceable and bring illegal conversions under control.

(e) To insure that all accessory dwelling units that are created will comply with the building codes and health, safety and fire regulations.

(f) To allow the best use of older homes by encouraging the preservation of these homes.

9.1.2 Accessory Dwelling Units in Single Residence Districts A, B, C, and E:

9.1.2.1 An owner or owners of a single family dwelling in Single Residence Districts A, B, C, and E may apply to the Board of Appeals for a Special Permit for the construction of one accessory dwelling unit in such single family dwelling.

9.1.2.2 After notice and public hearing the Board of Appeals may grant such a permit provided that:

(a) Except in Single Residence District E, the lot size shall be two (2) times the minimum lot size as determined by the zoning regulations.

(b) The single family dwelling shall have existed on the lot as of March l, 1984.[Amended 1987]

(c) Off-street parking for at least four (4) vehicles shall be provided in a manner consistent with the character of a single family dwelling.

(d) Either the accessory dwelling unit or the main dwelling shall be occupied by the owner of the property except for temporary absences of up to one year.

(e) The construction and occupancy of the accessory dwelling unit will not be detrimental to the neighborhood or injurious to persons or property.

(f) The accessory dwelling unit is accessory to the principal residence. The floor area of the accessory dwelling unit will not exceed 35% of the floor area of the principal dwelling and the accessory dwelling unit combined.

(g) No exterior changes shall be made which alter the single family character of the dwelling. Any additions made shall not increase the floor area or volume by more than 10% and shall meet all applicable setback requirements.

(h) Adequate provisions shall be made for the disposal of sewage, waste and drainage caused by the occupancy of such dwelling unit.

(i) There is no other accessory dwelling unit in the dwelling.

9.1.2.3 The Applicant for the special permit shall submit plans showing at a minimum the following items:

(a) Lot size and location of parking.

(b) Floor plan showing size and location of accessory dwelling unit with all means of egress, natural and mechanical ventilation, and location of all items required by the building code.

(d) Additional information requested by the Board of Appeals.

9.1.2.4 The accessory dwelling unit shall not be occupied until a Building Permit and a Certificate of Occupancy are issued by the Building Inspector. [Added 1984; Amended 1987]

9.2 Residential Conservation Cluster [Added 2005]

9.2.1 Purpose and Intent

1. Allow for greater flexibility and creativity in the design of residential developments.

2. Encourage the permanent preservation of open space, agricultural and forestry land, other natural resources including water bodies and wetlands, and historical and archeological resources.

3. Maintain the Town’s traditional character and land use pattern in which small villages contrast with open land.

4. Protect scenic vistas from the Town’s roadways and other places.

5. Encourage screening of new residential development from the Town’s roads, open spaces and scenic areas.

6. Facilitate the construction and maintenance of streets, utilities and public services in a more economical and efficient manner.

7. Protect existing and potential municipal water supplies.

8. Encourage a less sprawling and more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional subdivision.

9. Minimize the total amount of disturbance on the site.

10. Preserve open space areas for active and passive recreational use, including the provision of neighborhood parks and trails.

11. Encourage the provision of diverse housing opportunities and the integration of a variety of housing types.

12. Further the goals and policies of the Manchester-by-the-Sea Comprehensive Plan, as revised.

9.2.2 Definitions

In this Bylaw, the following words have the meanings indicated:

Residential Conservation Cluster (RCC) Development: A residential development in which the buildings are clustered together with reduced lot sizes and frontage. The land not included in the building lots is permanently preserved as open space. RCC Development is generally the preferred form of residential development and/or redevelopment in the Town for residential developments of five (5) or more acres and/or six (6) or more lots.

9.2.3 Applicability

A proposed subdivision of land into six (6) or more lots shall be filed in accordance with the provisions of Section 9.2.4, below. The Planning Board shall determine whether the

proposed location is suitable for an RCC Development under the terms and provisions of this section. If the Planning Board determines that the proposed location is suitable for an RCC Development, any further subdivision of the land into six or more lots shall be accomplished only through the provisions of this Bylaw. If the Planning Board determines, after discussion and analysis provoked by Section 9.2.4, that the location is best suited for subdivision under a conventional subdivision design, the Planning Board shall so inform the applicant and the applicant may then proceed to design a subdivision plan under the provisions of the Subdivision Control Law and the Manchester-by-the-Sea Rules and Regulations Governing the Subdivision of Land (Subdivision Rules and Regulations) and the provisions of this section shall not apply. In cases where the Planning Board determines that the site is not suitable for an RCC Development, and where the proposed subdivision of land is for six (6) or more lots, the Planning Board’s special permit powers shall be limited to enforcing the provisions of Section 9.2 of the Zoning Bylaw. In either case, however, a special permit from the Planning Board shall be required.

Notwithstanding the provisions above, the Planning Board may grant a special permit for an RCC Development for any parcel or contiguous parcels of at least five (5) acres in any

district permitting single-family dwellings subject to the regulations and conditions herein. Determination of whether the proposed location is not suitable for an RCC Development shall be based upon the opinion and judgment of the Planning Board, after consultation with its advisors and staff and may include the following criteria:

1. The degree to which the topography of the locus will not be preserved by a RCC

Development;

2. The degree to which stormwater runoff and erosion will not be minimized by a RCC

Development;

3. The degree to which the RCC Development will result in inappropriate site planning,

subdivision design and/or damage to the site’s natural features;

4. The degree to which the RCC Development will not preserve or protect abutting

properties and associated views and vistas;

5. The degree to which public safety will be threatened by a RCC Development;

6. The degree to which other site-specific attributes or site-specific concerns are not

appropriately addressed by a RCC Development.

9.2.4 Procedural Requirements

1. Pre-Application Meeting: A pre-application meeting between the Planning Board and the applicant is strongly encouraged.

2. Preliminary (Conventional) Plan/RCC Sketch Plan: Applicants proposing the

subdivision of land into six (6) or more lots shall submit a Sketch Plan for an RCC Development along with a Preliminary (Conventional) Subdivision Plan for review by the Planning Board. One of the purposes of this review is to determine the number of lots possible in the RCC Development. For this reason, it is strongly recommended that a copy of the existing conditions plan required in Section 9.2.4.3 below be submitted at this stage. The Planning Board shall approve, approve with conditions, or disapprove the preliminary plan/RCC Sketch Plan within forty-five (45) days of receipt of a completed application. Upon receipt of the Planning Board’s written decision regarding said plan, the applicant may submit a Definitive Subdivision/ RCC Development plan in accordance with the Planning Board’s written decision. If the above-noted forty-five (45) day time period has lapsed without a written decision being issued by the Planning Board, the applicant may submit a definitive subdivision/ RCC Development plan in accordance with Section 9.2.3 of this Bylaw.

3. Definitive Subdivision/ RCC Development Plan: The Definitive Subdivision/ RCC Development Plan shall show: location and boundaries of the site, proposed land and building uses, lot lines, location of open space, proposed grading, location and width of streets and ways, parking, landscaping, existing vegetation to be retained, water supply or approximate location of wells, drainage, proposed easements and methods of sewage disposal. A team including a Registered Civil Engineer, Registered Land Surveyor, and a Registered Landscape Architect shall prepare the plan. An accompanying Existing Conditions Plan shall depict existing topography, wetlands, waterbodies and the 100-year floodplain, all existing rights of way, easements, existing structures, the location of significant features such as woodlands, tree lines, open fields or meadows, scenic views, watershed divides and drainage ways, fences and stone walls, roads, driveways, and cart paths. Submission of photographs depicting existing conditions, views and vistas from various locations on the property and from public and private ways shall accompany the plan submission. The Site Analysis shall also show locations of soil test pits and percolation tests, with supporting documentation on test results. Applicants shall also include a statement indicating the proposed use and ownership of the open space as permitted by this Bylaw. Applicants should refer to the Subdivision Rules and Regulations for provisions regarding preparation and submittal of plans.

4. Density/Number of Dwelling Units: The total number of dwelling units in a Residential Conservation Cluster shall be determined by the following formula:

(a) [Total area of land subject to the application] – [Area of wetlands and

waterbodies] = Applicable Land Area [ [ Applicable Land Area] x [.75] ] Divided by Minimum Lot Area Established for the Zoning District = Total number of dwelling units. The number of dwelling units permitted in a Residential Conservation Cluster shall not exceed that which would be permitted under a conventional subdivision that complies with the Zoning Bylaw and the Subdivision Rules and Regulations of the Planning Board and any other applicable laws and regulations.

5. Review and Decision: Upon receipt of the application and the required plans, the Planning Board shall transmit one copy each to the Board of Health, Historical Commission and Conservation Commission. Within 45 days of their receipt of the application/plans, these agencies shall submit any recommendations to the Planning Board. The Planning Board shall act on applications according to the procedure specified in G. L. c. 40A, sec. 9. Notice shall be provided of hearings in accordance with Chapter 40A, sec. 11 and Chapter 41, sec. 81T. Public hearings for the subdivision application and the special permit application shall be conducted concurrently.

6. Criteria for Special Permit Decision:

(a) Findings: The Planning Board may approve the development upon finding that it complies with the purposes and standards of the RCC Development Bylaw and is superior in design to a conventional subdivision with regard to protection of

natural features and scenic resources of the site. The Planning Board shall

consider the following criteria in making its decision:

1. Upland open space as required by this Bylaw has been provided and

generally conforms to the Design Requirements in Section 9.2.8 of this

Bylaw.

2. Approximate building sites have been identified and are not located closer than 100 feet to wetlands and waterbodies.

3. Proposed streets have been aligned to provide vehicular access to each

dwelling unit in a reasonable and economical manner. Lots and streets have been located to avoid or minimize adverse impacts on open space areas and to provide lots with views of and access to the open space.

4. All lots meet the applicable dimensional requirements of Section 9.2.5 of the RCC Development Bylaw and all other relevant provisions of the Zoning Bylaw.

5. The provisions of Section 9.4 of the Zoning Bylaw will be met.

The Planning Board’s findings, including the basis of such findings, shall be stated in the written decision of approval, conditional approval or denial of the application for special permit.

(b) Conditions: The Planning Board shall impose conditions in its decision as

necessary to ensure compliance with the purposes of this Bylaw. Approval of an

RCC Development shall be conditioned upon Definitive Subdivision approval and

shall be conditioned to provide that no further division of land that increases

the number of lots or results in an alteration to the area to be set aside as open

space may occur without a modification of the special permit. Any alteration of

lot lines or layout of ways shall require approval of the Planning Board and shall

be in compliance with the requirements of the RCC Development Bylaw and the

Subdivision Rules and Regulations.

of its approval and shall lapse if substantial use or construction has not

commenced by such date, except for good cause shown. In its sole discretion,

the Planning Board may grant extensions to allow construction of subdivisions

within the vested rights limits set forth in G.L. c. 40A, sec. 6 except where such

extension would derogate from the intent and purpose of this Bylaw.

(d) Relationship to Subdivision Control Law: Nothing contained herein shall exempt a proposed subdivision from compliance with other applicable provisions of these Bylaws or the Subdivision Rules and Regulations of the Planning Board, nor shall it affect the right of the Board of Health and of the Planning Board to approve, condition or disapprove a subdivision plan in accordance with the provision of such Rules and Regulations and of the Subdivision Control Law.

9.2.5 Standards and Dimensional Requirements

Where the requirements of this section differ from or conflict with the requirements found elsewhere in this Bylaw, the requirements of this section shall prevail.

1. Minimum Lot Size: The minimum lot size shall be one-half the square footage

otherwise required by the Zoning District in which the project is located.

2. Minimum Frontage: The minimum frontage may be reduced from frontage

otherwise required in the Zoning District, provided however that no lot shall have

less than 50 feet of frontage and provided further that such frontage reduction shall apply only to lots fronting on proposed internal roadways.

3. Setbacks: Provided that no objection to the contrary is raised by the Fire

Department, the Planning Board may reduce by up to one-half the setbacks

otherwise required by the Zoning Bylaw if the Board finds that such reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with this Bylaw. Notwithstanding this provision or the

requirements of the Zoning Bylaw, every dwelling fronting on the proposed

roadways shall be set back a minimum of 15 feet from the roadway right-of–way,

and a minimum of 50 feet from the outer perimeter of the land subject to the

application. This 50-foot setback shall be maintained in a naturally vegetated state

to screen and buffer the development and may be included within the open space.

This setback may be eliminated where the proposed development abuts existing

permanent open space. Wherever feasible, construction of the dwelling at the front setback line is encouraged.

4. Required Open Space: All land area not utilized for lots, roads, and drainage shall be set aside as open space. A minimum of 60% of the upland area of the parcel (“applicable land area”) shall be provided as open space. As an exception, where the open space is proposed to be deeded to the Town or a qualified land trust pursuant to 6.13.7 of this Bylaw, and in fact, such a transfer occurs, a minimum of 50% of the upland area of the parcel shall be provided as open space. Applicants are encouraged to include wetlands and waterbodies within the open space; however, they do not count toward the open space requirement. Roadway rights-of way shall not count toward the area to be provided as open space.

9.2.6 Permissible Uses of Open Space

1. Purposes: Open space shall be used solely for recreation, conservation, or

agriculture purposes by residents and/or the public. Where appropriate, multiple use of open space is encouraged. At least half of the required open space may be

required by the Planning Board to be left in a natural state. The proposed use of the open space shall be specified in the application. If several uses are proposed, the plans shall specify what uses will occur in what areas. The Planning Board shall have the authority to approve or disapprove particular uses proposed for the open space.

2. Leaching Facilities: Subject to the approval of the Board of Health, as otherwise required by law, the Planning Board may permit a portion of the open space to be used for components of sewage disposal systems serving the subdivision, where the Planning Board finds that such use will not be detrimental to the character, quality, or use of the open space, wetlands or waterbodies, and enhances the site plan. The Planning Board shall require adequate legal safeguards and covenants that such facilities shall be adequately maintained by the lot owners within the development. No portion of the open space containing components of a sewage disposal system(s) shall count toward the open space requirements of Section 9.2.5.4, nor shall any portion of said open space areas be accepted by the Town or conveyed to a nonprofit organization other than a corporation or trust described in Section 9.2.7(c).

9.2.7 Ownership of Open Space

1. Ownership Options: At the developer’s option and subject to approval by the

Planning Board, all areas to be protected as open space shall be:

(a) Conveyed to the Town to be placed under the care, custody and control of the Conservation Commission, and be accepted by it for a park or open space use. Land conveyed to the Town shall be open for public use;

(b) Conveyed to a non-profit organization, the principal purpose of which is the conservation or preservation of open space, with a conservation restriction as specified below. Such organization shall be acceptable to the Town as a bona fide conservation organization; or

(c) Conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the development (i.e. “homeowners’ association”) and placed under conservation restriction. If such a corporation or trust is utilized, as indicated herein, ownership thereof shall pass with conveyance of the lots or residential units. The developer is responsible for the maintenance of the open space and other facilities to be held in common until such time as the homeowners’ association is capable of assuming such responsibility. Thereafter, the members of the association shall share the cost of maintaining the open space. The Planning Board shall require the applicant to provide documentation that the homeowners’ association is an automatic (mandatory) association that has been established prior to the conveyance of any lots within the subdivision.

2. Permanent Restriction: In any case when open space is not conveyed to the Town, a permanent conservation or agricultural preservation restriction, in accordance with G. L. c. 184 sec. 31, approved by the Planning Board and Board of Selectman, and enforceable by the Town, conforming to the standards of the Massachusetts Executive Office of Environmental Affairs, Division of Conservation Services, shall be recorded to ensure that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadways except as permitted by this Bylaw and approved by the Planning Board. Restrictions shall provide for periodic inspection of the open space by the Town. Such restriction shall be submitted to the Planning Board prior to approval of the project and recorded at the Registry of Deeds/Land Court simultaneously with recording of the definitive subdivision plan. A management plan may be required by the Planning Board that describes how existing woods, fields, meadows or other natural areas shall be maintained in accordance with good conservation practices.

3. Encumbrances: All areas to be set aside as open space shall be conveyed free of

any mortgage interest, security interest, liens or other encumbrances.

4. Maintenance of Open Space: In any case where open space is not conveyed to the Town, the Town shall be granted an easement over such land sufficient to ensure its perpetual maintenance as conservation or recreation land. Such easement shall provide that in the event the trust or other owner fails to maintain the open space in reasonable condition, the Town may, after notice to the lot owners and public hearing, enter upon such land to maintain it in order to prevent or abate a nuisance. The cost of such maintenance by the Town shall be assessed against the properties within the development and/or to the owner of the open space. The Town may file a lien against the lot or lots to ensure payment of such maintenance expenses.

9.2.8 Design Process

Each development plan shall follow the design process outlined below. When the

development plan is submitted, applicants shall be prepared to demonstrate to the Planning Board that this design process was considered in determining the layout of proposed streets, house lots, and contiguous open space.

1. Understanding the Site. The first step is to inventory existing site features, taking care to identify sensitive and noteworthy natural, scenic and cultural resources on the site, and to determine the connection of these important features to each other.

2. Evaluating Site Context. The second step is to evaluate the site in its larger context by identifying physical (e.g., stream corridors, wetlands), transportation (e.g., road and bicycle networks), and cultural (e.g., recreational opportunities) connections to surrounding land uses and activities.

3. Designating the Contiguous Open Space. The third step is to identify the contiguous open space to be preserved on the site. Such open space should include the most sensitive and noteworthy resources of the site, and, where appropriate, areas that serve to extend neighborhood open space networks.

4. Location of Development Areas. The fourth step is to locate building sites, streets, parking areas, paths and other built features of the development. The design should include a delineation of private yards, public streets and other areas, and shared amenities, to reflect an integrated community, with emphasis on consistency with Manchester-by-the-Sea’s historical development patterns.

5. Lot Lines. The final step is to draw the lot lines.

9.2.9 Design Requirements

The location of open space provided through this Bylaw shall be consistent with the policies contained in the Manchester-by-the-Sea Comprehensive Plan and the Open Space and Recreation Plan, as amended. The following design requirements shall apply to open space and lots provided through this Bylaw:

1. Open space shall be planned as large, contiguous areas whenever possible. Long thin strips or narrow areas of open space (less than 100 feet wide) shall occur only when necessary for access, as vegetated buffers along wetlands or the perimeter of the site, or as connections between open space areas.

2. Open space shall be arranged to protect valuable natural and cultural environments such as stream valleys, wetland buffers, unfragmented forestland and significant trees, wildlife habitat, open fields, scenic views, trails, and archeological sites and to avoid development in hazardous areas such as floodplains and steep slopes. The development plan shall take advantage of the natural topography of the parcel and cuts and fills shall be minimized.

3. Open space may be in more than one parcel provided that the size, shape and

locations of such parcels are suitable for the designated uses. Where feasible, these parcels shall be linked by trails.

4. Where the proposed development abuts or includes a body of water or a wetland, these areas and the 100-foot buffer to such areas shall be incorporated into the open space. Where appropriate, reasonable access shall be provided to shorelines.

5. The maximum number of house lots compatible with good design shall abut the

open space and all house lots shall have reasonable physical and visual access to the open space through internal roads, sidewalks or paths. An exception may be made for resource areas vulnerable to trampling or other disturbance.

6. Open space shall be provided with adequate access, by a strip of land at least 20

feet wide, suitable for a footpath, from one or more streets in the development.

7. Development along existing scenic roads and creation of new driveway openings on existing regional roadways shall be minimized.

8. Where a proposed development abuts land held for conservation purposes, the

development shall be configured to minimize adverse impacts to abutting

conservation land. Trail connections should be provided where appropriate.

9. Residential structures shall be oriented toward the street serving the premises.

9.2.10 Types of Buildings

An RCC Development may consist of a combination of single-family and two-family and residential structures. The architecture of all buildings shall be residential in character, particularly providing gabled roofs, predominantly wood siding, an articulated footprint and varied facades.

9.2.11 Affordable Component

As a condition of the grant of any special permit for a RCC Development containing six (6) or more lots or dwelling units, the Planning Board shall ensure compliance with the

provisions of Section 9.4 (“Inclusionary Housing”) of the Zoning Bylaw.

9.2.12 Special Permit Requirements

In reviewing an application under this Bylaw, the Planning Board shall rely, to the extent

warranted, on the provisions of Section 7.5 of the Zoning Bylaw.

9.3 Blank [Previous section 6.8 renumbered and deleted 2021]

9.4 Inclusionary Housing [Added 2005]

9.4.1 Purpose and Intent

The purpose of this Bylaw is to outline and implement a coherent set of policies and

objectives for the development of affordable housing in compliance with the Manchester-by-the-Sea’s Comprehensive Plan, G.L. c. 40B sec. 20-23 and ongoing programs within the Town to promote a reasonable percentage of housing that is affordable to moderate income buyers. It is intended that the affordable housing units that result from this Bylaw be considered as Local Initiative Program (LIP) dwelling units in compliance with the requirements for the same as specified by the Department of Community Affairs, Division of Housing and Community Development and that said units count toward the Town’s requirements under G. L. c. 40B sec. 20-23.

9.4.2 Definitions

1. Affordable Housing Unit. A dwelling unit that qualifies as a local initiative unit under the Commonwealth’s Local Initiative Program and meets the requirements of a subsidized housing unit for purposes of listing in the subsidized housing inventory under G. L. c. 40B Sec. 20-23.

2. Qualified affordable housing unit purchaser. An individual or family with household incomes that do not exceed 80% of the median income, with adjustments for household size, as reported by the most recent information from the United States Department of Housing and Urban Development (HUD) and/or the Massachusetts Department of Housing and Community Development (DHCD).

9.4.3 Blank

9.4.4 Mandatory Provision of Affordable Units

The Planning Board shall, as a condition of approval of any development referred to in Section 9.2, require that the applicant for special permit approval complies with the obligation to provide affordable housing pursuant to this Bylaw and more fully described in Section 9.4.5.

9.4.5 Provision of Affordable Units

The Planning Board shall deny any application for a special permit for development under Sections 9.2 and this section if the applicant for special permit approval does not agree that:

1) At least ten (10) percent of the lots in a division of land or units in a multiple unit development subject to this Bylaw shall be established as affordable housing units in any one or combination of methods provided for below. Fractions of a lot or dwelling unit shall be rounded up to the nearest whole number, such that a development proposing six (6) dwelling units shall require one affordable unit, a development proposing eleven (11) dwelling units shall require two affordable units and so on.

(a) Constructed or rehabilitated on the locus subject to the special permit;

(b) Constructed or rehabilitated on a locus different than the one subject to the special permit (see Section 9.4.8);

(c) An applicant may offer, and the Planning Board with the approval of the Board of Selectmen, may accept donations of land in fee simple, on or off-site, that the Planning Board determines are suitable for the construction of affordable housing units. The value of donated land shall be equal to or greater than the value of the construction or set-aside of the affordable units. The Planning Board may require, prior to accepting land as satisfaction of the requirements of this Bylaw, that the applicant submit appraisals of the land in question, as well as other data relevant to the determination of equivalent value;

(d) For non-rental affordable housing units, a cash payment to the Affordable Housing Trust Fund may be made subject to Section 9.4.11 of this Bylaw.

The applicant may offer, and the Planning Board may accept, any combination of the Section 9.4.5.1(a)-(d) requirements provided that in no event shall the total number of units or land area provided be less than the equivalent number or value of affordable units required by this Bylaw.

9.4.6 Provisions Applicable to Affordable Housing Units On- and Off-Site

1. Siting of affordable units – All affordable units constructed or rehabilitated under this Bylaw shall be situated within the development so as not to be in less desirable locations than market-rate units in the development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate units.

2. Minimum design and construction standards for affordable units – Affordable

housing units within market rate developments shall be integrated with the rest of

the development and shall be compatible in design, appearance, construction and

quality of materials with other units.

3. Timing of construction or provision of affordable units or lots – Where feasible, affordable housing units shall be provided coincident to the development of market rate units, but in no event shall the development of affordable units be delayed beyond the schedule noted below:

MARKET-RATE UNIT % AFFORDABLE HOUSING UNIT%

Up to 30%

None required

30% plus 1 unit

At least 10%

Up to 50%

At least 30%

Up to 75%

At least 50%

75% plus 1 unit

At least 70%

Up to 90%

100%

Fractions of units shall not be counted.

9.4.7 Marketing Plan for Affordable Units

Applicants under this Bylaw shall submit a marketing plan or other method approved by the Planning Board, to the Planning Board for approval, which describes how the affordable units will be marketed to potential homebuyers. This plan shall include a description of the lottery or other process to be used for selecting buyers. The marketing plan must describe how the applicant will accommodate local preference requirements, if any, established by the Board of Selectmen, in a manner that complies with the nondiscrimination in tenant or buyer selection guidelines of the Local Initiative Program.

9.4.8 Provision of Affordable Housing Units Off-Site

As an alternative to the requirements of Section 9.4.5.1(a), an applicant subject to the

Bylaw may develop, construct or otherwise provide affordable units equivalent to those

required by Section 9.4.5 off-site. All requirements of this Bylaw that apply to on-site

provision of affordable units, shall apply to provision of off-site affordable units. In addition, the location of the off-site units to be provided shall be approved by the Planning Board as an integral element of the special permit review and approval process.

9.4.9 Maximum Incomes and Selling Prices: Initial Sale

1. The developer of the housing units or his/her agent shall verify prior to transferring title or executing a lease that each prospective purchaser or renter of an affordable housing unit created under this Bylaw is a household of low or moderate income, as defined by the Commonwealth’s Local Initiative Program (LIP). Toward this end:

a) The developer shall engage a qualified certifying agent acceptable to the Planning Board to receive purchase or rental applications, obtain and

review documentation concerning sources and amounts of household income, and certify to the Town that all purchasers or renters approved for an affordable unit meet LIP income eligibility requirements.

b) The developer is responsible for making arrangements acceptable to the Planning Board to provide annual certifications to the Town as may be required to place and maintain the affordable units on the Commonwealth’s Chapter 40B Subsidized Housing Inventory.

2. The maximum allowable purchase price or maximum allowable rent for affordable units created under this Bylaw shall comply with the regulations and guidelines of the Local Initiative Program (LIP).

9.4.10 Preservation of Affordability; Restrictions on Resale

Each affordable unit created in accordance with this Bylaw shall have the following limitations governing its resale. The purpose of these limitations is to preserve the long-term affordability of the unit and to ensure its continued availability to qualified purchasers in the future. The resale controls shall be established through a deed rider or an affordable housing restriction as defined by G.L. c.184, Section 31, recorded at the Essex County Registry of Deeds or the Land Court, and shall be in force for as long a period as is lawful. The affordable housing use restriction shall meet the requirements of the Local Initiative Program.

1. Resale price – Sales beyond the initial sale to a qualified affordable income

purchaser shall include the initial discount rate between the sale price and the unit’s appraised value at the time of resale. This percentage shall be recorded as part of the restriction on the property. For example, if a unit appraised for $300,000 is sold for $225,000 because of this Bylaw, it has sold for 75% of its appraised value. If, several years later, the appraised value of the unit at the time of proposed resale is $325,000, the unit may be sold for no more than $243,750, or 75% of the appraised value of $325,000. Notwithstanding the foregoing, the resale price of an affordable unit shall in no event exceed that amount which will require a household earning 80% of the most recent area median income number, as published by the U.S. Department of Housing and Urban Development and adjusted for the household size that corresponds with the number of bedrooms in the affordable unit, to spend a maximum of 30% of the household’s annual income on housing costs. Housing costs shall include principal, interest, property tax, insurance payments and association or condominium fees.

2. Right of first refusal to purchase – The purchaser of an affordable housing unit

developed as a result of this Bylaw shall agree to execute a deed rider prepared by the Town, granting, among other things, the Town’s right of first refusal for a period not less than the maximum period allowable under guidelines set by the Department of Housing and Community Development for Local Initiative Units as defined by the Local Initiative Program, to purchase the property or assignment thereof, in the event that, despite diligent efforts to sell the property, a subsequent qualified purchaser cannot be located.

3. The Planning Board shall require, as a condition for special permit approval under this Bylaw that the deeds to the affordable housing units contain a restriction against renting or leasing said unit during the period for which the housing unit contains a restriction on affordability.

4. The Planning Board shall require, as a condition for special permit approval under this Bylaw, that the applicant comply with the mandatory set asides and accompanying restrictions on affordability, including the execution of the deed rider noted in Section 9.4.10. The Building Commissioner shall not issue an occupancy permit for any affordable unit until the deed restriction is recorded at the Essex County Registry of Deeds or the Land Court.

9.4.11 Fees in Lieu of Affordable Housing Units

As an alternative to Section 9.4.5 (a) through (c), an applicant may contribute a cash payment to the Affordable Housing Trust Fund, to be used for the development of affordable housing by the Town or its designees, in lieu of constructing and offering affordable units within the locus of the proposed development or off-site.

1. Calculation of fees-in-lieu of units. The applicant for development subject to this Bylaw may pay a fee in lieu of the construction of affordable units. For each affordable unit not constructed or provided through one or a combination of the methods specified in 9.4.5 (a) through (c), the fee shall be an amount equal to the

difference between the median sale price for new single-family homes built in Manchester-by-the-Sea during the preceding three fiscal years, as determined and reported by the Board of Assessors, and the purchase price of a home that is affordable to a qualified purchaser.

a) For developments of multi-family condominiums, the Planning Board may substitute the median sale price for new condominiums built in Manchester-by-the-Sea during the preceding three fiscal years for the median sale price of new single-family homes.

b) The methodology used to determine an affordable purchase price shall comply with Local Initiative Program guidelines in effect at the time of application for a special permit.

c) The assumptions used to determine an affordable purchase price, including but not limited to minimum down payment, mortgage interest rate, term, closing and other costs shall be consistent with first-time homebuyer mortgage products available from commercial lending institutions located in or serving Manchester-by-the-Sea at the time of application for a special permit, all in accordance with the Inclusionary Housing Submission Requirements and Procedures Manual adopted by the Planning Board and filed with the Town Clerk.

d) Upon adoption of this bylaw by town meeting, the Planning Board shall prepare and adopt an Inclusionary Housing Submission Requirements and Procedures Manual after holding a public hearing on the same.

2. Schedule of fees in lieu of payments. Fees in lieu of payments shall be paid according to the schedule set forth in Section 9.4.6 (3), above.

Section 10. Special District

NO NEW CHANGES PROPOSED

CURRENT SECTION 10

10.1 Flood Control District

The Flood Control District will consist of those areas designated as A1, A2 and B1 in Figure 8 of a report prepared for the Town of Manchester-by-the-Sea by the consulting firm of Camp, Dresser and McKee entitled "Storm Drainage Improvements for the Bennett's Brook Drainage Area" dated October, 1971. [See Maps; original on file with the Department of Public Works.]

10.1.1 The Flood Control District shall overlay other districts in this By-Law. Any land lying within the Flood Control District shall be subject to the development and use regulations of the underlying district in which such land is situated but only to the extent not inconsistent with the regulations for the Flood Control District.

10.1.2 The purpose of the Flood Control District is to protect the public health and safety and property against the damages of flooding conditions caused by new development in areas with inadequate capacity of existing drainage systems, brook channels, and street culverts to accept storm runoff from the areas drained.

10.1.3 Any use otherwise permitted in the underlying district is permitted as a matter of right within the Flood Control District except those uses expressly regulated in this Section. The following uses are hereby regulated:

10.1.3.1 Dumping, filling, or placing of soil or other substance as landfill or surfacing the land with any type of impervious materials; excavation, dredging, or removing of natural resource deposits.

10.1.3.2 Erection or construction of new buildings and enlargement or moving of existing structures.

10.1.4 The portion of any lot within the Flood Control District may be used to meet the area and yard requirements for the district or districts in which the remainder of the lot is situated.

10.1.5 Any use designated by Section 4.7.3 of the By-Law shall be permitted by the Board of Appeals through the issuance of a special permit, if the Board finds that the proposed use will not result in the creation or aggravation of flooding conditions which this section seeks to prevent. In exercising its jurisdiction hereunder, the Board of Appeals may impose such conditions and restrictions on such use as it determines necessary or desirable in order to satisfy the requirements of this section. Prior to any hearing on an application for a special permit pursuant to this section, the Board shall request the opinions of the Board of Health, the Planning Board, and the Conservation Commission with respect to the use for which this special permit is sought. [Added May, 1984]

10.2 Flood Plain

10.2.1 Flood Plain District:

The purposes of the Flood Plain District are to:

(a) Ensure public safety through reducing the threats to life and personal injury;

(b) Eliminate new hazards to emergency response officials;

(c) Prevent the occurrence of public emergencies resulting from loss of water quality, contamination, and pollution due to flooding;

(d) Avoid the loss of utility services which, if damaged by flooding, would disrupt or shut down the utility network and impact regions of the community beyond the site of flooding;

(e) Eliminate costs associated with the response and cleanup of flooding conditions;

(f) Reduce damage to public and private property resulting from flooding waters.

10.2.2 Flood Plain District Boundaries and Base Flood Elevation and Floodway Data

10.2.2.1 The Flood Plain District is herein established as an overlay district. Any use otherwise permitted in the underlying district is permitted as a matter of right in the Flood Plain District, provided the use meets the following additional requirements and those of the Massachusetts State Building Code dealing with construction in flood plains and coastal high hazard areas as applicable. The Flood Plain District includes all special flood hazard areas within the Town of Manchester-by-the-Sea designated as Zone A, AE, AH, AO, or VE on the Essex 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 Essex County FIRM that are wholly or partially within the Town of Manchester-by-the-Sea are panel numbers 25009C0429F dated July 3, 2012; and panel numbers 25009C0431G, 25009C0432G, 25009C0433G, 25009C0434G, 25009C0441G, 25009C0442G, 25009C0451G, 25009C0453G, 25009C0454G, and 25009C0475G, dated July 16, 2014. The exact boundaries of the District shall be defined by the 100-year base flood elevations shown on the FIRM and further defined by the Essex County Flood Insurance Study (FIS) report dated July 16, 2013, as those documents were updated by FEMA Letter of Map Revision (LOMR) dated March 12, 2017, for panels 25009C0453G and 25009C0454G, effective as of July 25, 2017. The FIRM, FIS booklet, and LOMR are incorporated herein by reference and are on file with the Town Clerk, Planning Board, and Director of Public Works. [Amended 2012, 2014, 2017]

10.2.2.2 Base Flood Elevation and Floodway Data

(a) Base Flood Elevation Data is required for subdivision proposals or other developments greater than 50 lots or 5 acres, which ever is the lesser, within unnumbered A zones.

(b) In Zones A and AE, along watercourses that have not had a regulatory floodway designated, the best available Federal, State, local, or other floodway data shall be used 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. [Added 2012}

10.2.3 Notification of Watercourse Alteration

In a riverine situation, the following must be notified of any alteration or relocation of a watercourse:

(a) Adjacent communities

(b) NFIP State Coordinator

Massachusetts Office of Water Resources

251 Causeway Street

Suite 600-700

Boston, MA 02114-2104

(d) NFIP Program Specialist

Federal Emergency Management Agency, Region I

99 High Street, 6th Floor

Boston, MA 02110 [Revised 2012]

10.2.4 Use Regulations

10.2.4.1 Within any Zone where the base flood elevation is not provided on the FIRM, the applicant shall obtain any existing base flood elevation data and it shall be reviewed by the Building Inspector for its reasonable utilization toward meeting the elevation or flood proofing requirements, as appropriate, of the State Building Code.

10.2.4.2 Located within the Flood Plain District are areas designated as coastal high hazard areas (Zone VE). Since these areas are extremely hazardous due to high velocity waters from tidal surges and hurricane wash, all new construction shall be located landward of the reach of Spring High Tide. Spring High Tide shall be located as that elevation shown on the Army Corps of Engineers High Tide Chart (Tidal Flood Profiles New England Coastline, See ACOE, New England Division, Prepared by Hydraulics and Water Quality Section, Waltham, MA). All references to elevations should be to NGVD (National Geodetic Vertical Datum). Wave run-up as defined by the elevation of the one year flood surge (Stillwater) as noted under section 404, shall be incorporated in to those elevations within V zones. [Revised 2012]

10.2.4.3 All development in the Flood Plain District, including structural and non-structural activities, whether permitted by right or by special permit, shall be in compliance with Chapter 131, Section 40 of the Massachusetts General Laws, and with the following:

(a) Sections of the Massachusetts State Building Code (780 CMR) which address floodplain and coastal high hazard areas; [Revised 2012]

(b) Wetlands Protection Regulation, Department of Environmental Protection (DEP) (currently 310 CMR 10.00);

(d) Coastal Wetlands Restriction, DEP (currently 310 CMR 12.00); [Revised 2012]

(e) Minimum requirements for the Subsurface Disposal of Sanitary Sewage, DEP (currently 310 CMR 15, Title 5);

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

10.2.4.4 Other Use Regulations

(a) Within Zone AO on the FIRM, adequate drainage paths are required around structures on slopes to guide flood waters around and away from proposed structures. [Revised 2014]

(b) Man-made alteration of sand dunes within Zone VE, which would increase potential flood damage, is prohibited. [Revised 2012]

(c) All development and/or uses within the Flood Plain District shall comply with all applicable local laws and regulations. [Revised 1998]

[Amended 2012, 2014]

10.3. Ground and Surface Water Resource Overlay Protection Districts

10.3.1 Findings:

The Town of Manchester-by-the-Sea finds that:

(a) The groundwater underlying the Town is a major source of its existing and future water supply, including drinking water.

(b) The aquifer system supplying Manchester-by-the-Sea with its groundwater supply is integrally connected with numerous surface waters, lakes, and streams.

(c) The surface water supplies of Gravelly and Round Ponds supplement the Town's groundwater resource, and are similarly considered an indispensable natural resource.

(d) Accidental spills and discharges of toxic and hazardous materials have threatened the quality of such water supplies posing public health and safety hazards.

(e) Unless preventive measures are adopted to control the discharge and storage of toxic and hazardous materials within the Town, further spills and discharges of such materials will predictably occur and with greater frequency and degree of hazard by reason of increasing land development, population and vehicular traffic within Manchester-by-the-Sea.

The purpose of this section is to protect the public health, safety, and welfare through the preservation of the Town's water resources to ensure a future supply of safe and healthful drinking water for the residents and employees of the Town of Manchester-by-the-Sea and the general public. The designation of the Ground and Surface Water Resource Overlay Protection Districts and careful regulation of development activities within these districts can reduce the potential for ground and surface water contamination.

10.3.3 Ground and Surface Water Resource Overlay Protection District Maps:

The maps delineating the Ground and Surface Water Resource Overlay Protection District, dated April, 1990, prepared by Horsley Witten Hegemann, Inc., Scale: 1 inch = 3,000 feet,” and the maps entitled “Water Resource Protection District, Town of Manchester, Scale: 1 inch = 800 feet,” dated 1987, prepared by Whitman and Howard, are incorporated herein and made a part of this By-Law and collectively shall be referred to as the “Ground and Surface Water Resource Overlay Protection District Maps.” These Maps shall be on file and maintained by the Town Clerk's office. Any amendments, additions or deletions to said Maps shall be made only as provided for in M.G.L. c. 40A, §5. [See Maps]

10.3.4 Regulations:

Ground and Surface Water Resource Overlay Protection Districts, as shown on the maps described in §4.9.3, shall be considered to be superimposed over any other district established in this By-Law. Land in a Ground and Surface Water Resource Overlay Protection District may be used for any purpose otherwise permitted in the underlying district, subject to the additional restrictions presented herein. This By-Law shall not apply to land or activities located outside of the corporate boundaries of Manchester-by-the-Sea.

10.3.4.1 Determination of Location within Ground and Surface Water

Resource Overlay Protection Districts: In determining the location of properties and facilities within the Ground and Surface Water Resource Overlay Protection District, the following rules shall apply:

(a) Properties located wholly within one zone reflected on the Ground and Surface Water Resource Overlay Protection District Maps shall be governed by the restrictions applicable to that zone.

(b) Properties located such that the site lies within more than one zone as reflected on the Ground and Surface Water Resource Overlay Protection District Maps shall be governed by the restrictions applicable to the zone in which the greater part of the property is located.

(c) Where a facility, building or accessory thereto including but not limited to sewage disposal systems is overlapped by different zones, the stricter zone shall apply.

(d) Special permits, in accordance with the provisions of this By-Law, Section 7.5 of the Manchester-by-the-Sea Zoning By-Law and M.G.L. c. 40A, §9, may be granted by the Planning Board to exempt a location from the requirements of this By-Law, provided that the applicant demonstrates that the Ground and Surface Water Resource Overlay Protection District Maps incorrectly identify the location as being within the Ground and Surface Water Resource Overlay Protection District. The burden of proof shall rest upon the applicant for a special permit to demonstrate that the location is not within a delineated district. The applicant shall be required to present detailed hydrogeologic and hydrologic information to the Planning Board indicating that the location is, in fact, not within a Ground and Surface Water Resource Overlay Protection District. The applicant shall provide funds to the Planning Board to pay for the technical review by the Planning Board's choice of consultant(s) of said hydrogeologic and hydrologic information and the Planning Board shall base its decision, in part, on the report by said consultant(s).

10.3.4.2 Relationship to Other Laws: This By-Law is supplementary to other

laws and By-Laws within Manchester-by-the-Sea. Where this By-Law or any portion thereof imposes a greater restriction than is imposed by other regulations, the provisions of this By-Law shall control. Where this By-Law references statutes or regulations promulgated by the Commonwealth or its agencies, the statute or regulation shall be that in effect as of January 1, 2002.

10.3.4.3 Definitions:

"Applicant" means any person filing an application.

“Department” means the Massachusetts Department of Environmental Protection (DEP).

"Person" means any agency or political subdivision of the federal government or the Commonwealth, any state, public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association, or other entity, and any officer, employee, or agent of such person, and any group of persons.

"Zone I" means the 400-foot protective radius required by the Department around a public water supply well or wellfield.

"Zone II" means that area of an aquifer which contributes water to a well under the most severe pumping and recharge 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. It is bounded by the groundwater divides, which result from pumping the well, and by the contact of the aquifer with less permeable materials such as till or bedrock. In some cases, streams or lakes may act as recharge boundaries. In all cases, Zone II shall extend upgradient to its point of intersection with prevailing hydrogeologic boundaries (a ground water flow divide, a contact with till or bedrock, or a recharge boundary).

“Zone III" means that land area beyond the area of Zone II from which surface water and ground water drain into Zone II, as defined in 310 CMR 22.00. The surface drainage area as determined by topography is commonly coincident with the ground water drainage area and will be used to delineate Zone III. In some locations, where surface and ground water drainage are not coincident, Zone III shall consist of both the surface drainage and the ground water drainage areas.

“Zone A” means

(a) the land area between the surface water source and the upper boundary of the bank;

(b)the land area within a 400 foot lateral distance from the upper boundary of the bank of a Class A surface water source, as defined in 314 CMR 4.05(3)(a); and

upper boundary of the bank of a tributary or associated surface water body.

“Zone B” means the land area within one half mile of the upper boundary of the bank of a Class A surface water source, as defined in 314 CMR 4.05(3)(a), or edge of watershed, whichever is less. However Zone B shall always include the land area within a 400-foot lateral distance from the upper boundary of the bank of the Class A surface water source.

“Zone C” means the land area not designated as Zone A or B that is either within the watershed of a Class A surface water source as defined by 314 CMR 4.05(3)(a), or contributes water runoff to Gravelly and Round Ponds.

"Regulated Substances" means those substances found in Exhibit A, attached hereto and incorporated herein.

"Spill" means the unpermitted release or escape of a Regulated Substance, irrespective of the quantity thresholds directly or indirectly to soils, surface waters, or ground waters.

10.3.5 Restrictions within Ground and Surface Water Resource Overlay Protection Districts

10.3.5.1. Prohibited uses in Zone I, Zone II, and Zone III, and Zone A, Zone B, and Zone C:

(a) All underground storage tanks.

(b) Automobile graveyards and junkyards, as defined in M.G.L.

c.140B, §1.

(c) Stockpiling and disposal of snow or ice removed from highways and streets located outside Zone II/Zone A that contains sodium chloride, chemically treated abrasives or other chemicals used for snow and ice removal.

(d) Storage of sodium chloride, chemically treated abrasives or other chemicals used for the removal of ice and snow on roads, unless such storage is within a structure designed to prevent the generation and escape of contaminated runoff or leachate.

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

(f) Storage of animal manures, unless such storage is covered or contained in accordance with the specifications of the Natural Resource Conservation Service.

(g) Residential approval not required (ANR) land divisions and/or subdivisions pursuant to M.G.L. c.41, §§81L, 81P, 81S, and 81U, at a density greater than one dwelling unit per 30,000 square feet unless connected to the municipal sewage treatment facility.

(h) Landfills and open dumps, as defined in 310 CMR 19.006.

(i) Landfills receiving only wastewater residuals and/or septage approved by the Department pursuant to M.G.L. c.21, §26 –53; M.G.L. c.111, §17; M.G.L. c.83, §6-7, and any regulations promulgated thereunder.

(j) Petroleum, fuel oil and heating oil bulk stations and terminals, including, but not limited to, those listed as of January 1, 2002 under Standard Industrial Classification (SIC) Codes 5171 and 5983. SIC Codes are established by the U.S. Office of Management and Budget and may be determined by referring to the publication, “Standard Industrial Classification Manual”, and any subsequent amendments thereto.

(k) Treatment or disposal works subject to 314 CMR 5.00 for wastewater other than sanitary sewage. This prohibition includes, but is not limited to, treatment or disposal works related to activities under the Standard Industrial Classification (SIC) Codes set forth in 310 CMR 15.004(6) (Title 5), except the following:

(1) the replacement or repair of an existing system(s) that will not result in a design capacity greater than the design capacity of the existing system(s); and

(2) treatment works approved by the Department designed for the treatment of contaminated ground or surface waters and operated in compliance with 314 CMR 5.05(3) or 5.05 (13); and

(3) publicly owned treatment works, or POTWs.

(l) Facilities that generate, treat, store or dispose of hazardous waste that are subject to M.G.L. c. 21C and 310 CMR 30.000, except for the following:

(1) very small quantity generators, as defined by 310 CMR 30.00;

(2) household hazardous waste collection centers or events operated pursuant to 310 CMR 30.390;

(3) waste oil retention facilities required by M.G.L. c. 21, §52A;

and

(4) treatment works approved by the Department designed in accordance with 314 CMR 5.00 for the treatment of contaminated ground or surface waters.

(m) Storage of sludge and septage, as defined in 310 CMR 32.05, unless such storage is in compliance with 310 CMR 32.30 and 310 CMR 32.31.

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

(1) above ground level; and

(2) on an impervious surface; and

(3) either:

(i) in container(s) or above-ground tank(s) within a building, or

ii) outdoors in covered container(s) or above-ground tank(s) in an area that has a containment system designed and operated to hold either 10% of the total possible storage capacity of all containers, or 110% of the largest container's storage capacity, whichever is greater; however, these storage requirements shall not apply to the replacement of existing tanks or systems for the keeping, dispensing or storing of gasoline provided the replacement is performed in a manner consistent with state and local requirements.

(o) The removal of soil, loam, sand, gravel or any other mineral substances within four (4) feet of the historical high groundwater table elevation (as determined from monitoring wells and historical water table fluctuation data compiled by the United States Geological Survey), unless the substances removed are redeposited within 45 days of removal on site to achieve a final grading greater than four (4) feet above the historical high water mark, and except for excavations for the construction of building foundations or the installation of utility works.

(p) Land uses that result in the rendering impervious of more than 15% or 2,500 square feet of any lot, whichever is greater, unless a system for artificial recharge of precipitation is provided, which is satisfactory to the Planning Board, that will not result in the degradation of groundwater quality.

(q) Commercial outdoor washing of vehicles.

(r) Commercial car washes

(s) Motor vehicle repair operations.

(t) Solid waste combustion facilities or handling facilities as defined at 310 CMR 16.00.

(u) Any floor drainage systems in existing facilities, in industrial or commercial process areas or hazardous material and/or hazardous waste storage areas, which discharge to the ground without a Department permit or authorization. Any existing facility with such a drainage system shall be required to either seal the floor drain (in accordance with the state plumbing code, 248 CMR 2.00), connect the drain to a municipal sewer system (with all appropriate permits and pre-treatment), or connect the drain to a holding tank meeting the requirements of all appropriate DEP regulations and policies.

10.3.5.2. Special Permit uses in Zones II and III, and A, B, and C

(a) The use, handling, production, and storage of Regulated Substances.

(b) Within Zone II and Zone III only, residential approval not required (ANR) land divisions, subdivisions, pursuant to M.G.L. c. 41, §§81L, 81P, 81S, and 81U with on-site disposal of effluent, at a density greater than one dwelling unit per 30,000 square feet provided that the nitrate-nitrogen concentrations described in Section 4.9.6.3(d), below, are not exceeded.

(c) Any uses with on-site disposal of sewage effluent exceeding 2,000 gallons per day for the entire project provided that the nitrate-nitrogen concentrations described in Section 4.9.6.3(d) are not exceeded.

(d) Land uses that result in the rendering impervious of more than 15% of any lot, unless a system for artificial recharge of precipitation is provided, which is satisfactory to the Planning Board, that will not result in the degradation of groundwater quality.

10.3.5.3. Additional Prohibited Uses: Zone A, Zone B, and Zone C:

(a) Residential approval not required (ANR) divisions, subdivisions pursuant to M.G.L. c. 41, §§81L, 81P, 81S, and 81U, or residential development on lots less than 80,000 square feet of land area containing at least 200 feet of lot width and 150 feet of lot frontage.

(b) No person shall wade or bathe in any source of drinking water supply, and no person shall, unless permitted by written permit by the Manchester-by-the-Sea Department of Public Works or like body having jurisdiction over such source of supply, fish in; enter or go in any boat, seaplane, or other contrivance; enter upon the ice for any purpose, including the cutting or taking of ice; or cause any animal to go in or upon such source of water supply or tributary thereto.

(c) No stabling, hitching, standing, feeding or grazing of livestock or other domestic animals shall be located, constructed, or maintained within 100 feet of the bank of a surface water source or tributary thereto. Owners and operators of agricultural operations should consult the Massachusetts Department of Food and Agriculture’s “On Farm Strategies to Protect Water Quality – An Assessment & Planning Tool for Best Management Practices” (December 1996, and any subsequent amendments thereto) for information about technical and financial assistance programs related to erosion and sediment control and nutrient, pest, pesticide, manure, waste, grazing, and irrigation management.

(d) No burials shall be made in any cemetery or other place within 100 feet of the high water mark of a source of public water supply or tributary thereto except by permission in writing by the Manchester-by-the-Sea Department of Public Works or like body having jurisdiction over such source of supply. Lands not under the control of cemetery authorities and used for cemetery purposes shall not be taken or used for cemetery purposes if natural drainage from said lands flows into said source of water or tributary thereto, until a plan and sufficient description of the lands is presented to the Department and until such taking or use is expressly approved in writing by the Department.

10.3.6 Special Permits: This section provides the requirements and procedures for the issuance of Special Permits by the Planning Board as required by this By-Law.

10.3.6.1 Special Permits: The Special Permit Granting Authority (SPGA)

under Section 4.9 of this By-Law shall be the Planning Board. Special

permits shall be granted only in conformance with this By-Law, Section

7.5 of the Manchester-by-the-Sea Zoning By-Law, and M.G.L. c. 40A, §9.

10.3.6.2 Review by Other Town Agencies: Upon receipt of the special

permit application, the SPGA shall transmit one copy to the Director of

Public Works, the Town Administrator, the Building Inspector, the Board

of Health, the Conservation Commission, and any other relevant Town

board/agency or department for their written recommendations. Failure to

respond in writing within 30 days shall indicate approval or no desire to

comment by said agency. The applicant shall furnish the necessary

number of copies of the application.

10.3.6.3 Special Permit Criteria and Decision: Special Permits may be

approved by the SPGA provided that the SPGA determines, in

consultation with other Town agencies as specified in Section 4.9.6.2, that

the intent of this By-Law 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.

It shall then issue a written decision which describes its findings with

respect to the following:

(a) meets the intent of this By-Law as well as its specific criteria;

will not, during construction or thereafter, have an adverse impact

on Zone I, Zone II, Zone III, or Zone A, Zone B, or Zone C;

(c) will not cause the average quality of groundwater recharged on the property to violate Class 1 drinking water standards promulgated by the Department; and

(d) will not cause the average concentration of nitrate-nitrogen in groundwater recharged on the property to exceed five (5) milligrams per liter.

10.3.6.4 Submittals: In applying for a special permit required by this By-

Law, the information listed below shall be submitted to the SPGA, as the

SPGA deems applicable:

(a) A list of all Regulated Substances which are to be stored, handled, used or produced in the activity being proposed.

(b) A detailed description of the activities that involve the storage, handling, use, or production of the Regulated Substances indicating the unit quantities in which the substances are contained or manipulated.

(c) Evidence of approval by the DEP of any industrial waste treatment or disposal system or any wastewater treatment systems over 10,000 gallons per day capacity.

(d) A site plan illustrating the location of all operations involving Regulated Substances.

(e) A hydrogeologic assessment of the site which shall address, at a minimum, soil characteristics and ground water levels and direction of ground water flow relative to operating and future planned public water supplies.

10.3.6.5 Design and Operating Guidelines: As a condition(s) of granting a special permit, the SPGA may require adherence to any, or all of the following design and operation guidelines, where in its opinion, such adherence would further the purpose and intent of this By-Law.

(a) Containment of Regulated Substances: Leak-proof trays under containers, floor curbing, or other contaminant systems to provide secondary liquid containment shall be installed. The containment shall be of adequate size to handle all spills, leaks, overflows, and precipitation until appropriate action can be taken. The specific design and selection of materials shall be sufficient to preclude any Regulated Substance loss to the external environment. Containment systems shall be sheltered so that the intrusion of precipitation is effectively prevented. The owner/operator may choose to provide adequate and appropriate liquid collection methods rather than sheltering only after approval of the design by the SPGA. These requirements shall apply to all areas of use, production, and handling, to all storage areas, to loading and off-loading areas, and to aboveground and underground storage areas.

(b) Emergency Plan: An emergency plan shall be prepared and filed with the Special Permit application indicating the procedures which will be followed in the event of spillage of a Regulated Substance so as to control and collect all such spilled material in such a manner as to prevent it from reaching any storm or sanitary drains or the ground water.

(c) Inspection: A responsible person designated by the permittee who stores, handles, uses or produces the Regulated Substances shall check on every day of operation, for breakage or leakage of any container holding the Regulated Substances. Electronic sensing devices may be employed as part of the inspection process, if approved by the SPGA, and provided the sensing system is checked daily for malfunctions. The manner of daily inspection shall not necessarily require physical inspection of each container provided the location of the containers can be inspected to a degree that reasonably assures the SPGA that breakage or leakage can be detected by the inspection. Monitoring records shall be kept daily and made available to the SPGA on a quarterly basis.

(d) Reporting of Spills: Any spill of a Regulated Substance in excess of the non-aggregate quantity thresholds shall be reported by telephone to the Manchester-by-the-Sea Fire Department and the Department of Public Works within one (1) hour of discovery of the spill. Clean-up shall commence immediately upon discovery of the spill. A full written report including the steps taken to contain and clean up the spill shall be submitted to the Fire Department, Director of Public Works, and the Town Administrator within fifteen (15) days of discovery of the spill.

(e) Monitoring of Regulated Substances in Groundwater Monitoring Wells: If required by the SPGA, groundwater monitoring well(s) shall be provided at the expense of the permittee in a manner, number and location approved by the SPGA. Except for existing wells found by the SPGA to be adequate for this provision, the required well or wells shall be installed by a water well contractor. Samples shall be analyzed and analytical reports prepared by a Commonwealth of Massachusetts certified laboratory of the quantity present in each monitoring well of the Regulated Substances.

(f) Alterations and Expansion: The SPGA shall be notified in writing prior to the expansion, alteration or modification of an activity holding a Special Permit under this By-Law. Such expansion, alteration, or modification may result from increased square footage of production or storage capacity, or increased quantities of Regulated Substances, or changes in types of Regulated Substances beyond those square footages, quantities, and types upon which the permit was issued. Excluded from notification prior to alteration or modification are changes in types of Regulated Substances used in a laboratory or laboratories designated as such in the currently valid permit which do not exceed the non-aggregate limits and which are within the Generic Substances listed in said permit based upon the Generic List attached hereto and incorporated herein as Exhibit A. The introduction of any new Regulated Substance shall not prevent the revocation of any existing Special Permit if, in the opinion of the SPGA, such introduction substantially or materially modifies, alters or affects the conditions upon which existing Special Permit was granted or the ability to remain qualified as a General Exemption, if applicable, or to continue to satisfy any conditions that have been imposed as part of a Special Permit, if applicable.

10.3.7 General Exemptions:

10.3.7.1 Exemptions for Continuous Transit: The transportation of any

regulated substance through Zones I, II, III, or A, B or C shall be exempt

from the provisions of this By-Law provided the transporting motor

vehicle is in continuous transit.

10.3.7.2 Exemptions for Vehicular and Lawn Maintenance Fuel and

Lubricant Use: The use in a vehicle or lawn maintenance equipment of

any regulated substance solely as fuel in that vehicle or equipment fuel

tank or as lubricant in that vehicle or equipment shall be exempt from the

provisions of this By-Law.

10.3.7.3 Exemptions for Application of Pesticides, Herbicides, Fertilizers,

Fungicides and Rodenticides: The application of those Regulated

Substances used as pesticides, herbicides, fertilizers, fungicides, and

rodenticides in recreation, agriculture, pest control and aquatic weed

control activities shall be exempt from the provisions of this By-Law

provided that:

(a) In all zones, the application is in strict conformity with the use requirement as set forth by the U.S. Environmental Protection Agency, and as indicated on the containers in which the substances are sold.

(b) In all zones, the application of any of the pesticides, herbicides, fertilizers, fungicides, and rodenticides shall be noted in the records of the certified operator. Records shall be kept of the date and amount of these substances applied at each location and said records shall be available for inspection at reasonable times by the Building Inspector and Director of Public Works.

(c) In all zones, the application of pesticides, herbicides, fertilizers, fungicides, and rodenticides for non-residential or non-agricultural purposes shall require a special permit.

10.3.7.4 Exemption for Retail/Wholesale Sales Activities: Except in Zone I,

retail/wholesale sales establishments that store or handle Regulated

Substances for resale in their original unopened containers shall be exempt from the provisions of this By-Law, provided however, that retail/wholesale sales establishments that store or handle quantities of

Regulated Substances exceeding thirty (30) gallons liquid or twenty-five

(25) pounds solid shall be prohibited without receipt of a special permit

from the SPGA.

10.3.7.5 Exemptions for Office and Commercial Uses: Except in Zone I, office

and commercial use of Regulated Substances below the aggregate sum

not exceeding thirty (30) gallons where said substance is a liquid or

twenty-five (25) pounds where said substance is a solid shall be exempt

from the provisions of this By-Law, provided, however, that office and

commercial uses that store or handle quantities of Regulated Substances

exceeding thirty (30) gallons liquid or twenty-five (25) pounds solid shall

be prohibited without receipt of a special permit from the SPGA.

10.3.7.6 Exemption for Construction Activities: The activities of

constructing, repairing or maintaining any facility or improvement on

lands within Zones I, II, III, or A, B, or C, shall be exempt from the

provisions of this By-Law provided that all contractors, subcontractors,

laborers, and their employees, when using, handling, storing or producing

Regulated Substances in Zones I, II, III, or Zones A, B, or C, use those

applicable Best Management Practices set forth in Exhibit B, attached

hereto and incorporated herein.

10.3.7.7 Exemption for Household Use: In addition to the exemptions

provided for in Section 4.9.7.3 of this By-Law, the household use of

Regulated Substances below the aggregate sum not exceeding thirty (30)

gallons where said substance is a liquid or twenty-five (25) pounds where

said substance is a solid shall be exempt from the provisions of this By-

Law, provided, however, that household uses that store or handle

quantities of Regulated Substances exceeding thirty (30) gallons liquid or

twenty-five (25) pounds solid shall be prohibited without receipt of a

special permit from the SPGA.

10.3.7.8 Exemption for Municipal Use: In addition to the exemptions

provided for in Section 4.9.7.3 of this By-Law, the municipal use of

Regulated Substances in quantities exceeding thirty (30) gallons where

said substance is a liquid or twenty-five (25) pounds where said substance

is a solid shall be prohibited without receipt of a special permit from the

SPGA.

10.3.7.9 Exemption for Underground Storage of Oils(s): The underground

storage of oil(s) used for heating fuel shall be exempt from the provisions

of Section 4.9 of this By-Law provided, however, that the container used

for said storage shall be located within an enclosed structure sufficient to

preclude leakage of oil to the external environment and to afford routine

access for visual inspection (e.g., cement-floored basement), and sheltered to prevent the intrusion of precipitation.

10.3.8 Severability: The provisions of this By-Law are severable from each other and the invalidity of any provisions or section shall not invalidate any other provision or section thereof.

10.3.9 EXHIBIT A: GENERIC SUBSTANCES LIST

Acid and basic cleaning solutions, Antifreeze and Coolants, Arsenic and arsenic compounds, Bleaches and peroxides, Brake and transmission fluids, Brine solution, Casting & Foundry chemicals, Caulking agents and sealants, Cleaning solvents, Corrosion and rust prevention solutions, Cutting fluids, Degreasing solvents, Disinfectants, Electroplating solutions, Explosives, Fertilizers, Fire extinguishing chemicals, Food processing wastes, Formaldehyde, Fuels and additives, Gasolines, Glues, adhesives and resins, Greases, Hydraulic fluid, Indicators, Industrial and commercial janitorial supplies, Industrial sludges and stillbottoms, Inks, printing and photocopying chemicals, Laboratory chemicals, Liquid storage batteries, Medical, pharmaceutical, dental, veterinary and hospital solutions, Mercury and mercury compounds, Metals finishing solutions, Oils, Paints, primers, thinners, dyes, stains, wood preservatives, varnishing, and cleaning compounds, Painting solvents, PCB's, Pesticides and herbicides, Plastic resins, plasticizers and catalysts, Photo development chemicals, Poisons, Polishes, Pool chemicals in concentrated form, Processed dust, and particulates, Radioactive sources, Reagents and standards, Refrigerants, Roofing chemicals and sealers, Sanitizers, disinfectants, bactericides and algaecides, Soaps, detergents and surfactants, Solders and fluxes, Stripping compounds, Tanning industry chemicals, Transformer and capacitor oils/fluids, Water and wastewater treatment chemicals.

10.3.10 EXHIBIT B: "BEST MANAGEMENT PRACTICES" FOR THE CONSTRUCTION INDUSTRY

1. The general contractor, or if none, the property owner, shall be responsible for assuring that each contractor or subcontractor evaluates each site before construction is initiated to determine if any site conditions may pose particular problems for the handling of any Regulated Substances. For instance, handling Regulated Substances in the proximity of water bodies or wetlands may be improper.

2. If any Regulated Substances are stored on the construction site during the construction process, they shall be stored in a location and manner that will minimize any possible risk of release to the environment. Any storage container of 55 gallons, or 440 pounds, or more, containing Regulated Substances shall have constructed below it an impervious containment system constructed of materials of sufficient thickness, density and composition that will prevent the discharge to the land, ground waters, or surface waters, of any pollutant which may emanate from said storage container or containers. Each containment system shall be able to contain 150% of the contents of all storage containers above the containment system.

3. Each contractor shall familiarize him/herself with the manufacturer's safety data sheet supplied with each material containing a Regulated Substance and shall be familiar with procedures required to contain and clean up any releases of the Regulated Substance. Any tools or equipment necessary to accomplish same shall be available in case of a release.

4. Upon completion of construction, all unused and waste Regulated Substances and containment systems shall be removed from the construction site by the responsible contractor, and shall be disposed of in a proper manner as prescribed by law.

[Added 1990] [Revised 2002]

Section 11. Energy Regulation

NO NEW CHANGES PROPOSED IN SECTION 11

CURRENT SECTION 11

11.1 Large-Scale Ground-Mounted Solar Photovoltaic Installations [Adopted 2013]

11.1.1 Purpose

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

11.1.1.1 Applicability

This By-Law applies to large-scale ground-mounted solar photovoltaic installations, as defined herein, proposed to be constructed after the effective date of this By-Law. This By-Law also pertains to physical modifications that materially alter the type, configuration, or size of these installations or related equipment. Large-Scale Ground-Mounted Solar Photovoltaic Installations, as defined herein, shall be allowed by right in the Limited Commercial Zoning District as that district is defined by the Zoning By-Law.

Smaller scale ground or building-mounted solar photovoltaic installations which are accessory to a lawful principal use on the same lot are not otherwise subject to the requirements of this by-law, but must comply with the other provisions of the Zoning By-Law, as applicable.

11.1.2 Definitions

Large-Scale Ground-Mounted Solar Photovoltaic Installation (LGSPI): A solar photovoltaic system that is structurally mounted on the ground and is not roof-mounted, and has a minimum nameplate capacity of 250 kW DC.

Rated Nameplate Capacity: The maximum rated output of electric power production of the Photovoltaic system in Direct Current (DC).

Site Plan Approval Authority (SPAA): The site plan review authority as designated by the Zoning By-law.

Zoning By-Law: The Manchester Zoning By-Law.

11.1.3 General Requirements for all As-of-Right Large-Scale Ground-Mounted Solar Photovoltaic Installations (LGSPI)

11.1.3.1 Compliance with Laws, Ordinances and Regulations

The construction and operation of LGSPI shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable safety, environmental, Wetlands Protection Act, construction, electrical, and communications requirements. All buildings and fixtures forming part of a solar photovoltaic installation shall be constructed in accordance with the State and/or Local Building Code.

No LGSPI shall be constructed, installed or modified without a building permit.

11.1.3.3 Site Plan Approval Required

LGSPI shall be constructed, installed, used and modified in conformity with a site plan approved by the SPAA in accordance with Section 6.5 of the Zoning By-Law and the further requirements set forth herein. The requirements set forth herein shall be applied coincident with and in addition to those requirements set forth in Section 6.5. The requirements of this section shall take precedence in the event of a direct conflict.

11.1.3.3.1General

All plans and maps shall be prepared, stamped and signed by a Professional Engineer licensed to practice in the Commonwealth of Massachusetts.

11.1.3.3.2 Required Documents

Pursuant to the site plan review process, the project proponent shall provide the following documents:

(a) A site plan showing:

i. Property lines and physical features, including structures and roads, for the project site;

ii. Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, screening vegetation or structures;

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

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

v. Documentation of the major system components to be used, including the
photovoltaic panels, mounting system, and inverter;

vi. Name, address, and contact information for proposed system installer;

vii. Name, address, phone number and signature of the project proponent, as well
as all co-proponents or property owners, if any;

viii. The name, contact information and signature of any agents representing the
project proponent;

   ix.  How land clearing and construction shall be performed in accordance with
     Sections 5.10 and 6.15 of the Zoning By-Law governing storm water
     discharge, land disturbance, provision for handling toxic or hazardous
     materials, and post-construction storm water runoff;

(b) Documentation of actual or prospective access and control of the project site
(see also Section 11.1.3.4);

(d) Zoning district designation for the parcel(s) of land comprising the project
site (submission of a copy of a zoning map with the parcel(s) identified is
suitable for this purpose);

(e)     Proof of liability insurance written by companies licensed to provide such
      insurance in Massachusetts and with coverage limits at commercially
      acceptable levels;

(f)   Description of financial surety that satisfies Section 11.1.3.10.2. The project
      proponent shall submit a fully inclusive estimate of the costs associated with
      removal, prepared by a qualified engineer. The amount shall include a
      mechanism for calculating increased removal costs due to inflation.

(g)  Public outreach plan, including a project development timeline, which
        indicates how the project proponent will meet the required site plan approval
       notification procedures and otherwise inform abutters and the community.

The SPAA may require additional information, data or evidence as it deems necessary pursuant to the site plan approval process, or may waive documentary requirements as it deems appropriate.

11.1.3.3.3 Professional Review

The SPAA may engage, at the applicant’s expense, professional and technical consultants, including legal counsel, to assist the SPAAwith its review of the application, in accordance with the requirements of Section 53G of Chapter 44 of the Massachusetts General Laws. The SPAA may direct the applicant to deposit funds with the SPAA for such review at the time the application is accepted, and to add additional funds as needed upon notice. Failure to comply with this section shall be good grounds for denying the application. Upon approval of the application, any excess amount in the account attributable to that project, including any interest accrued, shall be repaid to the applicant.

11.1.3.4 Site Control

The project proponent shall submit documentation of actual or prospective access and control of the project site sufficient to allow for construction and operation of the LGSPI.

11.1.3.4.1 Operation & Maintenance Plan

The project proponent shall submit a plan for the operation and maintenance of the LGSPI, which shall include measures for maintaining safe access to the installation, storm water controls, and general procedures for operational maintenance of the installation.

11.1.3.5 Utility Notification

No LGSPI shall be constructed until evidence has been given to the SPAA that the utility company that operates the electrical grid where the installation is to be located has been informed of the LGSPI owner’s or operator’s intent to install an interconnected customer-owned generator. Off-grid systems shall be exempt from this requirement.

11.1.3.6 Dimension and Density Requirements

The LGSPI shall meet the dimensional requirements of the Zoning By-Law, except as set forth below.

11.1.3.6.1 Setback

An LGSPI shall be set back from property lines consistent with the applicable regulations for the Limited Commercial District, with the exception of necessary connection equipment to utility transmission facilities.

11.1.3.6.2 Accessory Structures

All accessory structures to an LGSPI shall be subject to the dimensional requirements of the Zoning By-Law. All such accessory structures, including but not limited to, equipment shelters, storage facilities, transformers, substations shall be architecturally compatible with each other and shall be landscaped and screened from view by vegetation, located underground, or behind berms, and/or clustered to minimize visual impacts.

11.1.3.7 Design Standards

11.1.3.7.1 Lighting

Lighting of an LGSPI shall be consistent with local, state and federal law. Lighting of other parts of the installation, such as accessory structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties. Lighting of an LGSPI shall be directed downward and shall incorporate full cut-off fixtures to reduce light pollution.

11.1.3.7.2 Signage

Signs on LGSPI shall comply with the requirements of all applicable sign regulations, and shall be limited to:

(a) Those necessary to identify the owner, provide a 24-hour emergency contact
phone number, and warn of any danger.

(b) Educational signs providing information about the LGSPI and the benefits of
renewable energy.

Signs shall be limited to two dimensions (i.e. flat) and shall not be electronic or lighted.

11.1.3.7.3 Advertising

LGSPI shall not be used for displaying any advertising except for identification of the manufacturer or operator of the LGSPI in conformance with section 11.1.3.8.1.

11.1.3.7.4 Utility Connections

Reasonable efforts, as determined by the SPAA, shall be made to place all utility connections from the LGSPI underground, depending on appropriate soil conditions, shape, and topography of the site and any requirements of the utility provider. Electrical transformers for utility interconnections may be above ground if required by the utility provider.

11.1.3.7.5 Screening

A buffer or greenstrip planted with live shrubs or trees, predominantly evergreen, shall if feasible be maintained between the perimeter of the LGSPI and any abutting property line or street unless the existing natural growth is adequate to provide an equivalent buffer. Such a buffer shall be designed so as not to create a hazard upon entrance or exit from the facility. The SPAA may vary or waive this requirement consistent with minimizing negative effects on abutting property.

11.1.3.8 Safety and Environmental Standards

11.1.3.8.1 Emergency Services

The LGSPI owner or operator shall provide a copy of the project summary, electrical schematic and approved site plan to the Fire Chief. Upon request the owner and/or operator shall cooperate with local emergency services in developing an emergency response plan, which may include ensuring that emergency personnel have immediate, 24-hour access to the facility. All means of shutting down the LGSPI shall be clearly marked.

11.1.3.8.2 Land Clearing

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

11.1.3.8.3 Drainage and Groundwater Protection

An LGSPI shall comply with the requirements set forth in Sections 5.10 and 6.15 of the Zoning By-Law, which requirements shall be imposed and conditioned as appropriate through the Site Plan Approval process. No LGSPI shall be required to obtain an independent special permit under either section.

11.1.3.9 Monitoring and Maintenance

11.1.3.9.1 Solar Photovoltaic Installation Conditions

The LGSPI owner and/or operator shall maintain the facility in good and safe working condition, and shall schedule inspections by a competent professional at least once every twelve (12) months or more often, pursuant to industry standards and practice. The results of the inspection and any resulting repair work shall be submitted to the SPAA and the Building Inspector within thirty (30) days of receipt by the owner or operator. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the Fire Chief and emergency medical services. The owner and operator shall be responsible for the cost of maintaining the LGSPI and any access road(s), unless accepted as a public way.

11.1.3.9.2 Modifications

All material modifications to a LGSPI made after issuance of the required building permit shall require prior approval by the SPAA.

11.1.3.9.3 Contact

The owner and operator of an LGSPI shall each identify a responsible person for emergency purposes and public inquiry and shall at all times throughout the life of the installation maintain current contact information (name, address, telephone number, e-mail address) for such person(s) on file with the Building Inspector, the Fire Chief, and the SPAA.

11.1.3.10 Discontinuance and Removal

11.1.3.10.1 Removal Requirements

Any LGSPI, or any substantial part thereof, not in operation for a period of one hundred and eighty (180) continuous days or more without written permission from the SPAA, or that has reached the end of its useful life, shall be considered discontinued and shall be removed. Upon written request from the Building Inspector addressed to the contact address provided and maintained by the owner and operator as required above, the owner or operator shall provide evidence to the Building Inspector demonstrating continued use of the LGSPI. Failure to provide such evidence within thirty (30) days of such written request shall be conclusive evidence that the installation has been discontinued. The owner or operator of the installation shall notify the SPAA and Building Inspector by certified mail of the proposed date of discontinued operations and plans for removal.

The owner or operator shall physically remove the installation no more than ninety (90) days after the date of discontinued operations, which period may be extended with written permission of the Building Inspector for no more than sixty (60) days.

Removal shall consist of:

(a) Remove all of the LGSPI in its entirety, including all associated structures,
equipment, security barriers and transmission lines from the site.

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

(c)  Stabilize or re-vegetate the site as necessary to minimize erosion. The SPAA
     may allow the owner or operator to leave landscaping or designated
     below-grade foundations in order to minimize erosion and disruption to
     vegetation.

(d) Reinstate gravel or ground cover consistent with the surrounding landscape.

(e) Remove all above-ground foundations and supports to a depth of one foot below
existing grade.

If the owner or operator of the LGSPI fails to remove the installation in accordance with the requirements of this section, the Town shall have the right, to the extent it is otherwise duly authorized by law, to enter the property and remove the installation at the expense of the owner of the installation and the owner(s) of the site on which the facility is located.

11.1.3.10.2 Financial Surety

The owner of an LGSPI approved in accordance with this By-Law shall provide to the Town, acting by and through the SPAA, security to cover the cost of removal in the event the Town must remove the LGSPI and remediate the landscape. Such surety shall be in an amount and form determined to be reasonable by the SPAA, which may be an escrow account, bond or otherwise, and shall be provided prior to construction. Surety will not be required for municipal or state-owned facilities. The project proponent shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a mechanism for calculating increased removal costs due to inflation.

11.2 Wind Energy Conversion Facilities [Adopted 2011]

11.2.1 Purpose

It is the express purpose of this Section to permit distributed generation, wind energy conversion facilities in the Limited Commercial District (LCD), while addressing any adverse visual, safety and environmental impacts of the facilities. The intent of this Section is to enable the review of wind energy conversion facilities and wind monitoring or meteorological towers by the Planning Board in keeping with the Town’s existing By-Law. Pursuant to G.L. c.40A, s.9, the Planning Board is hereby designated as the special permit granting authority for wind energy conversion facilities.

11.2.2 Definitions

Distributed Generation: Energy generation that is located at or near the end-user.

Height: The height of a wind turbine measured from grade elevation at the base of the tower to the elevation at the tip of the blade at its highest point.

Nacelle: The frame and housing at the top of the tower that encloses the gearbox and generator and protects them from the weather.

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

Wind Energy Conversion Facility (WECF): All equipment, machinery and structures utilized in connection with the conversion of wind to electricity. This includes, but is not limited to, all transmission, storage, collection and supply equipment, substations, transformers, site access, service roads and machinery associated with the use.

Wind Monitoring or Meteorological Test Tower (Met Tower): A temporarily installed tower used for supporting anemometer, wind vane and other equipment to assess the wind resource at a predetermined height above the ground.

Wind Turbine: A device that converts kinetic energy of the wind into rotational energy to turn an electrical generator shaft. A wind turbine typically consists of a rotor, nacelle and supporting tower.

11.2.3 District Regulations

11.2.3.1 Use Regulations: WECF, Wind Monitoring and Meteorological Towers.

WECFs under these Sections 11.2 and 4.4 shall be allowed only in the LCD, and then only upon issuance of a special permit by the Planning Board in accordance with the requirements of the Zoning By-law, including those requirements set forth in Sections 5.7, 5.10, and 7.5, irrespective of whether the use is a principal or accessory use. Met Towers shall be permitted in the LCD, subject to the issuance of a special permit in conformance with the Zoning By-law and a building permit for a temporary structure.

11.2.3.2 Site Control

At the time of application for a special permit, the applicant shall submit documentation of the legal right to install and use the proposed WECF on the subject lot. Documentation must list all lot owners and any encumbrances on the land that may affect the proposed use, and must demonstrate and act upon the applicant's sufficient legal authority to prevent the building of any structure unrelated to the WECF within the WECF’s required set-backs.

11.2.3.3 Dimensional Requirements

WECF and Met Towers shall be subject to the following dimensional requirements:

11.2.3.3.1 Height

A WECF shall be no higher than four hundred fifty (450) feet above the elevation at its base.

11.2.3.3.2 Setback

Each free-standing WECF and Met Tower shall be set back from property lines, any structures permitting human occupancy, and roadways, excepting the access roadway, by at least one and one-half times the height of the WECF, and from any residential property lines, including those in abutting towns, by at least thirteen hundred (1300) feet.

11.2.4 Special Permit Regulations

The Planning Board shall grant a special permit only if it finds that the proposal complies with the provisions of this Section 11.2 and with Section 7.5 of the Zoning By-Law.

11.2.4.1 General

WECFs and Met Towers shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable electrical, construction, noise, safety, environmental and communications requirements and the requirements of the relevant utility to which the WECF will be connected.

11.2.4.2 Design Standards

11.2.4.2.1Visual Impact

The applicant shall demonstrate through project siting and proposed mitigation that the WECF or Met Tower minimizes impact on the visual character of surrounding neighborhoods and the community. This may include, but not be limited to, information regarding site selection, turbine design, buffering, lighting and cable layout. The Planning Board shall select between three (3) and six (6) sight lines, including from the nearest building with a view of the WECF, for pre- and post-construction view representations. Sites for the view representations shall be selected from populated areas or public ways within a two (2) mile radius of the WECF. View representations shall have the following characteristics:

a) View representations shall be in color and shall include actual pre-construction photographs and accurate post-construction simulations of the height and breadth of the WECF (e.g. superimpositions of the WECF onto photographs of existing views).

b) View representations shall include existing and proposed buildings and tree coverage.

c) View representations shall include a description of the technical procedures followed in producing the visualization, including without limitation, distances, angles, lenses, etc.

d) Within thirty (30) days of the date of application for the special permit, the applicant shall provide a balloon or crane test at the proposed site, or alternate test approved by the Planning Board, to demonstrate the height of the proposed WECF. The date, time and alternate date if needed due to weather, shall be announced in a newspaper having local circulation for the two (2) consecutive weeks prior to the test. Said announcement shall also be sent to all parties receiving notification of the Special Permit application at the applicant's expense.

11.2.4.2.2 Color

WECFs shall be white.

11.2.4.2.3 Equipment Shelters

All equipment necessary for monitoring and operation of the WECF should preferably be contained within the turbine tower. If this is infeasible, ancillary equipment may be located outside the tower, provided it is contained either within an underground vault, or enclosed within a separate structure or secured fence.

11.2.4.2.4 Lighting and Signage

a) Wind turbines shall be lighted only as required by the Federal Aviation Administration (FAA) or other federal, state or county agency or authority. The applicant shall provide a copy of said authority’s determination to establish the required markings and/or lights for the structure.

b) Lighting of equipment structures and any other facilities on site (except lighting required by said authority) shall be shielded from abutting properties.

c) Signs on the WECF shall be limited to those needed to identify the property and the owner, WECF manufacturer and model number, to warn of any dangers, and educational signs.

d) All signs shall comply with the requirements of the Zoning By-Law.

11.2.4.3 Environmental Standards

11.2.4.3.1 Land Clearing/Open Space/Animal Species

WECFs and Met Towers shall be designed to minimize land clearing and fragmentation of open space areas and shall avoid impact on permanently protected open space when feasible. WECFs should be sited to make use of previously disturbed and/or developed areas wherever possible. WECFs and Met Towers shall also be located in a manner that does not have significant negative impacts on animal species in the vicinity (particularly avian species, bats, etc.).

11.2.4.3.2 Storm Water

Storm water run-off and erosion control shall be managed in a manner consistent with all applicable state and local regulations and the terms and conditions as imposed by the Planning Board.

11.2.4.3.3 Noise

The WECF and associated equipment shall conform to Massachusetts noise regulations (310 CMR 7.10) and IEC61400-14 as revised from time to time. An analysis, prepared by a qualified engineer, shall be presented to demonstrate compliance with these noise standards and be consistent with Massachusetts Department of Environmental Protection guidance for noise measurement. Notwithstanding the provisions of 310 CMR 7.10, the Planning Board may impose any reasonable limitation on noise generated by the WECF.

11.2.4.3.4 Shadowing/Flicker

WECFs shall be sited in a manner that does not result in significant shadowing or flicker impacts, in the sole opinion of the Planning Board.

11.2.5 Interference with Existing Services

WECFs may not interfere with radar, airport communications and guidance systems, point-to-point radio communication links, and other radio communications systems.

11.2.6 Modifications

Any modifications to a WECF made after issuance of the Special Permit shall require approval by the Planning Board pursuant to the Zoning By-Law and G.L. c.40A, s.9.

11.2.7 Monitoring and Maintenance

11.2.7.1 The applicant shall maintain the WECF in good condition and shall schedule inspections by a competent professional at least once every twelve (12) months or more often, pursuant to industry standards and practice. The results of the inspection and any resulting repair work shall be submitted to the Planning Board and the Building Inspector within thirty (30) days of the receipt of results of such evaluation by the applicant or WECF owner. Maintenance shall include, but not be limited to, required scheduled and unscheduled inspection, maintenance of all turbine components, including the structural integrity of the foundation, repair, painting, and maintenance of all equipment and support structures and security barriers, access, and landscaping.

11.2.7.2 The applicant shall provide to the Planning Board and the Building Inspector addresses, telephone numbers and any other necessary contact information for the special permit holder, each property owner, and each WECF owner. Notice shall be provided to the Planning Board and the Building Inspector of any change in this information.

11.2.8 Discontinuation of Use

11.2.8.1 At such time that a WECF or Met Tower is scheduled to be discontinued, the applicant will notify the Planning Board and the Building Inspector by certified U.S. mail of the proposed date of discontinuation of operations and the plans for removal of the WECF, unless caused by force majeure. The WECF shall be considered discontinued if the WECF is not in operation for one hundred eighty (180) consecutive days, or has reached the end of its useful life. In the case of a two (2)-turbine WECF, the Planning Board shall stipulate in its special permit decision how this requirement shall apply in the event that only a portion of the entire WECF is out of operation for the 180-day period.

Upon request, the permit holder shall provide evidence to the Building Inspector demonstrating continued use of the WECF or Met Tower. Failure to provide such evidence within thirty (30) days of a written request from the Building Inspector, addressed to the contact address provided and maintained by the permit holder as required herein, shall be conclusive evidence that such WECF or Met Tower has been discontinued. Upon a finding of discontinuance, the Building Inspector shall issue a Notice of Discontinuance to the permit holder and to the owner of the site by certified mail, delivery receipt requested.

11.2.8.2 Upon receipt of a Notice of Discontinuance from the Building Inspector, the owner shall physically remove the WECF or Met Tower within ninety (90) days. This period may be extended at the request of the operator and at the discretion of the Planning Board. “Physically Remove” shall include, but not be limited to:

a) Removal of the wind turbine and tower, all machinery, equipment, equipment shelters, security barriers and all appurtenant structures from the subject property;

b) Proper disposal of all solid or hazardous materials and wastes from the site in accordance with local and state solid waste disposal regulations; and

c) Restoration of the location of the WECF or Met Tower to its natural condition, except that any landscaping or grading may remain in the after-condition. All visible foundations to be removed to two (2) feet below grade in the vicinity of the structure.

11.2.8.3 As a condition of the issuance of a special permit the Planning Board shall require the applicant to provide a form of surety (i.e., a bond, escrow account or other form of security satisfactory to the Planning Board) to the Town prior to commencing construction of the WECF, to cover costs of the removal in the event the permit holder does not remove the WECF as required. The amount of such surety shall be equal to one hundred twenty-five (125) percent of the cost of removal in compliance with Section 11.2.8.2. The applicant shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The permit holder shall adjust the total amount of security every five (5) years as necessary to ensure that it reflects current estimated removal costs plus twenty-five (25) percent contingency.

11.2.9 Term of Special Permit

A special permit issued for any WECF shall be valid for twenty (20) years. Upon application the Planning Board may extend the term of the special permit upon a finding of satisfactory operation of the WECF. Upon the expiration of the special permit the WECF shall be removed by the applicant as per Section 11.2.8.2.

11.2.10 Application Procedures

11.2.10.1 Pre-Application Conference

Prior to the submission of an application for a special permit under this By-Law, the applicant is strongly encouraged to meet with the Planning Board at a public meeting to discuss the proposed WECF in general terms and to clarify the filing requirements. The Planning Board shall meet with an applicant under this regulation within twenty-one (21) days or at the next scheduled meeting, following a written request submitted to the Planning Board.

11.2.10.2 Pre-Application Filing Requirements

The purpose of this conference is to inform the Planning Board as to the nature of the proposed WECF. As such, no formal findings are required for the pre-application conference. However, the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the Planning Board of the location of the proposed WECF, as well as its scale and overall design.

11.2.10.3 Professional Fees

Pursuant to Section 7.9, the Planning Board may retain technical experts, consultants and legal counsel to verify information presented by the applicant and provide the Planning Board with guidance on reviewing and approving or denying the application. The cost for such a technical expert or consultant will be at the expense of the applicant.

11.2.10.4 Application Filing Requirements

The filing requirements of Section 6.9.5 of the Zoning By-Law shall apply to applications for a special permit for a WECF. In addition, the Planning Board may require the submission of any or all of the materials included in Sections 11.2.10.4.1 through 11.2.10.4.3.4, below.

11.2.10.4.1 General Filing Requirements

a) Name, address, telephone number and original signature (photo-reproductions of signatures or digital signatures will not be accepted) of applicant and any co-applicants. Co-applicants shall include the landowner of the subject property and the operator of the WECF.

b) If the applicant or co-applicant will be represented by an agent, the name, address and telephone shall be provided as well as original signature authorizing the agent to represent the applicant and/or co-applicant. Photo-reproductions of signatures or digital signatures will not be accepted.

c) Documentation of the legal right to install and use the proposed WECF and proof of control over the site and required setback area.

11.2.10.4.2 Location Filing Requirements

a) Assessor’s map and lot number of subject property;

b) Zoning district designation for the subject parcel;

c) Locus Map to scale showing the lot lines of the subject property and all properties within thirteen hundred (1300) feet of the property lines, as well as the location of all buildings, including accessory structures, on all properties shown.

11.2.10.4.3 Siting and Design Filing Requirements

11.2.10.4.3.1 Vicinity and Site Plan

a) Property lines for the subject property and all properties adjacent to the subject property within thirteen hundred (1300) feet;

b) Indication of use of all existing buildings and accessory structures on subject property and all adjacent properties within thirteen hundred (1300) feet. Distances, at grade, from the proposed WECF to each building on the site plan shall be shown;

c) Proposed location of WECF, including all turbines, fencing, associated ground equipment, transmission infrastructure and access roads. Including:

i) Location of all roads, driveways and parking areas, public and private, on the subject property and on all adjacent properties within thirteen hundred (1300) feet including driveways proposed to serve the WECF;

ii) All proposed changes to the existing property, including grading, vegetation removal or replacement and temporary or permanent roads and driveways;

iii) Representations, dimensioned and to scale, of the proposed WECF, including power cable locations, parking areas and any other construction or development attendant to the WECF.

d) Tree cover and average height of trees on the subject property and adjacent properties within three hundred (300) feet;

e) Contours at each two (2) feet Above Mean Sea Level (AMSL) for the subject property and adjacent properties within three hundred (300) feet;

f) Representation of location of viewpoint for the sight-line diagram referenced below.

11.2.10.4.3.2 Elevations

Siting elevations or views at grade from the north, south, east and west at a sufficient radius to include all permanent structures around the proposed WECF shall be provided to the Planning Board. Elevations shall be at either one-quarter (1/4) inch equals one (1) foot or one-tenth (1/10) inch equals one (1) foot scale and show the following:

a) The WECF and if applicable the security barrier and associated equipment, with total elevation dimensions of all parts of the WECF;

b) Security barrier. If the security barrier will block views of the WECF, the barrier drawing shall be cut away to show the view behind the barrier.

c) Any and all structures on the subject property;

d) Existing trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation, with approximate elevations dimensioned; and

e) Grade changes or cuts and fills, to be shown as original grade and new grade line, with two (2) foot contours AMSL.

11.2.10.4.3.3 Materials

a) Specifications for the proposed WECF or Met Tower shall be provided for all equipment and attendant facilities.

b) Materials of the proposed WECF shall be specified by type, treatment, and color to include the wind turbine tower and all other proposed equipment and facilities.

11.2.10.4.3.4 Landscape Plan

A landscape plan including existing trees and shrubs and those proposed to be added or removed, identified by size of specimen at installation and species.

11.2.10.5 Emergency Services

The applicant shall provide a description of any WECF fire protection system and a copy of the project summary, an electrical schematic, and plot or site plan to the local emergency services designated by the Planning Board. The applicant shall cooperate with local emergency services in developing an emergency response plan. All means of disconnecting the WECF shall be clearly indicated on the materials provided, and marked on each wind turbine. The applicant or WECF owner shall maintain a phone number and identify a responsible person for the public and Building Inspector to contact throughout the life of the WECF.

11.2.11 Special Permit Filing

The Special Permit shall not be effective until filed with the Registry of Deeds.

Section 12. Administration and Procedures

7.0 Administration (TO BE MOVED FROM SECTION 7 TO A NEW SECTION 12)