200-21. Retirement Community Residence Districts.
In all portions of the City indicated on the City Zoning Map as Retirement Community Residence Districts:
A. All permitted uses must comply with the appropriate provisions of Article V, and
Article VII, except as otherwise specified herein.
B. The only use permitted in a Retirement Community Residence District shall be a
retirement community. Such use shall be permitted as of right provided that it is composed entirely of detached single-family residences on separate lots which comply in all ways with the Zoning Ordinance provisions then in effect which are applicable to single family residences in a Residence A-1 Zone. A retirement community may also be allowed by Special Permit as specified in subparagraph (C) below.
C. When approved by the City Council in writing by Special Permit in accordance with
Article VII Section 200-59, a Retirement Community as defined in Section 200-05 may be allowed subject to the following conditions:
(1) No building shall be more than two and one-half stories in height.
(2) Each building shall face either upon an existing street or upon a public or private way constructed within said Retirement Community, and shall have a minimum front yard of no less than twenty feet from the edge of the paved way to the closest point of the structure, and a side yard of no less than ten feet from the edge of the paved way to the closest point of the structure. Each building, whether principal or accessory, shall be at least twenty feet distant from any other building by air line distance between the nearest points of the buildings.
(3) No dwelling shall contain less than one thousand (1,000) square feet of living area or more than two thousand four hundred (2,400) square feet of living area. At least sixty six (66) percent of the living area in each unit shall be located on the first floor.
(4) All dwelling units shall be detached from the others or attached only along sidewalls in the so-called "townhouse" style.
(5) The lot or lots on which a Retirement Community is located shall contain at least five thousand (5,000) square feet per unit in the Retirement Community.
(6) No part of any principal building shall be within twenty five (25) feet of any exterior lot line nor shall any part of any building be closer to any exterior lot line than the minimum side yard requirement which would have been applicable in the zoning district in which the land in question was located before it was rezoned into a Retirement Community Residence District. A building may be as close as twenty five (25) feet to the front yard line of the exterior lot; provided, however, that no said building shall be less than fifty (50) feet from the side line of a public way.
(7) Each dwelling unit shall have its own attached yard area.
(8) Required off-street parking for each dwelling unit shall be adjacent thereto. Each unit shall be required to provide one parking space inside a garage and an additional space in front of a garage, said garage to be attached to said unit. The City Council may, as a condition of its Special Permit, require additional off street parking areas to be used in common by dwelling unit owners and their invitees. In addition, the City Council may, as a condition of the Special Permit, require that adoption of legally enforceable condominium by-laws or other similar regulations to limit or prohibit the presence
in the Retirement Community, either entirely or except in designated locations, of boats, boat trailers, campers, or other recreational vehicles.
(9) Maximum lot coverage in a Retirement Community shall not exceed fifty (50) percent of the total lot size, excluding from lot size any land which, prior to development of the site as a Retirement Community, would be defined as a resource area as that term is defined in MGL Chapter 131 Section 40.
(10) Each lot or contiguous lots upon which a Retirement Community is located
shall have total frontage on an existing public way of at least two hundred fifty (250) feet; provided, however, that said frontage need not be continuous.
(11) The City Council may, as a Permit condition, require that all proposed condominium by-laws or similar binding retirement community regulations which may be relevant to the issuance of the Permit, including but not limited to by-law provisions prohibiting the presence of children residing in the retirement community and limiting or prohibiting the presence in the retirement community of boats, boat trailers, or recreational vehicles, be made a part of the Special Permit, and that any change to or failure to enforce said provisions shall be a violation of said Special
Permit.
(12) The City Council may, as a Permit condition, require that the proposed Retirement Community be constructed entirely on one lot, and that, from and after the date of the issuance of the building permit for said community or any portion thereof, no subdivision of said lot shall be allowed without the express approval of the City Council; provided, however, that the recording of a condominium master deed and the conveyance of condominium units within the area covered by said deed shall be allowed.
(13) No unit in a Retirement Community shall have more than three bedrooms.
C. The provisions of Section 200-26(A) and 200-26(E)(8), shall not apply to a Special
Permit for the construction of a Retirement Community.
200-22. Retirement Community Overlay Districts.
A. Purpose. The purpose of the Retirement Community Overlay District shall be to
advance the public health, safety and welfare by providing for the development of retirement communities and other multifamily residential housing on sites which are otherwise zoned for other purposes but which, because of the size of the parcel being developed and its proximity to other residential neighborhoods, and/or residential amenities, will provide an appropriate environment for a Retirement Community and for other multifamily housing which may be developed in conjunction therewith.
B. Location. For the purposes of this Section, a Retirement Community Overlay District shall be considered superimposed on the other Districts existing at the time that any land in any said underlying District is also included in the Retirement Community Overlay District. The rezoning of any or all of the land included in the Retirement Community Overlay District from one underlying Zoning classification to another shall not affect its inclusion in the Retirement Community Overlay District, unless said land is specifically removed from the said Retirement Community Overlay District.
C. Permitted Uses. All permitted uses must comply with the appropriate provisions of
Article V and Article VII, except as otherwise specified herein. In addition to those uses which are allowed, either as of right or by Special Permit, in the underlying District of any land which has been included in the Retirement Community Overlay District, the City Council may, by Special Permit in accordance with Section 200-59, permit a Retirement Community as defined in Section 200-05, and such additional multifamily housing units, segregated onto a separate portion of the Site, referred to herein as an "ancillary residential community", as the City Council deems appropriate, consistent with the following provisions:
(1) No building in a Retirement Community shall be more than two and one-half (2 ½) stories in height.
(2) Each building in a Retirement Community shall face either upon an existing street or upon a public or private way constructed within said Retirement Community, and shall have a minimum front yard of no less than twenty (20) feet from the edge of the paved way to the closest point of the structure, and a side yard of not less than ten (10) feet from the edge of the paved way to the closest point of the structure. Each building, whether principal or accessory, shall be at least ten (10) feet distant from any other building by air line distance between the nearest points of the buildings.
(3) No dwelling in a Retirement Community shall contain less than one thousand (1,000) square feet of living area or more than two thousand four hundred (2,400) square feet of living area. At least sixty six (66) percent of the living area in each unit shall be located on the first floor.
(4) All dwelling units in a Retirement Community shall be detached from the others or attached only along sidewalls in the so-called "townhouse" style.
(5) The lot or lots on which a Retirement Community and any approved ancillary Residential Community are located shall contain, on a consolidated basis, at least seven thousand (7,000) square feet per housing unit.
(6) No part of any principal building in a Retirement Community shall be less
than twenty five (25) feet from any exterior lot line, or less than fifty (50) feet from the side of any public way.
(7) Each dwelling unit in a Retirement Community shall have its own attached yard area.
(8) Required off-street parking for each dwelling unit in a Retirement Community shall be adjacent thereto. Each unit shall be required to provide one parking space inside a garage and an additional space in front of a garage, said garage to be attached to said unit. The City Council may, as a condition of its Special Permit, require additional off-street parking areas to be used in common by dwelling unit owners and their invitees. In addition, the City Council may as a condition of the Special Permit, require that adoption of legally enforceable condominium by-laws or other similar regulations to limit or prohibit the presence in a Retirement Community, either entirely or except in designated
locations, of boats, boat trailers, campers, or other recreational vehicles.
(9) Maximum combined lot coverage in a Retirement Community and in any
permitted ancillary Residential Community shall not exceed forty (40) percent of the total lot size.
(10) Each lot or contiguous lots upon which a Retirement Community is located
shall have total frontage on an existing public way of at least two hundred fifty (250) feet. Each lot or combination of lots shall have a total size of not less than ten (10) acres. The underlying Zoning District for all said land shall be either Industrial or Limited Industrial.
(11) The City Council may, as a Permit condition, require that all proposed
condominium by-laws or similar binding retirement community regulations which may be relevant to the issuance of the Permit, including but not limited to by-law provisions prohibiting the presence of children residing in a Retirement Community and limiting or prohibiting the presence in a Retirement Community of boats, boat trailers, or recreational vehicles, be made a part of the Special Permit, and that any change to or failure to enforce said provisions shall be a violation of said Special Permit.
(12) The City Council may, as a Permit condition, require that a proposed
Retirement Community be constructed entirely on one lot, and that, from and after the date of the issuance of the Building Permit for said community or any portion thereof, no subdivision of said lot shall be allowed without the express approval of the City Council; provided, however, that the recording of a condominium master deed and the conveyance of condominium units within the area covered by said deed shall be allowed.
(13) No unit in a Retirement Community shall have more than three bedrooms.
(14) The following site development provisions shall apply to any ancillary
Residential Community which is approved in conjunction with the granting of a Special Permit for the construction of a Retirement Community:
(a) Each building in an ancillary Residential Community shall face either upon an existing street or upon a public or private way constructed within said ancillary Residential Community, and shall have a minimum front yard of no less than ten (10) feet from the edge of the paved way to the closest point of the structure. Each building, whether principal or accessory, shall be at least fifty (50) feet from any other building by air line distance between the nearest points of the building.
(b) No dwelling unit shall contain less than eight hundred (800) square feet of floor space exclusive of halls and stairs, and no room shall contain less than one hundred twenty (120) square feet.
(c) No part of any building in any ancillary Residential Community shall be less than thirty (30) feet from any lot line, less than fifty (50) feet from any street, or less than eighty (80) feet from the nearest structure in a Retirement Community.
(d) All site landscaping shall be designed so as to provide a clear sense of separation between the ancillary Residential Community and a Retirement Community. Landscape design preference shall be given to the maintenance of existing trees and groundcover. The development of large lawn areas shall be minimized.
(e) The City Council may, as a condition of any Special Permit which includes an ancillary Residential Community, require that the land area on which the ancillary Residential Community is located be permanently maintained as one undivided lot or, within a condominium, as one undivided condominium unit, or require such other legal mechanism as will, in the opinion of the City Council, assure that the said ancillary Residential Community will not be subdivided or its ownership further condominiumized, that said ancillary Residential Community will remain as rental housing, and that ownership of said ancillary Residential Community will remain
consolidated.
(f) The total number of units in an ancillary residential facility shall not exceed thirty (30) percent of the combined total of retirement community and ancillary apartment units.
D. The provisions of Section 200-26 A shall not apply to a Special Permit for the construction of a Retirement Community or an ancillary Residential Community in a Retirement Community Overlay District.
200-23. Floodplain and Wetland Protection District.
A. Purpose. The Floodplain and Wetland Protection District and the regulations herein have been established with the following purposes intended:
(1) To protect the public health and safety, persons and property against flooding and the hazard of floodwater inundation.
(2) To control and regulate the development of land and construction of buildings thereon and structures therein within the Floodplain and Wetland Protection District, particularly in relation to the use of swampland, marshes and areas along watercourses, ponds and lakes and land subject to seasonal and/or periodic flooding.
(3) To protect the public from the burden of extraordinary financial expenditures for flood control and relief and to protect against unanticipated costs resulting from erosion, siltation, pollution or contamination of drainage ways and surface or ground water resources of the City or neighboring communities.
(4) To preserve the capacity of floodplain, watershed or wetland areas to absorb, transmit and store runoff and to assure the retention of sufficient floodway area to convey flows which can reasonably be expected to occur.
B. Location.
(1) For the purpose of this Section, the Floodplain and Wetland Protection Districts shall be considered superimposed on the other districts existing in the same area as shown on the Zoning District Map of the City of Marlborough, Massachusetts, and any buildings, structure or use of land included in the Floodplain and Wetland Protection District shall also be deemed to be within the particular district in which it is located as shown on said Zoning Map and subject to all the regulations and requirements thereof, in addition to those set forth in this Section.
(2) The boundaries, elevations and setback requirements of the Floodplain and Wetland Protection District shall be as shown on a map entitled "City of Marlborough, Massachusetts Floodplain and Wetland Protection District 1982" and shall also include all special flood hazard areas designated as Zone A, A1-A30 on the City of Marlborough Flood Insurance Rate Maps dated January 6, 1982, and these maps, as well as the accompanying Marlborough Flood Insurance Study, are hereby, by this reference, made a part of the Zoning Chapter.
C. Prohibited Uses. The following uses are prohibited within the Floodplain and Wetland Protection District:
(1) The storage of buoyant, flammable, explosive or toxic material in a floodplain or wetland.
(2) The dumping of waste, rubbish, demolition or hazardous materials in a
floodplain or wetland area.
(3) The addition, removal or transfer of such quantities of material, including
earth, soil, trees, stumps or vegetation, that would reduce the water storage capacity of the floodplain or wetland, obstruct the flow of water in a floodway or otherwise adversely affect the natural hydrology of the area, except as may be a part of a plan for public flood control, municipal drainage or utility system or organized mosquito control district.
(4) The digging or drilling of a well intended as a source of domestic water, except for public water supply wells adequately sealed against the infiltration of surface water.
(5) The construction of an on-site sewage disposal system in the floodplain or designated wetland area.
(6) Any encroachment in the regulatory floodway, as shown on the Floodway-Flood Boundary Map that would increase the water surface elevation of the one-hundred year flood.
D. Special Permit Required.
(1) In a Floodplain and Wetland Protection District, no building or structure shall be constructed, altered or modified in its present use, and no land shall be filled, excavated or otherwise changed in grade, except pursuant to a Special Permit authorized by the Board of Appeals as hereinafter provided. Any application for such Permit shall be submitted in quintuplicate (five [5]) to the Board of Appeals and shall be accompanied by a plan of the premises in question showing:
(a) The boundaries and dimensions of the area.
(b) The location, dimensions and elevation above mean sea level of existing and proposed buildings and structures thereon.
(c) The existing contours in two-foot intervals of the land and of any proposed changes therefrom.
(d) Such other information as is deemed necessary to the Board of Appeals to indicate the complete physical characteristics of the area and the proposed construction and/or grading thereof.
(2) The portion of any lot in this district may be used to meet lot area requirements for the residential districts over which the Floodplain and Wetland Protection District is superimposed, provided that such portion does not constitute more than fifty percent (50%) of the minimum lot area required in the residential district. Land in the Floodplain and Wetland Protection District may not be used to meet more than fifteen (15) percent of the minimum lot area requirements in Business, Commercial or Industrial Districts.
E. Reference to Other Boards. Within ten (10) days after receipt of the application for a Special Permit as herein provided, the Board of Appeals shall transmit copies thereof, together with copies of the accompanying plan, to the Board of Health, Planning Board, Engineering Department and the Conservation Commission. Such Boards and Commission may, at their discretion, investigate the application and report in writing their recommendations to the Board of Appeals. The Board of Appeals shall not take final action on such application until it has received a report thereon from the above Boards and Commission, or until such Boards and Commission have allowed forty-five (45) days to elapse after receipt of said application without
submission of a report.
F. Other Jurisdictions.
(1) If approval for filling the land must be obtained from the Commonwealth, or the United States Government or any agency or subdivision thereof, or an Order of Conditions is necessary from the Marlborough Conservation Commission in accordance with MGL Chapter 131 Section 40, then such approval and any conditions imposed thereon shall be filed with the Board of Appeals with the application.
(2) If, in the opinion of the Board of Appeals, such application for approval by other jurisdictions is in sufficient detail and provides the necessary information to furnish the criteria for their decision, then the same application and plan may be used for filing with the Board of Appeals for approval under the Floodplain and Wetland Protection District regulations.
G. Criteria of Approval. The Board of Appeals may issue a Special Permit hereunder, subject to other provisions of this Zoning Chapter, if it finds that the proposed construction and use and/or proposed change in grade will not derogate from the intent and purpose of this district nor endanger the health and safety of the public nor the legitimate use of other land in the city. In deciding on an application for a Special Permit under this Section, but without limiting the generality of the foregoing, the Board shall assure to a degree consistent with a reasonable use of the premises for purposes permitted in the use district in which located, that the proposed construction, use and/or
change of grade will not obstruct or divert flood flow, reduce natural storage or increase stormwater runoff to the extent of raising high water levels on any other land to any significant degree; the proposed system of drainage and/or private sewage disposal will not cause siltation, pollution or otherwise endanger public health; the proposed construction shall have street or other appropriate access that shall be at least one (1) foot above base flood elevation; and structures designed for human occupancy shall have lowest floor, including basement, heating, electrical and sanitary sewer systems, at least two (2) feet above base flood elevation. Fill deposited to bring the lowest floor to the required elevation shall extend to at least fifteen (15) feet beyond the limits of the structure thereon.
H. Conditions of Permit. In granting a Special Permit hereunder, the Board of Appeals shall impose conditions specifically designed to safeguard the health and safety of occupants of the premises and of other land in and adjacent to the district and to ensure conformity with the provisions thereof. It shall also be the duty of the Board of Appeals to ascertain that the requirements of the FEMA flood insurance program have been met in that:
(1) Within Zones A1-A30 of the Flood Insurance Rate Maps of the City of Marlborough, all new construction and substantial improvements, the cost of which equals or exceeds fifty (50) percent of the market value of the structure, of residential and nonresidential structures shall have the lowest floor, including basement, elevated to two (2) feet above the base flood elevation (the one-hundred-year flood elevation designated on the FIRM) or in the case of nonresidential structures, be flood proofed, watertight to the base flood level.
(2) Within Zone A, where the base flood elevation is not provided on the FIRM, the Building Inspector shall obtain and review any already existing base flood elevation data. If the data is reasonable, it shall be used to require compliance with Subsection H(1) above.
(3) Where watertight flood-proofing of a structure is permitted, a registered professional engineer or architect shall certify that the methods used are adequate to withstand the flood depths, pressures, velocities, impact and uplift forces and other factors associated with the one-hundred-year flood.
I. Determination of Levels.
(1) For the purpose of this Section, the term "base flood elevation" refers to the flood having a one (1) percent chance of being equaled or exceeded in any given year, commonly referred to as the "one-hundred-year flood." Where, in the opinion of the Board of Appeals, engineering studies are needed to determine the high water level on a particular premise and/or the effect of a proposed building, structure or grading on flood flow, natural safety of any building, structure or grading on flood flow, natural safety of any building or structure, such engineering study shall be at the expense of the petitioner.
(2) If any land in the Floodplain and Wetland Protection District is proven to the satisfaction of the Zoning Board of Appeals, after the question has been referred to and a recommendation received from the City Engineer, Planning Board, Board of Health and Conservation Commission, as being in fact above the base flood elevation, and that the use of such land will not be detrimental to the public health, safety and/or welfare, the Board of Appeals may, after a public hearing, with due notice issue a Special Permit for any use allowed in the underlying district, in which case all other Zoning Chapter and state regulations applicable to such land use shall apply.
(3) The establishment of a Floodplain and Wetland Protection District hereunder shall not constitute a representation that all land outside of said district will be free from flooding.
J. List of Floodplain and Wetland District Areas. The areas placed in said district are shown on the map and include in part the areas designated by FEMA for the flood insurance program and the major wetlands in the City designated by the Massachusetts Department of Environmental Management as being subject to an order of restriction under MGL Chapter 131 Section 40A. Elevations given are based on the United States Coast and Geodetic Survey datum.
K. Mobile Home Development Regulations.
(1) Within Zone A1-A30, all mobile homes shall provide that:
(a) Stands or lots are elevated on compacted fill or on pilings so that the lowest floor of the mobile home will be at or above the base flood level.
(b) Adequate surface drainage and access for a hauler are provided.
(c) In the instance of elevation on pilings, lots are large enough to permit steps, piling foundations are placed in stable soil no more than ten (10) feet apart and reinforcement is provided for piers more than six (6) feet above ground level.
(2) The placement of mobile homes, except in an existing mobile home park or mobile home subdivision, are prohibited in the floodway.
200-24. Water Supply Protection District.
A. Purpose. The Water Supply Protection District and this Section have been established with the following purposes intended:
(1) To protect the health, safety, and general welfare of the community.
(2) To protect, preserve, and maintain the quality and quantity of existing and potential drinking water supplies in the community.
(3) To regulate the development and uses of land within the Water Supply Protection District which, if not regulated, may contaminate or diminish the quality and quantity of water.
(4) To protect the public from the burden of extraordinary financial expenditures due to the closure of contaminated water supplies and the need to purchase alternative supplies.
B. Scope of Authority. The Water Supply Protection District is an overlay district superimposed on the zoning district. This overlay district shall apply to all new construction, reconstruction, and expansion of existing buildings and new or expanded uses. Applicable activities or uses which fall within the Water Supply Protection District must comply with the requirements of this district as well as with the underlying zoning. Uses that are prohibited in the underlying zoning district shall not be permitted in the Water Supply Protection District.
C. Definitions.
Adverse Impact: Any activity during or after construction which will have a negative impact to water quality or quantity. This includes but is not limited to surface water contamination, groundwater contamination, water temperature changes, and changes in hydrology that would negatively affect the water quality and quantity.
Bank: A bank is the portion of the land surface which normally abuts and confines a waterbody. It occurs between a waterbody and a bordering vegetated wetland and adjacent flood plain, or in the absence of these, it occurs between a body of water and an upland. The upper boundary of a bank is the first observable break in slope or the mean annual flood level, whichever is lower.
Impervious surface: Surface areas with material or structure on, above, or below the ground that does not allow precipitation or surface water to penetrate directly into the soil.
Lot: A single tract of land in identical ownership throughout, with definite boundaries
as ascertainable through a recorded plan or deed.
Lot Coverage: The area of a lot covered by all structures, areas used by vehicular traffic and parking, including driveways, loading bays and maneuvering aisles, whether paved, unpaved or graveled, and of all impermeable areas such as paved walkways or outdoor storage areas, but not including gravel walkways or pedestrian areas not adjacent to parking lots or buildings. Areas not included in "lot coverage" shall be landscaped and natural areas.
Recharge Area: Any point of groundwater and/or surface water which leads to the public water supply.
Redeveloped Lot, Redevelopment: When the building or site undergoes a change of use or is enlarged by more than ten (10) percent of the floor or ground areas of use or when any new principal building is built on the site or when any new building, addition, alteration or change of use requires a parking increase of five (5) or more spaces.
Small Lot: A lot of land, as defined herein, existing at the time of the publication of this ordinance, and which does not exceed three (3) acres in total area.
Toxic or Hazardous Materials: Any substance or mixture of such physical, chemical or infectious characteristics in sufficient quantity as to pose, in the opinion of the Board of Health, a significant actual or potential hazard to water supplies if such substance or mixture were discharged to the land or waters of this City. Toxic or hazardous materials include without limitation, organic chemicals, petroleum products, heavy metals, radioactive or infectious waste, acids or alkalies and include products such as pesticides, herbicides, solvents and thinners.
Tributary: A body of running water, including a river, stream, brook and creek, and intermittent stream which moves in a definite channel in the ground due to a hydraulic gradient and which flows ultimately into a reservoir in the watershed, as determined by reference to the most recent edition of the United States Geologic Survey maps or any other map determined to be more accurate. A tributary shall include the land over which the water therein runs and the banks thereto.
Vegetated Buffer Zone: An area between the wetland and the upland which is to be
kept vegetated to allow for the protection of the adjacent bordering vegetated wetland,
bank and land underwater as defined by MGL Chapter 131, Section 40. The buffer
zone shall be measured from the edge of the wetland area into the upland area. The
buffer zone shall not be measured from the floodplain or isolated land subject to
flooding.
D. Establishment of District.
(1) For the purpose of this Section, the Water Supply Protection District shall be considered superimposed on the other districts existing in the same area as shown on the Zoning District Map of the City of Marlborough, Massachusetts. Any buildings, structure or use of land included in the Water Supply Protection Districts shall also be deemed to be within the particular district in which it is located as shown on said Zoning Map and subject to all the regulations and requirements thereof, in addition to those set forth in this section.
(2) The boundaries of the Water Supply Protection District shall be as particularly described in Section C below and as generally shown on a map entitled "City of Marlborough, Massachusetts, Water Supply Protection District l996". This map is hereby made a part of the Zoning Ordinance and is on file in the office of the City Clerk.
(3) The Water Supply Protection District shall consist of the following two zones:
(a) Zone A - Any area within four hundred (400) feet of the top of the stream bank or mean annual high water mark, whichever elevation is lower of the following surface waters:
° Millham Reservoir
° Lake Williams
° North Branch of Millham Brook from Spring Street to Millham Reservoir
° Millham Brook from Lake Williams to Millham Reservoir (including all culverted sections of Millham Brook).
° Unnamed brook flowing from Evelina Drive to Millham Reservoir and parallel to Millham Street
° Unnamed brook flowing from Simmons Street to Millham Brook and parallel to Elm Street
° Unnamed brook flowing from Masciarelli Drive to Millham Brook at Glen Street.
° Unnamed brook flowing from the outlet pipe to the pond/detention facility located on Assessor's Map 78, parcel 1 to its intersection with Millham Brook approximately 550 feet east of Elm St.
(b) Zone B - All areas within one half (1/2) mile upgradient of the Zone A boundary or to the boundary of the Watershed Protection District whichever is smaller.
(4) When the district boundary or zone boundary is questionable in relation to a particular parcel, the owner or project proponent shall meet with the City Engineer to ascertain the location of the respective boundary. The City Engineer may require the owner or project proponent to provide information sufficient to substantiate the boundary in question. Upon the request and at the expense of the owner or project proponent, the City Engineer may engage the services of a Registered Professional Civil or Sanitary Engineer or Hydrologist to determine the questionable boundary.
The location as determined by the City Engineer shall be considered final for the purposes of determining the applicability of this ordinance.
E. Prohibitions.
(1) The following uses are prohibited within all zones of the Water Supply Protection District:
(a) Disposal of solid wastes, other than brush and stumps, including without limitation landfills, junk and salvage yards, and disposal sites that require a site assignment from the Board of Health under MGL Chapter 111, Section l50A;
(b) New underground storage tanks for heating oil.
(c) Hazardous waste disposal or hazardous waste treatment facilities. This does not include pre-treatment facilities required for disposal into the City's municipal sewerage system.
(d) Privately-owned and operated sewage treatment plants; discharge of processed wastewater on-site.
(e) Dumping of snow containing de-icing chemicals originating from outside the district.
(f) Discharge of surface water runoff into closed drainage systems (except of public roadways) unless adequately treated according to Section F.(7) below.
(g) Any floor drain system which discharges to the ground. Any existing facility with such a drain system shall be required to either seal the floor drain (in accordance with the State Plumbing Code 248 CMR 2.0) or legally connect the drain to a municipal sewerage system.
(h) Landfilling of sewage sludge or land application of septage.
(i) Outside storage of pesticides, fertilizers and soil conditioners other than in amounts normally associated with household or farm use.
(j) For the portion of any lot that lies within the Water Supply Protection District in a non-residential zone, impervious surfaces shall not exceed lot coverages as noted in F.(2) below
(2) The following uses are prohibited within Zone A of the Water Supply Protection District but may be permitted by Special Permit in Zone B:
(a) Storage of road salt or other de-icing chemicals, other than in amounts normally associated with household and office use;
(b) Sand and gravel excavation or other mining operations;
(c) Manufacture, use, storage, or disposal of hazardous or toxic materials in quantities greater than those normally associated with domestic household and office use, including pesticides, fertilizers and soil conditioners.
(d) Motor vehicle service stations; automotive repair garages; car washes; truck or bus terminals; heliports; airports; electronic manufacturing; print shops; metal plating, finishing, or polishing; chemical and biological laboratories; painting; wood preserving; and furniture stripping establishments; golf courses; and dry cleaning establishments using toxic or hazardous materials on site.
(e) Outdoor storage of hazardous materials.
(3) The following uses are prohibited within Zone A of the Water Supply Protection District but permitted in Zone B with site plan approval:
(a) subsurface sewage disposal systems
(4) (a) No provisions of this Section shall be construed to limit routine maintenance of public utilities or roads, conservation activities, or recreation.
(b) No provisions of Section (1) or (2) shall be construed to prohibit the maintenance or improvement of existing subsurface sewage disposal systems in accordance with state and local regulations.
F. Criteria for Site Design. In addition to the criteria specified at Section 63 of the Zoning Ordinance, the Site Plan Review Committee shall consider the following criteria for projects proposed within the Water Supply Protection District. The following criteria will also be considered, to the extent practicable, for redevelopment projects proposed within the WSPD.
(1) Adverse Impact on Water Supply - The project will not have an adverse impact on the water supply. The project shall conform to the DEP Stormwater Management Policy as the applicable design criteria to limit adverse impact to the water supply. An environmental impact analysis of pre and post construction pollutant loading estimates into the water supply may be required.
(2) Impervious Area - For the portion of any lot that lies within the Water Supply Protection District the lot coverage as defined herein shall not exceed the following:
(a)
(i) Business zone: 70% total lot coverage.
(ii) Limited Industrial zone: 53% total lot coverage.
(iii) Industrial zone: 53% total lot coverage.
(iv) Residential zone: 30% total lot coverage.
(b) When an existing developed lot, with impervious area exceeding the requirements of Section (2)(a) above is proposed for redevelopment, the impervious area shall be reduced by a minimum of ten (10) percent or conform to the requirements of Section (2)(a) whichever reduces the impervious surface area less.
(3) Hazardous Materials - A complete list of chemicals, pesticides, fertilizers, fuels and other potentially hazardous materials to be used or stored on the premises in quantities greater than those associated with normal household use shall be provided with the Special Permit submission. Protection against toxic or hazardous material discharge or loss through corrosion, accidental damage, spillage, or vandalism shall be provided. Such protection shall include provisions for spill control in the vicinity of chemical or fuel delivery points, and shall include secure storage provisions for corrodible or dissolvable materials. Secondary containment
structures must be provided which are large enough to contain the volume of the containers' total storage capacity per local Fire Department requirements.
(4) Fill - Fill material used in the Water Supply Protection District shall contain no solid waste, toxic or hazardous materials, or hazardous waste. Adequate documentation shall be provided to ensure suitable condition of the fill. The Building Inspector may require soil testing by a certified laboratory prior to the issuance of a building permit.
(5) Emergency Response - For industrial and commercial uses, where hazardous materials are used, a Spill Prevention, Control and Countermeasure Plan to prevent contamination of soil or water in the event of accidental spills or the release of toxic or hazardous materials shall be submitted to the special permit issuing authority if deemed necessary, for approval prior to granting of a Special Permit. Compliance with recommendations of the Fire Department on said plan shall be required.
(6) Monitoring - Periodic monitoring may be required by the Site Plan Review Committee and/or the Planning Board when the site location and land use activities indicate a significant risk of contamination to the water supply based upon recommendations of the City Engineer, Board of Health, Conservation Commission and/or the Water Division. Such monitoring may include analyses of water for appropriate substances and the installation of groundwater monitoring wells appropriately constructed and located.
(7) Runoff - Degradation of surface water runoff shall be minimized. Pollutant loading estimates may be required. Applicants shall evaluate the feasibility of utilizing measures to infiltrate storm water and to route runoff over vegetated surfaces prior to discharge into surface water, including but not limited to wet retention basins, infiltration basins and trenches, dry wells, filter strips, vegetated swales, filter berms, and extended detention basins with constructed wetlands. Erosion from the site shall be minimized. Storm water management systems shall use the best management practices
to attenuate pollutants from all storm water, including the first 1.0 inch of runoff times the total impervious surface (first flush) of the post development project. Department of Environmental Protection guidelines on Storm Water Management Policy and any regulations or policies which may be adopted by the State Department of Environmental Protection, shall be followed. Best management practices shall be used and shall be designed to remove at least eighty (80) percent or more of the Total Suspended Solids and pollutant loads. The storm water management system must also be designed to detain the 2 (two), 10 (ten), and 100 (one hundred) year storm events to pre-construction runoff rates. For all non-residential uses all catch basins shall be preceded by oil, grease, and sediment traps to facilitate removal of contamination, and shall be maintained in full working order by the owner.
(8) Infiltration - In instances where infiltration is proposed to treat stormwater pursuant to Section (7) above, soil overburden shall not be lowered to finish exterior grades less than two (2) feet above maximum groundwater elevation, unless technical evidence can be provided showing to the Planning Board's and/or Site Plan Review Committee's satisfaction that groundwater quantity or quality will not be detrimentally affected. Technical evidence may include without limitation a determination of soil and geologic conditions where low permeability will mitigate leachate penetration and
evapotranspiration.
(9) Fifty (50) foot Wetland Buffer Zone: No disturbance of the ground surface or development within fifty (50) feet of a wetland resource area defined under MGL Chapter 131, Section 40 (except the floodplain and isolated land subject to flooding) shall be permitted. Development shall mean any clearing, grading, earth moving or construction of any kind.
(a) Notwithstanding the foregoing, in existing developed areas which are being redeveloped, and where a pervious buffer zone does not already exist, a fifty (50) foot vegetated buffer zone shall be created to provide buffering around the wetland resource area. Where this is not reasonably attainable, the maximum buffer zone possible will be provided, but in no case shall it be less than twenty (20) feet.
(b) Notwithstanding the foregoing, wetland filling shall only be allowed after an alternatives analysis is provided and no other access or configuration is reasonably possible. Any wetland filling shall create the least environmental impact. In such events, the wetlands replication shall be one and one half times the amount of wetlands to be filled. The new replication area shall also have a minimum of a fifty (50) foot buffer zone established around
it.
G. Special Permit.
(1) Pre-Application Review. Prior to filing an application for a Special Permit, the applicant shall meet with the Conservation Officer and City Engineer in order to review and to the extent possible identify all major areas of concern as they relate to the project and this Ordinance.
(2) Special Permit Procedure. The Special Permit procedure as outlined in Section 200-59 C (Rules and Regulations of Application/Petition for Special Permit by the City Council Under the Marlborough Zoning Ordinance)) shall be followed. In addition to the submission requirements under the Special Permit procedure, any additional information required as noted above should be included with the application. Except as may otherwise be specified herein compliance with all other portions of the City Zoning Ordinance is required.
H. Small Lots. The provision of Section F.(2)(a) and (b) shall not apply to a small lot or a group of small lots which, when combined into one lot, does not exceed 3 acres in size.
I. Existing Orders of Conditions. The provisions of Section F.(9) in its entirety shall not apply to any lot which, at the time of the publication of this Ordinance, is subject to an Order of Conditions issued by the City of Marlborough Conservation Commission.
200-25. Wireless Communications Facilities
A. Purposes.
(1) To promote the health, safety and general welfare of the community.
(2) To guide sound development.
(3) To conserve the value of land and buildings.
(4) To encourage the most appropriate use of the land.
(5) To minimize the adverse aesthetic impact of Wireless Communication Facilities.
(6) To minimize the number of Wireless Communication Facility (WCF) sites.
(7) To encourage co-location by wireless communication companies on Wireless Communication Facilities.
(8) To ensure that WCF are cited, designed and screened in a manner that is sensitive to the surrounding neighborhood.
(9) To avoid damage to adjacent properties.
B. Definitions.
Wireless Communication Facilities: Any and all materials, equipment, storage
structures, towers, dishes and antennas, other than customer premises equipment, used by a commercial telecommunications carrier to provide telecommunications services. This definition does not include facilities used by a federally-licensed amateur radio operator, or facilities which are accessory to the use of a business or building and are for the exclusive use of the owner of the building or the tenant.
Tower: Any equipment mounting structure that is used primarily to support reception
or transmission equipment and that measures twelve (12) feet or more in its longest
vertical dimension. The term "Tower" includes, but is not limited to, monopole and
lattice towers.
Communications Device: Any antennae, dish or panel mounted out of doors on an
already existing building or structure used by a commercial telecommunications carrier
to provide telecommunications services. Interior-mounted antennas, dishes or panels
are not subject to the provisions of this Section, except for the provisions of Subsection
F.(10) of this Section. The term "communications device" does not include a Tower.
C. Application and Jurisdiction.
(1) WCF which include a Tower shall be erected and installed in all portions of the City only in compliance with the provisions of this Section and upon the grant of a Special Permit by the City Council.
(2) Communications Devices shall be erected and installed only on an existing building or structure in all portions of the City, all in compliance with the provisions of this Section and upon the grant of a Special Permit by the City Council.
(3) Notwithstanding anything to the contrary contained in the Zoning Ordinance, the City Council shall be authorized to grant a Special Permit for the erection or installation of WCF which includes a Tower in all portions of the City.
(4) Notwithstanding anything to the contrary contained in the Zoning Ordinance, the City Council shall be authorized to grant a Special Permit for a WCF which consists of a Communications Device on an already existing building or structure in all portions of the City.
(5) No WCF shall be erected or installed out of doors except in compliance with the provisions of this Section. The provisions of this Section apply to all WCF whether as a principal use or an accessory use and to any and all extensions or additions to, or replacement of, existing WCF.
D. Review Standards. In addition to the Special Permit Review Criteria under Section
200-59 of this Ordinance and Section 9 of Ch. 40A of the General Laws, the City Council shall also review the Special Permit application in conformance with the following objectives:
(1) When considering an application for a WCF which includes a Tower, the City Council shall take into consideration the proximity of the facility to residential dwellings.
(2) New WCF which include a Tower shall be considered only after a finding that existing or previously approved Towers cannot accommodate the proposed users.
(3) When considering an application for a Communications Device proposed to be placed on an already existing building or structure, the City Council shall take into consideration the visual impact of the unit from the abutting neighborhood and streets and the proximity of the unit to residential dwellings.
(4) The City Council shall act on a request for the placement of a WCF within a reasonable period of time and any denial shall be in writing and supported by substantial evidence contained in the record.
E. Development Requirements.
(1) Any proposed Tower must be of the minimum height necessary to accommodate the use and in any event shall not be more than one hundred ninety (190) feet in height, notwithstanding any other provisions to the contrary of this Chapter.
(2) The applicant shall arrange to fly a balloon of at least three (3) feet in diameter at the maximum height of the proposed Tower at least once before the first public hearing. The date, time and location of the flight shall be advertised by the Applicant at least fourteen (14) days, but not more than twenty-one (21) days, before the flight in a newspaper of general circulation in the City.
(3) Visual impacts of Towers and Communications Devices must be minimized by use of appropriate paint and/or screening.
(4) Applicants must, as part of its application for a Special Permit for a Tower, submit evidence from the Federal Aviation Administration (FAA) demonstrating that said FAA has studied and approved the proposed Tower and its location. If lighting is required by the FAA, the provisions of Subsection E.(12) of this Section shall prevail.
(5) The siting of Towers shall be such that the view of the Tower from other areas of the City shall be as minimal as possible and shall be screened from abutters and residential neighbors to the extent feasible.
(6) Shared use of Towers by commercial telecommunications carriers is required unless such shared use is shown by substantial evidence to be not feasible.
(7) All Towers shall be designed to accommodate the maximum number of presently interested users which is technologically practical. If the number of interested users is less than five, the Applicant shall submit substantial evidence to support such an assertion. All Towers shall be designed so that, if additional users require said location, the existing tower can be expanded or replaced with the minimum of technical difficulty and disturbance to neighbors, and shall be subject to the obligation of the Applicant to cause or allow such expansion or replacement on terms that are commercially reasonable to the additional users at any time following the granting of the initial Special
Permit.
(8) Every Tower must be set back from the property line of the lot on which it is located, or from a point beyond said lot line but extending only over land for which written permission has been received, for a distance at least equal to the height of the Tower. For any land held by any person or entity other than the United States, the Commonwealth of Massachusetts, or an agency or political subdivision thereof, said written permission shall be evidenced by an easement covering the area in question and recorded in the South Middlesex Registry of Deeds or South Middlesex Land Registration Office.
(9) No portion of Communications Devices located on a building shall exceed fifteen (15) in height above the roof line of the building.
(10) Communications Devices shall be situated on or attached to a building or structure in such a manner that they are screened whenever possible, shall be painted or otherwise colored to minimize their visibility, and shall be integrated into such structures or buildings in a manner that blends with the structure or building. Free standing antennas or dishes shall be landscaped, screened and painted in a manner so as to minimize visibility from abutting streets and residents.
(11) Fencing shall be provided to control access to all WCF which include Towers.
(12) All Towers must comply with all Federal Aviation Administration Rules and Regulations. Notwithstanding the requirement to comply with Rules and Regulations, any Tower that would be required to install flashing lights or strobe lighting shall not be permitted.
(13) All Towers shall be at least one hundred fifty (150) feet from existing residential buildings.
(14) Accessory buildings and or storage sheds shall not exceed two (2) stories in height; no more than three hundred (300) square feet in floor area shall be available for each user; any buildings or storage sheds added to a site must be attached to and abut the original building or storage shed and must be compatible in appearance.
(15) The maximum amount of vegetation shall be preserved.
F. Conditions. The following conditions shall apply to all grants of Special Permits
pursuant to this Section:
(1) For all WCF, annual certification of compliance with Federal Communications Commission, Federal Aviation Administration and federal, state and local laws, rules and regulations must be provided to the City Council.
(2) All Towers must comply with all applicable Federal Communications Commission Rules and Regulations. Annual certification of compliance must be provided to the City Council.
(3) For all Towers located on municipal property, a Certificate of Insurance for liability coverage in amounts determined by the City Solicitor must be provided naming the City as an additional insured.
(4) For all Towers located on municipal property, an agreement must be executed whereby the user indemnifies and holds the City harmless against all claims for injury or damage resulting from or arising out of the use of occupancy of the City owned property by the user.
(5) For all Towers, the execution of an agreement must be executed with the property owner whereby the user shall, at its own expense, and within thirty (30) days upon termination of the lease or thirty (30) days of nonuse of the Tower, restore the premises to the condition it was in at the onset of the lease and shall remove any and all WCF thereon.
(6) For all Towers, a bond must be issued to the City from a surety authorized to do business in Massachusetts and satisfactory to the City, in an amount equal to the cost of removal of any and all WCF from the premises and for the repair of such premises and restoration to the condition that the premises were in at the onset of the lease, said amount to be determined by the City. The amount of the bond shall be the total of the estimate by the City plus an annual increase of three (3) percent for the term of the lease. The term of the bond shall be for the full term of any lease plus twelve (12) months. The City must be notified of any cancellation or change in the terms or conditions in the
bond. The amount of the bond is to be payable to the City in the event that the user breaches the agreement in paragraph 4 herein.
(7) For all Towers located on non-municipal property, a clause must be inserted in any lease that unconditionally permits the City or contractors hired by the City to enter the premises, at any time, on which Towers are located if any City-owned or controlled telecommunications are located thereon.
(8) For all Towers located on non-municipal property, a clause must be inserted in any lease that unconditionally permits the City or contractors hired by the City to enter the premises on which Towers are located in the event the user breaches the agreement in paragraph 4 herein.
(9) For all Towers, an Agreement must be executed whereby the user will allow the installation of municipal Communications Devices at no cost to the City of Marlborough, and which will allow other carriers to lease space on the Tower so long as such use does not interfere with the user's use of the Tower, or with any City controlled telecommunications equipment. There will be a presumption that a Tower can accommodate more than one user, and if the applicant alleges that another carrier or carriers would interfere with its use of the Tower, it must support the allegation by substantial evidence.
(10) All permitees shall be required to file annually on or before February 1st with the City Clerk a complete list of all WCF locations in the City then used by the permitee, including communications devices mounted on the interior of a building or structure.
200-26. Affordable Housing
A. All Special Permits granted to applicants to construct multifamily dwellings, thereby increasing the number or density of residential dwellings to a number or level greater than that allowable as a matter of right under the zoning classification for the subject parcel, shall require the following:
(1) Developments of twenty (20) or more units.
(a) Number of Affordable Units. The development shall provide that at least fifteen (15) percent of the dwelling units to be constructed for home ownership or rental purposes will be made available at affordable prices to home buyers or renters, or a sum not less than the total cost necessary for land acquisition and construction of said numbers of affordable units shall be paid to the Marlborough Community Development Authority Housing Division for the purpose of construction or acquisition of affordable housing.
(b) Local Preference. The development plan shall provide that all legally permissible efforts shall be made to provide seventy (70) percent of the affordable dwelling units to eligible residents of the City of Marlborough.
(c) Distribution of Affordable Units. Dwelling units to be sold or rented at affordable prices shall be integrated into the overall development to prevent physical segregation of such units.
(d) Appearance. The exterior of the affordable units shall be designed to be compatible with and as nearly indistinguishable from the market rate units as possible.
(e) Minimum and Maximum Floor Areas. Affordable housing units shall have a gross floor area not less than the minimum required by the State Department of Housing and Community Development under the regulations created under the authority of MGL, Chapter 40B.
(f) Period of Affordability. Limitations and safeguards shall be imposed to ensure the continued availability of the designated affordable units for a minimum of ninety-nine (99) years or in perpetuity. Such limitations and safeguards may be in the form of deed restrictions, resale monitoring, requirements for income verification of purchasers and/or tenants, rent level controls and the like.
(g) Limitation on Change in Affordability. In no event shall any change in affordability occur if the minimum percentage of affordable units required in the entire city under MGL Chapter 40B has either not been met at that time or such change in affordability would cause the City to fall below that percentage.
(h) Staging of Affordable and Market Rate Units. No more than fifty (50) percent of the building permits for the market rate units shall be issued until construction has commenced on thirty (30) percent of the affordable units. No more than fifty (50) percent of the occupancy permits for the market rate units shall be issued until thirty (30) percent of the occupancy permits for the affordable units have been issued. The City Council may modify this provision for the developments under fifty (50) units.
(i) Alternate Site. The City Council may allow the developer to build some or all of the affordable housing required by Subsection A1(a) on an alternate site within the City, provided that the City Council determines that this is in the best interest of the City and orders that this specific condition be attached to the Special Permit. The location of the alternate site shall either be specified at the time of approval for the Special Permit or selected within six (6) months of said application and shall then be subject to approval by the Housing Partnership Committee or its successor, by the City Council if otherwise required by this Zoning
Ordinance and by any other proper authority as may be required by law. The development of the alternate site shall comply with Subsection A(1)(b), (e), (f), (g), (h) and (j) of this Section, and the staging of development on the alternate site shall be governed by Subsection A(1)(h) applied to all units on both the main and alternate sites.
(j) Guaranty of Performance. The City Council shall require security in a form satisfactory to the City Council and City Solicitor to guarantee performance, including preservation of affordability, under this subsection and no building permit shall be issued until and unless said security has been provided.
(2) Developments of nineteen (19) or fewer units. All provisions of Subsection A(1) above, applicable to twenty (20) or more units, may also be applied to developments of nineteen (19) or fewer units as the City Council finds practical.
200-27. Comprehensive Developments.
A. Purpose and Objectives. The City Council may grant Special Permits exempting
Comprehensive Developments from certain regulations and restrictions contained in this Chapter provided that said Comprehensive Developments satisfy the terms and conditions which may properly be imposed pursuant to this Section. A "Comprehensive Development" shall be as defined in this Chapter in Section 200-05, Definitions.
(1) Purpose. The purpose of this Section is to increase the number of affordable
dwelling units in the City to a number which meets the requirements of Chapter 40B of the General Laws.
(2) Objectives. The Special Permit procedure established hereby is intended to
accomplish this purpose while meeting the following objectives:
(a) To provide a Special Permit procedure administered by the City Council, as preferred local alternative to Comprehensive Permits authorized by MGL Chapter 40B.
(b) To provide local zoning standards by which to evaluate said Special Permits and to encourage a more efficient review process by clearly specifying local requirements in advance of applications for applicable permits.
(c) To provide for a variety of housing, particularly affordable housing, by special incentives allowing less restrictive development standards, including a moderately higher density than would otherwise be allowed.
(d) To equitably distribute affordable housing developments throughout the City's neighborhoods, in small to medium sized projects dispersed widely so as to avoid large concentrations in any area.
(e) To encourage the construction and location of affordable housing on certain sites without undesirable impacts on abutting uses or the neighborhood in terms of conflicting uses, visual impact, traffic impact or the like.
(f) To provide affordable housing which conserves environmental features, woodlands, wetlands and areas of scenic beauty and preserves sites and structures of historical importance.
(g) To provide affordable housing on sites which will not displace uses allowed as right which uses would contribute more positively to the City and have been planned for in terms of municipal services and infrastructure.
(h) To provide affordable housing without imposing an unnecessary increased financial burden on the citizens of the City because of demands for additional municipal services or public improvements.
(i) To provide affordable housing without threatening the ability of the City to provide bona fide infrastructure and public services to existing and future development on other sites.
B. Special Permit Required.
(1) Applicability. In Comprehensive Developments, as specifically permitted by Special Permit in certain zoning districts in 200-17, no building or premises shall be used nor shall any building or structure be constructed or reconstructed except as follows: Provided that a Special Permit is issued by the City Council in accordance with the provisions of this Section, single-family, two-family, and multifamily dwellings, and structures appurtenant thereto, including but not limited to clubhouses (with facilities for serving food and beverages), athletic facilities, parking areas, rest areas, playgrounds, tennis courts, swimming pools and accessory storage facilities, shall be the only permitted
uses therein.
C. Standards.
(1) General Requirements. As an incentive to encourage the construction of
affordable housing, the requirements of this Section shall totally govern the dimensional and locational requirements for Comprehensive Developments unless otherwise provided in this Section. Other provisions of Article VII of this Zoning Ordinance shall not apply to affordable housing developments. All the provisions of Article VIII for Special Permits shall apply to Comprehensive Developments.
(2) Review Standards. It is not the intent of this Section that developments
meeting the standards provided hereinafter shall receive automatic approval nor that the standards be applied inflexibly in every instance. Each project shall undergo review and be judged on its merits. The standards are basic requirements and shall not preclude the City Council from specifying other requirements when necessary for particular sites to protect the public health, safety and welfare and meet the intent of this Chapter, for instance in the case of reuse of older existing structures or on sites providing unforeseen development problems or impacts. In applying these standards, the most restrictive provisions of this Section shall apply.
(3) Principals of Development Company. No application for a Special Permit shall be approved unless the City Council shall first receive the applicable information required in Subsection D and shall thereafter find that:
(a) The applicant's associates, professional advisers and contractors are qualified by training and/or experience to construct and market dwellings comparable to those proposed. [See Subsection D(1)(a)]
(b) The development plan proposed is financially and environmentally sound. [See Subsection D(1)(b)]
(c) The development plan proposed meets all other requirements of this Section. [See Subsection D(1)(f)]
(4) Location and Impact of Comprehensive Developments.
(a) Impact on Sensitive Areas. Comprehensive Developments shall avoid impacts to the extent possible on environmentally sensitive areas, such as floodplains, wetlands, groundwater recharge areas, aquifers, areas feeding drinking water supply or recreation water bodies, and significant woodlands, hillsides or other natural features.
(b) Impact on Infrastructure. Comprehensive Developments shall avoid areas which have public infrastructure or services incapable of serving the increased density of such developments without imposing significant increased public expense that would otherwise be unnecessary for uses built at densities permitted as of right (for example, inadequate roads, utilities or schools). Applicants may downsize their projects or improve the infrastructure to meet this criteria.
(c) Site Suitability. Comprehensive Developments shall strive to avoid sites which are clearly better suited for uses permitted as-of-right by zoning and planned for those sites by the City in terms of roads, utility, infrastructure and site characteristics.
(5) Project Size. The maximum number of dwelling units (affordable and market rate) in any Comprehensive Development shall be one hundred seventy-five (175) on any lot or any combination of contiguous lots, and the minimum number shall be nine (9).
(6) Concentration. So that Comprehensive Developments are not unduly concentrated in the same areas of the City, they shall be located so that they meet all the following criteria:
(a) Density of Comprehensive Development: The maximum density of all dwelling units (market rate and affordable) located within all Comprehensive Developments shall be no more than two hundred fifty (250) units per square mile, measured within a one-half-mile radius from the center of any such development. This provision shall not apply within the inner City, as defined in the following subsection:
(i) The "inner City" shall be defined as the RB, RC and CA zoned districts, existing as of January 1, 1988, including the Business District between Lakeside Avenue and Clinton Street.
(b) Proximity of Comprehensive Developments. The minimum distance between Comprehensive Developments shall be as specified in the following table. Said distance shall be measured between the closest dwelling units in each development. The inner-City shall be as defined in Subsection C(6)(a)(1).
Table of Proximity Between Comprehensive Developments
(7) Density Relief. A development seeking an increase in the density allowed as of right for a particular parcel of land may not exceed the density allowed by right or by Special Permit in the District in which it is located except as provided for in the following Subsection.
(8) On-Site Dimensional Regulations.
(a) Purpose. The purpose of the following dimensional regulations shall be to allow an appropriate increase in density as an incentive for affordable housing, but not so great as to cause an undue impact on, or conflict with, the surrounding neighborhood density. This density increase will permit sufficient affordable units to meet the minimum ten (10) percent required by MGL Chapter 40B, throughout the entire City.
(b) Modifications. The City Council may determine that these dimensional regulations should be modified on particular sites where conditions on site or abutting the site so warrant.
(c) Exceptions. Conversion, reconstruction or replacement of preexisting buildings may exceed the dimensional regulations to an extent of any preexisting nonconformity.
Table of On-Site Dimensional Regulations for
Comprehensive Developments
*NOTE: Coverage within the inner-city may be modified according to Subsection
C(8)(c) above.
(9) Affordable Units.
(a) Type of Housing. "Affordable Housing" shall mean sale or rental housing as defined in Article II 200-05, of this Chapter.
(b) Non-family Housing. This Section shall apply only to affordable housing for families and not to sites for elderly or special needs housing built by or for the Marlborough Community Development Authority.
(c) Inclusionary Affordable Housing Provisions in Article 200-26.
(i) Certain provisions of Article 200-26, requiring a minimum
percentage of affordable housing units in all multifamily developments, shall also be applicable to this Section governing Comprehensive Developments.
(ii) Said provisions shall include the following subparagraphs of said Section:
[a] Local preference [200-26A(1)(b)].
[b] Distribution of affordable units [200-26A(1)(c)].
[c] Appearance [200-26A(1)(d)].
[d] Floor areas [200-26A(1)(e)].
[e] Period of affordability [200-26A(1)(f)].
[f] Limitation on change in affordability [200-26A(1)(g)].
[g] Staging of affordable and market rate units [200-26A(1)(h)].
(d) Proportion and Income Level or Cost. The percent of affordable units and their income level or cost shall be governed and modified pursuant to MGL Chapter 40B and related regulations as they may be amended from time to time.
(e) Provisions for Housing Authority Ownership.
(i) New Construction; For-Sale Units. The applicant shall offer to the Community Development Authority not less than five (5) percent of the newly constructed home-ownership affordable units. The Community Development Authority may opt to purchase (by signing a right of first refusal) any or all of the units offered subject to available funding.
(ii) Expiration of Affordability; For-Sale Units. If and when any home-ownership affordable units are converted to market rate units, the Marlborough Community Development Authority shall have the right of first refusal to buy said units at the affordable rate established for each of those units in the deed restrictions.
(iii) Expiration of Affordability; Rental Units. Following any required lock-in period requiring rental of any units at affordable or below-market rates, the applicant shall give the Marlborough Community Development Authority the first option to purchase said affordable units at an amount no higher than the purchase limits specified by the Executive Office of Communities and Development or its successor agency for housing units under the Chapter 705 or any successor programs.
(iv) Provisions for Handicapped Units. The City may require a certain number of units to be specifically designed for the handicapped.
(10) Profit Sharing. It is not the intent of this Section that either the previous landowners or the developers of affordable housing obtain excess profit by means of a substantial increase in the number of dwelling units allowed in Comprehensive Developments above the number allowed under existing zoning. Such excess profit may drive up project density and have undesirable impacts on the neighborhood. Accordingly, the applicant shall submit the information required in Subsection D(1)(b) and (c), concerning financial analysis and land acquisition and interest, and the City Council shall make the following determinations or conditions prior to approval of a Special Permit.
(a) Land Sales Profit. [see Subsection D(1)(b)]. The current or former landowners, as outlined in Subsection D(1)(b), have not profited and/or will not profit unduly, as defined hereinafter, from the sale of the land for affordable housing built at a substantially higher density allowed in a Comprehensive Development. In order to encourage the construction of affordable housing, while at the same time limiting the increase in project density, the level of profit from land sales shall be permitted to be no more than twenty-five (25) percent greater than would received if the land was sold for development permitted by right under existing zoning. If the City Council determines that an undue profit on the land sale will be or has been obtained, then said Special Permit may be denied unless either or both of the following requirements are met:
(i) The excess profit is deposited into a City-controlled affordable housing fund to be used exclusively to support development of more affordable housing on this site or other sites within the City; or
(ii) The applicant reduces the land sale price so that the project density is reduced and/or the proportion of affordable units in the project is increased.
(b) Determination of Project Size and Affordability (See Subsection D(1)(c)). The project size shall be limited to the minimum number of total units required to make the project economically feasible, while providing the maximum number of affordable units which can be supported at the proposed project size. "Economic feasibility" shall be as defined in the following Subsection C(10)(c). The information required under Subsection D(1)(c) must be submitted to fulfill this requirement.
(c) Land Development Profit. No building permit shall be issued until the applicant has entered into an agreement with the City and the Marlborough Community Development Authority for the sharing of excess profits, if any, from land development allowed at the increased density permitted in the Comprehensive Development. In order to encourage the construction of affordable housing, the level of profit from development shall be limited to fifteen (15) percent (pre-tax, as a percentage of total projected sales), or the return permitted by the applicable State or Federal funding agency for limited profit developers. Said agreement shall
specify that the applicant's annual records shall be reviewed at the developer's expense by an independent auditor chosen by the City and agreed to by the applicant. Any excess profit shall be deposited into a City-controlled affordable housing fund to be used for development of more affordable housing within the City.
(11) Parking. All requirements for parking and driveways in Article VI shall apply except for the following provisions:
(a) Number. The minimum number of parking spaces per dwelling units shall be as follows:
(i) Market rate units: as required by Article 200-26.
(ii) Affordable units: twenty-five (25) percent less than required by Article 200-26.
(b) Reserve. A site for future, reserve parking shall be shown on the development plan and left as landscaped area until such time as it may be necessary to provide additional parking. The size of this reserve site shall provide additional spaces in the ratio required for market rate units under Article VI of this Chapter. Provisions shall be made in the covenants and deed restrictions for the future installation of reserve parking by the owners of the dwelling units, if such parking is needed.
(12) Driveways and Maneuvering Aisles. All driveways and maneuvering aisles shall be designed to the standards required by Article VI of this Chapter and shall be located, constructed and maintained as private ways. Design of said facilities shall be in accord with the recommendations of the City Planner, City Engineer and Fire and Police Departments.
(13) Pedestrian Paths. Paths for the use of residents shall be a minimum of five (5) feet wide and attractively designed with proper regard to convenience, separation of vehicular, bicycle and pedestrian traffic, adequate connectivity, completeness of access to the various amenities and facilities on the site. Pedestrian areas shall be designed for wheelchair accessibility according to State law.
(14) Landscaping and Screening. The development shall meet all landscaping and screening requirements of Article 200-47. In addition, Comprehensive Developments over twenty (20) units in size shall be buffered on side and rear lot lines from adjacent homes by a landscaped area at least fifteen (15) feet wide which shall be planted with trees at least six (6) feet high when planted and spaced no more than fifteen (15) feet apart. No building shall be closer than twenty-five (25) feet to any landscaped buffer. Said buffer shall be required to the maximum practical extent within the inner City as
defined in Subsection C(6)(a), as required by the City Council.
(15) Recreation Facilities.
(a) For Comprehensive Developments of over fifty (50) units in size, small outdoor play facilities shall be provided close to the residential units for younger children.
(b) For Comprehensive Developments over one hundred (100) units in size, major, active, outdoor recreation facilities shall be provided and installed on site or nearby by the applicant, sufficient for all the residents of the site (such as softball, tennis, swimming pool or basketball), unless there are adequate existing public recreational facilities nearby, if deemed appropriate by the City Council. Any new facilities provided by the applicant shall be located so as to minimize any negative impact on the abutters.
(c) Such facilities shall be shown on the development plan and itemized in the Special Permit, but shall not be included in lot coverage.
(16) Surface Drainage. The surface drainage system shall be designed in accord with the rules and regulations governing subdivisions in the City of Marlborough and more stringent requirements as may be set by the City Council and/or Conservation Commission when the site may affect sources of water supply or bodies of water used for recreation in the City of Marlborough.
(17) Private Utilities. All electric, gas, television cable and telephone distribution lines shall be placed underground unless the City Council shall grant an exception to this requirement.
(18) Sewer and Water. All sewer and water facilities shall be designed in accordance with the requirements of the City Engineer and City Master Plan for such facilities, the Sanitary Code promulgated by the Massachusetts Department of Public Health, the regulations of the Marlborough Board of Health and all other laws pertaining thereto.
(19) Conservation Restriction on Open Space. In cases where the Special Permit would allow the applicant to build at greater density than allowed as-of-right, in exchange for the increase in density, the applicant shall prepare and submit a conservation restriction that preserves all open space identified on the development plan as open space in perpetuity, except only for those areas which may be reserved for additional parking construction or the like. There shall be public access to appropriate areas of said open space if so designated by the City Council and agreed to by the applicant. Said restriction
shall be submitted to the City Solicitor for review and approval, and shall be recorded with the Registry of Deeds prior to the issuance of a building permit on the project.
(20) Operation and Maintenance of Common Facilities and Services. All on-site commonly owned facilities shall be operated and maintained by a management agent or association of unit owners.
D. Administration.
(1) Application for a Special Permit. An application for a Special Permit for construction of dwellings in a Comprehensive Development shall be governed by all procedures, standards, criteria and submission requirements applicable to all Special Permits under Article VIII Sec. 200-59, and, in addition, shall contain the following information:
(a) Applicant Qualifications [see Subsection C(3)]. All information required by the City Council regarding the training and experience of the applicant, its associates, professional advisers and contractors in the development and management of housing as well as their respective financial positions. Such information must include evidence of prior experience with residential development, the capacity to undertake the type of development proposed, the work history of key personnel and evidence of financial capacity to undertake a project of this scope.
(b) Land Sale and Interest [see Subsection C(10)(a)]. Information documenting the dates of sale, names of all corporate and individual sellers and buyers, and consideration paid or exchanged for the subject property over the previous three (3) years, but in any event including the previous three (3) owners having no business relationship. Details of any relationships between the applicants and current and former owners of the property shall be supplied. An appraisal shall be submitted by an independent qualified appraiser selected by the City and approved by the applicant but paid for
entirely by the applicant. Said appraisal shall determine the current land value under the zoning regulations governing the use of the land without a Special permit for a Comprehensive Development.
(c) Financial Analysis to Determine Project Size and Affordability [see Subsection C(10)(b)]. For projects over twenty (20) units in size, a financial analysis shall be submitted which shall help determine the minimum number of total units required to make the project economically feasible and maximum number of affordable units which can be supported at the proposed project size. Economic feasibility shall be defined by Subsection C(10). Such analysis shall be conducted by an independent consultant to be jointly selected by the City and the applicant, but paid for entirely by the applicant.
Projects under twenty (20) units in size may be required to provide said analysis at the discretion of the City Council.
(d) Funding. Identification of funding program for the affordable units and a copy of the funding application.
(e) Market Program. Summary of income range and methods for attracting residents of broad income and ethnic backgrounds.
(f) Development plan showing location of affordable units and all information required on plans under Special Permits as provided for by Article VIII Section 200-59.
(g) Impact Report. A report on the adequacy of capacity and mitigation proposed for utilities and roadways leading to and serving the development.
(h) Covenants and Deed Restrictions. The following documents shall be provided to the City Solicitor for review and approval prior to issuance of a certificate:
(i) Provision for Reserve Parking [see Subsection C(11)(b)]. Legal agreements for provision of future reserve parking.
(ii) Provision for Common Facilities [see Subsection C(20)]. Deed restrictions on management agreements.
(iii) Provision for Open Space [see Subsection C(19)]: Deed restrictions on open space.
(iv) Other Information. Any and all other information that the City Council may reasonably require in a form acceptable to it to assist in determining whether the applicant's proposed development meets the objectives of Subsection A and satisfies the standards of Subsection C above.
(2) Review and Comment by Boards and Agencies.
(a) Prior to Submission. Before submission by the developer of the full application to the City Council, the developer shall submit a preliminary application to the Marlborough Housing Partnership Committee (or its successor), which shall then conduct initial reviews and ensure the application meets the intent of this Section.
(b) After Submission. After submission by the developer to the City Council, the developer shall provide the following with a copy of the application for its review and recommendation prior to a decision on any application by the City Council: Marlborough Housing Partnership Committee, Community Development Authority Housing Division, City Departments of Engineering, Planning, Fire and Police. The Planning Board shall be provided with a copy for its review and comment if any public roadway or subdivision of land is involved in the proposed development. The Conservation Commission shall
be provided with a copy for its review and comment if any wetlands are involved in proposed development.
(c) Comment Period. In accordance with MGL C.40A, failure of any such board or agency to make recommendations within thirty five (35) days of receipt by such board or agency of the final application shall be deemed lack of opposition thereto. Said board or agency may request an extension of time from the developer as provided for under MGL C.40A.
(3) Review and Action by City Council. The procedures for review and action by City Council shall be as provided for all Special Permits under Article VIII 200-59.
(4) Site Plan Review. Following approval of the general scope of the project under the Special Permit, the application shall be subject to Site Plan Review for purposes of detailed review of site and engineering concerns prior to construction.
200-28. Open Space Developments.
A. General Description. An "Open Space Development" shall mean a development of
residential lots in which the houses are in one or more groups on the site, separated from each other and from adjacent properties by permanently protected open space.
B. Purpose and Objectives. The purpose of this Section is to:
(1) Encourage a less sprawling form of development that has consumed excessive open space, caused land erosion, and destroyed attractive natural features of the land.
(2) Allow for greater flexibility and creativity in the design of residential subdivisions.
(3) Encourage the permanent preservation of natural resources and open space.
(4) Protect scenic vistas.
(5) Allow for more economical construction and maintenance of streets and utilities.
(6) Encourage the production of more affordable and diverse housing types.
(7) Allow for more economical construction and maintenance of recreational amenities through common ownership.
C. Applicability.
(1) Special Permit Required. In Open Space Developments, no building or premises shall be used, nor shall any building or structure be constructed or reconstructed, unless a Special Permit has been granted by the PLANNING BOARD in accordance with the provisions of this Section.
(2) Zoning Districts. Open Space Development shall be limited to the following zoning districts: Rural Residence (RR), Residential A1, A2, and A3.
(3) Compliance with Subdivision Regulations. Subsequent to the granting of the Special Permit, compliance with the Rules and Regulations regarding the subdivision of land must be met.
(4) Previously Approved Subdivisions. Where a definitive plan has been previously approved under conventional zoning by the Planning Board, and construction has not commenced, an applicant may submit a new plan under this Section. As an incentive to encourage new applications to be made under this Section:
(a) The number of allowable lots may be based on the previously approved plan.
(b) Consideration may be given by the Planning Board to requests for waivers from the Subdivision Rules and Regulations if a benefit to the City is demonstrated, so that the cost of constructing roads, utilities, and other infrastructure items may be reduced.
(c) Application fees may be waived by the Planning Board.
D. General Requirements.
(1) Uses. Uses in an Open Space Development shall be limited to those uses permitted within the applicable zoning districts as specified in Article V, Section 200-17.
(2) Site Ownership. The development may consist of a single parcel of land, or contiguous parcels provided they are in common ownership or are submitted with the binding consent of different owners.
(3) Access. Each lot shall have adequate access on a public or private way. Common driveways are permitted in accordance with requirements appearing elsewhere in this Chapter.
(4) Ways, Interior Drives, and Utilities. The construction of all ways, interior drives and utilities shall be in accordance with the standards specified in the Planning Board's Rules and Regulations Governing the Subdivision of Land unless the Planning Board waives said Rules and Regulations based on its determination that adequate access will be provided to all lots in the development by ways that will be safe and convenient for travel.
(5) Lot Layout. Each lot shall be of a size and shape to provide a building site which shall be in harmony with the natural terrain and other features of the land.
(6) Internal Circulation. There shall be an adequate, safe, and convenient arrangement of pedestrian circulation, roadways, driveways, and parking.
E. Dimensional and Intensity Requirements.
(1) Minimum Area of Site. The total area of the site proposed for Open Space Development shall be at least five (5) acres. Any site shall have a minimum of fifty (50) feet of frontage on a public way.
(2) Maximum Density.
(a) Number of Lots. Except as provided below, the total number of building lots on the tract proposed for Open Space Development shall not exceed the number of lots which could reasonably be expected to be developed under a conventional plan in full conformance with zoning, subdivision regulations, health codes, and wetlands protection regulations. The number of lots allowable without bonuses shall be determined as follows:
(i) The applicant shall prepare a conventional plan to show the number of lots which could be created by right under conventional zoning. In order to ensure that the lots are buildable, the plan shall not include building lots that have more than fifty (50) percent coverage by wetlands or by slopes of twenty-five (25) percent or greater. The requirements for the conventional plan are further detailed under Subsection H.
(ii) Alternatively the applicant may elect to use the number of lots from a definitive subdivision plan for the same parcel which has a valid approval from the Planning Board.
(b) Reserved.
(c) Density Bonuses and Incentives. The applicant may apply for density bonuses as an incentive to provide certain amenities which would not otherwise be provided in the Open Space Development. The Planning Board shall authorize an increase in the number of lots of up to fifteen (15) percent above the number otherwise permitted in this Section as specified in the preceding paragraphs (a) and (b), based on the following criteria unless the Planning Board explains in its decision why unusual circumstances cause them to act otherwise:
(i) Affordable Housing. A bonus of one added lot for each affordable housing unit included in the Open Space Development. Said affordable units shall be administered by the Marlborough Housing Partnership or successor agency where applicable. The affordable housing shall meet the following requirements:
[a] The housing shall meet the requirements of the definition of Affordable Housing included in Article Section 200-05.
[b] All affordable housing units shall meet the requirements of Section 200-26.A(1), paragraphs:
(b) Local preference.
(c) Distribution of affordable units.
(d) Appearance.
(e) Minimum and maximum floor area.
(f) Period of affordability.
(g) Limitations on change in affordability.
(h) Staging of affordable and market rate units.
[c] The affordable housing shall consist of either single family dwellings or single family zero lot line dwellings, as defined in this Chapter. For the purpose of this Section, single family zero lot dwellings shall not be attached to more than one other unit. No multi-family dwelling units shall be permitted. Single family zero lot line dwellings shall be permitted in an Open Space Development solely for the purpose of providing affordable units and shall be designed to appear as attached single family dwellings when viewed from the street, shall
fit into the overall design, and shall be reasonably mixed with the single family dwellings.
(ii) Reserved.
(3) Intensity Regulation. The Planning Board may grant a reduction of all
intensity and yard regulations applicable to the underlying zoning districts for all portions of an Open Space Development provided the Planning Board finds that the reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with these regulations, and also provided that in no instance shall a lot deviate from the following table of requirements:
Footnotes:
1. Lots located on the turnaround of a dead-end street shall have a minimum of fifty (50) feet of street frontage, provided the minimum lot width at the front building line is maintained as required in this table.
2. A side yard setback on one side need be provided for a single family zero lot line dwelling.
3. Rear yard dimensions may be increased where perimeter buffers are required. See paragraph F(7) below.
4. Lot coverage shall be defined to include buildings, driveways, and parking areas.
F. Common Open Space Requirements
(1) General. All land not devoted to dwellings, yards, accessory uses, roads, or other development shall be set aside as common open space.
(2) Use. The use of common open space shall be restricted to the following:
(a) Active and passive recreation, conservation, forestry, agriculture, natural buffers.
(b) Access ways, parking, underground utilities and structures necessary for and accessory to the uses in paragraph (a) above.
(3) Number of parcels. Common open space may be in more than one parcel provided that the size, shape and location of such parcels are suitable for the designated uses.
(4) Access. The common open space shall be provided with adequate access from a public or private way.
(5) Minimum Area. The total area of common open space shall equal or exceed the area by which all residential lots are reduced below the basic minimum lot area normally required in the zoning district. In no case shall said total area be less than forty (40) percent of a total site in a RR District, 30% (thirty percent) in an A-1 or A-2 District, or twenty (20) percent in an A-3 District, even if density bonuses are included as provided for under paragraph E(2)(c).
(6) Land Characteristics. The following lands may be used to meet the minimum requirements for common open space only in the proportions specified in the table below. However, if more than the minimum area of open space is provided, then these lands may be included within the excess common open space.
TABLE OF COMMON OPEN SPACE DIMENSIONAL REQUIREMENTS
OPEN SPACE DEVELOPMENTS
Footnotes:
1. Roads and parking areas serving dwelling shall always be paved. Roads and parking areas serving common open space shall be paved if so required by the Planning Board.
(7) Perimeter Buffers. Perimeter buffers are required where abutting property has already been developed with single family homes on lots in full conformity with the requirements of this Chapter as of date January 1, 1992, and where residential structures within the Open Space Development are located on lots of reduced size allowed by this Section. Where buffers are required, said structures shall be set back from the boundaries of the development by a distance no less than double the minimum yard dimension in the underlying zoning district. Within said setback shall be a buffer strip which shall be kept in a natural landscaped condition. The Planning Board may require the planting of trees if
none exist naturally. Said buffer strip may be located either within a privately owned residential lot having a buffer easement, or alternatively within the common open space, as the Planning Board shall determine.
(8) Design Guidelines. The design of the common open space shall, to the extent practical, follow the design guidelines to be used by the Planning Board in making a decision on the Special Permit, as described in Section H(8)(b).
G. Ownership and Management of Open Space.
(1) City, Trust or Association. Common open space in any Open Space Development approved under this Section shall be conveyed to:
(a) The City, and may be accepted by it for conservation and/or recreational use; and/or
(b) An open space land trust, or any other nonprofit corporation, approved by the Planning Board, the principal purpose of which is land conservation and preservation of open space; and/or
(c) A corporation, trust or association owned or to be owned by the owners of lots in the development, hereafter referred to as the "Homeowners Association", subject to covenants, enforceable by the City, to keep the common space open or in a natural state as approved by the Planning Board. If a corporation or trust owned by the owners of lots is utilized, ownership thereof shall pass with the conveyances of the lots in perpetuity. A Homeowners Association agreement shall be submitted with the Special Permit application guaranteeing continuing maintenance of such common utilities, land and facilities, and assessing each lot a share of
maintenance expenses. Such agreement shall be subject to the review and approval of the City Solicitor and Planning Board.
(2) Entity Other Than the City. If the common open space is not to be conveyed to the City, then the applicant shall provide all of the following to the Planning Board for approval prior to commencement of construction:
(a) A provision in the covenant that the common open space will be deeded as approved by the Planning Board. In addition, the covenant shall not be released by the Planning Board until proof of ownership has been provided by the applicant to the Planning Board.
(b) A perpetual conservation restriction of the type described in MGL Chapter 184, Section 31 (including future amendments thereto and corresponding provisions of future laws) enforceable by the City which shall be recorded by the applicant and shall provide that such land shall be kept in an open or natural state and not be built upon for residential use or developed for accessory uses such as parking or roadways except as previously approved by the Planning Board.
(c) A maintenance program describing how the common open space will be maintained in perpetuity to standards satisfactory to the Planning Board.
(d) An agreement empowering the City to perform maintenance of the common open space in the event of failure to comply with the maintenance program included in the application pursuant to the preceding paragraph providing that, if the City is required to perform any maintenance work, the owners of the lots included in the Open Space Development shall pay the cost thereof and that the cost shall constitute a lien upon their properties until said cost has been paid.
(3) Time of Dedication. All open space shall have been dedicated before any building permits are issued.
H. Application and Review Procedure.
(1) Pre-Application Review. Prior to filing an application, the applicant shall meet with the Planning Department in order to promote better communication and avoid misunderstanding. The Planning Department shall arrange for a pre-application review with the Conservation and Engineering Departments.
(2) Streamlined Submission. The Planning Board approval of a Special Permit hereunder shall not substitute for compliance with the Subdivision Control Act nor oblige the Planning Board to approve a related definitive plan for subdivision, nor reduce any time periods for Planning Board consideration under that law. However, in order to facilitate processing, the following procedures allow for streamlined submission of an application for Special Permit and Subdivision Plan approval. The Planning Board may adopt further regulations if necessary, insofar as practical under law, to satisfy the Planning Board's regulations under the Subdivision Control Act.
(3) Summary of Two-Step Process.
(a) Step One - Submission of Concept Plan to the Planning Board for Special Permit. In the first step, the applicant shall submit a concept plan for the Open Space Development together with a conventional subdivision plan showing the number of lots determined in accordance with Subsection E(2). A public hearing shall be held on the special permit, followed within 90 days by a decision of the Planning Board to grant or deny a special permit for the Open Space Development in accordance with MGL Chapter 40A.
(b) Step Two - Submission of Definitive Subdivision Plan. If a Special Permit has been granted, the applicant must submit a definitive subdivision plan for the Open Space Development, based upon the concept plan. If the Special Permit has been denied, the applicant may submit a definitive subdivision plan for a conventional layout. The Planning Board shall hold a public hearing for the definitive subdivision plan and render a decision within ninety (90) days in accordance with MGL Chapter 41.
(4) Special Permit Application
(a) Special Permit Rules and Regulations. The Planning Board may adopt rules and regulations for the issuance of Special Permits applicable to this section, in accordance with MGL Chapter 40A.
(b) Submission. The application shall be filed in accordance with M.G.L. 40A.
(c) Application Materials. The Application or Petition for Special Permit shall be made in writing by the applicant or his duly authorized agent, who shall file the following number of sets of application materials at the offices set forth below:
(d) Special Permit Review Fees. At the time of application, the applicant shall pay a filing fee at the office of the City Clerk in the amount calculated to be the same as the preliminary plan design review fees specified in the Marlborough Subdivision Rules and Regulations. The Planning Board may waive the fees.
(e) Conventional Subdivision Plan. The conventional subdivision plan required to determine the number of lots allowable shall be drawn to the same scale as the Concept Plan and shall contain the following:
(i) The names, approximate location and widths of adjacent streets.
(ii) The existing and proposed lines of streets, ways and easements and any public areas within the subdivision.
(iii) The approximate boundary lines of proposed lots with approximate areas and dimensions.
(iv) The topography of the land at the same contour interval as the Concept Plan.
(v) The boundaries of wetlands and floodplains in the same form as required for the Concept Plan under paragraphs (g)(v)(vi) and (vii) below.
(vi) Where the property would be served by sub-surface sewage disposal, in cases where public sewer is not reasonably available, percolation tests shall be conducted for all lots shown on the conventional subdivision plan. Said tests shall be under the supervision of the Board of Health and in conformity with Title V and Board of Health regulations. Those lots which are determined to be not suitable for sub-surface sewage disposal shall not be counted as allowable lots under Subsection E.
(vii) The Planning Board may require any additional information necessary to make the determination and assessments required by this Section.
(f) Preparation. The concept plan shall be prepared by a professional landscape architect and a professional engineer, both registered in Massachusetts.
(g) Concept Plan. The concept plan shall contain the following information, in addition to all requirements of a preliminary plan as specified in the Subdivision Rules and Regulations:
(i) Existing landscape features in such detail appropriate to the site, including differentiation of wooded versus open areas, and a further differentiation between coniferous and deciduous trees.
(ii) Existing and potential open spaces and trails within five hundred (500) ft. of the site.
(iii) Archeological and historic features on site.
(iv) Major long views within the site and within five hundred (500) feet of the site.
(v) The boundaries of all resource areas protected by the Massachusetts Wetlands Protection Act, MGL Chapter 131, Section 40 as established through a Determination of Applicability.
(vi) Floodplain and Wetland Protection Districts defined by Section 19 of Zoning Ordinance.
(vii) Inland Restricted Wetlands protected by the Inland Wetlands Restriction Act, MGL Chapter 131, Section 40A.
(viii) Any additional information necessary to make the determinations and assessments required by this Section.
(6) Conservation Commission Review. The Conservation Commission shall review the Special Permit application and shall submit in writing to the Planning Board its report and recommendations upon the degree to which the Open Space Development enhances the protection of the environment including at least:
(a) Compatibility with the requirements of the Massachusetts Wetlands Protection Act.
(b) Evaluation of the location and configuration of open space parcels as to their value to recreation, wildlife habitats and environmental protection.
(7) Public Hearing, Notice and Decision. The procedure for public hearing, notice and decision shall be held in conformance with MGL Chapter 40A.
(8) Decision.
(a) Evaluation of plan. The Planning Board shall approve or approve with conditions a Special Permit for an Open Space Development provided that the Planning Board determines that the Open Space Development is at least as beneficial to the City as a conventional plan. In evaluating the plan or plans, the following criteria shall be considered by the Planning Board.
(b) Design Guidelines and Evaluation Criteria.
(i) Protection of scenic views and vistas.
(ii) Protection of valuable or sensitive environments, with wetlands located away from roads or behind lots.
(iii) Buffer areas are provided which minimize conflict between residential and agricultural or other uses, or between adjacent residential subdivisions and lots of reduced size in an Open Space Development.
(iv) Proximity of the maximum number of lots (especially smaller lots) close to the common open space.
(v) Consolidation of open space as large, contiguous units wherever possible.
(vi) Continuity of open space of adequate width within the development, connecting to adjacent open space areas, whether existing or in future potential developments adjoining the site. (Narrow strips of Common Open Space should be used only when necessary for access or buffers).
(vii) The elements of the site plan (lots, buildings, circulation, Common Open Space, landscaping, etc.) shall be arranged favorably with existing natural features so as to minimize soil removal, tree cutting, and general disturbance to the site.
(viii) Protection of major street capacity by avoiding driveways egressing onto such streets.
(ix) The pedestrian circulation system shall be designed to assure that pedestrians can move safely and easily on the site and between properties and activities within the site and neighborhood.
(x) The street system shall not only provide for the safe and convenient movement of vehicles on and off the site but also be designed to contribute to the overall aesthetic quality of the development.
(9) Findings. The Planning Board may grant a Special Permit only if the Planning Board finds that:
(a) The development meets the objectives of an Open Space Development listed in Subsection B.
(b) The development meets the design criteria of an Open Space Development listed in Subsection H(8)(b).
(c) The development will not have a substantial or undue adverse effect upon adjacent property or the character of the neighborhood.
(10) Definitive Plan.
(a) Submission and General Procedure. If the Open Space Development Special Permit is granted by the Planning Board, then the applicant shall submit to the Planning Board a plan in conformity with the requirements and procedures for definitive plan submission and review under the Subdivision Rules and Regulations of the Planning Board.
(b) Limitation on Subdivision. No Open Space Development, for which approval has been granted under this Section, may be further subdivided and a notation to this effect shall be made on the definitive plan.
(c) Waivers. In accordance with MGL Chapter 131, Section 41, Section 81R, the applicant may request a waiver from the Subdivision Rules and Regulations. It is the intent of this Section that the Comparative Impact Analysis should be waived.
(d) Review and Public Hearing. The Planning Board then shall review the aspects of the Open Space Development with regard to its compliance to the Subdivision Control Law, and shall hold a public hearing as required by MGL Chapter 41, Section 81T.
(e) Variations From Concept Plan. The overall concept shall only be reconsidered if there is substantial variation between the definitive plan and the concept plan.
(i) Definition of Substantial Variation. A substantial variation shall be defined as any increase in the number of lots, a decrease in the open space acreage by more than ten (10) percent, a significant change in the character of the open space or amenities, a change in the layout which causes dwellings or roadways to be placed significantly closer to a dwelling located outside the development and which adversely and significantly affects natural landscape features and open space. The relocation of lot lines shall not be considered a substantial variation. The determination that a variation is
substantial shall require a vote of the Planning Board by two thirds majority of those present, following consideration of recommendations from the City Engineer, Conservation Officer, Planner and Solicitor.
(ii) New Public Hearing. If the Planning Board finds before the hearing on the definitive plan that a substantial variation exists, or alternatively, if the Planning Board finds the substantial variation subsequent to the hearing on the definitive plan, then the Board shall notify the applicant that a new public hearing shall be required to amend the Special Permit and that said hearing shall relate solely to the acceptability of the substantial variations. The acceptability of said substantial variations must be determined by the Planning Board after public hearing prior to final approval by the Planning
Board of the definitive plan. If appropriate, a second hearing on the concept plan variations may be held on the same day as the hearing on the definitive plan.
200-29. Applicability of Ordinance to Historic District.
The provisions of Article Sections 200-40 through 200-49 shall not apply to any property located in an Historic District which was duly created pursuant to the provisions of MGL Chapter 40C, or to any property which is used solely to provide accessory parking for any property in said Historic District, if and to the extent that:
A. A Certificate of Appropriateness has been granted by a local Historic District
Commission pursuant to MGL Chapter 40C regarding a construction or alteration of a building or structure on said property;
B. Said Certificate of Appropriateness specifically refers to one or more of said Zoning
Sections and specifies the way in which the matter which is the subject of that Zoning Section or Sections will be handled as part of the construction or alteration; and
C. The decision of the Historic District Commission contains written findings that the
said Historic District Commission has solicited and received the written comments of the Building Inspector, City Engineer, City Planner, Police Chief and Fire Chief regarding any such matters and has duly considered any comments so received, and that the way in which such matters will be handled as part of the construction process is in harmony with the general purposes and intent of this Ordinance and will not be detrimental to the neighborhood.
D. The alternative approved by the Historic District Commission does not reduce
landscaping, the required pervious areas pursuant to Section 200-23(B)(2), or building or other setback requirements which, according to the terms of the Zoning Ordinance, would otherwise have applied, by more than fifty (50) percent, and does not reduce the required number of parking spaces by more than twenty five (25) percent of the number which would otherwise have been required.
E. The construction or alteration is done in compliance with all terms of the Certificate
of Appropriateness.
Sections 200-30 to 39. Reserved
| 
