Cummington City Zoning Code

1. Purposes

The purposes of the Town of Cummington Personal Wireless Service Facilities, Towers and Repeaters By-Law are to:

a. Preserve the character and appearance of the Town while simultaneously allowing Adequate Personal Wireless Services to be developed.

b. Protect the scenic, historical, environmental, and natural or man-made resources of the community.

c. Provide standards and requirements for regulation, placement, constructing, monitoring, design, modification, and removal of Personal Wireless Service Facilities and Repeaters.

d. Provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify Personal Wireless Service Facilities and Repeaters.

e. Preserve property values, locate Towers so as to minimize negative impacts on general safety, welfare and quality of life in the community, such as, but not limited to, visual blight, attractive nuisance, noise and falling objects.

f. Require owners of Personal Wireless Service Facilities, Towers and Repeaters to configure them so as to minimize and mitigate the adverse visual impact of the Facilities, Towers and Repeaters, including clustering, co-locating, and camouflaging where appropriate.

2. Consistency with Federal Law.

These regulations are intended to be consistent with the Telecommunications Act of 1996 in that:

a. They do not prohibit or have the effect of prohibiting the provision of Personal Wireless Services.

b. They are not intended to be used to unreasonably discriminate among providers of functionally equivalent services.

c. They do not regulate Personal Wireless Services on the basis of the environmental effects of radio frequency emissions to the extent that the regulated Services and Facilities comply with the FCC’s regulations concerning such emissions.

3. Definitions

See Section 3 - Definitions under “Personal Wireless Service Facilities and Repeaters”

4. Scope

a. This Article specifically exempts the following wireless telecommunications facilities:

1) police, fire, ambulance and other emergency dispatch

2) citizen band radio. Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the FCC, are exempt, provided that:

3) the tower is not used for any commercial purpose, and

4) the tower shall be removed upon loss or termination of said FCC license.

5) No Personal Wireless Service Facility or Repeater shall be considered exempt from this Article for any reason, whether or not said Facility or Repeater is proposed to share a Tower or other structure with such exempt uses.

b. There shall be no Teleport(s) or microwave reflector dish Antenna (s) within the Town of Cummington.

c. Communication relay structures, TV broadcast systems, radio broadcast systems and other similar systems are not permitted under this telecommunications tower By-Law

5. Requirement of Special Permit

a. No Personal Wireless Service Facility, Tower or Repeater shall be erected, constructed, or installed or undergo Major Modification without first obtaining a Special Permit from the Special Permit Granting Authority (SPGA) in accordance with the requirements set forth herein. One or both of two kinds of Special Permits are required.

a) A Facility/Tower Special Permit (hereforth F/TSP) for new Facility/Tower construction (or Major Modification Of An Existing Facility);

b) A Repeater Special Permit (hereforth RSP) for Repeater(s) to be mounted on an existing, or newly permitted Tower or structure (or Major Modification Of An Existing Repeater).

b. The Planning Board shall be the SPGA for this use.

c. All applications to construct a tower must provide space on top of the tower for fire, police and any and all emergency services to install communication equipment at fair market value. Additionally, space shall be provided within the base station for a shelter for communications equipment suitable to such services, at fair market value. Access to the station shall be provided to fire, police and emergency services to maintain their equipment through the use of a “key safe” installed at the primary point of entry into the Base Station.

6. Application Requirements

a. For Personal Wireless Service Facilities or Towers an F/TSP is required. Applicant must submit all information required in §10-10(5.b.). For all Repeaters proposed for installation, a RSP is required. A RSP may be applied for by an Applicant who is currently applying for a F/TSP under this Article, or by an Applicant who has previously received a F/TSP under this Article, or by an entity that is providing Personal Wireless Services to the Town of Cummington from a base station outside the Town. Applicant must submit all information required in §10-10(5.c). If Applicant is applying for both Permits, they shall be submitted and examined concurrently.

b. Application Requirements for Facilities or Towers.

1) General - The application shall include the following information:

a) The exact legal name, address or principal place of business and phone number of the Applicant. If any Applicant is not a natural person, it shall also give the state under which it was created or organized.

b) The name, title, addresses and phone numbers of the person to whom correspondence or communications in regard to the application are to be sent. Notice orders and other papers may be served upon the person so named, and such service shall be deemed to be service upon the Applicant.

c) Name, address, phone number and written consent to apply for this permit. From the owner of the property that the proposed Personal Wireless Service Facility and/or Tower shall be located, or the owner(s) of the Tower or structure on which the proposed Personal Wireless Service Facility shall be located.

2) Engineering Requirements - Reports prepared by one or more professional engineers, licensed to practice in the State of Massachusetts that shall include the following:

a) Copies of all submittals and showings pertaining to: FCC Licensing Environmental Impact Statements; Federal Aviation Administration Notice of Construction or Alteration; Aeronautical Studies; and, all data, assumptions and calculations relating to service coverage and power levels regardless of whether categorical exemption from Routine Environmental Evaluation under the FCC rules is claimed.

b) Copies of all information submitted in compliance with requirements of Massachusetts Department of Public Health, 105 CMR 122 fixed facilities that generate electromagnetic fields in the frequency range of 300 kHz to 100 gHz and microwave ovens. Or any revisions thereof as the Department of Public Health may, by written notice, create.

3) Adequate Coverage - Adequate Capacity and Justification of Need for F/TSP.

a) Applicant shall provide written documentation of any Facility Site(s) in Cummington, and any sites in abutting towns located within five miles of any boundary of the Town of Cummington, in which it has a legal or equitable interest, whether by ownership, leasehold or otherwise. For each such Facility Site, it shall demonstrate with written documentation that this Facility Site is not already providing, or does not have the potential by adjusting the Site, to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington. The documentation shall include, for each Facility Site listed:

i. The exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds), ground elevation above mean sea level at the Tower location, height of Tower or structure, and height of proposed antennas on tower or structure.

ii. Type, manufacturer and model number of antennas, and antenna gain.

iii. Output frequency number of channels, power input, and maximum Power output per channel.

iv. Potential adjustments to these existing Facility Sites, including changes in Antenna type, orientation, gain; height or power output shall be specified.

v. Radial Plots from each of these Facility Sites, as they exist, and with adjustments as above, shall be provided as part of the Application.

b) Applicant shall demonstrate with written documentation that they have examined all existing Facility Sites located in Cummington and in any sites in abutting towns located within five miles of any boundary of the Town of Cummington in which an Applicant has no legal or equitable interest. Whether by ownership, leasehold, or otherwise to determine whether those existing Facility sites can be used to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington. The documentation shall include, for each existing Facility Site examined:

i. The exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds), ground elevation above mean sea level at the Tower location, height of Tower or structure, and height of proposed antennas on tower or structure.

ii. Type, manufacturer and model number of antennas, and antenna gain.

iii. Output frequency, number of channels, power input and maximum power output per channel. Radial Plots from each of these existing Facility Sites, configured as documented above, shall be provided as part of the Application.

c) Application shall demonstrate with written documentation that the fee, costs, or contractual provisions required by the owner(s) in order to share an existing wireless communication structure or to adapt an existing structure for use are unreasonable. Unreasonable cost would be equal to twice the cost of building a new structure.

d)Applicant shall demonstrate with written documentation that it has analyzed the feasibility of Repeaters in conjunction with all existing Facility Sites listed in compliance with §10-10(5.b.3.a) and §10-10(5.b.3.b) (above) to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington. Radial Plots of all Repeaters considered for use in conjunction with these Facility Sites shall be provided as part of the Application.

e)Applicant shall provide documentation from the FAA that the proposed facility is exempt from applicable regulations administered by the FAA.

4) The following engineering plans, prepared, stamped and signed by a Professional Engineer licensed to practice in Massachusetts. (Note: survey plans shall also be stamped and signed by a Professional Land Surveyor registered in Massachusetts.) Plans shall be on 24”x 36” sheets, on as many sheets as necessary, and at scales that are no smaller (i.e. no less precise) than listed below and in §10-10 (5.b.4). Each plan sheet shall have a title block indicating a project title, sheet title, sheet numbers, date, revision dates, scale(s) and original seal and signature of the P.E. and other professionals who prepared the plan.

a) Proposed Site Plans: Proposed Facility Site layout, grading and utilities at a scale no smaller than 1”=40’ (1:480 or metric equivalent 1:500) showing the entire vicinity within a 400’ radius of the Tower site with topography drawn with a maximum of 2’(0.6 meter) contour interval, and including:

i. Proposed Tower location and appurtenances, if any, and any accessory building (Communication Equipment Shelter or other), indicate property boundaries and setback distances to the base(s) of the Tower and to the nearest corners of each of the appurtenant structures to those boundaries, and dimensions of all proposed improvements. The site plan shall include the location of all abutting properties within 300’ of the tower property and names of current owners of each.

ii. Limits of areas where vegetation is to be cleared or altered and justification for any such clearing or alteration.

iii.Plans for proposed access driveway or roadway and parking area at the Facility Site. Including grading, drainage and traveled width. Include a cross section of the access drive indicating the width, depth of gravel, and paving or surface materials.

b) Proposed Tower and Appurtenances

i. Plans, elevations, sections and details at appropriate scales but no smaller than 1”=10’

ii. Two cross sections through proposed Tower drawn at right angles to each other, and showing the ground profile to at least 100 feet beyond the limit of clearing. Indicate proposed spot elevations at the base of the proposed Tower. Indicate the proposed height of tower above average grade at Tower Base. Indicate the maximum allowable structural height of the Tower after addition of any modular sections. Show all proposed antennas, including their location on the Tower.

iii. Details of typical Tower foundation, including cross-sections and details. Show all ground attachments, specifications for anchor bolts and other anchoring hardware.

iv. Detail proposed exterior finish and camouflage of the tower.

v. Indicate height of the Tower relative to the tops of surrounding trees as they currently exist.

c) Proposed Communications Equipment Shelter.

i. Floor Plans, elevations and cross sections at a scale of no smaller than ¼“=1’ (1:48) of any proposed appurtenant structure.

ii. Representative elevation views, indicating the roof, facades, doors and other exterior appearances and materials.

d) Proposed Equipment Plan.

i. Plans, elevations, sections and details at appropriate scales but no smaller than 1”=10’.

ii. Numbers of Antennas and Repeaters (if any), as well as the exact locations of all Repeaters (if any) located on a map as well as by Degrees, minutes and seconds of Latitude and Longitude.

iii. Mounting locations on Tower or structure, including height above ground.

iv. Antenna type(s), manufacturer(s) model number(s).

v. For each Antenna, the Antenna gain and Antenna radiation pattern.

vi. Number of channels per Antenna, projected and maximum.

vii. Power input to Antenna(s).

viii. Power output, in normal use and at maximum output for each Antenna and all Antennas as an aggregate.

ix. Output frequency of the Transmitter(s).

5) Details of proposed method of financial surety as required in §10-10(12)

6) A written, irrevocable commitment valid for the duration of the existence of the Tower, to rent or lease Available Space for co-location on the Tower at fair market prices and terms, without discrimination to other Personal Wireless Service Providers.

7) Within thirty days after filing an application for any new tower, or extension in height thereto, the applicant shall arrange to fly a balloon at the proposed site, at the maximum height of the proposed installation, on a weekend day. The balloon shall be of size and color that can be seen from every direction for a distance of one mile. Applicant shall be responsible for posting the date and location of the balloon(s) as a legal advertisement at least 14 days, but not more than 21 days before the flights in at least two different issues of a newspaper with a general circulation in the Town of Cummington.

8) Written documentation from a provider of landlines indicating adequate landline capacity for the proposed installation.

c. Application Requirements for R.S.P.

The use of Repeaters to assure adequate Coverage or to fill holes within areas of otherwise adequate coverage, while minimizing the number of required Towers is permitted and encouraged. An Applicant who has received and is in compliance with a current F/TSP under this Article, or an entity which is providing Personal Wireless Services to the Town of Cummington from a base station outside the Town, may apply for a RSP. Applicants for RSP shall provide the following information:

1) Exact location (in Longitude and Latitude, to degrees, minutes, seconds) as well as by street address or Pole number (if applicable).

2) Ground elevation.

3) Type, manufacturer and model number of proposed Repeater.

4) Height of proposed Repeater above ground.

5) Proposed output frequency.

6) Proposed number of channels.

7) Proposed power input.

8) Proposed maximum power output per channel.

9) Radial plots from any proposed Repeater(s), configured as documented above, shall be provided as part of the Application.

10) Photo or drawing of proposed Repeater.

11) Name, address, phone number, and written consent to apply for this permit, of the owner of the property on which the proposed Repeater shall be located, and of the owner(s) of the Tower or structure on which the proposed Repeater shall be located.

12) Proposed Repeater Site layout, grading and utilities at a scale no smaller than 1”=40’ (1:480 or metric equivalent 1:500)showing the entire vicinity within 300’ radius of the Repeater site with topography drawn with a minimum of 2’ (0.6 meter) contour interval.

13) Proposed Repeater location and appurtenances, if any, and any accessory building (Communication Equipment Shelter or other). The site plan shall include the location of all abutting properties within 300’ of the tower property and names of current owners of each.

14) Limits of areas where vegetation is to be cleared or altered, and justification for any such clearing or alteration.

15) Plans of any proposed access driveway or roadway and parking area at the Repeater site. Include grading, drainage and traveled width. Include a cross section of the access drive indicating the width, depth of gravel, and paving or surface materials.

16) Written documentation from a provider of landlines indicating adequate landline capacity for the proposed installation.

7. General Requirements For Issuance of F/TSP (s)

a. Provision of Service - No new facility or tower shall be permitted unless the SPGA finds that Applicant cannot provide Adequate Coverage and Adequate Capacity from existing Facility Sites, either controlled by Applicant or on which Applicant could reasonably co-locate. A Special Permit shall not be granted for a Tower to be built on speculation. If Applicant is not, itself, simultaneously installing a Personal Wireless Service Facility on the Tower, it shall provide a copy of its existing lease/contract with a Personal Wireless Service Provider. Said Provider shall provide all necessary data to comply with the terms of this Article, as part of Applicant’s application for a F/TSP, or the Special Permit shall not be granted. If primary coverage (greater than 50%) from proposed Wireless Service facility were outside Cummington, then the permit may be denied. Repeaters shall be required in areas deemed not to have Adequate Coverage within the Coverage Area.

b. Environmental Conditions

1) In general, Towers and Personal Wireless Service Facilities shall be located so as to provide adequate coverage and Adequate Capacity with the least number of Towers and Antennas, which is technically and economically feasible.

2) In furtherance of the above, the following locations are ranked in order of preference:

a) The use of Repeaters to provide Adequate Coverage without requiring new Tower(s).

b) Shared use of existing Personal Wireless Service Facilities.

c) The use of land distant from higher-density residential properties, where visual impact is minimized.

d) The use of municipal lands complying with other requirements of this Article, where visual impact can be minimized and mitigated.

3) Those towers that are necessary shall minimize, to the extent feasible, adverse visual impacts on the environment. The SPGA may impose reasonable conditions to ensure this result, including but not limited to, requiring the use of camouflage, painting, lighting standards and screening, or the mimicking of a tree or other appropriate object. Towers shall be sited off ridgelines, and where their visual impact is least detrimental to highly rated scenic areas. (See, for example, Massachusetts Landscape Inventory, M.G.L. Ch. 131, Sec 39A, conducted by Massachusetts Dept of Environmental Management, 1982).

4) A vegetated buffer strip of undisturbed trees of at least 200’ in depth (or less if determined by the SPGA to be sufficient), shall be retained as close to the Tower as possible, but in all cases there shall be no clearing at a distance in excess of 25 feet square from the base of the Tower except where the access drive is located. The access drive shall be winding and well landscaped. The base of the Facility shall not be visible form any public roadway. If a Tower is proposed for an area without mature forest growth, it shall be camouflaged as determined by the SPGA. This may include the requirement to plant a sufficient number of mature trees to adequately screen the base of the Tower and equipment shelters.

5) No Tower or Personal Wireless Service Facility with the exception of Repeaters shall be located within any of the following prohibited areas:

a) Massachusetts-or-federally regulated wetland.

b) Massachusetts Certified Vernal Pool.

c) The habitat of any State listed Rare or Endangered Wildlife or Rare Plant Species.

d) Within 100 feet horizontally from any Massachusetts regulated wetland.

e) Within 200 feet horizontally of the Outer Riparian Zone of any river or perennial stream, as defined in the Wetlands Protection Act and Regulations.

f) Within 500 feet horizontally from any Historic District or property listed or eligible to be listed on the state or federal Register of Historic Places, or site determined by the Massachusetts Historical Commission to be eligible for such listing.

g) Where the Facility would be visible from a Historic Site.

6) In addition to the above, Towers and Personal Wireless Service Facilities shall be located so as to minimize the following potential impacts:

a) Diminution of residential property values: Siting shall be in areas of as low population density as possible.

b) Unsafe structural conditions and attractive nuisance.

c) Excessive electromagnetic radiation: In case the Tower or Personal Wireless Service Facility is found in excess of the FCC guidelines.

c. Physical Plant

1) Fencing. The area around the Tower and Communication Equipment Shelter(s) shall be completely fenced for security within an area no greater than 25 feet square from the base of the Tower, and to a height of six feet, and gated. Use of razor wire is not permitted. Fencing shall be compatible with the scenic character of the Town and of abutting properties, and shall be approved by the SPGA.

2) Signs. There shall be no signs except the following: A sign no greater than two (2) square feet indicating the name of the Personal Wireless Service Facility’s owner(s) and a 24 hour emergency telephone number shall be posted adjacent to the entry gate. In addition, “No Trespassing”, or other warning signs, may be posted on the fence. All signs are subject to approval by the SPGA.

3) Communication Equipment Shelters and Accessory Buildings shall be designed to be architecturally similar and compatible with each other and with residential buildings on Main Street in Cummington, and shall be no more than 12 feet high. The buildings shall be used only for the housing of equipment related to this particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building.

4) The minimum distance from the base of the wireless communication structure to any property line or road right-of-way shall be at least 1.5 times the height of the structure plus any attached wireless communication devices, to ensure an adequate fall zone.

5) New Towers shall not exceed the minimum height necessary as determined by the SPGA to provide Adequate Coverage from the Personal Wireless Service Facility(ies) proposed for use on the Tower, and shall in no event exceed 190 feet, or any lesser height, which according to FAA regulations would require placement of warning lights for aircraft.

6) Towers shall be located at least one and one half times their maximum structural height from any structure, excluding equipment shelter(s).

7) To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of Personal Wireless Service Providers likely to utilize the site to provide services to the Town of Cummington and surrounding areas.

8) Unless required by the Federal Aviation Administration, no night lighting of Towers, or the Personal Wireless Service Facility, is permitted, except for manually operated emergency lights for use only when operating personnel are on site.

9) No Tower or Personal Wireless Service Facility that would be classified as a hazard to air navigation, as defined by the Federal Aviation regulations (Title 14 CFR) is permitted.

10) Tower(s) must be of a type, which will maximize potential sharing. Applicant must demonstrate the future utility of such structure for expansion of service to Applicant and to other future Applicants.

11) Commercial advertising shall not be allowed on any Antenna, Tower, or Accessory Building or Communication Equipment Shelter.

12) All towers shall be self-supporting. There shall be no guide wires.

13) All Network interconnections shall be via landline. Applicant shall demonstrate availability of adequate landline capacity as part of their application.

8. General Requirements for Repeater Special Permits

a. No Repeater shall be located closer than 50 feet to an existing Dwelling Unit or less than 25 feet above ground.

b. The SPGA may require the use of screening, painting, or camouflage to reduce the visual impacts of Repeaters.

c. Repeaters shall be located so as to have the least impact on the views of the residents of the Town of Cummington.

9. Evaluation by Independent Consultants.

a. Upon submission of an application for any Special Permit under this Article, the Applicant shall pay a review fee determined by the SPGA, and submit an affidavit stating that the Applicant will pay all costs incurred in excess of this review fee. The fee plus additional costs shall consist of all reasonable costs to be incurred by the SPGA for the employment of independent consultants. The SPGA shall select the Independent Consultant(s) to assist in the review of the Application. These Consultants shall each be qualified professionals with a record of service to municipalities in one of the following fields, as appropriate: 1) telecommunications engineering, 2) structural engineering, 3) monitoring of electromagnetic fields, and 4) other relevant fields of experience as determined by the SPGA.

b. Upon submission of a complete Application for any Special Permit(s) under this Article, the SPGA shall provide its Independent Consultant(s) with the full Application(s) for their analysis and review.

c. Applicants for any Special Permit(s) under this Article shall grant permission for the Town’s Independent Consultant(s) to conduct any necessary site visit(s), or obtain permission from the owner(s) of the proposed site(s) for any site visit(s).

10. Approval Criteria

a. In acting on any Special Permit Application, the SPGA shall proceed in accordance with the procedures and time lines established for Special Permits in State law, this By-Law, and other applicable law.

b. In addition to the findings required by the Zoning By-Law for Special Permits generally, the SPGA shall make the following findings before granting the Special Permit:

c. Applicant is not already providing Adequate Coverage and/or Adequate Capacity within the Coverage Area.

d. An applicant already providing service in the Town of Cummington must be in full compliance with the terms of their existing F/TPS(s) or RSP(s)

e. Applicant has agreed to rent or lease Available Space on the Tower, under the terms of a fair market lease, without discrimination to other Personal Wireless Service Providers.

f. Applicant is not able to use Existing Tower/Facility Sites in or around the Town of Cummington, either with or without the use of Repeaters, to provide adequate coverage and/or Adequate Capacity within the Coverage Area.

g. Proposed Personal Wireless Service Facility/Tower or Repeater will not be likely to have an undue adverse impact on historic resources, scenic views, residential property values, natural or man made resources.

h. Applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the towers and Facilities.

i. Emergency access to the site via the planned drive or roadway is adequate; the SPGA shall request and consider input from the Chiefs (or the designees) of Fire, Police and other Emergency services regarding this issue.

j. The proposal shall comply with FCC 96-326 and any and all other applicable FCC regulations, regarding emissions of electromagnetic radiation and that the required Monitoring program is in place and shall be paid for by the Applicant.

k. The General Requirements (Sections 10-10(6) & 10-10(7) have been met.

l. Any decision by the SPGA to deny an Application for a Special Permit under this Article shall be in conformance with Sec. 332 [47U.S.C.332] (7)(B)(ii)(iii) of the Act. In that it shall be in writing and supported by substantial evidence contained in a written record.

11. Monitoring and Evaluation of Compliance

a. Initial Monitoring. It shall be a condition of any Special Permit granted under this By-Law that, in order to determine the Tower and Facility’s or Repeater’s radio frequency emissions and their compliance with FCC regulations, the Applicant shall, after the granting of a Special Permit and within 30 days of the date that Applicant’s Personal Wireless Service Facility (ies) or Repeater(s) begin(s) transmission, pay for an Independent Consultant, hired by the Town, to Monitor the levels of EMF radiation, around the proposed Facility and/or Repeater site(s). The Independent Consultant shall use the Monitoring Protocol. A report of the Monitoring result shall be prepared by the Independent Consultant and submitted to the Planning Board, Board of Selectmen, the Board of Health, the Zoning Board of Appeals, and the Town Clerk.

b. Ongoing Monitoring. It shall be a condition of any Special Permit granted under this By-Law that in order to determine ongoing compliance with FCC regulation, after transmission begins, the owner(s) of any Personal Wireless Service Facility(s) or Repeater(s) located on any Facility or Repeater site shall pay for an Independent Consultant hired by the Town to conduct annual testing and monitoring of EMF radiation emitted from said Site, and to report results of said monitoring, as follows:

1) There shall be annual Monitoring of emissions by the Independent Consultant using actual field measurement of radiation utilizing the Monitoring Protocol. This Monitoring shall measure levels of EMF radiations from the Facility Site’s primary Antennas as well as from Repeater Site(s) (if any). A report of the Monitoring results shall be prepared by the Independent Consultant and submitted to the Planning Board, the Board of Selectmen, the Board of Health, the Zoning Board of Appeals, and the Town Clerk.

2) Any Major Modification of Existing Facility, or the activation of any additional permitted channels, or the reactivation of any facility, which has been idle for six months, shall be cause for new Initial Monitoring in accordance with §10-10(10.a.)

3) Excessive Emissions. Should the Monitoring of a Facility or Repeater Site reveal that the Site exceeds the FCC 96-326 standard, or any other applicable FCC standard, then the owner(s) of all Facilities utilizing that Site shall be so notified. The owner(s) shall submit to the SPGA, Board of Selectmen, Board of Health and the Town Clerk a plan for the reduction of emissions to a level that complies with the FCC 96-326 standard and any and all other applicable FCC regulations within 10 business days of notification of non-compliance. That plan shall reduce emissions to the applicable FCC standard within 15 days of initial notification of non-compliance. Failure to accomplish this reduction of emission within 15 business days of initial notification on non-compliance shall be a violation of the Special Permit and subject to penalties and fines. Such fines shall be payable by the owner(s) of the Personal Wireless Service Facilities with Antennas on the Facility Site, until compliance is achieved.

4) Structural Inspection. It shall be a condition of the Special Permit that Tower owner(s) shall pay for an Independent Consultant (a licensed professional structural engineer), hired by the Town, to conduct inspections of the Tower’s structural integrity and safety. Towers shall be inspected every five years. The Independent Consultant shall prepare a report of the inspection results and submit it to the Board of Selectmen, the Planning Board, the Board of Health, the Building Inspector and the Town Clerk. Any Major Modification of Existing Facility that includes changes to Tower dimensions or antenna numbers or type shall require new structural inspection.

5) Unsafe Structure. Should the inspection of any tower reveal any structural defect(s), which, in the opinion of the Independent Consultant render(s) that Tower unsafe, the following actions must be taken. Within 10 business days of notification of unsafe structure, the owner(s) of the Tower shall submit a plan to remediate the structural defect(s). This plan shall be initiated within 10 days of the submission of the remediation plan, and completed as soon as reasonably possible. Failure to accomplish this remediation of Structural defect(s) within 10 business days of initial notification shall be a violation of the Special Permit and subject to penalties and fines as a zoning violation. Such fines shall be payable by the owner(s) of the Tower, until compliance is achieved.

12. Removal Requirements

Any personal Wireless Service Facility or Repeater that ceases to operate for a period of one year shall be removed. Cease to operate is defined as not performing the normal functions associated with the Personal Wireless Facility or Repeater and its equipment on a continuous and ongoing basis for a period on one year. At the time of removal, the Facility or Repeater Site shall be remedied such that all Personal Wireless Service Facility or Repeater improvements, which have ceased to operate, are removed. If all Facilities on a Tower have ceased to operate, the Tower shall also be removed, and the Facility or Repeater Site, including any access road(s), which lead to that Facility or Repeater Site from the main access road, shall be revegetated. Existing trees shall only be removed with the written permission of the SPGA, and only if the SPGA determines such removal of trees to be necessary to complete the required removal of Personal Wireless Service Facility(s) or Repeater(s). Police, Fire, and Emergency Services are specifically exempted from the above requirements.

13. Performance Guarantees

a. Applicant shall, as a condition of the Special Permit:

1) Post a term insurance bond in a reasonable amount determined and approved by the SPGA. This bond shall be in force to cover the costs of the remediation of any damage to the landscape that occurs during the clearing of the Site. Also to cover the cost of removal of the Tower or Facility or Repeater from the Site, and remediation of the landscape, should the Facility or Repeater cease to operate.

2) Post a maintenance bond for the access road(s) site(s) and Tower(s) in amounts approved by the SPGA.

14. Fees and Insurance

a. Towers, Personal Wireless Service Facilities and Repeaters shall be insured by the owner(s) against damage to persons or property. The owner(s) shall provide a Certificate of Insurance to the SPGA and the Selectmen’s Office on an annual basis. For Towers, Facilities and Repeaters located on property owned by the Town of Cummington and the Town of Cummington shall be an additional named insured.

b. A schedule of fees for Personal Wireless Service Facility, Tower or Repeater permitting and renewal, any Monitoring of emissions and inspection of structures, and any other fees shall be established by the SPGA pursuant to M.G.L. c40A. §9. This schedule may be amended from time to time.

15. Permit Expiration and Renewal

a. Any Special Permit granted under this section shall lapse if the Applicant fails to begin construction on the Facility or Tower or Repeater within an eighteen-month period of said grant.

b. All Special Permits granted under this section shall be granted for five years. The SPGA shall upon application filed prior to the expiration of any five-year period renew said Special Permit for an additional five-year period. If the SPGA determines that the Tower and/or Facility and /or Repeater so permitted shall have been and shall remain in compliance with all terms and conditions of this By-Law, and of any conditions placed upon the original Special Permit at the time of granting.

16. Severability Clause

The invalidity of any section or provision of this By-Law shall not invalidate any other section or provision hereof.

17. Moratorium

Upon the effective date of this By-Law the moratorium imposed on the acceptance and processing of applications for land use permits for personal wireless services facilities established by Cummington Zoning By-Law 3-30 6.a.) is repealed, provided however, that if this By-Law or any portion of this By-Law is held to be void for any reason, the moratorium established in Cummington Zoning By-law 3-30 (6.1.) shall be reinstated for a period of six months to allow the Town of Cummington to formulate and pass new provisions.

1. Applicability

Flexible Residential Open Space Development in accordance with this By-Law shall be allowed By-Right in the Rural Residential and Village zoning district, except not in the Floodplain Overlay District. Flexible Residential Open Space Development shall mean a residential development in which single-family residences are clustered together, adjacent to permanently preserved open space. Flexible Residential Open Space Development shall be encouraged within the town, and shall be the preferred method of subdivision development wherever the following purposes would be served.

2. Purposes

a. The purposes of Flexible Residential Open Space Development are:

i. To allow for greater flexibility and creativity in the design of residential subdivisions, provided that the overall density of the development is no greater than what is normally allowed in the district.

ii. To encourage the permanent preservation of open space, agricultural lands, forestlands and other natural resources and encourage a less sprawling form of development that consumes less open land.

iii. To maintain the traditional New England rural character and land use pattern in which small villages contrast with open space and farmlands.

iv. To facilitate the construction of streets, utilities and public services in a more economical and efficient manner.

v. To ensure that residential developments respect the natural features of the land including wetlands, watercourses, forests, prime agricultural land, steep slopes, plants, wildlife, historic sites, scenic views, and rural character.

vi. To encourage development out of view from the road, and promote alternatives to strip residential development lining roadsides in the town.

vii. To provide wildlife corridors connecting open spaces, needed by wildlife to ensure their survival.

3. Optional FROSD Submission

In any residential subdivision consisting of ten (10) contiguous acres or more in single or consolidated ownership, an applicant may apply for a FROSD under this Article. The minimum acreage may be waived by the Planning Board in instances where an applicant demonstrates that the criteria in Section 10-20(2) are met.

4. Application Requirements

a. Existing Resources Site Analysis Map: For all FROSD submissions, a map with the following features shall be submitted/presented to the Planning Board at a regularly scheduled meeting for the purpose of assessing the impact or implications of the development and shall be used in the preparation of a voluntary sketch plan or preliminary design plan.

1) Boundaries of wetlands defined by Massachusetts Wetlands Law CMR-140 and certified by a licensed wetlands professional engineer.

2) Location and limits of soils types, particularly Prime Agricultural Soils, consistent with the soils classification maps prepared by the US Department of Agriculture Soil Classification Service.

3) Areas where the depth of natural soil to bedrock is two (2) feet or less.

4) The extent of any Interim Wellhead Protection Areas and Recharge Areas.

5) Topographic contours at intervals of ten (10) feet or less.

6) Delineation of slopes of twenty-five percent (25%) or greater.

7) The location of cultural and historic features including, but not limited to, stonewalls on the boundary of the site and archaeological and historic sites and structures. On sites of more than twenty (20) acres, interior stonewalls shall be shown.

8) Scenic view sheds defined on page 36 of the 2001 Cummington Open Space and Recreation Plan and as identified by on-site observations from public roads and vantage points.

9) Unique or special wildlife habitats as defined by Massachusetts BioMap Project developed by the Massachusetts Natural Heritage & Endangered Species Program.

10) Unique or special vegetative communities as defined by the 2001 Cummington Open Space and Recreation Plan.

b. Voluntary Sketch Plan

1) For all FROSD submissions, a sketch plan may be submitted. The intent of this provision is to assure the community that the applicant has considered site features when developing a subdivision plan. A voluntary sketch plan is optional but highly encouraged as an important, valuable, and highly recommended step that will speed the review process and may result in lower costs for the project.

2) Sketch plan submission is strongly recommended by the municipality as a way of helping applicants and officials develop a better understanding of the property and to help establish an overall design approach that respects the community’s special or noteworthy features while providing for the density of lots permitted under the zoning ordinance

3) A Sketch Plan may be submitted by the applicant as a diagrammatic basis for informal discussion with the Planning Board regarding the design of a proposed subdivision. The diagrammatic Sketch Plan may be prepared as a simple overlay sheet placed on top of the Existing Resources/Site Analysis Map.

4) The Planning Board shall review the Sketch Plan in accordance with the criteria set forth in 10-20(4.c.2). Approval of the Sketch Plan by the Planning Board may allow the applicant to waive Preliminary Development Plan submission requirements, if the applicant meets all of the review criteria standards set forth in 10-20(4.c.2).

5) To provide a full understanding of the site’s potential and to facilitate the most effective exchange with the Planning Board, the Sketch Plan should contain the following information:

a) Name and Address of legal owner, and/or the applicant.

b) Name and Address of the professional engineer, surveyor, planner, architect, landscape architect, or site designer responsible for preparing the plan.

c) Graphic scale not greater than 1 inch = 200 feet, and north arrow.

d) Approximate tract boundaries.

e) Location map.

f) Zoning District.

g) Streets on and adjacent to the tract (both existing and proposed)

h) 100-year floodplain limits and location of wetlands.

i) Topographic, physical, and cultural features, including fields, pastures, meadows, wooded areas, significant vegetation, steep slopes, stone walls.

j) Proposed general street and lot layout.

c. Preliminary Development Plan Submission

1) For all FROSD submissions, a Preliminary Development Plan shall be submitted in conformances with the Town of Cummington Subdivision Control Laws. Applicants shall submit a conventional subdivision design and an alternative Flexible Residential Open Space Development design to the Planning Board for review prior to development of a Definitive Plan. Approval of the Preliminary Plan by the Planning Board will be based on the review criteria standards set forth in Section 10-20(4.c.2).

2) Review Criteria Standards. The Planning Board shall review the Preliminary Development Plan in accordance with the criteria contained in this By-Law and with other applicable ordinances of the Town of Cummington. The Review shall informally advise the applicant to the extent to which the proposed subdivision or land development conforms to the relevant standards of this By-Law and may suggest possible plan modifications that would increase its degree of conformance. The Review shall include, but is not limited to:

a) The location of all areas proposed for land disturbance (streets, foundations, yards, septic disposal systems, storm water management areas, etc.) with respect to notable features of natural or culturally significance as identified on the applicants Existing Resources/Site Analysis Map.

b) The potential for street connections with existing streets, other proposed streets, or potential developments of adjoining parcels.

c) The location of proposed access points along existing road networks.

d) The proposed building density and areas of impervious surface.

e) The compatibility of the proposal with respect to the objectives and policy recommendations of the Open Space and Recreation Plan and Community Development Plan.

f) Consistency with the Town of Cummington’s Zoning By-Laws.

d. Definitive Development Plan Submission

For all FROSD submissions, a final Definitive Development Plan shall be submitted in conformance with this section and the Town of Cummington Subdivision Regulations as applicable. Such Plans shall adequately address standards delineated in this By-Law. In addition, the Definitive Development Plan shall address issues that have been previously discussed in the Existing Resources/Site Analysis Map.

5. Subdivision Approval Procedures

a. Application for Open space development projects shall follow all procedures specified in the Town of Cummington Subdivision Regulations.

b. The Planning Board shall submit copies of the preliminary and final subdivision plans to the Board of Health, Conservation Commission, Highway Department, Chief of Police, Fire Chief, Historical Commission who shall review the application and submit their recommendations and comments to the Planning Board concerning:

1) The completeness and adequacy of the data and methodology used by the applicant to determine the impacts of the proposed development.

2) The effects of the projected impacts of the proposed development.

3) Recommended conditions or remedial measures to accommodate or mitigate the expected impacts of the proposed development.

c. Failure of Boards, listed in Section 12-20(5.b.) to make recommendations within 30 days of the referral of the application shall be deemed to be lack of opposition.

6. Dimensional Standards

a. Allowed Density

1) The maximum number of dwelling units for an FROSD subdivisions shall be determined by use of a yield plan, which is a conceptual plan showing how the parcel could be subdivided in a conventional manner. Determination of the possible number of conventional lots shall be determined by Title V regulations. 310 CMR 15.000. For purposes of determining the number of FROSD dwelling units, each conceptual conventional lot must meet the requirements of a buildable lot for a single family dwelling unit as defined in the zoning district in which the FROSD is located and meet all other applicable requirements of the Zoning By-Law and Subdivision Regulations. The Planning Board shall applicable requirements of the Zoning By-Law and Subdivision Regulations. The Planning Board shall adopt regulations that provide for the generation of a yield plan in accordance with this section.

2) There shall be no further subdivision of an approved FROSD.

b. Flexible Dimensional Controls

1) Frontage

a) The minimum frontage for a tract on which an FROSD is proposed shall be a contiguous one hundred (100) feet and provide safe access for a right-of-way of at least fifty (50) feet.

b) In the interest of flexibility and creative site designs, the Planning Board can waive minimum frontage requirements for individual lots on new subdivision streets within a FROSD.

c) For each lot developed along a public street existing at the time of the application, the minimum frontage, minimum lot size and all other dimensional controls shall be those which are required in the underlying zoning district in which the FROSD is located.

2) Lot Size - The minimum lot size for lots within a FROSD shall be 30,000 square feet.

3) Setbacks - There shall be a minimum setback of twenty-five (25) feet along all property boundaries of the tract for all structures, including accessory structures, parking areas, driveways and internal streets.  Entrance streets connecting the FROSD to the external street system may cross the setback area.

4) Landscaped Buffers

a) Landscaped buffer no less than fifty (50) feet deep shall be provided where appropriate to screen the development from public streets and adjacent properties. Entrance streets connecting the FROSD to the external street system may cross the buffer area. The natural vegetation shall be retained whenever possible. If the natural vegetation is not sufficient to serve as an effective visual screen, landscaping may be required to provide such a screen, subject to the approval of the planning board. Landscaping may include berms and / or decorative fencing of an appropriate height, and shall be installed under the conditions set forth in the Cummington Subdivision Regulations.

b) This buffer area shall be part of the common area, and shall be subject to the same restrictions that apply to that area.

c) Frontage lands on streets existing at the time of application shall be preserved as buffers to the maximum extent possible in addition to all required setbacks.

7. Utility Requirements

a. On-site Sewage Disposal. The following standards shall apply to developments requiring on-site sewage disposal:

1) The applicant shall submit a septic system design prepared by a certified engineer and approved by the Board of Health and a plan illustrating the location of water supply wells with the application.

2) All Flexible Residential Open Space Developments must meet the minimum state Environmental Code (Title V) requirements for minimum setbacks between private water supply wells and septic tanks or soil absorption systems (310 CMR 15.211).

3) All Flexible Residential Open Space Developments must meet the minimum state Environmental Code (Title V) requirements for nitrogen loading limitations (310 CMR 15.214-15.217). For FROSD with individual lot sizes less than 40,000 square feet, applicants must meet the following standards:

a) Applicants must designate, on a plan, specific areas of common open space as “nitrogen credit land”.

(40,000 square feet x (times) number of lots) – (minus) (total square feet in proposed Open Space lots) = (equals) square feet of required nitrogen credit land in common open space.

b) Nitrogen credit land must meet DEP qualifications contained in “Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading (310 CMR 15.216) including, but not limited to, the following qualifications:

c) Must be restricted to prohibit man-made sources of nitrogen, including sewage discharge, nitrogen-based fertilizer or raising and grazing of livestock;

d) Must be restricted to prohibit artificially rendered imperviousness (i.e. paved streets, paved parking lots, buildings, structures, etc).

e) Not within a Velocity Zone or Regulatory Floodway identified by FEMA.

f) Not under surface water.

g) Not already being used as nitrogen credit land.

h) All designated nitrogen credit land must be permanently restricted from further development under a “Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land”.

i) After approval of the Flexible Residential Open Space Final Subdivision Plan, applicant must apply to the Board of Health and the Mass. Department of Environmental Protection (DEP) for aggregate determination of nitrogen lading under 310 CMR 15.216.

j) It is required that septic tanks be installed on individually owned lots. Nitrogen Credit Land must be at least 100 feet from all private wells.

b. Water Supply

1) In order to meet state Title V requirements for separation distances between drinking water wells and septic systems, private drinking water supply wells may be located in the common open space for a Flexible Residential Open Space Development, provided that the provisions of Section 10-20(12) for a homeowners’ association are met.

8. Fire Suppression

a. Fire Suppression Cisterns.

b. The developer may be required to install a fire cistern(s) for fire suppression with the FROSD. The Fire Chief shall determine the appropriate size and location of the fire cistern(s).

c. Residential Sprinkler Systems.

d. The developer may be required to be install fire sprinkler systems for all residential units with the FROSD.

e. Final Determination.

f. The final determination of whether a proposed FROSD shall utilized fire suppression cisterns or residential sprinkler system shall be determined by the Fire Chief.

9. Common Open Space

a. Common Open Space Requirements.

1) A minimum of 50% of the total development parcel must be permanently protected as common open space. At least 70% of the common open space shall be retained in contiguous areas, unless approved by the Planning Board.

2) Watercourses, lakes, ponds, wetlands and steep slopes over 25% may not be included in common open space calculations.

All common areas, and common facilities shall be reasonably accessible to all residents of the development.

b. Land Protection Methods for Common Open Space

1) All land not developed to buildings, lots, roads and other development shall be permanently protected as common open space for recreation, preservation, and forestry or agricultural uses which preserve the land in its natural condition.

2) Further subdivision of common open land or its use other than recreation, preservation, forest or agriculture, except for easements for underground utilities or drinking water supply wells, shall be prohibited.

10. Additional Requirements

a. Trails - Where there is an existing local or regional trail network on land adjacent to a proposed FROSD, the developer of the FROSD is encouraged to connect to the existing trail network with trail corridors through the site, and grant the general public access to these trails in perpetuity.

b. Open Space - Where there is an existing network of open space or large tracts of unfragmented open space on land adjacent to a proposed FROSD, the developer of the FROSD is encouraged to connect to the existing open space where feasible with the required open space set-aside, and grant the general public access to this open space in perpetuity.

c. View Shed and Viewpoints - The developer is encouraged to protect in perpetuity view sheds and associated viewpoints, which are lands or corridors of land that contribute to the visual landscape of the Town, including items such as open fields containing stonewalls. View sheds and viewpoints include, but are not limited to, those identified in the most current version of the Cummington Community Development Plan.

d. Historic Features - The developer is encouraged to protect historically significant buildings and landscapes, identified as such in the Community Development Plan, that include buildings and associated uses that are maintained and visually separated from the developed portion of the FROSD. Structures or landscapes not identified as such through the Community Development Plan may be determined by sufficient evidence presented to the Planning Board during review of the development. Such evidence may include comment from the Cummington Historical Commission, listing or eligibility for listing on the National Register of Historic Landmarks, or other qualified statements of historic value.

11. Affordable Housing

a. Definitions - See SECTION 4. – DEFINITIONS under “Affordable Housing”

b. Number of Units to be Provided - All developments of 10 units or more which are subject to this By-Law shall be required to set aside a minimum of twenty percent (20%) of the total number of dwelling units provided as affordable housing. In determining the allowed number of lots, fractions over may be increased to the nearest whole unit, and fractions under may be decreased to the nearest whole unit.

c. The affordable units to be provided shall be equivalent in size, quality, and characteristics to the other units in the development. The units shall not be grouped together; they shall be distributed among all units.

d. Preservation of Affordability; Restrictions on Resale.

1) An affordable housing unit created in accordance with this By-Law shall be subject to an affordable housing restriction or regulatory agreement that contains limitations on use, resale and rents. The affordable housing restriction or regulatory agreement shall meet the requirements of the Town and the Local Initiative Program or other programs qualifying dwelling units for inclusion on the Subsidized Housing Inventory, and shall be in force for the maximum period allowed by law.

2) The affordable housing restriction or regulatory agreement shall be enforceable under the provisions of M.G.L. c.184.

The Planning Board shall require that the applicant comply with the mandatory provision of affordable housing units and accompanying restrictions on affordability, including the execution of the affordable housing restriction or regulatory agreement.

3) All documents necessary to ensure compliance with this By-Law shall be subject to the review and approval of the Planning Board and review as to form by Town Counsel. Such documents shall be executed and recorded prior to and as a condition of the issuance of any Certificate of Occupancy unless later recording is permitted by the Planning Board for good reason.

12. Homeowners’ Association

a. In the event that ownership of the land will remain with the homeowners in the Flexible Open Space Residential Development, homeowners’ association shall be established, requiring membership of each lot owner in the Open Space development.

b. The association shall be responsible for the permanent maintenance of all common lands, common open space, recreational and thoroughfare facilities (not including drinking water wells), except where such responsibility is assumed by another owner of the common land (land trust or conservation organization). If any drinking water well is located on common open space, the homeowner(s) shall own the well and be responsible for any maintenance or related costs associated with their well.

c. A homeowners’ association agreement or covenant will guarantee continuing maintenance of such common areas and facilities, and assessing each lot a share of maintenance expenses shall be submitted with the final subdivision application.

d. Where no homeowners’ association is proposed, an alternative plan shall be submitted with the final subdivision application. Such agreement shall be subject to the review and approval of Town Counsel and the Planning Board, and shall be recorded in the Hampshire County Registry of Deeds. Such agreements or covenants shall provide that in the event that the association fails to maintain the common open land in reasonable order and condition in accordance with the agreement, the town may, after notice to the association and public hearing, enter upon such land and maintain it in order to preserve taxable values of the properties within the development and to prevent the common land from becoming a public nuisance. The covenants shall also provide that the cost of such maintenance by the town shall be assessed equally against each of the properties within the development.

13. Conflict with Other Laws

In the event of a conflict between this By-Law and any such laws and regulations, the provisions of this By-Law shall control, provided that they are consistent with state and federal law.

14. Severability

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

1. Purpose - Thepurposeof thisSectionistoprovidestandardsfor theplacement,design,construction, operation,monitoring,modificationandremovalof Ground­MountedSolarPhotovoltaic installationsthataddresspublicsafetyandminimizeimpactson scenic,naturalandhistoricresources.

2. Applicability

1. ThisSectionappliesto all ground­mountedsolarphotovoltaicinstallationsproposedtobe constructedaftertheeffectivedateof thisSection.ThisSectionalsopertainstophysicalmodifications thatmateriallyalterthetype,configuration,or sizeof theseinstallationsor relatedequipment.

2. All Ground Mounted Solar Photovoltaic Installations (including Large Scale) shall require a Special Permit and Site Plan Review issued by the Planning Board in accordance with this section and Section 3-30, except that:

1. Ground Mounted Solar Photovoltaic Installations with a rated nameplate capacity less than 16 KW DC are permitted As-of-Right Siting subject to Site Plan Review as required in Section 10-30(3.) below.

2. Within the Solar Photovoltaic Overlay District only, Ground Mounted Solar Photovoltaic Installations (including Large Scale) are permitted As-of Right Siting (subject to Site Plan Review) when the lot coverage of all of the arrays, structures and buildings do not exceed an aggregate of 1.5 acres. Thecalculationof the lot coverageareashallexcluderequired setbacks and wetlands.Thecombinedareaof multipleinstallations(newor existing)on asinglelot,or adjacentlotsin commonownershipshallbeusedtodetermineaccordancewiththe1.5 acrethreshold.

3. GeneralRequirementsforallGroundMountedSolarPhotovoltaic Installations

1. SitePlanReview - All ground­mountedsolarphotovoltaicinstallationsshallundergositeplanreviewby theSite PlanReviewAuthoritypriortoconstruction,installationor modificationasprovidedinthisSection.For thepurposeof thisSectionof theZoningBylaw,the Planning BoardshallbetheSitePlan ReviewAuthority.

1. General - Allplansandmapsshallbeprepared,stampedandsignedby aProfessionalEngineerlicensedto practiceintheCommonwealthof Massachusetts.

2. RequiredDocuments - Pursuanttothesiteplanreviewprocess,theProjectProponentshallprovidethefollowingdocuments:

1. A siteplanshowing:

1. Propertylinesandphysicalfeatures,includingroads,for theprojectsite;

2. Proposedchangestothelandscapeof thesite,grading,vegetationclearingandplanting,exterior lighting,screeningvegetationor structures;

3. Blueprintsor drawingsof thesolarphotovoltaicinstallationsignedby aProfessionalEngineer licensedtopracticeintheCommonwealthof Massachusettsshowingtheproposedlayoutof the systemandanypotentialshadingfromnearbystructures

4. One­or three­lineelectricaldiagramdetailingthesolarphotovoltaicinstallation,associated components,andelectricalinterconnectionmethods,withallMassachusettsElectricalCode compliantdisconnectsandovercurrentdevices;

5. Documentationof themajorsystemcomponentstobeused,includingthePV panels,mounting system,andinverter;

6. Name,address,andcontactinformationfor proposedsysteminstaller;

7. Name,address,phonenumberandsignatureof theProjectProponent;

8. Thename,contactinformationandsignatureof anyagentsrepresentingtheProjectProponent;

2. Stormwater management plan

3. Erosion & sediment control plan

4. Documentationof actualor prospectiveaccessandcontrolof theprojectsite;

5. An operationandmaintenanceplan;

6. Proof of liabilityinsuranceandbuilder’sriskinsurance;

7. A publicoutreachplan,includingaprojectdevelopmenttimeline,whichindicateshow theproject proponentwillmeettherequiredsiteplanreviewnotificationproceduresandotherwiseinformabutters andthecommunity.

8. SiteControl - TheProjectProponentshallsubmitdocumentationof actualor prospectiveaccessandcontrolof the projectsitesufficienttoallowfor constructionandoperationof theproposedsolarphotovoltaic installation.

9. Operation& MaintenancePlan - TheProjectProponentshallsubmitaplanfor theoperationandmaintenanceof theground mountedsolarphotovoltaicinstallation,whichshallincludemeasuresfor maintainingsafe accesstotheinstallation,stormwatercontrols,aswellasgeneralproceduresfor operational maintenanceof theinstallation.

10. Abandonment & Decommissioning Plan – The Project Proponent shall submit a Decommissioning Plan. AnyPhotovoltaic Generating Installationwhich hasreached theend of its useful life orhas been abandoned (i.e. wheneitheritfailstobecompletedwithin a commerciallyreasonabletimesuchthatpowergenerationcancommence,or itfailstooperatefor an elapsedtimeof morethanoneyearwithoutthewritten consentof thePlanning Board) shall beremoved. The owner oroperator shallphysically remove theinstallation within150 daysof abandonmentor the proposeddate of decommissioning. The owneror operatorshall notifythe PlanningBoard bycertified mailof theproposed date ofdiscontinued operationsand plansfor removal. The Abandonment & Decommissioning Plan shall include a detailed description of how all of the following will be addressed:

1. Physical removalof allstructures; equipment,building, securitybarriers andtransmission linesfrom thesite, including anymaterials usedto limitvegetation.

2. Disposal ofall solidand hazardouswaste inaccordance withlocal, state,and federal wastedisposal regulations.

3. _{Stabilization orre-vegetationofthesiteasnecessarytominimize} erosion.The PlanningBoard mayallow theowner oroperator toleave landscaping or designated below-gradefoundations in orderto minimizeerosion anddisruption to vegetation.

4. Financial suretyfor decommissioning - Proponents ofSolar Electric Generating Facilities shallprovide a formof surety,either throughescrow account,bond orother formof suretyapproved bythe Planning Boardto coverthe estimated costof removalin theevent theTown mustremove the installation and remediate thelandscape, inan amountand formdetermined tobe reasonable bythe Planning Board, butin noevent toexceed morethan 125percent ofthe cost ofremoval andcompliance withthe additional requirements setforth herein,as determined bythe projectproponent andthe Town.Such suretywill notbe requiredfor municipal orstate-owned facilities. The projectproponent shallsubmit afully inclusive detailed itemized cost estimate of the town’s estimated costs (including “prevailing wages”) associated with removal and full decommissioning of the facility and site,prepared by aqualified engineer.The amount shallinclude amechanism forcalculating increased removal costsdue toinflation at the end of the facility’s useful life. Said estimated cost shall not include or deduct the value of material recycling. Said surety in its full amount shall be presented to the Planning Board prior to the Project Proponent applying for Building Permits or the commencement of construction

5. All legal documents required to enable the Town to exercise its rights and responsibilities under the plan to decommission the site,enter theproperty and physicallyremove theinstallation.

2. UtilityNotification - No ground mountedsolarphotovoltaicinstallationshallbeconstructeduntilevidencehas beengiventotheSitePlanReviewAuthoritythattheutilitycompanythatoperatestheelectricalgrid wheretheinstallationistobelocatedhasbeeninformedof thesolarphotovoltaicinstallationProject Proponent’sintenttoinstallaninterconnectedcustomer­ownedgenerator.Off­gridsystemsshallbe exemptfromthisrequirement.

3. Dimensionand DensityRequirements - Ground­mountedsolarphotovoltaicinstallations shall comply with the same dimension and density requirements required in the underlying district in Section 6-20, except that for such facilities of 250 kw or greater the following shall apply:

1. Front, rear and side yard setbacks shall be a minimum 50 feet

2. Access roads or driveways shall be setback at least 25 feet from side and rear lot lines.

4. Structures - Allstructuresfor large­scaleground­mountedsolarphotovoltaicinstallationsshallbesubjecttoexisting bylaws.Allappurtenantstructures,includingbutnotlimitedto,equipmentshelters,storagefacilities, transformers,andsubstations,shallbearchitecturallycompatiblewitheachother.

5. Visual Impact Mitigation - The plan for a ground-mounted solar photovoltaic installation shall be designed to maximize the preservation of on-site and abutting natural and developed features. In natural (undeveloped) areas, existing vegetation shall be retained to the greatest extent possible, especially where such vegetation provides a benefit to the natural environment. In developed areas, the design of the installation shall consider and incorporate human-designed landscape features to the greatest extent, including contextual landscaping and landscape amenities that complement the physical features of the site and abutting properties. Whenever reasonable, structures should be screened from view by vegetation and/or joined or clustered to avoid adverse visual impacts and be architecturally compatible with each other. Vegetation shall be of varieties native to New England anda mixof deciduousand evergreen species. Vegetative screening shall reach a mature form to effectively screen the installation within five years of installation. The mature height of the vegetated screening shall be such that the installation’s structures are not apparent to a person upon any public road and viewing the installation from a height of 10 feet. Planting of the vegetative screening shall be completed prior to final approval of the photovoltaic installation by the Building Inspector.

6. DesignStandards

1. Projects shall be designed to:

1. minimize thevolumeof cutandfill, the numberof removedtrees 10”caliperor larger,thelengthof removedstone walls,the area of wetlandvegetationdisplaced,theextentof storm water flowincrease fromthesite,soilerosion,and threatof airand waterpollution

2. maximize pedestrianandvehicularsafetybothon the siteandentering and exiting the site;

3. minimize obstructionof scenic views frompubliclyaccessiblelocations;

4. minimize visualintrusionby controllingthe visibility of parking,storage, ^{or otheroutdoorserviceareas viewedfrompublic waysorpremises} residentially usedor zoned;

5. minimize glarefrom headlights andlighttrespass;

6. Ensure adequateaccess to each structureforfire and service equipmentandadequateprovisionfor utilities andstorm waterdrainage.

2. SiteLighting - Lightingof solarphotovoltaicinstallationsshallbeconsistentwithlocal,stateandfederallaw.Lighting of otherpartsof theinstallation,suchasappurtenantstructures,shallbelimitedtothatrequiredfor safety andoperationalpurposes,andshallbereasonablyshieldedfromabuttingproperties.Where feasible,lightingof thesolarphotovoltaicinstallationsshallbedirecteddownwardandshallincorporate fullcut­offfixturestoreducelightpollution.

3. Signage – No signageon ground mountedsolarphotovoltaicinstallations is permitted other than those required toidentifyvoltageandelectrocutionhazardsaswellasthe owner,andprovidea24­hour emergencycontactphonenumber.Solarphotovoltaicinstallationsshall notbeusedfor displayinganyadvertisingexceptfor reasonableidentificationof themanufactureror operatorof thesolarphotovoltaicinstallation.

4. UtilityConnections - Reasonableefforts,asdeterminedby theSitePlanReviewAuthority,shallbemadetoplaceallutility connectionsfromthesolarphotovoltaicinstallationunderground,dependingon appropriatesoil conditions,shape,andtopographyof thesiteandanyrequirementsof theutilityprovider.Electrical transformersfor utilityinterconnectionsmaybeaboveground ifrequiredby theutilityprovider.

7. Safetyand EnvironmentalStandards

1. EmergencyServices - The ground mounted solarphotovoltaicinstallationProjectProponentshallprovideacopyof theproject summary,electricalschematic,andsiteplantothelocalfirechief.Upon requesttheProjectProponent shallcooperatewithlocalemergencyservicesindevelopinganemergencyresponseplan.Allmeansof shuttingdown thesolarphotovoltaicinstallationshallbeclearlymarked.TheProjectProponentshall identifyaresponsiblepersonfor publicinquiriesthroughoutthelifeof theinstallation.

2. LandClearing,SoilErosionand HabitatImpacts - Clearingof naturalvegetationshallbelimitedtowhatisnecessaryfor theconstruction,operationand maintenanceof theground mountedsolarphotovoltaicinstallationor otherwiseprescribed by applicablelaws,regulations,andbylaws. Suchinstallations shallnot occur onany slopesgreater than15% inorder tominimize erosion.No morethan 50%of the landparcel utilizedfor ground mounted solarphotovoltaicinstallations shallcontain landrequiring clearingof forest.

3. No topsoilshall be removedfrom theland parcelunder considerationfor ground mounted solarphotovoltaicinstallations.If earthworksoperations arerequired, topsoilshall be stockpiledwithin the property boundsand protectedagainst erosionuntil suchtime earthwork operations are completedand topsoil canbe re-spread over parcel. Earthworks shall be planned to limit export of soil material(non-topsoil) to1000 cubicyards peracre affectedby installation.A detailed earthworksestimate isa requiredsubmittal componentproving thisquantity is maintained.

4. Impact onAgricultural andEnvironmentallySensitive Land - The Photovoltaic Generating Installation shall bedesigned tominimize impactsto agriculturaland environmentally sensitive landand to becompatible withcontinued agriculturaluse ofthe landwhenever possible. Nomore than50-percent ofthe totalland areaproposed forthe solarelectric field may be occupiedby thesolar panels,with theremainder ofthe landremaining as undeveloped openspace leftin itsnatural state.

5. Vegetation Management - Herbicides, pesticides, or chemical fertilizers shall notbe usedto managevegetation atthe Photovoltaic Generating Installation. Mowing, grazing orusing geotextilematerials underneaththe solararray arepossible alternatives. In the water supply Protection District, low growing grasses are optimal. Other grasses must be regularly mowed or grazed so as to minimize the amount and height of "fuel" available in case of fire.

All land associated with the ground-mounted solar installation shall be covered and grown in natural vegetation. All ground surface areas beneath solar arrays and setback areas shall be pervious to maximize on-site infiltration of storm water. Impervious paving of areas beneath solar arrays is prohibited. To the greatest extent possible, a diversity of plant species shall be used, with preference given to species that are native to New England. Use of plants identified by the most recent copy of the “Massachusetts Prohibited Plant List” maintained by the Massachusetts Department of Agricultural Resources is prohibited. Herbicides shall be applied only by properly licensed personnel in conformance with all applicable state regulations.

8. Monitoringand Maintenance

1. SolarPhotovoltaicInstallationConditions - ProjectProponentshallmaintainthefacilityingood condition.Maintenanceshallinclude,butnot be limited to, painting, structural repairs, fencing and integrity of securitymeasures.Siteaccessshallbemaintained toalevelacceptabletothelocalFireChiefandEmergencyMedicalServices.TheProjectProponent shall beresponsiblefor thecostof maintainingthesolarphotovoltaicinstallationandanyaccessroad(s), unlessacceptedasapublicway.

2. Modifications - Allmaterialmodificationstoasolarphotovoltaicinstallationmadeafterissuanceof therequired buildingpermitshallrequireapprovalby theSitePlanReviewAuthority.

9. Outside Consultant Fees – In addition to the normal filing fee, the Planning Board can charge the applicant with a fee to hire “outside consultants” to assist the Board in administering and reviewing applications.

10. Waivers - The PlanningBoardmay,upon the prior writtenrequestof theapplicant, waiveany of therequirementsof this sub-section for Ground Mounted Solar Photovoltaic Installations with a rated nameplate capacity less than 16 KW DC, butmust state theirreasons fordoingsoin writing as partof their decision.

1. Purposes

It is recognized that the nature of the substance cultivated, processed, and/or sold by medical marijuana treatment centers and off-site medical marijuana dispensaries may have objectionable operational characteristics and should be located in such a way as to ensure the health, safety, and general well-being of the public as well as patients seeking treatment.  The specific and separate regulation of Registered Marijuana Dispensaries (hereafter referred to as a RMD) as Medical Marijuana Treatment Centers and Off-site Medical Marijuana Dispensary (hereafter referred to as an OMMD) facilities is necessary to advance these purposes and ensure that such facilities are not located within close proximity of minors within the Town of Cummington.

Subject to the provisions of this Zoning Bylaw, Chapter 40A of the Massachusetts General Laws, and 105 CMR 725.000, Registered Marijuana Dispensaries and Off-site Medical Marijuana Dispensaries will be permitted to provide medical support, security, and physician oversight that meet or exceed state regulations as established by the Massachusetts Department of Health (hereafter referred to as MDPH).

2. Additional Requirements/Conditions

In addition to the standard requirements for uses requiring a Special Permit, the following shall also apply to all Registered Marijuana Dispensaries and Off-Site Medical Marijuana Dispensaries:

a. Use:

1) RMD and OMMD facilities may only be involved in the uses permitted by its definition and may not include other businesses or services.

2) No marijuana shall be smoked, eaten or otherwise consumed or ingested within the premises.

3) The hours of operation shall be set by the Special Permit Granting Authority, but in no event shall an RMD or OMMD facility be open to the public, and no sale or other distribution of marijuana shall occur upon the premises or via delivery from the premises, between the hours of 8:00 p.m. and 8:00 a.m.

b. Physical Requirements:

1) All aspects of the use/facility relative to the acquisition, cultivation, possession, processing, sales, distribution, dispensing, or administration of marijuana, products containing marijuana, related supplies, or educational materials must take place at a fixed location within a fully enclosed building and shall not be visible from the exterior of the business.

2) No outside storage is permitted.

3) No OMMD Facility shall have a gross floor area in excess of 2,500 square feet. 

4) Ventilation – all RMD and OMMD facilities shall be ventilated in such a manner that no:

5) Pesticides, insecticides or other chemicals or products used in the cultivation or processing are dispersed into the outside atmosphere, and

6) No odor from marijuana or its processing can be detected by a person with an unimpaired and otherwise normal sense of smell at the exterior of the medical marijuana business or at any adjoining use or property.

7) Signage shall be displayed on the exterior of the RMD and OMMD facility’s entrance in plain sight of clients stating that “Registration Card issued by the MA Department of Public Health required” in text two inches in height.

8) All lighting shall be shielded and downward facing to minimize light pollution.

c. Location:

1) RMD and OMMD shall only be located within the Rural Residential District in the Town of Cummington.

2) No RMD and OMMD facility shall be located on a parcel which is within three hundred (300) feet (to be measured in a straight line from the nearest points of each property line) of parcel occupied by:

a) a public or private elementary, junior high, middle, vocational or high school, college, junior college, university or child care facility or any other use in which children commonly congregate in an organized ongoing formal basis.

3) No RMD or OMMD facility shall be located inside a building containing residential units, including transient housing such as motels and dormitories.

d. Reporting Requirements

1) All Special Permit and Site Plan Approval holders for an RMD or OMMD facility shall provide the Police Department, Fire Department, Building Commissioner/Inspector and the Special Permit Granting Authority with the names, phone numbers and email addresses of all management staff and key-holders, including a minimum of two (2) operators or managers of the facility identified as contact persons to whom one can provide notice if there are operating problems associated with the establishment.  All such contact information shall be updated as needed to keep it current and accurate.

2) The local Building Commissioner/Inspector, Board of Health, Police Department, Fire Department and Special Permit Granting Authority (in cases where a Special permit or Site Plan Approval was granted) shall be notified in writing by an RMD or OMMD facility owner/operator/ manager:

a) A minimum of 30 days prior to any change in ownership or management of that facility

b) A minimum of 12 hours following a violation or potential violation of any law or any criminal or potential criminal activities or attempts of violation of any law at the RMD or OMMD.

3) Permitted RMD and OMMD facilities shall file an annual report to and appear before the Special Permit Granting Authority no later than January 31st, providing a copy of all current applicable state licenses for the facility and/or its owners and demonstrate continued compliance with the conditions of the Special Permit.

4) The owner or manager is required to respond by phone or email within twenty-four hours of contact by a city official concerning their RMD or OMMD at the phone number or email address provided to the City as the contact for the business.

e. Issuance/Transfer/Discontinuance of Use

1) Special Permits/Site Plan Approvals shall be issued to the RMD Operator

2) Special Permits/Site Plan Approvals shall be issued for a specific site/parcel

3) Special Permits/Site Plan Approvals shall be non-transferable to either another RMD Operator or site/parcel

4) Special Permits/Site plan Approvals shall have a term limited to the duration of the applicant’s ownership/control of the premises as a RMD or OMMD, and shall lapse:

a) If the permit holder ceases operation of the RMD, and/or

b) The permit holder’s registration by MDPH expires or is terminated

c) The permit holder shall notify the Zoning Enforcement Officer and Special Permit Granting Authority in writing within 48 hours of such lapse, cessation, discontinuance or expiration.   

5) An RMD or OMMD facility shall be required to remove all material, plants equipment and other paraphernalia prior to surrendering its state Registration or ceasing its operation.

6) Prior to the issuance of a Building Permit for a RMD or OMMD the applicant is required to post with the Town Treasurer a minimum bond of $5,000 or other form of financial security acceptable to said Treasurer in an amount set by the Zoning Board of Appeals.  The amount shall be sufficient to cover the costs of the town removing all materials, plants, equipment and other paraphernalia if the applicant fails to do so.  The Building Inspector shall give the applicant 45 days’ written notice in advance of taking such action.  Should the applicant remove all materials, plants, equipment and other paraphernalia to the satisfaction of the Building Inspector prior to the expiration of the 45 days written notice, said bond shall be returned to the applicant.

3. Application Requirements

In addition to the standard application requirements for Special Permits, such applications for an RMD or OMMD facility shall include the following:

a. The name and address of each owner of the RMD or OMMD facility/operation;

b. A copy of its registration as an RMD from the Massachusetts Department of Public Health or documentation that demonstrates that said RMD or OMMD facility, and it’s owner/operators, qualify and are eligible to receive a Certificate of Registration and meet all of the requirements of a RMD in accordance with 105 CMR 725.000 of the Massachusetts Department of Public Health.

c. Evidence that the Applicant has site control and right to use the site for a RMD or OMMD facility in the form of a deed or valid purchase and sales agreement or, in the case of a lease a notarized statement from the property owner and a copy of the lease agreement;

d. A notarized statement signed by the RMD or OMMD organization’s Chief Executive Officer and corporate attorney disclosing all of its designated representatives, including officers, directors, shareholders, partners, members, managers, or other similarly-situated individuals and entities and their addresses. If any of the above are entities rather than persons, the Applicant must disclose the identity of all such responsible individual persons;

e. In addition to what is normally required in a Site Plan, details showing all exterior proposed security measures for the RMD or OMMD including lighting, fencing, gates and alarms, etc. ensuring the safety of employees and patrons and to protect the premises from theft or other criminal activity.

f. A detailed floor plan identifying the areas available and functional uses (including square footage)

g. All signage being proposed for the facility.

h. A traffic study to establish the RMD or OMMD impacts at peak demand times.

i. A Management Plan including a description of all activities to occur on site, including all provisions for the delivery of medical marijuana and related products to OMMDs or off-site direct delivery to patients.

4. Findings

In addition to the standard Findings for a Special Permit Approval the Special Permit Granting Authority must also find all the following:

a. That the RMD or OMMD facility is designed to minimize any adverse visual or economic impacts on abutters and other parties in interest;

b. That the RMD or OMMD facility demonstrates that it will meet all the permitting requirements of all applicable agencies within the Commonwealth of Massachusetts and will be in compliance with all applicable state laws and regulations; 

c. That the applicant has satisfied all of the conditions and requirements of this Section and other applicable Sections of this Bylaw/Ordinance;

d. That the RMD or OMMD project meets a demonstrated need;

e. That the RMD or OMMD facility provides adequate security measures to ensure that no individual participant will pose a direct threat to the health or safety of other individuals, and that the storage and/or location of cultivation is adequately secured;

f. That the RMD or OMMD facility adequately addresses issues of traffic demand, circulation flow, parking and queuing, particularly at peak periods at the facility, and it impact on neighboring uses.

1. Purposes.

It is recognized that the nature of the substance cultivated, processed, and/or sold by marijuana establishments may have objectionable operational characteristics and should be located in such a way as to ensure the health, safety, and general well-being of the public as well as legally authorized adult customers seeking to legally purchase marijuana for their own use. The specific and separate regulation of Marijuana Establishments (hereafter also referred to as an ME) is necessary to advance these purposes and ensure that such facilities are not located within close proximity of minors.

Subject to the provisions of this Zoning Bylaw, Chapter 40A of the Massachusetts General Laws, Chapter 94G of the Massachusetts General Laws and 105 CMR 725.000, Marijuana Establishments will be permitted to provide the opportunity for the legal cultivation, product manufacturing and retail sale of marijuana for non-medical adult marijuana use in a manner that complies with state regulations.

2. Applicability

Nothing in this section shall be construed to supersede and state laws governing the sale and distribution of marijuana. This section shall not be construed to prevent the conversion of a medical marijuana treatment center licensed or registered no later than July 1, 2017 engaged in the cultivation, manufacture or sale of marijuana or marijuana products to a Marijuana Establishment, provided, however, any such medical marijuana treatment center obtains a special permit pursuant to this Section for any such conversion to an adult use Marijuana Establishment.

This bylaw does not apply to the cultivation of industrial hemp as is regulated by the Massachusetts Department of Agricultural Resources pursuant to General Laws, Chapter 128, Sections 116-123.

3. Additional Requirements/Conditions

In addition to the standard requirements for uses permitted By-right or requiring a Special Permit, the following shall also apply to all Marijuana Establishments:

a. Use:

1) Any type of Marijuana Establishment may only be involved in the uses permitted by its definition and may not include other businesses or services.

2) No marijuana shall be smoked, eaten or otherwise consumed or ingested within the premises.

3) The hours of operation shall be set by the Special Permit Granting Authority, but in no event shall an RMD or OMMD facility be open to the public, and no sale or other distribution of marijuana shall occur upon the premises or via delivery from the premises, between the hours of 8:00 p.m. and 8:00 a.m.

4) No marijuana establishment may commence operation or apply for a building permit prior to its receipt of all required permits and approvals including, but not limited, to its Final License from the Cannabis Control Commission.

5) The number of adult use marijuana retail establishments permitted to be located within the Town of Cummington shall not exceed 20% of the number of licenses issued within the town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws. For the purposes of determining this number, any fraction shall be rounded up to the next highest whole number.

6) Marijuana Cultivators shall be capped at Cultivation Tier 3per lot/site, 10,001 to 20,000 square foot canopy (as set forth in 935 CMR 500), in the Town of Cummington.

b. Physical Requirements:

1) All aspects of the any marijuana establishment, except for the transportation of product or materials, relative to the acquisition, cultivation, possession, processing, sales, distribution, dispensing, or administration of marijuana, products containing marijuana, related supplies, or educational materials must take place at a fixed location within a fully enclosed building (including greenhouses) and shall not be visible from the exterior of the business. They may not be permitted to be located in a trailer, storage freight container, motor vehicle or other similar type potentially movable enclosure.

2) No outside storage is permitted.

3) No Marijuana Retailer shall have a gross floor area open to the public in excess of 2,500 square feet.

4) Ventilation – all marijuana establishments shall be ventilated in such a manner that no:

a) Pesticides, insecticides or other chemicals or products used in the cultivation or processing are dispersed into the outside atmosphere, and

b) No odor from marijuana or its processing can be detected by a person with an unimpaired and otherwise normal sense of smell at the exterior of the medical marijuana business or at any adjoining use or property.

5) Signage shall be displayed on the exterior of the marijuana establishment’s entrance in plain sight of the public stating that “Access to this facility is limited to individuals 21 years or older.” in text two inches in height. All other signage must comply with all other applicable signage regulations in the Zoning Bylaw and 935 CMR 500

6) Cannabis plants, products, and paraphernalia shall not be visible from outside the building in which the cannabis establishment is located and shall comply with the requirements of 935 CMR 500. Any artificial screening device erected to eliminate the view from the public way shall also be subject to a vegetative screen and the Board shall consider the surrounding landscape and viewshed to determine if an artificial screen would be out of character with the neighborhood.

7) All lighting shall be shielded and downward facing to minimize light pollution.

c. Location:

1) Marijuana establishments may be located only within the Rural Residential District in the Town of Cummington.

2) Marijuana establishments are encouraged to utilize existing vacant buildings where possible.

3) No marijuana establishment shall be located on a parcel which is within three hundred (300) feet (to be measured in a straight line from the nearest point of the property line in question to the nearest point of the property line where the Marijuana Establishment is or will be located) of a parcel occupied by a pre-existing public or private school (existing at the time the applicant’s license application was received by the Cannabis Control Commission) providing education in kindergarten or any of grades 1-12 and/or any public or private child care facility or any other location where children congregate.

4) No marijuana establishment is permitted to utilize or provide a drive-through service.

d. Reporting Requirements.

1) Prior to the commencement of the operation or services provided by a marijuana establishment, it shall provide the Police Department, Fire Department, Building Commissioner/Inspector and the Special Permit Granting Authority with the names, phone numbers and email addresses of all management staff and key-holders, including a minimum of two (2) operators or managers of the facility identified as contact persons to whom one can provide notice if there are operating problems associated with the establishment. All such contact information shall be updated as needed to keep it current and accurate.

2) The local Building Commissioner/Inspector, Board of Health, Police Department, Fire Department and Special Permit Granting Authority shall be notified in writing by the marijuana establishment facility owner/operator/ manager:

a) A minimum of 30 days prior to any change in ownership or management of that establishment.

b) A minimum of 12 hours following a violation or potential violation of any law or any criminal or potential criminal activities or attempts of violation of any law at the establishment.

3) Permitted marijuana establishments shall file an annual written report to, and appear before, the Special Permit Granting Authority no later than January 31st of each calendar year, providing a copy of all current applicable state licenses for the facility and/or its owners and demonstrate continued compliance with the conditions of the Special Permit.

d) The owner or manager of a marijuana establishment is required to respond by phone or email within twenty-four hours of contact by a town/city official concerning their marijuana establishment at the phone number or email address provided to the town as the contact for the business.

e. Issuance/Transfer/Discontinuance of Use

1) Special Permits shall be issued to the marijuana establishment owner.

2) Special Permits shall be issued for a specific type of marijuana establishment on a specific site/parcel.

3) Special Permits shall be non-transferable to either another marijuana establishment owner or another site/parcel.

4) Special Permits shall have a term limited to the duration of the applicant’s ownership/control of the premises as a marijuana establishment, and shall lapse/expire if:

a) the marijuana establishment ceases operation (not providing the operation or services for which it is permitted) for 365 days, and/or

b) the marijuana establishment’s registration/license by the Cannabis Control Commission expires or is terminated.

5) The marijuana establishment shall notify the Building Inspector and Special Permit Granting Authority in writing within 48 hours of such lapse, cessation, discontinuance or expiration or revocation.

6) A marijuana cultivation or product manufacturing establishment shall be required to remove all material, plants equipment and other paraphernalia prior to surrendering its state registration/license or ceasing its operation.

7) Prior to the issuance of a Building Permit for a marijuana establishment the applicant is required to post a minimum bond of $5,000 with the Town Treasurer or other form of financial security acceptable to said Treasurer in an amount set by the Zoning Board of Appeals. The amount shall be sufficient to cover the costs of the town removing all materials, plants, equipment and other paraphernalia if the applicant fails to do so. The Building Inspector shall give the applicant 45 days’ written notice in advance of taking such action. Should the applicant remove all materials, plants, equipment and other paraphernalia to the satisfaction of the Building Inspector prior to the expiration of the 45 days written notice, said bond shall be returned to the applicant.

4. Application Requirements

Applications for Special Permits and Site Plan Approvals for marijuana establishments will be processed in the order that they are filed with the town/city. The approval of a Special Permit for any marijuana establishment is up to the discretion of the Zoning Board of Appeals who will be making its determination based on selecting the marijuana establishments that it finds are in the best interests of the town and best comply with the standards and intent of this Bylaw/Ordinance. While the Zoning Board of Appeals is authorized to approve Special Permits for marijuana establishments in an amount up to, but not exceeding, 20% of the number of licenses issued within the town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws, the Zoning Board of Appeals is not obligated to approve an application for a marijuana establishment that it doesn’t find is in the best interests of the town and complies with the standards and intent of this Bylaw just because the maximum number of allowed Special Permits for a marijuana establishment haven’t been approved.

In addition to the standard application requirements for Special, such applications for a marijuana establishment shall include the following:

a. The name and address of each owner and operator of the marijuana establishment facility/operation.

b. A copy of an approved Host Agreement.

c. A copy of its Provisional License from the Cannabis Control Commission pursuant to 935 CMR 500.

d. If it’s in conjunction with an approved RMD, a copy of its registration as an RMD from the Massachusetts Department of Public Health in accordance with 105 CMR 725.000 or from the Cannabis Control Commission in accordance with 935 CMR 500.

e. Proof of Liability Insurance Coverage or Maintenance of Escrow as required in 935 CMR 500.

f. Evidence that the Applicant has site control and right to use the site for a marijuana establishment facility in the form of a deed or valid purchase and sales agreement or, in the case of a lease a notarized statement from the property owner and a copy of the lease agreement.

g. A notarized statement signed by the marijuana establishment organization’s Chief Executive Officer and corporate attorney disclosing all of its designated representatives, including officers, directors, shareholders, partners, members, managers, or other similarly-situated individuals and entities and their addresses. If any of the above are entities rather than persons, the Applicant must disclose the identity of all such responsible individual persons.

h. In addition to what is normally required in a Site Plan, details showing all exterior proposed security measures for the marijuana establishment including lighting, fencing, gates and alarms, etc. ensuring the safety of employees and patrons and to protect the premises from theft or other criminal activity.

i. A detailed floor plan identifying the areas available and functional uses (including square footage).

j. All signage being proposed for the facility.

k. A pedestrian/vehicular traffic impact study to establish the marijuana establishment’s impacts at peak demand times, including a line queue plan to ensure that the movement of pedestrian and/or vehicular traffic, including but not limited to, along the public right of ways will not be unreasonably obstructed.

l. An odor control plan detailing the specific odor-emitting activities or processes to be conducted on-site, the source of those odors, the locations from which they are emitted from the facility, the frequency of such odor-emitting activities, the duration of such odor-emitting activities, and the administrative of odor control including maintenance of such controls.

m. A Management Plan including a description of all activities to occur on site, including all provisions for the delivery of marijuana and related products to marijuana establishment or off-site direct delivery.

n. Individual written plans which, at a minimum comply with the requirements of 935 CMR 500, relative to the marijuana establishment’s:

1) Operating procedures

2) Marketing and advertising

3) Waste disposal

4) Transportation and delivery of marijuana or marijuana products

5) Energy efficiency and conservation

6) Security and Alarms

7) Decommissioning of the marijuana establishment including a cost estimate taking into consideration the community’s cost to undertake the decommissioning of the site.

5. Findings

In addition to the standard Findings for a Special Permit the Special Permit Granting Authority must also find all the following:

a. The Marijuana Establishment is consistent with and does not derogate from the purposes and intent of this Section and the Zoning Bylaw.

b. That the marijuana establishment facility is designed to minimize any adverse visual or economic impacts on abutters and other parties in interest;

c. That the marijuana establishment facility demonstrates that it meets or exceeds all the permitting requirements of all applicable agencies within the Commonwealth of Massachusetts and will be in compliance with all applicable state laws and regulations;

d. That the applicant has satisfied all of the conditions and requirements of this Section and other applicable Sections of this Bylaw;

e. That the marijuana establishment facility provides adequate security measures to ensure that no individual participant will pose a direct threat to the health or safety of other individuals, and that the storage and/or location of cultivation is adequately secured on-site or via delivery.

f. That the marijuana establishment facility adequately addresses issues of traffic demand, circulation flow, parking and queuing, particularly at peak periods at the facility, and its impact on neighboring uses.