Fitchburg City Zoning Code
SECTION 181
3 USE REGULATIONS
181.31 PRINCIPAL USES.
No land shall be used and no structure shall be erected or used except as set forth in the following Table of Principle Use Regulations (Section 181.313), including the notes to the schedule, or as otherwise set forth herein, or as exempted by General Laws. Any building or use of premises not herein expressly permitted is hereby prohibited. More than one principal use shall be allowed on any lot if the use is otherwise permitted in accordance with Section 181.313 (Table of Principle Use Regulations), except as otherwise may be provided herein.
181.311 Symbols.
Symbols employed in the Table of Principle Use Regulations shall mean the following:
Y | A permitted use. |
N | An excluded or prohibited use. |
CC | A use authorized under special permit from the City Council as provided under Section 181.94. |
PB | A use authorized under special permit from the Planning Board as provided under Section 181.94. |
BA | A use authorized under special permit from the Board of Appeals as provided under Section 181.94. |
181.312 Applicability.
When an activity might be classified under more than one of the following uses, the more specific classification shall govern; if equally specific, the more restrictive shall govern.
181.313 Table of Principal Use Regulations. [1]
[1]
Editor’s Note: The Table of Principal Use Regulations is included as an attachment to this chapter.
181.32 ACCESSORY USES.
Accessory uses shall be permitted as follows in all districts on the same lot with the principal use, subject to the following sections.
181.321 Residential Uses Permitted in Residential Districts.
The following regulations govern accessory uses for lawful residential uses in all districts, provided that such facilities are used only for residents and their guests:
181.3211.
A.
Private Garage. A private garage or carport for not more than four motor vehicles per unit.
B.
Greenhouse, toolshed, barn, patio, garden, swimming pool or tennis court.
181.3212.
Accessory Dwelling Units.
A.
Purpose. The purpose of this section is to:
(1)
Provide small additional dwelling units to rent without adding to the number of buildings in the City or substantially altering the appearance of the City;
(2)
Provide alternative housing options for elder residents; and
(3)
Enable owners of single-family dwellings larger than required for their present needs, particularly elderly homeowners, to share space and the burdens of home ownership.
B.
Procedures.
(1)
Accessory apartments may be allowed by right in the RR and RA Districts and by special permit from the Board of Appeals in the RB District.
(2)
All accessory dwelling units shall comply with the provisions of this section prior to the issuance of a certificate of occupancy by the Building Commissioner.
(3)
Said certificate of occupancy may be revoked by the Building Commissioner if it is determined the accessory dwelling unit no longer complies with the provisions of this section and/or the conditions of a special permit issued by the Board of Appeals.
(4)
Failure to discontinue the use of the accessory dwelling unit for which the occupancy permit has been revoked shall be considered a violation of this chapter and shall be subject to the provisions of Section 181.913.
(5)
Should said violation from the provisions of a special permit issued by the Zoning Board of Appeals be corrected to comply with the provisions of this section within 60 days from the date of the revocation, the Building Commissioner may reinstate the occupancy permit for the accessory dwelling unit subject to the provisions of the special permit authorizing the accessory dwelling unit.
(6)
The Building Commissioner shall be authorized to renew or extend duration limits, as placed by the Board of Appeals, on special permits for accessory dwelling units.
C.
Conditions.
(1)
A plot plan prepared by a registered land surveyor of the existing dwelling unit and proposed accessory apartment shall be submitted to the Building Commissioner or, as applicable the Board of Appeals, showing the location of the building on the lot, proposed accessory apartment, location of any septic system and required parking. A mortgage inspection survey, properly adapted by a surveyor, shall be sufficient to meet this requirement.
(2)
Certification by affidavit shall be provided that one of the two dwelling units shall be occupied by the owner of the property, except for bona fide temporary absence.
(3)
Not more than one accessory apartment may be established on a lot. The accessory apartment shall not exceed 800 square feet in habitable floor area and shall be located in the principal residential structure on the premises.
(4)
The external appearance of the structure in which the accessory apartment is to be located shall not be significantly altered from the appearance of a single-family structure, in accordance with the following:
(a)
Any addition to the existing structure to create an accessory apartment shall not create more than a 15% increase in the gross floor area of the existing structure.
(b)
Any stairways or access and egress alterations serving the accessory apartment shall be enclosed, screened, or located so that visibility from public ways is minimized.
(c)
Sufficient and appropriate space for at least one additional parking space above the number required for the principal dwelling and if it cannot be accommodated within the existing parking area it shall be constructed by the owner to serve the accessory apartment. Said parking space shall be constructed of materials consistent with the existing driveway and shall have vehicular access to the driveway.
(5)
Decision. Special permits for an accessory apartment may be issued by the Board of Appeals upon a finding that the construction and occupancy[1]
[1]
Editor's Note: So in original.
181.3213.
(Reserved)
181.3214.
(Reserved)
181.3215.
(Reserved)
181.3216.
Family Day Care. A child-care center of more than six children may be authorized by a special permit from the Zoning Board of Appeals.
181.3217.
Prohibited Residential Accessory Uses. The following accessory uses are prohibited:
A.
Contractor's yard.
B.
Landscaping business.
C.
Motor vehicle repair or service.
181.322 Institutional Uses Permitted in Institutional Districts.
The following regulations shall govern accessory uses for lawful institutional uses in all districts.
181.3221.
Parking. Parking for employers, employees, customers and other users of the institution, pursuant to applicable requirements under Section 181.51.
181.3222.
Truck or Trailer Parking. Truck or trailer parking, cleaning and washing, provided that the trucks or trailers are necessary for the conduct of the use.
181.3223.
Employee Facility. Restaurant, cafeteria, recreational facility, or similar facility for the convenience of, and use by, the employees or users of the institution.
181.3224.
Gift Shop. Gift shop for use by the general public.
181.3225.
Medical Laboratory. A medical laboratory or facility for testing, analytical, diagnostic evaluation, pharmaceutical or other health care support services, equipment or procedures, whether or not owned by or affiliated with a hospital.
181.3226.
Medical Offices. Medical offices of one or more providers of medical, dental, surgical, mental health, rehabilitation or other medical services or health care support services, equipment or procedures, whether or not owned by or affiliated with a hospital.
181.3227.
Outpatient Clinic. Outpatient clinic for the provision of ambulatory health care, licensed for the provision of such services by an appropriate governmental authority if and to the extent required by applicable law, including the sale, servicing or repair of medical devices and equipment to the general public whether or not owned by or affiliated with a hospital, outpatient clinic or nursing or convalescent home.
181.3228.
Pharmacy. A pharmacy for the sale of prescription and/or nonprescription drugs, medications, and medical supplies.
181.3229.
Any accessory use listed in Section 181.323 below.
181.323 Business Districts.
Accessory uses permitted in the business districts shall be as follows:
181.3231.
Parking. Parking for employers, employees, customers and other users of the business, pursuant to applicable requirements under Section 181.51.
181.3232.
Truck or Trailer Parking. Truck or trailer parking, cleaning and washing, provided that trucks or trailers are necessary for the conduct of the principal use.
181.3233.
Drive-up and Walk-up Facilities. Drive-up and walk-up facilities for banks, restaurants and other businesses may be authorized after site plan review pursuant to Section 181.95.
181.3234.
Seasonal Outdoor Dining. Seasonal outdoor dining, such as a sidewalk cafe, if an accessory use to a lunchroom, restaurant, cafeteria or similar place, provided that if situated upon publicly owned land, evidence of a lease and/or license must be provided to the Building Commissioner.
181.3235.
Commercial Recreation Accessory Uses. Accessory uses such as dining for users of the commercial recreation facility, parking, gift shop, pro shop, medical offices, day care, solar or wind power generation for the primary use of the commercial recreation facility, and any other use that is compatible with the permitted commercial recreational use.
181.324 Industrial Districts.
Accessory uses permitted in the industrial districts shall be as follows:
181.3241.
Parking. Parking for employers, employees, customers and other users of the business, pursuant to applicable requirements under Section 181.51.
181.3242.
Truck or Trailer Parking. Truck or trailer parking, cleaning and washing, provided that trucks or trailers are necessary for the conduct of the principal use.
181.3243.
Employee Facility. Restaurant, cafeteria, recreational facility, or similar facility for the convenience of, and use by, the employees or users of the institution.
181.3244.
Salesroom. A salesroom for selling at retail to the general public of any goods assembled, packaged, finished, processed or otherwise manufactured on the premises.
181.3245.
Drive-up and Walk-up Facilities. Drive-up and walk-up facilities for banks, restaurants and other businesses may be authorized after site plan review pursuant to Section 181.95.
181.3246.
Seasonal Outdoor Dining. Seasonal outdoor dining, such as a sidewalk cafe, if an accessory use to a lunchroom, restaurant, cafeteria or similar place, provided that if situated upon publicly owned land, evidence of a lease and/or license must be provided to the Building Commissioner.
181.325 Nonresidential Accessory Uses.
Except as otherwise set forth herein, any use permitted as a principal use is also permitted as an accessory use, provided such use is customarily incidental to the main or principal building or use of the land; any use authorized as a principal use by special permit may also be authorized as an accessory use by special permit provided such use is customarily incidental to the main or principal building or use of the land; any use not allowed in the district as a principal use is also prohibited as an accessory use. Accessory uses are permitted only in accordance with lawfully existing principal uses. In all instances where site plan review and approval is required for a principal use, the addition of any new accessory use to the principal use, where such addition exceeds the thresholds established in Section 181.95, shall also require site plan review and approval.
181.326 Miscellaneous Accessory Uses.
181.3261.
Accessory Scientific Uses. Uses, whether or not on the same parcel as activities permitted as a matter of right, which are necessary in connection with scientific research or scientific development or related production, may be permitted upon the issuance of a special permit by the Board of Appeals, provided that the Board finds that the proposed use does not substantially derogate from the public good.
181.3262.
Major Recreational Vehicle, Trailer or Boat. No major recreational vehicle, trailer, or boat shall be used for living or housekeeping purposes when stored on a residential lot, or in any location not approved for such use, unless exempt under MGL c. 40A, § 3.
181.3263.
Adult Day Care. Adult day care facilities are allowed as an accessory use by special permit from the Board of Appeals in all districts.
181.3264.
Commercial Motor Vehicle Parking. No commercial vehicle having more than 12,500 pounds manufacturer's GVW rating may be parked on any residential premises except in an enclosed garage or building. The Board of Appeals may grant a special permit to vary this requirement.
181.3265.
Small Wind Energy System. Small wind energy systems, also referred to as "SWES," are permitted as an accessory use in any zoning district by special permit in accordance with Section 181.63.
181.3266.
Roof-Mounted and Small Scale Solar Energy Systems. Accessory to a principal use are allowed in all zoning districts subject to all local and other government requirements.
181.3267.
Temporary Portable Storage Containers.
A.
Residential Districts.
(1)
Only one temporary portable storage container shall be permitted per parcel in all residential zoning districts where a residential unit is located or a building permit has been issued for construction of a residential unit. No portable storage unit will be permitted on a vacant parcel.
(2)
Temporary portable storage containers shall be allowed in the required front yard only on an approved driveway or in a side or rear yard for a period not to exceed 90 days in any twelve-month period. No temporary portable storage container shall be placed or located in a circulation aisle/lane, fire access lane, public utility easement or public right-of-way, including streets and sidewalks and park strips.
(3)
If a building permit has been issued for the construction or remodeling of a residence, then the container is allowed during said construction and/or remodeling and must be removed within 30 days of the final inspection or expiration of building permit.
(4)
Preexisting nonconforming business, industrial and institutional uses shall be subject to Section 181.3267.B, and minor site plan review, Section 181.9551.
B.
Business/Industrial/Institutional Districts. The use of temporary portable storage containers in business or industrial districts is prohibited, except for the following uses:
(1)
Preexisting nonconforming residential uses shall be subject to Section 181.3267.A, above;
(2)
Shipping and receiving merchandise and goods, provided that the temporary portable storage container does not remain stationary for more than 30 days;
(3)
Storing merchandise or goods, including long-term storage, provided that the temporary portable storage container is not kept in the front setback area, designated parking areas, fire access lanes, public rights-of-way, landscaping, in an area visible from the property's primary street or on parcels that are adjacent to a residential zone;
(4)
Storage for construction or remodeling purposes, so long as the period of that use does not exceed 180 days. The Building Commissioner may extend the 180-day requirement when a project is ongoing and a building permit remains valid.
C.
All Districts.
(1)
Vertical stacking of portable storage containers and stacking of any other materials on top of or around any portable storage container shall be prohibited in all zones. An exception may be approved by the Building Inspector for those commercial businesses that have a valid business license to sell portable storage containers.
(2)
In all zones, temporary portable storage containers must be kept in good repair, be secured against unauthorized entry, comply with health regulations, and be stored on a hard surface. A temporary portable storage container is not in a state of good repair when it is incapable of being moved intact, holes in the container exist due to damage or rust or it has been infested with vermin or other pests.
(3)
Temporary portable storage containers may not be used as a dwelling or living quarters, nor for camping, cooking or recreation purposes for any amount of time in any zone.
(4)
Temporary portable storage containers shall comply with all applicable setback requirements except as otherwise provided herein.
181.331 Applicability.
This chapter shall not apply to structures or uses lawfully in existence or lawfully begun or to a building or special permit issued before the first publication of notice of the public hearing required by MGL c. 40A, § 5, at which this chapter, or any relevant part thereof, was adopted. The installation or replacement of accessory solar energy systems that do not increase existing nonconformity or have satisfied Section 181.333, Nonconforming Structures, are allowed. Such prior, lawfully existing nonconforming uses and structures may continue, provided that no modification of the use or structure is accomplished, unless authorized hereunder.
181.332 Nonconforming Uses.
The Board of Appeals may issue a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to nonconforming uses may be considered by the Board of Appeals:
181.3321.
Change or substantial extension of the use;
181.3322.
Change from one nonconforming use to another, less detrimental, nonconforming use.
181.333 Nonconforming Structures.
The Board of Appeals may issue a special permit to reconstruct, extend, alter, or change a nonconforming structure in accordance with this section only if it determines that such reconstruction, extension, alteration, or change shall not be substantially more detrimental than the existing nonconforming structure to the neighborhood. The following types of changes to nonconforming structures may be considered by the Board of Appeals:
181.3331.
Reconstructed, extended or structurally changed;
181.3332.
Altered to provide for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.
181.334 Variance Required.
The reconstruction, extension or structural change of a nonconforming structure in such a manner as to increase an existing nonconformity or create a new nonconformity, including the extension of an exterior wall at or along the same nonconforming distance within a required yard, shall require the issuance of a variance from the Board of Appeals; provided, however, that this provision shall not apply to nonconforming single- and two-family residential structures, which shall be governed by Section 181.335, below.
181.335 Nonconforming Single- and Two-Family Residential Structures.
Nonconforming single- and two-family residential structures may be reconstructed, extended, altered or structurally changed upon the issuance of a building permit after a determination by the Building Commissioner that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of said structure. In the event that the Building Commissioner determines that the nonconforming nature of such structure would be increased by the proposed reconstruction, extension, alteration, or change, the Board of Appeals may, by special permit, allow such reconstruction, extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. The following circumstances shall not be deemed to increase the nonconforming nature of said structure:
181.3351.
Alteration to a structure which complies with all current setback, yard, building coverage, and building height requirements but is located on a lot with insufficient area where the alteration will also comply with all of said current requirements.
181.3352.
Alteration to a structure which complies with all current setback, yard, building coverage, and building height requirements but is located on a lot with insufficient frontage where the alteration will also comply with all of said current requirements.
181.3353.
Alteration to a structure which encroaches upon one or more required yard or setback areas, where the alteration will comply with all current setback, yard, building coverage and building height requirements; the provisions of this subsection shall apply regardless of whether the lot complies with current area and frontage requirements.
181.3354.
Alteration to the side or face of a structure which encroaches upon a required yard or setback area, where the alteration will not encroach upon such area to a distance greater than the existing structure; the provisions of this subsection shall apply regardless of whether the lot complies with current area and frontage requirements.
181.3355.
Alteration to a nonconforming structure which will not increase the footprint of the existing structure provided that existing height restrictions shall not be exceeded.
181.336 Abandonment or Nonuse.
A nonconforming use or structure which has not been used for a period of two years or more shall be considered abandoned, absent evidence to the contrary, and is defined and regulated under Section 181.336 et seq.; provided, however, that a finding of abandonment shall not be contingent upon nonuse but can arise from any willful act consistent with an intent to abandon such as an absence of maintenance.
181.3361.
Loss of Protected Status. Any nonconforming structure or use that has been abandoned or not used for a period of two or more years, shall lose its protected status and be subject to all of the provisions of this chapter except for exempt uses and structures which are defined below. An exempt structure or use may continue unless and until the use or structure is abandoned or not used for two years and then fails to qualify as an exempt structure or use.
181.3362.
Definitions. The following definitions shall apply to this section:
EXEMPT STRUCTURE OR USE
Any legal nonconforming structure or use that 1) has been abandoned or 2) which has not been used for two years or more and is one of the following:
A.
Single-family dwelling or two-family dwelling structures or uses where:
(1)
The property is located in a zoning district which permits any residential use as of right pursuant to Section 181.313 above, the Downtown Business District, Intown Business District or Neighborhood Business Districts.
(2)
The proposed residential use or structure may reduce but will not increase any existing nonconformity including but not limited to use, dimension and parking.
(3)
The Building Commissioner determines in accordance with all applicable building, health, fire, and all applicable codes the structure is safe or can be made safe pursuant to a plan submitted by the applicant and approved by the Building Commissioner.
B.
Single-family dwelling, two-family dwelling, three-family dwelling and multifamily housing structures or uses where:
(1)
The structure and use meet the requirements of A.(1) and (3) above;
(2)
The owner submits a plan, approved by the Building Commissioner, for rehabilitation of the nonconforming structure which rehabilitates the facade and at least 50% of the square footage of the gross living area of the structure, and the proposed modification either reduces or does not increase any existing nonconformity; and
(3)
The structure or use meets the zoning requirements for the number of off-street parking spaces in Section 181.51.
(4)
Boardinghouses and lodging houses are specifically excluded from the definition of "exempt structures and uses."
LEGAL NONCONFORMING STRUCTURE OR USE
A prior, lawfully preexisting nonconforming structure or use lawfully in existence or lawfully begun, or a building or special permit issued before the first publication of notice of the public hearing required by MGL c. 40A, § 5, at which this chapter, or any relevant part thereof, was adopted, as defined in Section 181.331 above, or a structure which has become lawfully nonconforming by operation of law, as set forth in MGL c. 40A, § 7, prior to abandonment or prior to the beginning of a period of nonuse which extends for two continuous years or more.
181.3363.
Procedure. The Building Commissioner may require such additional information, plans or documents as he or she may reasonably need to determine the foregoing. The Commissioner may consult with any other department head or personnel.
181.3364.
Decision. The decision of the Building Commissioner regarding the exempt or nonconforming status of a structure may be appealed to the Board of Appeals. On appeal, the Board may exercise its authority under MGL c. 40A, § 8, and affirm, reverse or modify the decision of the Building Commissioner. Nothing in this chapter will prevent application to the Board of Appeals for a special permit.
181.3365.
Mixed Use. Where a nonconforming structure or use could be assigned to more than one use, the entire nonconforming structure and the use thereof shall be treated as the most restricted use as listed in the Table of Principal Use Regulations itemization in Section 181.313.
181.3366.
Special Permit. Notwithstanding any of the foregoing, the Board of Appeals may grant a special permit authorizing the reconstruction, alteration, rehabilitation, occupancy and use of any structure or use that has been determined by the Building Commissioner to have been abandoned or not used for two years or more, upon a demonstration by the applicant that all of the following criteria have been met:
A.
The structure or use is a legally nonconforming structure or use.
B.
The premises are determined to have adequate parking to serve the structure and use in conformity with the provisions of Section 181.512 or Section 181.513.
C.
The special permit criteria and procedure set forth in Section 181.94 are satisfied.
D.
The Board of Appeals may consider and may equitably depart from the above criteria if it finds that despite a discontinuance of use for two years or more the owner has made and provides evidence and documentation demonstrating good faith effort to restore the nonconforming use or has been unable due to illness, or military service. Payment of property taxes on the property shall not constitute a good faith effort.
E.
The Board of Appeals may impose such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees, as it may deem necessary to serve the purposes of this chapter, as set forth in Section 181.945.
181.337 Reconstruction After Catastrophe or Demolition.
A nonconforming structure may be reconstructed after a catastrophe or after demolition, provided that the owner shall apply for a building permit and start operations for reconstruction on said premises within two years after such catastrophe or demolition, and provided that the building(s) as reconstructed shall have no greater violation of setback, yards lots coverage or height as existed on the lot prior to demolition, provided, further, that in any event the new side yard setbacks shall not be less than five feet. In the event that the proposed reconstruction would cause the structure to exceed these limits, a special permit shall be required from the Board of Appeals.
181.338 Reversion to Nonconformity.
No nonconforming use shall, if changed to a conforming use, revert to a nonconforming use unless a variance is obtained from the Zoning Board of Appeals.
