Fitchburg City Zoning Code
SECTION 181
6 SPECIAL REGULATIONS
181.611 Purpose.
It is the purpose of this section to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the City of Fitchburg; to promote the health, safety and general welfare of the citizens of the City of Fitchburg; and to prevent problems of blight and deterioration which accompany and are brought about by the concentration of sexually oriented businesses. This section has neither the purpose nor the effect of imposing limitation or restriction on the content of any communicative materials, including sexually oriented materials; and it is not the intent nor effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market; and neither is it the intent nor effect of this section to condone or legitimize the distribution of obscene material.
181.612 Special Permit Requirement.
Sexually oriented businesses shall be permitted only by special permit granted by the City Council in accordance with the provisions of MGL c. 40A, § 9 and all of the provisions of this chapter and shall be subject to the restrictions, regulations, and standards set forth herein. No use variance shall be granted for a sexually oriented business.
181.6121.
Anyone wishing to obtain a special permit to operate a sexually oriented business shall follow the procedures set forth in this chapter at Section 181.94 and all rules, regulations and procedures applicable to the granting or denying of special permits or for imposing conditions upon special permits generally shall be applicable to the granting or denying of a special permit for sexually oriented business.
181.613 Location.
Sexually oriented businesses shall be subject to the following restrictions as to their location:
181.6131.
Sexually oriented businesses may only be located in Industrial and Commercial Districts. Sexually oriented businesses shall comply with all of the regulations, requirements and restrictions for the zoning district in which the sexually oriented business is to be located.
181.6132.
No sexually oriented business shall be permitted within 1,000 feet of another existing sexually oriented business or one for which a building permit has been applied.
181.6133.
A sexually oriented business cannot be operated in the same building, structure or portion thereof of as another sexually oriented business.
181.6134.
No sexually oriented business shall be permitted within 750 feet of any residential zone or the property line of any church, place of worship, parish house, convent, public, parochial, or private school, kindergarten or City boundary.
181.6135.
Measurement. The measure of distance for purposes of Subsections 181.6132 and 181.6134 shall be in a straight line without regard to intervening structures from the property line of the sexually oriented business to the property line of another sexually oriented business or to the property line of one of the structures described in Subsections 181.6132 and 181.6134.
181.6136.
Lawful Preexisting Uses. A sexually oriented business lawfully operating is not rendered a nonconforming use by the new location of a residential zone, church, place of worship, parish house, convent, public, parochial or private school, kindergarten, or a City boundary.
181.614 Conditions.
In addition to the requirements generally applicable to special permits, special permits for sexually oriented businesses shall be subject to the following restrictions, standards and conditions.
181.6141.
The premises of all sexually oriented businesses shall be constructed so as to include an anteroom, foyer, partition or the physical barrier on all customer entrances that will ensure that the interior of the premises is not observable from the exterior of the building.
181.6142.
Exterior overhead lighting shall be provided with sufficient intensity to illuminate every place to which customers are permitted at an illumination of not less than one footcandle as measured at floor level. This lighting must be maintained at all times during which any customer or patron is present in, or on, the premises. The exterior lighting sources shall be indirect, diffused, or with shielded fixtures, installed to reduce glare and the consequent interference with adjacent properties and streets.
181.6143.
Any signs or advertisements placed around or on the building shall not visually depict or describe specified anatomical areas or specified sexual activities as defined herein or nudity as defined by MGL c. 272, § 31.
181.6144.
The City Council may impose reasonable restrictions and conditions as described in this chapter in Section 181.945 and as permitted by chapter 40A of the General Laws, and in addition may impose restrictions or conditions regulating buffering, outdoor lighting, signage, parking, adequate ingress and egress from the site and to and from public roads and/or pedestrian movement. It may impose reasonable conditions to require appropriate landscaping and building aesthetics and it may impose reasonable conditions so as to avoid a site development layout which would result in negative environmental impacts or in a design incompatible with surrounding uses.
181.621 Purpose.
A.
The purposes of these regulations include:
(1)
Minimizing adverse impacts of radio communications facilities, satellite dishes, antennas, and their support structures to abutting properties and traveled ways;
(2)
Ensure that the wireless communication facilities are designed to minimize the adverse aesthetic impact by encouraging providers to utilize careful design, siting, screening, and camouflaging techniques; and
(3)
Minimizing the overall number and height of such facilities by encouraging the co-location of wireless communication facilities and the use of existing towers and structures for placement of facilities and equipment.
B.
A successful wireless communication facility will achieve the following:
(1)
Protection of the City of Fitchburg's resources;
(2)
A predictable outcome for wireless communication facilities applicants;
(3)
Equal evaluation and review for all applicants; and
(4)
The development of standards to be used as findings for decisions on personal wireless communication facilities applications.
181.622 Approval Process.
A.
Wireless communication facilities may be permitted as conditional uses in all zoning districts. All proposed wireless communication facilities, except those exemptions identified in Section 181.6281 below, whether new co-located or not co-located, must be reviewed by the Planning Board as a conditional use under requirements of this section and under this chapter.
B.
Wireless communication facilities require site plan approval by the Planning Board.
C.
All wireless communication facilities are deemed to be a structure as the term "structure" is defined and used in this chapter.
D.
An applicant for a proposed facility must be a licensed wireless communication provider or must provide a copy of its executed contract to provide land or facilities to an existing provider to the Planning Board at the time that an application is submitted. A permit shall not be granted for a wireless communication facility to be built on speculation. In addition, the record owner(s) of the property on which the facility is located must sign and join in the permit application, and the permit will run to and be binding on the owner, including successors and assigns.
181.623 Special Permit Thresholds.
All wireless communications facilities which exceed the following limits are required to obtain a special permit from the Planning Board:
181.6231.
For a building-mounted antenna support structure, any support structure and/or attached antenna, including satellite dishes:
A.
That protrudes more than five feet vertically from the roof where it is mounted or, in the case of a flat roof, protrudes more than five feet vertically from the horizontal plane of the top surface of the roof parapet; or
B.
That is set back from a roof edge or structural edge such that the vertical distance from the edge to the top of the antenna support structure, with antenna, is less than two-thirds the horizontal distance from the edge to the support structure or antenna; or
C.
That protrudes horizontally from any surface or edge, except that antenna support structures and antennas mounted on building surfaces set back from roof edges, such as elevator house walls, are exempt from this condition if they comply with the two previous conditions with respect to the roof above which the antennas are mounted.
181.6232.
For new freestanding antenna support structures, any new structure with attached antennas, including satellite dishes, that protrudes more than five feet aboveground.
181.6233.
Any attachments to a freestanding antenna support structure existing at the time of adoption of this chapter that protrude more than five feet from the top of the structure (excluding existing antennas) or protrude more than eighteen inches from the side of the structure.
181.6234.
In any case, any wireless communications facility which includes a wireless communications accessory building located in a residential zoning district requires special permit.
181.624 General Requirements.
181.6241.
Concealed wireless communications facilities shall be allowed by right in all zoning districts.
181.6242.
New freestanding antenna support structures issued special permits under this chapter may have special conditions applied that provide the structure owner with more or less flexibility to add antennas in the future, depending on the structure's purpose, design, location, and appearance. In the absence of such condition on a special permit for a freestanding antenna support structure, any attachment to a freestanding antenna support structure constructed after adoption of this chapter may protrude no more than five feet from the top of the structure (excluding existing antennas) nor eighteen inches from the side of the structure.
181.6243.
A wireless communications facility may be sited on a lot which already accommodates a lawful principal use.
181.6244.
The granting of a special permit, or the designation of certain uses as allowed by right in this section, does not absolve the owner or applicant from the responsibility for acquiring any other permits, including by not limited to building permits, certification from the Board of Health, or Federal Aviation Administration permits.
181.6245.
Unless waived by the Planning Board under Section 181.628, only freestanding monopoles, with associated antenna and/or panels, shall be allowed.
181.6246.
At the time that a special permit holder plans to abandon or discontinue operation of a wireless communications facility, such holder will notify the City of Fitchburg by certified US Mail of the proposed date of abandonment or discontinuance of operations. Within six months from the date of abandonment or discontinuance of use of a permitted wireless communications facility, the special permit holder shall physically remove the facility.
181.6247.
A freestanding antenna support structure that is constructed primarily for supporting wireless communications facilities shall be removed if it has not supported any active wireless communications facilities for one year. The Planning Board may also require a reduction in height if upper elevations of a freestanding antenna support structure are not used by a wireless communications facility for one year. The Planning Board may determine that the primary purpose of a freestanding antenna support structure is to support the operation of specific wireless communications facilities. Upon removal of these specific facilities, the Planning Board may require the owner of the support structure to reduce or remove the structure, regardless of whether any other Wireless communications facilities are using the structure. In the event that these elements are not removed within the time period specified by this chapter, the City of Fitchburg (in addition to other remedies) may remove the antenna, structure, and associated facilities and assess the costs of removal against the property.
181.6248.
At the discretion of the Planning Board, holders of special permits for wireless communications facilities and/or antenna support structures of any type may be required to provide to the Building Commissioner annual certification demonstrating continuing compliance with applicable standards regarding structural integrity, air traffic safety, radio emissions safety, or other issues of importance to the purposes of this regulation.
181.625 Submission Requirements.
181.6251.
The following information shall be prepared by a professional registered engineer or other qualified representative and submitted along with the special permit application:
A.
A written statement demonstrating that the proposed facility will comply with, or is exempt from, regulations administered by the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), and the Massachusetts Department of Public Health.
B.
A description of the wireless communications facility, including technical, economic, and other reasons for the proposed location, height, and design.
C.
A description of the antenna support structure including:
(1)
Plans.
(2)
Elevation views with proposed antennas and with an anticipated full load of antennas.
(3)
Photographs of the site from nearby public ways with accurate simulations of the proposed installation.
(4)
A visual impact map showing where on public lands and ways any part of the structure or antennas will be visible (mapped by a human observer during a balloon or crane test).
(5)
The number and type of antennas that it can accommodate and the basis for these calculations.
D.
A description and plans for the placement of the transmit/receive equipment, antenna cables and related equipment. If a wireless communications accessory building is proposed, include detailed design drawings of the building and its locus.
181.6252.
When considering an application for a wireless communications facility or freestanding antenna support structure the Planning Board shall place great emphasis on the proximity of the facility to abutting properties and streets and its visual impact on the same.
181.6253.
New freestanding antenna support structures shall only be considered after a finding by the Board that an existing freestanding antenna support structure cannot accommodate the proposed additional facility. Licensed carriers shall share freestanding antenna support structures where feasible and appropriate, thereby reducing the number of freestanding antenna support structures. All applicants for a special permit shall demonstrate a good faith effort to co-locate on other facilities in circumstances where the visual impact of co-location is equal to or better than that of the alternative. Such good faith effort includes:
A.
A survey of all existing structures, including building-mounted and freestanding antenna support structures, buildings, and other structures that may be feasible for co-locating wireless communications facilities, including sites that are outside but near the applicants specified search area;
B.
Contact with relevant owners of wireless communications facilities operating in the City; and
C.
Sharing information necessary to determine if co-location is feasible. In the event that the applicant claims that co-location is not feasible, a written statement of the reasons for the infeasibility shall be submitted to the Planning Board. The Board may retain a technical expert in the field of RF engineering to verify if co-location at a nearby site is or is not feasible, or to otherwise review the application. The cost for such a technical expert will be at the expense of the applicant. The Board may deny a special permit to any applicant that has not demonstrated a good faith effort to provide for co-location. In the event that co-location is not feasible and the applicant is proposing a new freestanding antenna support structure, the applicant must demonstrate that no existing buildings or other structures can provide a substantial portion of the coverage desired by the applicant. The City may retain a technical expert at the expense of the applicant in the field of RF engineering to verify if existing alternatives have been reasonably eliminated.
181.626 Application Requirements.
In addition to the site plan submission requirements, an application shall include the following supplemental information:
A.
The names and addresses of the neighboring Planning Board(s) and the Regional Planning Commission if the proposed facility might be visible from parcels in a neighboring community.
B.
The name(s) and address(es), fax/telephone numbers and email address(es) of the persons to be contacted who are authorized to act in the event of an emergency regarding the structure or safety of the facility. Both the licensed wireless communication provider and the record owner(s) of the property on which the facility is located must sign and join in the Planning Board application.
C.
A vicinity map on the most recent United States Geological Survey Quadrangle Map, showing the area within a three-mile radius of the proposed facility site, including the location of the facility and indicate the property lines of the proposed facility site, including the location of the facility, and indicate the property lines of the proposed facility parcel and all easements or rights-of-way needed for access from a public right-of-way to the facility.
D.
Site plan of the entire development, including all proposed improvements including landscaping, utility lines, guy wires, screening, and roads. The site plan shall be at a scale no smaller than one inch equals 50 feet.
E.
Elevations showing all facades and indicating all exterior materials and colors of the tower, buildings, and associated facilities.
F.
In the case of a ground mounted facility, the approximate average height of the existing vegetation within 150 feet of the base of the facility.
G.
A report prepared by qualified radio frequency engineer and a licensed structural engineer that:
(1)
Describes the height, design, and elevation of the proposed facility.
(2)
Documents the height above grade for all proposed mounting positions for antennas to be co-located on a wireless communications facility and the minimum separation distances between antennas.
(3)
Describes the facility's proposed capacity, including the number, height, and type(s) of antennas that the applicant expects the facility to accommodate.
(4)
Describes potential changes and cost to those existing facilities or sites in their current state that would enable them to provide adequate coverage and provides a map that describes coverage of the existing and proposed facilities.
(5)
Describes existing coverage. In the case of a new wireless communication facility proposal, the applicant shall demonstrate to the satisfaction of the Planning Board that the new wireless communication facility cannot be accommodated on an existing or approved facility or structure within a five-mile radius of the proposed site. The documentation shall include, for each facility site or proposed site within such radius, the exact location, ground elevation, height of tower or structure, and sufficient additional data to allow the Planning Board or independent reviewer to verify that other locations will not be suitable.
(6)
Describes the output frequency, number of channels, sector orientation and power output per channel, as appropriate for each proposed antenna.
(7)
Includes a written explanation for use of the proposed facility, including reasons for seeking capacity in excess of immediate needs, if applicable, as well as plans for additional development and coverage within Fitchburg.
(8)
Demonstrates that the tower and related equipment are structurally able.
(9)
Demonstrates the wireless communication facility's compliance with the zoning district setback and the fall zone setback for facility and support structures.
(10)
Provides assurance that at the proposed site, the applicant will establish and maintain compliance with all FCC rules and regulations particularly with respect to radio frequency radiation (RFR). The City may hire independent engineers to perform evaluations of compliance with FCC regulations, standards, and requirements on an annual basis at unannounced times.
(11)
Includes other information required by the Planning Board that is necessary to evaluate the request.
(12)
For structural engineers, include an engineer's stamp and registration number. For radio frequency engineers, provide a list of credentials.
H.
A letter of intent committing the facility owner and his or her successors to permit shared use of the facility if the additional user agrees to meet reasonable terms and conditions for shared use, including compliance with all applicable FCC regulations, standards and requirements and the provisions of these regulations.
I.
For a wireless communication facility to be installed on an existing structure, a copy of the applicant's executed contract with the owner of the existing structure (to be provided to the Building Commissioner or Planning Board at the time an application is submitted)
J.
To the extent required by the National Environmental Policy Act (NEPA) and as administered by the FCC, a complete environmental assessment (EA) draft or final report describing the probable impacts of the proposed facility.
K.
Construction sequence and time schedule for completion of each phase of the entire project.
L.
Information detailing the contents of the equipment shelters servicing the proposed wireless communication facility. The information shall include the type and quantity of oil, gasoline, batteries, propane, natural gas, or any other fuel stored within the shelter. Information shall be submitted which demonstrates that any hazardous materials stored on site shall be housed to minimize the potential for any adverse impact an abutting property.
M.
Computer generated photo simulations of the proposed facility showing the facility from all public rights-of-way from which it may be visible. Each photo shall be labeled with the line of sight, elevation and with the date taken imprinted on the photograph. The photos shall show the color of the facility and the method of screening.
N.
Balloon Test. The applicant shall fly or raise a five-foot diameter balloon (painted black or dark blue) at the maximum height of the proposed facility at a location within fifty horizontal feet of the center of the proposed facility. The applicant shall provide at least seven days' written notice to the Building Commissioner or Planning Board of the date and time of the test. The sole purpose of this test is to identify the location and height of the proposed facility and not its visual impact.
O.
A written visual analysis with supporting illustrations demonstrating the visual impact of the proposed facility, including photographs of the balloon test and elevation views of the facility from each of the five vantage points previously designated by the Building Commissioner or Planning Board.
P.
A plan for removal and restoration of the site following abandonment of the facility. This plan shall be binding upon the provider and the property owner, including their successors and assigns, and therefore construction of the facility will constitute consent from the owner, including successors and assigns, for the City or its agents to enter upon the property, if necessary, to complete removal of an abandoned facility.
Q.
A landscape easement on an adjoining site, if this is needed to satisfy the requirements of camouflaging ground-mounted facilities.
R.
Any additional information requested by the Planning Board.
181.627 Design Guidelines.
The following guidelines shall be used for the siting and construction of all wireless communication facilities:
181.6271.
All new freestanding antenna support structures shall be designed to be constructed to the minimum height necessary to accommodate the anticipated and future use of the structure, but in no case shall the height exceed 175 feet as measured from ground level at the base of the structure, except for facilities used by a federally licensed amateur radio operator antenna. No antenna support structure used by an amateur radio operator shall be used to co-locate any facility other than another residential communications facility. Section 181.416, Table of Dimensional Requirements, shall not apply to freestanding antenna support structures with regard to the maximum allowable height of a structure.
181.6272.
In order to protect public safety, the minimum distance from the base of any freestanding antenna support structure to any property line or road shall be 50% of the height of the structure, including any antennas or other appurtenances. This setback is considered a fall zone. The minimum distance from the base of any building-mounted antenna support structure to any lot line, measured horizontally, shall be at least that required in the zoning district by this chapter, and in no case shall be less than the height of the antenna above the roof.
181.6273.
Building mounted antenna support structures shall not exceed 15 feet in height above the roof line of the structure. The Planning Board may grant special exceptions in circumstances where irregular roof lines or the configuration of other rooftop structures may be utilized without compromising the intent of this section.
181.6274.
All antenna support structures and antennas, unless roof-mounted, shall be located in the side or rear yard or building mounted in such a manner that the view of the facility from abutting properties and streets shall be as limited as possible. Antenna support structures and antennas shall be camouflaged in a manner appropriate to the application. Where appropriate, vegetative, or mechanical screening shall be employed to hide antennas from public view.
181.6275.
Fencing which is compatible with the characteristics of the neighborhood may be required to be provided to control access to wireless communications facilities and antenna support structures. No razor wire shall be permitted.
181.6276.
Unless otherwise permitted by this chapter or specified in a special permit, there shall be no signs posted at wireless communications facilities except for warning signs, no trespassing signs, a sign identifying the facility, the owner and operator and an emergency telephone number, and any required hazard or information sign normally mounted at a wireless communications facility. No sign shall be greater than eight square feet in size and six feet in elevation.
181.6277.
Lighting of antenna support structures and antennas shall be prohibited unless required by the Federal Aviation Administration. Lighting shall be limited to that needed for emergencies and/or as required by the FAA. Lighting on the grounds of a freestanding antenna support structure or a wireless communications accessory building shall be kept to the minimum necessary to assure security and shall follow City lighting regulations.
181.6278.
Unless the wireless communications facility is to be located at a building or site with ample parking, a minimum of one dedicated parking space for an antenna support structure. The space shall not be used for the permanent storage of vehicles or other equipment or materials. The Planning Board shall evaluate the application in terms of the number of potential wireless co-locators and determine the minimum parking area to accommodate them at the site.
181.6279.
Bulk, Height, Glare. All wireless communication facilities shall be designed in such a manner as to minimize the visual impact of height, mass, and guy wire supports for the intended use. Materials utilized for the exterior of any structure shall be of a type, style, and location so as to minimize glare and not result in an adverse visual impact on any public vantage point or from abutting properties.
181.62710.
Noise. The sustained (for a period of one hour) sound-pressure level of any wireless telecommunications facility equipment shall not exceed the 70 dbA decibel level at the property line between the hours of 7:00 a.m. and 7:00 p.m., and shall not exceed the 60 dbA decibel level at the property line between the hours of 7:00 p.m. and 7:00 a.m. If the noise is impulsive (i.e., hammering), intermittent (i.e., machine sounds) or periodic (i.e., hums or screeches), the maximum sound-pressure levels described above shall be reduced by 5 dbA. Furthermore, the applicant shall demonstrate that the sound pressure level of the proposed facility is as quiet as reasonably possible (i.e., if it is reasonably possible to have a dbA level less than cited above, the lower level shall be required).
181.62711.
Co-location. New wireless communication facilities shall be designed structurally, electrically and in all respects to accommodate both the applicant's antenna, additional antennas, and the rearrangement of antennas when the overall permitted height allows. The owner of an approved facility shall allow other providers to co-locate on the facility subject to reasonable terms and conditions (this includes communication equipment for municipal emergency services when the new wireless communication facility is proposed in an area where the municipal emergency services have a communication dead zone). Notwithstanding, there shall be no affirmative obligation on the owner to increase the height or width of the facility in order to accommodate the equipment or facilities of another user. The applicant must demonstrate to the satisfaction of the Planning Board that the new wireless communication facility cannot be accommodated on an existing or approved facility or structure due to one of the following reasons:
A.
Structural or Spatial Capacity. The proposed antennas and equipment would exceed the structural or spatial capacity of the existing or approved facility, as documented by a structural engineer licensed to practice in the State of Massachusetts. Additionally, the existing or approved wireless communication facility cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment, at a reasonable cost, to provide coverage and capacity comparable to that of the proposed facility.
B.
Radio Frequency Interference. The proposed antennas and equipment, alone or together with existing facilities, equipment or antennas, would create radio frequency interference (RFI) in violation of federal standards or requirements as documented by a qualified radio frequency engineer.
C.
Radio Frequency Radiation. The proposed antennas and equipment, alone or together with existing facilities, equipment, or antennas, would create radio frequency radiation (RFR) in violation of federal standards or requirements without unreasonable modification or mitigation measures as documented by a qualified radio frequency engineer.
D.
Existing Facilities. Existing wireless communication facilities that cannot accommodate, or be reasonably modified to accommodate, the planned equipment at a height necessary to function reasonably or are too far from the area of needed coverage to function reasonably as documented by a qualified radio frequency engineer.
E.
Aesthetics. Aesthetic reasons make it unreasonable to locate the planned equipment upon an existing or approved wireless communication facility.
F.
Coverage. There are no existing or approved wireless communication facilities in the area in which coverage is sought.
G.
Other. Other specific unforeseen reasons make it unreasonable to locate the planned equipment upon an existing or approved wireless communication facility.
181.62712.
Determination of Visual Impact. The facility will not have an undue adverse aesthetic impact. In determining whether a facility has an undue aesthetic impact, the Planning Board shall consider the following factors:
A.
The results of the balloon test and photo simulations.
B.
The extent to which the proposed towers and equipment have been designed to blend into the surrounding environment through the use of screening, camouflage, architectural design, and/or imitation of natural features.
C.
The extent to which access roads have been designed to follow the contour of the land and will be constructed within forest or forest fringe areas and not open fields.
D.
The duration and frequency with which the facility will be viewed on a public highway or from public property.
E.
The degree to which existing vegetation, topography, or existing structures will screen the facility.
F.
Background features in the line of sight to the facility that obscure or make the facility more conspicuous.
G.
The distance of the facility from the point of view and the proportion of the facility that is above the skyline.
181.62713.
Camouflaging Facilities. New ground-mounted wireless communication facilities shall not be located within open areas. All wireless communication facilities shall be designed to blend into the surrounding environment through the use of existing vegetation, landscaping and screening, the use of compatible materials and colors, or other camouflaging techniques.
181.62714.
Wireless communication facilities shall be designed to provide adequate access for emergency and service equipment and shall provide adequate facilities for utilities and stormwater management consistent with the function requirements of the Planning Board subdivision rules and regulations and as set forth in Section 181.945 of this chapter, hereunder.
181.628 Waivers.
The Planning Board may waive strict adherence to the requirements of this section (with the exception of the height limit and exclusion zones) if it finds the safety and wellbeing of the public will not be adversely affected by such a waiver.
181.629 Conditions.
A.
The Planning Board shall have the authority to impose conditions consistent with the purposes of this chapter in approving a proposed plan for the development of a wireless communication facility. It shall be the obligation of the permittees and subsequent assigns to remain in compliance with all conditions.
(1)
Maintenance. The owner of the facility shall maintain the wireless communication facility in good condition at all times. Such maintenance shall include, but shall not be limited to, painting, structural integrity of the mount and security barrier, accessibility to the facility, maintenance of the buffer areas and landscaping, and also maintaining proper access to the facility.
(2)
Radio Frequency Radiation Monitoring. Upon receiving a zoning permit, the permittee shall annually demonstrate compliance with all FCC standards and requirements regarding radio frequency radiation (RFR) and provide the basis for representations to the Building Commissioner or Planning Board. A survey by another permittee on the same site, since it will demonstrate compliance of all emitters, may be submitted provided there is annual demonstration of site compliance.
B.
Consistency with Federal Law. These regulations have been drafted to be consistent with Section 704 of the 1996 Telecommunications Act.[1] Accordingly, the Regulations shall not prohibit or have the effect of prohibiting the provision of personal wireless communications services; shall not unreasonably discriminate among providers of functionally equivalent services; and shall not regulate personal wireless services based on the environmental effects of radio frequency emissions to the extent that these facilities comply with the Federal Communications Commission regulations concerning such emissions.
[1]
Editor's Note: See 47 U.S.C. § 704.
181.631 Purpose.
The purpose of this section is to promote the safe, effective and efficient use of small wind energy systems which are installed to reduce the on-site consumption of utility supplied electricity, subject to reasonable conditions that will protect the public health, safety and welfare.
181.632 Findings.
The City of Fitchburg finds that wind energy is an abundant, renewable and nonpolluting energy resource and that its conversion to electricity will reduce our dependence on nonrenewable energy resources and decrease the air and water pollution that results from the use of conventional energy sources. Wind energy systems also enhance the reliability and power quality of the power grid, reduce peak power demands and help diversify the state's energy supply portfolio.
181.633 Definitions.
A residence or a church, hospital, library, school, or other building used for public gathering that is either actually occupied, in use or held or available for use at the time when the special permit application is submitted.
A wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which is intended to primarily reduce on-site consumption of utility power.
The distance from the surface of the tower foundation to the highest point of the turbine rotor plane.
181.634 Permitted Use.
No SWES shall be erected, constructed, installed or modified without first obtaining a special permit from the Planning Board. A SWES may be permitted in any zoning district as an accessory use, subject to the issuance of a special permit and further provided that the use is maintained and complies with all requirements set forth herein and as described in the special permit. No special permit shall be granted unless the Board determines that all such wind energy facilities shall be constructed and operated in a manner that minimizes any adverse visual, safety, and environmental impacts. No special permit shall be granted unless the Planning Board finds, in writing, that the proposed SWES complies with the special permit criteria under Section 181.942, and:
A.
The specific site is an appropriate location for such use;
B.
The use will not adversely affect the neighborhood;
C.
No nuisance will be created by the use;
D.
Adequate and appropriate facilities will be provided for the proper operation of the use; and
E.
The application information submitted is adequate, complete and containing sufficient information for the Planning Board to consider approving the special permit request.
If the Board finds that the information is not adequate or complete, it may continue the hearing on the application to allow the applicant to submit additional information which may be needed for a decision.
181.6341. | A special permit issued for a SWES may impose reasonable conditions, safeguards and limitations on time and use and may require the applicant to implement all reasonable measures to mitigate reasonably foreseeable adverse impacts of the wind facility. |
181.635 Application requirements.
A.
The applicant and landowner's name and contact information.
B.
The map, block and lot identifier for the parcel, existing use and acreage of the site parcel.
C.
Standard engineered drawings of the wind turbine structure, including the tower, base and footings, drawings of access roads, and including an engineering analysis and certification of the tower, showing compliance with the State Building Code.
D.
Data pertaining to the tower's safety and stability, including safety results from test facilities prepared and stamped by an engineer.
E.
Site plan. A site plan must be submitted, prepared to scale by a registered land surveyor or civil engineer showing the proposed SWES location, property lines for the site parcel, outline and distances of existing and proposed structures within the allowed tower setbacks including purpose (i.e. residence, garage, etc.), public and private ways, drives, access easements, trails, above ground utility lines and other significant features, as well as any proposal for landscaping and screening.
F.
If deemed necessary by the Planning Board, the applicant shall provide a report estimating current ambient sound at appropriate locations and maximum projected sound from the proposed SWES. Manufacturer's specifications may be accepted when, in the opinion of the Planning Board, the information provided satisfies the above requirements.
G.
The certification by the applicant's engineer that the SWES complies with applicable regulations of the Federal Aviation Administration (FAA).
181.6351. | Waivers. Any portion of the requirements in Section 181.635 may be waived if in the opinion of the Planning Board the materials submitted are sufficient for the Board to make a decision under the criteria for a Special Permit under this section. |
181.636 General Siting Standards.
181.6361.
Turbine Height. For property sizes between 1/2 acre and one acre, the turbine height shall be limited to 80 feet. For property sizes of one acre or more, there is no limitation on turbine height, except as may be imposed by the Federal Aviation Administration (FAA) regulations, other applicable law and this chapter.
181.6362.
Setbacks. Each SWES structure shall be set back from the property line a distance no less than 1.5 times its total turbine height, unless appropriate easements are secured from adjacent property owners, as described in Section 181.637 below.
181.6363.
Guy wires associated with a SWES shall be set back at least 10 feet from a property line. Guy wires shall not be secured to trees but shall be secured to stationary anchors and located away from trees or other structures that may interfere with the safe operation of the SWES.
181.6364.
Where wind characteristics permit, wind towers shall be set back from the tops of visually prominent ridgelines to minimize the visual contrast from any public access.
181.637 Waiver of Setbacks.
The Planning Board may waive the setback requirements in Section 181.6362 or 181.6363 if they determine that such waiver does not derogate from the intent of this section and is in the public interest. In order for the Planning Board to grant such a waiver the applicant must present evidence that the risk is minimal and will not affect public safety or that they have secured a permanent fall zone easement from the affected property owner(s) for the setback area referred to in Section 181.6362. The area of the easement shall be shown on all applicable plans submitted to the Board. The terms of the easement shall prohibit the development of occupied buildings within the fall zone and advise all subsequent purchasers of the burdened property that the easement shall run with the land and may forever burden the subject property. In addition, the Planning Board may waive the setback requirement in Section 181.6362 for setbacks from a public or private way for good cause, or if adjacent publicly owned land or dedicated open space is determined by the Board to be appropriate for use as a setback area.
181.638 Design Standards.
181.6381.
Support Towers. SWES shall be of a simple design with smallest overall profile. Monopole towers are the recommended type of support.
181.6382.
The minimum distance between the ground and any part of a rotor, or turbine blade, shall be 30 feet.
181.6383.
All wind turbines shall have an automatic braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.
181.6384.
Color. Colors and surface treatment of the installation shall minimize visual disruption, for example, by painting nonreflective muted colors darker against land, lighter colors against sky, without graphics or other decoration. However, visible, reflective, colored objects, such as flags, reflectors, or tape shall be placed on the anchor points of guy wires and along the guy wires up to a height of 10 feet from the ground.
181.6385.
Compliance with FAA Regulations. Small wind energy systems must comply with applicable FAA regulations, including any necessary approvals for installations close to airports.
181.6386.
No SWES shall be visibly lit, except to the extent required by the FAA or other governmental authority that regulates air traffic.
181.6387.
Small wind energy systems shall not be used for displaying any advertising.
181.6388.
Appropriate landscaping shall be provided to screen accessory structures from roads and adjacent residences.
181.6389.
Noise. The SWES and associated equipment shall conform with the provisions of the Department of Environmental Protection (Mass DEP) Division of Air Quality Noise Regulations (310 CMR 7.10).
181.63810.
Prevention of Access. All related components of the SWES shall be designed and protected to prevent unauthorized access. Fencing serving this purpose but compatible with the characteristics of the neighborhood may be required to control access to the SWES. No razor wire shall be permitted.
181.63811.
Facility Conditions. SWES owners and operators shall maintain the SWES in good condition and provide for the ongoing maintenance in accordance with the conditions of the special permit, manufacturer's specifications and governmental regulations for all structural, electrical and mechanical operations to ensure safe operation of the SWES.
181.639 Additional Provisions.
181.6391.
Safety Determination. Any SWES found to be unsafe by the Zoning Enforcement Officer or the Building Inspector shall be repaired or removed pursuant to his or her direction.
181.6392.
No SWES that is interconnected with the electric system may be put in operation prior to execution of an interconnection agreement with the local electric utility.
181.6393.
If any wind energy system is substantially not operated for a continuous period of 12 months, the Zoning Enforcement Officer may determine the facility to be abandoned.
181.6394.
If the SWES owner or operator fails to remove the SWES in accordance with the requirements of this section, the City of Fitchburg shall have all the remedies available under Massachusetts General Laws.
181.6395.
If the Zoning Enforcement Officer or the Board of Health or its agent determines that the noises emanating from an SWES creates an unreasonable interference with abutters in the immediate vicinity or that it may be interfering with electromagnetic communication unreasonably, the SWES owner or operator shall be required, at its expense, to have prepared by an independent professional engineer with expertise in the subject matter, a study that measures and demonstrates compliance with the standards in this chapter.
181.6396.
At the discretion of the Planning Board and if required by the special permit, the owner of an SWES, or other responsible appropriate person, may be required to provide to the Building Commissioner annual certification demonstrating continuing compliance with applicable standards regarding noise, shadow flicker, structural integrity, air traffic safety, radio emissions safety, or other issues of importance to the purposes of this regulation.
181.6397.
The Planning Board may retain a technical expert/consultant to verify information presented by the applicant. The cost for such a review will be at the expense of the applicant pursuant to MGL c. 44, § 53G, as may from time to time be amended.
181.6398.
Expiration. A permit issued pursuant to this chapter shall expire if a) the SWES is not installed and functioning within 24 months from the date the permit is issued; b) the SWES is abandoned; or c) the term stated in the special permit expires without renewal or extension; or d) the holder of the special permit or the owner of the SWES is found to have violated the requirements of this chapter, the conditions of the special permit or the enforcement orders of the Zoning Enforcement Officer after hearing on notice to interested persons.
181.6399.
Violations. It is unlawful for any person to construct, install, modify or operate a SWES that is not in compliance with this chapter or with any condition contained in a special permit decision or building permit issued pursuant to this chapter. SWES installed prior to the adoption of this chapter are exempt.
181.641 Regulation.
MGL c. 94G and c. 94I authorize a system of state licensing for businesses engaging in the cultivation, testing, processing and manufacturing, and retail sales of nonmedical and medical marijuana, respectively, and collectively referred to as "marijuana establishments" (MEs). MGL c. 94G, § 3, allows cities to adopt ordinances that impose reasonable safeguards on the operation of nonmedical and medical marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with the law. The special permit and site plan review requirements set forth in this section shall be in addition to, and not in lieu of, any other licensing and permitting requirements imposed by any other federal, state, or local law.
181.642 Purpose.
The purpose of this section is to allow state-licensed MEs to exist in the City of Fitchburg in accordance with applicable state laws and regulations and impose reasonable safeguards to govern the time, place and manner of ME operations and any business dealing in marijuana accessories in such a way as to ensure public health, safety, wellbeing, and reduce undue impacts on the natural environment subject to the provisions of this chapter, MGL c. 40A, MGL c. 94G, MGL c. 94I, and any other applicable law. Therefore, this chapter may permit MEs in locations suitable for lawful MEs where there is access to regional roadways, where they may be readily monitored by law enforcement for health and public safety purposes, and to minimize adverse impacts on adjacent properties, residential neighborhoods, historic districts, schools, playgrounds and other locations where minors congregate by regulating the siting, design, placement, operation security, and removal of MEs.
181.643 Definitions.
Where not expressly defined in this chapter, terms used in this chapter referring to marijuana shall be interpreted as defined in MGL c. 94G and c. 94I, as the same may be amended from time to time, and regulations issued by the Cannabis Control Commission (CCC). The following definitions, consistent with this expressed intent, shall apply in the interpretation and enforcement of this section:
An entity operating under both a medical marijuana treatment center (MMTC) registration pursuant to 935 CMR 501.000, Medical Use of Marijuana, and under at least one marijuana establishment license pursuant to 935 CMR 500.000, Adult Use of Marijuana, on the same premise. Co-located marijuana operations pertain to cultivation, product manufacturing, and retail, but not any other adult use license.
Any ME facilities, as defined by Section 181.643 of this chapter, having already received a special permit and site plan review approval by the City, prior to the passage of Section 181.64 of this chapter, which remain in good standing without violation of any ordinance, statute, or condition of their special permit.
A laboratory that is licensed by the CCC and is i) accredited to the most current International Organization for Standardization 17025 by a third-party accrediting body that is a signatory to the International Laboratory Accreditation Cooperation mutual recognition arrangement or that is otherwise approved by the CCC; ii) independent financially from any medical and/or nonmedical marijuana treatment center or any licensee or ME for which it conducts a test; and iii) qualified to test marijuana in compliance with regulations promulgated by the CCC pursuant to MGL c. 94G.
An entity licensed to cultivate, process and package nonmedical and/or medical marijuana, to deliver nonmedical and/or medical marijuana to MEs and to transfer marijuana to other MEs, but not to consumers. A craft marijuana cultivator cooperative performing a similar function shall be included within the definition of an MC.
An entity licensed to deliver finished marijuana products, marijuana accessories and branded goods directly to consumers from a marijuana retailer, or directly to registered qualifying patients or caregivers from an MTC, but is not authorized to sell marijuana or marijuana products directly to consumers, registered qualifying patients or caregivers and is not authorized to wholesale, warehouse, process, repackage, or white label, all as further defined in 935 CMR 500.00 et seq. A marijuana courier is an additional license type under MGL c. 94G, § 4(b)(1), that allows for limited delivery of marijuana or marijuana products to consumers and shall not be considered to be a marijuana retailer under 935 CMR 500.002 or 500.050 and shall be subject to 935 CMR 500.050(1)(b).
[Amended 11-15-2022 by Ord. No. 268-2022]
An entity licensed to purchase at wholesale and warehouse finished marijuana products acquired from a marijuana cultivator, marijuana product manufacturer, microbusiness or craft marijuana cooperative, and white label, sell and deliver finished marijuana products, marijuana accessories and marijuana branded goods directly to consumers, but is not authorized to repackage marijuana or marijuana products or operate a storefront under this license, all as further defined in 935 CMR 500.00 et seq. A delivery operator is an additional license type under MGL c. 94G, § 4(b)(1), that allows for limited delivery of marijuana or marijuana products to consumers and shall not be considered to be a marijuana retailer under 935 CMR 500.002 or 500.050 and shall be subject to 935 CMR 500.050(1)(b).
[Amended 11-15-2022 by Ord. No. 268-2022]
A marijuana cultivator, independent testing laboratory, marijuana product manufacturer, marijuana retailer, marijuana transporter, marijuana delivery courier, marijuana delivery operator or any other type of licensed nonmedical and/or medical marijuana related business.
[Amended 11-15-2022 by Ord. No. 268-2022]
An entity licensed to obtain, manufacture, process and package nonmedical and/or medical marijuana and marijuana products, to deliver nonmedical marijuana and marijuana products to ME's and to transfer nonmedical marijuana and/or medical marijuana products to other MEs, but not to consumers. A craft marijuana cultivator cooperative performing a similar function shall be included within the definition of a MPM.
Products that have been manufactured and contain marijuana or an extract from marijuana, including concentrated forms of marijuana and products composed of marijuana and other ingredients that are intended for nonmedical use or consumption, including edible products, beverages, topical products, ointments, oils and tinctures.
An entity licensed to purchase and deliver nonmedical marijuana and/or medical marijuana products from MEs and to deliver, sell or otherwise transfer nonmedical and/or medical marijuana products to MEs and to consumers.
An entity, not otherwise licensed by the Commission that is licensed to purchase, obtain, and possess cannabis or marijuana product solely for the purpose of transporting, temporary storage, sale and distribution to marijuana establishments, but not to consumers. Marijuana transporters may be an existing licensee transporter or third-party transporter.
The degree to which a person's history demonstrates honesty, fairness and respect for the rights of others and for conformance to the law, which may include consideration of whether an individual has:
Ever had a professional license denied, suspended or revoked;
Ever had a business license denied, suspended or revoked;
Ever had a marijuana related business license denied, suspended, revoked, or placed on administrative hold, or was subjected to a fine for violation of a marijuana related zoning ordinance;
Ever had a business temporarily or permanently closed for failure to comply with any tax, health, building, fire, zoning, or safety law;
Ever had an administrative, civil or criminal finding of delinquency for failure to file or failure to pay employment, sales, property or use taxes;
Ever been convicted of a felony, sex offense, or other offense involving violence, distribution of controlled substances, excluding marijuana related possession offenses, or other moral turpitude;
Within the previous sixty months been convicted of a misdemeanor or other offense involving the distribution of controlled substances or driving under the influence of alcohol or other substance (DUI, OUI) convictions.
181.644 Prohibitions and Limitations.
181.6441.
It shall be unlawful for any person to operate a ME without obtaining a special permit and undergoing site plan approval pursuant to the requirements of this chapter, except as provided for an experienced operator.
181.6442.
An experienced operator may operate a nonmedical ME of the same type as the medical marijuana facility for which they have been granted a special permit and approved site plan review by the City without obtaining a new special permit, provided that the experienced operator must receive site plan approval for the new use as a ME, that the ME is located in the same facility for which the experienced operator received the prior special permit and site plan approval, and that the gross square footage of such facility is not increased by more than 10%.
181.6443.
A separate special permit is required for each different ME detailed in Section 181.643 above, or in the case of an experienced operator, a separate site plan review.
181.6445.
A ME may only be involved in the use permitted by its definition. MRs may only be located in buildings containing other retail, commercial, residential, industrial, or any other uses, including other types of MEs, if the MR is separated by full walls from any and all other uses.
181.6446.
MEs are permissible only in zoning districts in accordance with Section 181.313, Table of Principal Uses, and any further limitations specified in Section 181.64. Notwithstanding the provisions of Section 181.313 (Table of Principal Use Regulations), no special permit may be granted for any MR located in that portion of the Downtown Business and Intown District Zoning Districts that includes Main Street which lies to the north of the railroad track dissecting said specific zone and west of the intersection of Holt Street and Summer Street until the intersection of Main Street and Prospect Street. "Social consumption establishments," so called, are prohibited as a use.
181.6447.
An entity engaged in co-located marijuana operations (CMOs) must comply with the provisions of this chapter and the Massachusetts adult use marijuana laws, St. 2017, c. 55; MGL c. 94G; MGL c. 94I; 935 CMR 500.000, Adult Use of Marijuana; 935 CMR 501.000, Medical Use of Marijuana and 935 CMR 502.000. In addition to 935 CMR 502.000, 935 CMR 500.000 and 935 CMR 501.000 control for CMOs.
181.6448.
MEs shall be prohibited as an accessory use or home occupation in all zoning districts. No ME shall be permitted to have drive-up or walk-up facilities as described in Section 181.3245 of this chapter.
181.6449.
No marijuana or marijuana product shall be smoked, eaten, ingested, consumed or otherwise used within the premises of any ME.
181.64410.
No ME may be operated in a mobile facility or outside of a fully enclosed building or structure, excepting deliveries to off-site MRs and/or and home deliveries to consumers permitted or licensed by applicable state and local regulations.
181.64411.
No ME may be operated in such a manner as to cause or create a public nuisance to abutters or to the surrounding area, or which creates any hazard, including, but not limited to, fire, explosion, fumes, gas, smoke, odors, obnoxious dust, vapors, offensive noise or vibration, flashes, glare, objectionable effluent or electrical interference, which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area.
181.64412.
The issuance of a special permit and site plan review pursuant to this chapter does not create an exception, defense, or immunity to any person or entity in regard to any potential criminal liability the person or entity may have for the production, distribution, or possession of marijuana.
181.64413.
There shall be no use variances issued for any ME.
181.645 Application.
In addition to the materials required under Section 181.94, Special Permits, and Section 181.95, Site Plan Review, of this chapter, the applicant shall submit the following:
A.
The name and address of each owner of the ME facility/operation.
B.
Proof of application to the CCC for the proposed ME including submittal of copies of all required registrations, licenses and permits issued to the applicant by the state and any of its agencies for the proposed ME.
C.
A notarized statement signed by the 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.
D.
Evidence that the applicant has site control and right to use the site for a ME facility in the form of a deed or executed 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.
E.
The name, address, email address, and phone number of all designated managers of the ME, together with a criminal background check of such managers and other evidence of moral character.
F.
Proof that the detailed security plan, operation and management plan, and emergency response plans have been submitted to the Fitchburg Police Department and the Department of Planning and Community Development for comment and review at the same time or prior to the submission of the application, and any comment or response received by the applicant.
G.
Proof that the applicant provided notification in writing at the same time or prior to the submission of the application to all property owners and operators of the uses listed under Section 181.646(5) within 300 feet of its proposed location and use, to provide them with the opportunity to comment to the Planning Board, as well as any and all comment or response received by the applicant.
H.
Detailed site plans that include the following information:
(1)
Compliance with the requirements for parking and loading spaces, for lot size, frontage, yards and heights and coverage of buildings, and all other provisions of this chapter.
(2)
Convenience and safety of vehicular and pedestrian movement on the site and for the location of driveway openings in relation to street traffic.
(3)
Convenience and safety of vehicular and pedestrian movement off the site, if vehicular and pedestrian traffic off-site can reasonably be expected be substantially affected by on-site changes.
(4)
Adequacy as to the arrangement and the number of parking and loading spaces in relation to the proposed use of the premises, including designated parking for home delivery vehicle(s), as applicable.
(5)
Design and appearance of proposed buildings, structures, signage, trash receptacles, screening and landscaping, minimizing any adverse visual or economic impacts on abutters and other parties in interest.
(6)
Adequacy of water supply, surface and subsurface drainage and light.
(7)
A detailed floor plan of the premises identifying the square footage available and describes the functional areas of the ME, including areas for any preparation of marijuana products.
(8)
Details showing all exterior proposed security measures for the ME, 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 description of the security measures, including employee security policies, consistent with the applicable provisions in CCC regulations 935 CMR 500.110 or 935 CMR 501.110 for the ME. An active security system shall be required for all locations and all security measures shall be approved by the[1]
[1]
Editor's Note: So in original.
J.
A traffic study to establish ME facility impacts at peak demand times.
K.
A copy of each operating procedure consistent with the applicable provisions in 935 CMR 500.105(1) or 935 CMR 501.105(1), including any applicable additional CCC operational requirements for MEs.
L.
A copy of the policies and procedures for individual, patient or personal caregiver home -delivery consistent with the applicable MDPH or CCC regulatory provisions for the ME.
M.
A copy of the policies and procedures for the transfer, acquisition, or sale of marijuana between MEs consistent with the applicable provisions in 935 CMR 501.120(13).
N.
A copy of proposed waste disposal procedures consistent with the applicable provisions in 935 CMR 500.105(12) or 935 CMR 501.105(12).
O.
A description of any waivers from CCC regulations issued for the ME.
P.
Description of Activities. A narrative providing information about the type and scale of all activities that will take place on the proposed site, including but not limited to cultivating and processing of marijuana or marijuana products, on-site sales, off-site deliveries, distribution of educational materials, operating hours of ME and other programs or activities.
Q.
Service Area. A map and narrative describing the area proposed to be served by the ME and the anticipated number of clients that will be served within that area. This description shall indicate where any other MEs exist or have been proposed within the expected service area.
R.
Evidence demonstrating that the ME will be operated in a responsible manner that does not materially adversely affect the public health, safety or the general welfare of the City or the immediate neighborhood where the ME is located. This may include but shall not be limited to evidence of moral character.
S.
Certificate of tax compliance for subject parcel(s), along with identification of any outstanding taxes, fees or fines for other properties either owned by the current property owner and/or applicant within the City.
T.
Buffer Area Map. A map indicating the 300-foot radius surrounding the proposed ME (as measured from the nearest point of the structure of the ME to the nearest point of the property line of the protected use) as evidence that the facility is located at least 300 feet from uses identified under Section 181.646(5.) Include street address and distance to each applicable property within 300 feet.
U.
Proof that the ME is registered to do business in the commonwealth as a domestic business corporation or another domestic business entity and the corporation or entity in good standing with the Secretary of the Commonwealth and DOR.
(1)
A certificate of good standing, issued within the previous 90 days from submission of an application, from the Corporations Division of the Secretary of the Commonwealth; and
(2)
A certificate of good standing or certificate of tax compliance issued within the previous 90 days from submission of an application, from the DOR.
V.
Submission of a notarized "moral character" disclosure form for each ME owner and manager.
W.
Submission of a notarized "authorization for release of information" form (including any associated fees) authorizing the City of Fitchburg Police Department to conduct a detailed background check for all designated owners and/or managers of the ME.
X.
Zoning determination from the Office of the Building Commissioner.
181.6451. | Upon receipt of a completed application, the Planning Board shall refer copies of the application to the Building Department, Fire Department, Police Department, Board of Health, Conservation Commission, and the Engineering Division of the Department of Public Works. These boards/departments shall review the application and shall submit their written recommendations. Failure to make recommendations within 35 days of referral of the application shall be deemed lack of opposition. |
181.6452. | After notice and public hearing and consideration of application materials, consultant reviews, public comments, and the recommendations of other municipal boards and departments, the Planning Board may act upon the application for special permit and approval of site plan. |
181.6453. | In instances where any portion of a project involves a special permit application to or site plan review by the Planning Board for any ME, the Planning Board shall serve as the special permit granting authority for all other special permits required in connection with such project. |
181.646 Special Permit Criteria and Findings.
MEs may be permitted pursuant to a special permit and site plan review granted by the Planning Board. In granting a special permit for a ME, in addition to the general criteria for a special permit in Section 181.94 of this chapter, the Planning Board must also make the following findings:
A.
The property where the specific ME use is proposed is within a zoning district where such use is permissible in accordance with Section 181.313, Table of Principal Uses.
B.
The applicant has demonstrated that the ME has or will meet all of the permitting requirements of all applicable agencies within the commonwealth and is or will be in compliance with all applicable state laws and regulations, including, but not limited to MGL c. 94G, § 12, General Marijuana Establishment Operation, and MGL c. 94I, if applicable.
C.
The applicant has or will enter into an approved host community agreement under which the applicant pays a host fee or impact fee to the City with the Mayor of the City of Fitchburg.
D.
The grant of the special permit will not exceed the limitation on permitted MRs set forth in Section 181.6444.
E.
The ME is located at least 300 feet distant of a preexisting public or private school providing education in kindergarten or any of grades one through 12, a vocational school, a public or private college, junior college, university or dormitory, a licensed child care facility, a library, a playground, a public park, a youth center, a public swimming pool, a video arcade facility, any facility in which minors commonly congregate, or any residence, including commercial residences such as hotels, motels, lodging houses, etc. The distance under this section is measured in a straight line from the nearest point of the property line of the protected uses to the nearest point of the structure of the proposed ME.
(1)
The distance requirement may be reduced by the Planning Board provided that the applicant demonstrates, by clear and convincing evidence, that 1) the ME will employ adequate measures to prevent product diversion to minors; and 2) the ME is adequately buffered; and 3) the Planning Board determines that a shorter distance will suffice to accomplish the objectives set forth under Section 181.642.
F.
The site is designed such that it provides convenient, safe and secure access and egress for clients and employees arriving to and leaving from the site using all modes of transportation, including drivers, pedestrians, bicyclists and public transportation users, and adequately addresses issues of traffic demand, circulation flow, parking and queuing, particularly at peak periods at the facility and its impact on neighboring uses.
H.
The building and site have been designed to be compatible with other buildings in the area and to mitigate any negative aesthetic impacts that might result from required measures and restrictions on visibility into the building's interior.
I.
The ME facility is designed to minimize any adverse visual or economic impacts on abutters and other parties in interest.
J.
Refuse and service areas are designed to be secure and shielded from abutting use.
K.
A MR facility shall not have a gross floor area in excess of 5,000 square feet.
L.
The applicant has satisfied all of the conditions and requirements of this section and other applicable sections of this chapter including dimensional regulations and any applicable City ordinances.
M.
The facility provides adequate security measures to ensure that there are not direct threats to the health or safety of employees, staff, or members of the public and that storage and location of cultivation is adequately secured.
N.
The facility will not place an undue burden on public safety services of the City as may be adequately established to the satisfaction of the Planning Board, which shall consider the facility's lighting, whether or not all of the facility is visible from a public way, whether or not the parking is contiguous with the facility or the parking arrangements are capable of being monitored by the applicant or the City, and whether or not the facility is or can be set up to promote the effective monitoring by Police Department patrols, as well as any other factors affecting public safety.
O.
The applicant has demonstrated, by substantial evidence of moral character and other evidence, that it will operate the ME in conformity with all applicable municipal ordinances, state laws and regulations and that its policies and procedures are designed to prevent violation of such laws, particularly including but not limited to Section 181.644 above.
P.
All aspects of ME facility operations will take place at a fixed location within a fully enclosed permanent building and shall not be visible from the exterior of the business.
181.647 Site Plan Review/Special Permit Conditions.
The Planning Board shall conduct site plan review and shall impose conditions reasonably appropriate to improve site design, traffic flow, and public safety, protect water quality, air quality, and significant environmental resources, preserve the character of the surrounding area and otherwise serve the purpose of this section. In addition to any specific conditions applicable to the applicant's ME, the following conditions shall be included in any site plan review or special permit granted under this chapter:
A.
The ME hours of operation, including dispatch of home deliveries, shall be set forth within the special permit, and shall generally be consistent with those for package stores licensed under MGL c. 138, but in no event shall an ME 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.
Any type of marijuana establishment may only be involved in the uses permitted by its definition and may not include other businesses or services.
C.
No outside storage is permitted.
D.
No marijuana shall be smoked, eaten or otherwise consumed or ingested within the premises.
E.
All business signage shall be subject to the requirements to be promulgated by the CCC and the requirements of Section 181.53 of this chapter.
F.
A medical MR facility shall have signage displayed on the exterior of the MR facility's entrance in plain sight of clients stating that "Registration Card issued by the MA Cannabis Control Commission required" in text two inches in height.
G.
Temporary and promotional signage is prohibited for ME facilities.
H.
The ME shall not violate any provision of this chapter, including but not limited to Section 181.644 above.
I.
No use shall be allowed by the ME which creates a nuisance to abutters or to the surrounding area, or which creates any hazard, including but not limited to fire, explosion, fumes, gas, smoke, odors, obnoxious dust, vapors, offensive noise or vibration, flashes, glare, objectionable effluent or electrical interference, which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area.
J.
Display of marijuana, marijuana products and marijuana accessories shall be limited to an area which is accessible only by persons aged 21 years or older, or persons holding a patient registration card or a caregiver, and the applicant shall establish such controls and monitoring as are necessary to ensure that this area is not accessed by persons under the age of 21 years or persons not holding a patient registration card.
K.
Ventilation. All facilities shall be ventilated in such a manner that no:
(1)
Pesticides, insecticides or other chemicals or products used in the cultivation or processing are dispersed into the outside atmosphere; and
(2)
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.
L.
The ME shall regularly verify to the City its efforts to ensure the health, safety, and wellbeing of the public and to limit undue impacts on the natural environment by the use of high efficiency equipment to limit energy and water usage demand, by the purchase of renewable energy credits, by the use of LED lighting equipment, by the prohibition or limitation of pesticides, insecticides and similar chemicals, and by any other methods designed to further this purpose.
(1)
The Planning Board may impose specific conditions relating to the preservation or improvement of public safety, including but not limited to lighting, visibility, surveillance, security cameras, parking arrangements, and accessibility for police patrol.
(2)
ME shall be operated in a responsible manner that does not materially adversely affect the public health, safety or the general welfare of the City or the immediate neighborhood where the ME is located.
M.
The applicant will enter into an approved host community agreement under which the applicant pays a host fee or impact fee to the City with the Mayor of the City of Fitchburg.
N.
The marijuana establishment facility shall provide to the Building Commissioner, Board of Health and Police Department, the names, telephone numbers and electronic mail addresses of all management staff and keyholders, including a minimum of two 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 after regular business hours to address an urgent issue. Such contact information shall be kept updated by the permit holder.
O.
The owner or manager of a marijuana establishment shall respond by phone or email within 24 hours of contact by a City official concerning their ME at the phone number or email address provided to the City as the contact for the business.
P.
A marijuana establishment facility and affiliated vehicles shall be open to inspection by the Fire Department, Police Department, Building Official and the Board of Health at any time with notice. Said officials may enter upon any premises used by a ME for the purposes of his or her business, ascertain how he or she conducts his or her business and examine all articles stored in or upon said premises, and all books, surveillance and inventories shall be exhibited to any above-named whenever a demand shall be made for such exhibition.
Q.
The permit holder shall notify the Building Commissioner, Board of Health, Police Department, Fire Department and City Council in writing within 12 hours following a violation or potential violation of any law or criminal or potential criminal activities or attempts of violation of any law at the ME.
R.
The permit holder of a ME shall file a copy of any incident report required under the applicable provisions in 935 CMR 500.110(9) or 935 CMR 501.110(9) with the Building Commissioner, Police Chief, and Board of Health within 24 hours of creation. Such reports may be redacted as necessary to comply with any applicable state or federal laws and regulations.
S.
The permit holder of a ME shall file a copy of any summary cease-and-desist order, quarantine order, summary suspension order, order limiting sales, notice of a hearing, or final action issued by the CCC or the Division of Administrative Law Appeals, as applicable, regarding the ME with the Building Commissioner, Police Chief, Board of Health, Planning Board, City Council and Mayor within 48 hours of receipt.
T.
Records of a marijuana establishment must be available for inspection by the Fitchburg Police Chief, Fire Chief, Building Commissioner and Board of Health upon request. In addition to required records and procedures as provided by City of Fitchburg Code, ordinance, or regulation, the ME shall also produce written records that are subject to inspection as required in any applicable section of 935 CMR 500.105 or 935 CMR 501.105, including 935 CMR 500.105(8) or 935 CMR 501.105(8) inventory records of the preceding month (date of the inventory, a summary of the inventory findings, and the names, signature, and titles of the individuals who conducted the inventory), and additional information as may be determined by the official.
U.
Permitted marijuana establishment facilities shall file an annual report to the Building Commissioner, Planning Board and City Council no later than January 31 of each year, including a copy of all current applicable state licenses for the facility and/or its owners, managers and agents demonstrating continued compliance with the conditions of the special permit. The special permit shall be subject to revocation for violations and/or breaches of the conditions of the special permit.
V.
The permit holder shall notify the Building Commissioner, Police Chief, Board of Health, Planning Board, City Council and Mayor in writing within 48 hours of the cessation of operation of the ME or the expiration or termination of the permit holder's registration with the CCC.
W.
No building permit or certificate of occupancy shall be issued for a ME that is not properly registered with the Cannabis Control Commission (CCC).
X.
A ME facility shall be required to remove all material, plants equipment and other paraphernalia prior to surrendering its state registration or ceasing its operation. Prior to the issuance of a building permit for a ME the applicant is required to post with the City Treasurer a bond or other form of financial security acceptable to said Treasurer in an amount set by the Planning Board. The amount shall be sufficient to cover the costs of the City 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.
181.648 Termination and Modification.
181.6481.
A special permit or site plan approval may be terminated due to violation of any of its conditions. In addition, a special permit or site plan approval shall terminate upon:
A.
Failure of the permit holder to commence operations at the ME within 12 months of the date of approval.
B.
Transfer of ownership of the ME without approval of the Planning Board. For these purposes, transfer of ownership shall include any reallocation of ownership or change in business structure which results in a change of its designated representatives or responsible individuals.
C.
Termination of the host community agreement or failure to pay a host fee or impact fee under the agreement to the City.
D.
A finding that an ME facility is conducting an ME use for which it has not obtained a license or approved by the special permit granting authority.
E.
The expiration or termination of the applicant's registration by MDPH or CCC.
F.
The permit holder's cession of operations of the ME.
181.6482.
A special permit or site plan approval may be modified by the Planning Board after public hearing. No modification is permitted for a change of location; a special permit holder must submit a new application for a change in location. If the registration for a ME has expired or has been revoked or transferred to another controlling entity, a new special permit shall be required prior to issuance of a certificate of occupancy. Any changes in the application materials from the original materials must be submitted with a request for modification. No transfer of ownership, except a transfer to an affiliated entity, shall be permitted for two years after the date of approval of the special permit or site plan review unless required due to the death or disability of an owner. If the special permit holder requests approval of a transfer of ownership, then the holder must submit proof:
A.
That the new owner will operate the ME in accordance with the terms of the special permit, as shown by evidence of moral character and other substantial evidence; and
B.
That all amounts due under the host community agreement have been timely paid and no taxes, fines, penalties, fees, or other charges due to the City are currently unpaid.
181.651 Purpose.
To promote the creation and operation of small-scale manufacturing and food and beverage production operations that can operate in a synergistic or otherwise nondisruptive fashion in nonindustrial areas, enabling increased economic versatility and productive use of otherwise under utilized spaces. Such operations may include, but are not limited to, textiles, hardware, woodworking, metalworking, 3D printing, or craft brewing and baking.
181.652 Standards.
181.6521.
Artisan and food and beverage manufacturing means the manufacturing of finished products or parts including processing, fabrication, assembly, treatment, and packaging of such products and parts, and incidental storage, sales, and distribution, where all manufacturing processes and noise, smoke, heat, glare, vibration, and odor resulting from the manufacturing processes are contained entirely within a building or not detectable beyond the property boundary. Brewing, baking, and other cooking processes are exempt from the odor provision but subject to all other standards in this section.
181.6523.
There shall be no outside storage or unenclosed disposal of materials.
181.661 Purpose.
The purpose of this section is to provide for the creation of new large scale ground-mounted solar photovoltaic installations by providing standards for the placement, design, construction, operation, monitoring, modification and removal of such installations that address public safety, minimize impacts on scenic, natural and historic resources, and to provide adequate financial assurance for the eventual decommissioning of such installations. The provisions set forth in this section shall apply to the construction, operation, and/or repair of large scale ground-mounted solar photovoltaic installations.
181.662 Applicability.
This section applies to large scale ground-mounted solar photovoltaic installations proposed to be constructed after the effective date of this section. This section also pertains to physical modifications that materially alter the type, configuration, or size of these installations or related equipment.
181.663 General Requirements.
Large scale ground-mounted solar photovoltaic facilities may be constructed as set forth in Section 181.313, Table of Principal Uses, subject to the requirements set forth herein, upon the issuance of a special permit and site plan approval by the Planning Board, pursuant to Sections 181.94 and 181.95. The following requirements shall apply:
A.
Compliance with laws, ordinances and regulations. The construction and operation of all large scale solar photovoltaic installations shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable safety, construction, electrical, and communications requirements. All buildings and fixtures forming part of a solar photovoltaic installation shall be constructed in accordance with the State Building Code.
B.
Building permit and building inspection. No large scale solar photovoltaic installation shall be constructed, installed or modified as provided in this section without first obtaining appropriate permits.
C.
Fees. The application for a building permit for a large scale solar photovoltaic installation must be accompanied by the fee required for a building permit.
D.
General. All plans and maps shall be prepared, stamped and signed by a professional engineer licensed to practice in Massachusetts.
181.664 Application Requirements.
Pursuant to the special permit and site plan review process, the project proponent shall include the following information and plans, unless otherwise waived by the Planning Board after consideration and approval of a written request of the applicant:
A.
A site plan conforming to the requirements of Section 181.955 and showing:
(1)
Property lines and physical features, including roads for the project site; and location of structures and residences within 300 feet of the property lines.
(2)
Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, security fencing, screening vegetation or structures.
(3)
Blueprints or drawings of the solar photovoltaic installation signed by a professional engineer licensed to practice in the Commonwealth of Massachusetts showing the proposed layout of the system and any potential shading from nearby structures.
(4)
One or three line electrical diagram detailing the solar photovoltaic installation, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and overcurrent devices.
(5)
Documentation of the major system components to be used, including the PV panels, mounting system, battery storage, and inverter.
(6)
Name, address, and contact information for proposed system installer, if not available at the time of application prior to issuance of building permit.
(7)
Name, address, phone number and signature of the project proponent, as well as all coproponents or property owners, if any.
(8)
The name, contact information and signature of any agents representing the project proponent.
B.
Documentation of actual or prospective access and control of the project site [see also Subsection 181.664(G)].
C.
An operation and maintenance plan.
D.
Zoning district designation for the parcel(s) of land comprising the project site [submission of a copy of a zoning map with the parcel(s) identified is suitable for this purpose].
E.
Proof of liability insurance.
F.
Description of financial surety that satisfies Subsection 181.6673(E).
G.
Site control. The project proponent shall submit documentation of actual or prospective access and control of the project site sufficient to allow for construction and operation of the proposed solar photovoltaic installation. Fencing along the site's perimeter shall be provided to control access to a large scale ground-mounted solar photovoltaic facility in order to prevent access to the facility. The fencing shall be compatible with the character of the City and shall not consist of barbed wire or razor wire.
H.
The project proponent shall submit a plan for the operation and maintenance of the large scale ground-mounted solar photovoltaic installation, which shall include measures for maintaining safe access to the installation, stormwater controls, as well as general procedures for operational maintenance of the installation.
I.
Utility notification. No large scale ground-mounted solar photovoltaic installation shall be constructed until evidence has been given to the Planning Board that the local electric utility has been informed of the solar photovoltaic installation owner or operator's intent to install an interconnected customer-owned generator. Off-grid systems less than 250 kW shall be exempt from this requirement. The Building Commissioner may issue a permit only if the large scale ground-mounted solar photovoltaic device complies with this section.
J.
Execution of a PILOT agreement with the City of Fitchburg prior to operation of the facility, as applicable.
181.665 Waivers.
The Planning Board may waive the requirements of Section 181.664 as it deems appropriate. The Planning Board may waive the setback requirements of Section 181.666 if the Board determines that such a waiver does not derogate from the intent of this section and is in the public interest; provided, however, that no such setback waiver shall be granted in the Rural Residential District.
181.666 Dimension and Density Requirements.
181.6661.
Setbacks. For large scale ground-mounted solar photovoltaic installations, front, side and rear setbacks shall be as follows:
A.
Front yard. The front yard depth shall be at least 50 feet.
B.
Side yard. Each side yard shall have a depth at least 100 feet.
C.
Rear yard. The rear yard depth shall be at least 100 feet.
D.
Appurtenant Structures. All appurtenant structures shall be subject to reasonable regulations concerning the bulk and height of structures, lot area, setbacks, open space, parking and building coverage requirements. All such appurtenant structures, including, but not limited to, equipment shelters, storage facilities, transformers, and substations, shall be architecturally compatible with each other. Whenever reasonable, structures should be shaded from view by vegetation and/or joined or clustered to avoid adverse visual or noise impacts.
181.667 Project Requirements.
181.6671.
Design Standards.
A.
Lighting. Lighting of solar photovoltaic installations shall be consistent with dark sky requirements and local, state and federal law. Lighting of other parts of the installation, such as appurtenant structures, shall be limited to that required for safety, security, and operational purposes, and shall be reasonably shielded from abutting properties. Lighting of the solar photovoltaic installation shall be directed downward and shall incorporate full cutoff fixtures to reduce light pollution.
B.
Signage. Signs on large scale ground-mounted solar photovoltaic installations shall comply with Section 181.53 of this chapter. A sign consistent with Section 181.53 of this chapter shall be required to identify the owner and provide a twenty-four-hour emergency contact phone number. Solar photovoltaic installations shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the solar photovoltaic installation.
C.
Utility connections. Reasonable efforts, as determined by the Planning Board, shall be made to place all utility connections from the solar photovoltaic installation underground, depending on appropriate soil conditions, shape, and topography of the site and any requirements of the electric utility. If an existing aboveground connection solution already exists, however, this can be used if it meets the requirements of the electric utility. Electrical transformers for utility interconnections may be aboveground if required by the electric utility.
D.
Stormwater management. Calculations of storm drainage to demonstrate and assure compliance with the requirements of all applicable federal, state and local regulations and guidelines including, but not limited to, the Department of Environmental Protection Stormwater Management Policy, as it may be amended, must be provided for any large scale solar photovoltaic installation.
E.
Noise. Documentation shall be provided demonstrating the solar photovoltaic installation and appurtenant structures and equipment conform with the provisions of the Massachusetts Department of Environmental Protection (DEP) Division of Air Quality Noise Regulations (310 CMR 7.10) as most recently amended.
F.
Visual Impact. Reasonable efforts shall be made to minimize visual impacts by preserving natural vegetation, screening abutting properties, or other appropriate measures as determined by the Planning Board. Landscaping shall be provided and maintained by the owner. Residential uses shall be screened from the solar photovoltaic system by means of fencing, plantings and/or maintenance of trees of a species hardy to the area and appropriate for screening, spaced to minimize visual intrusion, and providing an opaque year-round visual buffer between uses.
181.6672.
Safety and Environmental Standards.
A.
Emergency services. The large scale solar photovoltaic installation owner or operator shall provide a copy of the project summary, electrical schematic, and site plan to the local Fire Chief and electric utility. Upon request, the owner or operator shall cooperate with local emergency services in developing an emergency response plan. All means of shutting down the solar photovoltaic installation shall be clearly marked. The owner or operator shall identify a responsible person for public inquiries throughout the life of the installation.
B.
Land clearing, soil erosion and habitat impacts. Clearing of natural vegetation shall be limited to what is necessary for the construction, operation and maintenance of the large scale ground-mounted solar photovoltaic installation or otherwise prescribed by applicable laws, regulations, and bylaws. Unreasonable land clearing, as determined by the Planning Board, is prohibited.
C.
Monitoring and maintenance.
(1)
Solar photovoltaic installation conditions. The large scale ground-mounted solar photovoltaic installation owner or operator shall maintain the facility in good condition. Maintenance shall include, but not be limited to, painting, structural repairs, stormwater management, landscaping and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief and emergency medical services. The owner or operator shall be responsible for the cost of maintaining the solar photovoltaic installation and any access road(s), unless accepted as a public way.
(2)
Modifications. All material modifications to a solar photovoltaic installation made after issuance of the required building permit shall require approval by the Planning Board and the electric utility.
181.6673.
Abandonment or Decommissioning; Removal Requirements. Any large scale ground-mounted solar photovoltaic installation which has reached the end of its useful life or has been abandoned consistent with Subsection 181.6673(D) shall be removed. The owner or operator shall physically remove the installation no more than 150 days after the date of discontinued operations. The owner or operator shall notify the Planning Board by certified mail of the proposed date of discontinued operations and plans for removal. Decommissioning shall consist of:
A.
Physical removal of all large scale ground-mounted solar photovoltaic installations, structures, equipment, security barriers and transmission lines from the site.
B.
Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations.
C.
Stabilization or revegetation of the site as necessary to minimize erosion. The Planning Board may allow the owner or operator to leave landscaping or designated below-grade foundations in order to minimize erosion and disruption to vegetation.
D.
Abandonment. Absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the solar photovoltaic installation shall be considered abandoned when it fails to operate for more than one year without the written consent of the Planning Board. If the owner or operator of the large scale ground-mounted solar photovoltaic installation fails to remove the installation in accordance with the requirements of this section within 150 days of abandonment or the proposed date of decommissioning, the City may enter the property and physically remove the installation.
E.
Financial surety. Proponents of large scale ground-mounted solar photovoltaic projects shall provide a form of surety, either through escrow account, bond or otherwise, to cover the cost of removal in the event the City must remove the installation and remediate the landscape, in an amount and form determined to be reasonable by the Planning Board, but in no event to exceed more than 125% of the cost of removal and compliance with the additional requirements set forth herein, as determined by an independent consultant retained by the City at the expense of the project proponent. Such surety will not be required for municipally or state-owned facilities. The surety amount shall be based on a fully inclusive estimate of the costs associated with removal, prepared by such an independent consultant. The amount shall include a mechanism for calculating increased removal costs due to inflation.
181.668 Action by Planning Board.
The Planning Board may grant a special permit for a large scale ground mounted solar facility where it makes the following findings:
181.6681.
The proponent has demonstrated the project reflects every reasonable effort to minimize the volume of cut and fill, the number of removed trees six-inch caliper or larger, the length of removed stone walls, the area of wetland vegetation displaced, the extent of stormwater flow increase from the site, soil erosion, and threat of air and water pollution.
181.6682.
The proposed project promotes pedestrian and vehicular safety both on the site and egressing from it.
181.6683.
The proposed project does not create adverse visual impacts from publicly accessible locations.
181.6684.
Visual intrusions have been satisfactorily mitigated by controlling the visibility of the area viewed from public ways or premises residentially used or zoned.
181.6685.
Noise from operation shall conform with the provisions of the Massachusetts Department of Environmental Protection (DEP) Division of Air Quality Noise Regulations (310 CMR 7.10) as most recently amended.
181.6686.
The proponent has demonstrated that proposed land clearing, disturbance of natural vegetation, and loss of habitat is limited only to what is necessary for the construction, operation and maintenance of the large scale ground-mounted solar photovoltaic installation.
181.6687.
The proposed project will comply with all relevant provisions of this chapter.
181.6688.
The project, taken as a whole and with all mitigation efforts accounted for, will not have an unreasonably detrimental effect on the surrounding area.
181.66.A TEMPORARY MORATORIUM ON LARGE SCALE GROUND MOUNTED SOLAR PHOTOVOLTAIC FACILITIES
[Added 10-15-2024 by Ord. No. 183-2024]
1.
Purpose: This Ordinance adopted pursuant to Zoning Act, G.L. c. 40A, as amended, Section 2A of 1975 Mass. Acts 808, and by Article 89 of the Amendments to the Constitution of the Commonwealth of Massachusetts for the purpose of conserving the City's available forested land and open space by which greenhouse gases are reduced through carbon capture and sequestering; to allow for the completion of the Nashua River Watershed's Municipal Vulnerability Preparedness Climate Resiliency Plan; the City's Climate Action Plan; and given recent cases that involve significant storm water runoff challenges, the development of Land Disturbance Regulations; and in order to protect the public health and welfare of the residents of Fitchburg and in order to adopt an appropriate and effective zoning ordinance allowing and encouraging large scale ground mounted solar photovoltaic facilities.
2.
For the reasons set forth above and notwithstanding any other provision of the Zoning Ordinance to the contrary, the City hereby adopts a temporary moratorium on the permits for and use of land for large scale ground mounted solar photovoltaic facilities. The moratorium shall be in effect through May 31, 2025 unless adoption of new Zoning Ordinance addressing Large Scale Ground-Mounted Solar Photovoltaic Facilities is in effect, whichever is earlier. During the moratorium period, the City shall undertake a planning process to address the potential impacts of large scale ground mounted solar photovoltaic facilities and related uses, and shall consider adopting new Zoning Ordinances to better address the impact and construction of same in the City.
181.671 Purpose.
To create a district to promote the adaptive reuse of Fitchburg's historic mills, warehouses, brownfields and previously developed properties while preserving the character of the property and nearby residential and commercial neighborhoods.
181.672 Intended Scope.
These provisions are primarily intended to benefit properties of the following types; provided, however, that the Zoning Map and not this subsection shall be dispositive in determining whether a parcel is within and subject to the provisions of the AI District:
A.
Mill or similar properties which lie vacant or underutilized due to functional obsolescence;
B.
Properties whose floor plates and building layouts were driven by the technology and business practices of the times and no longer serve the needs for which they were originally intended;
C.
Properties with structures whose age has contributed to their physical deterioration;
D.
Properties which preceded the adoption of zoning, and in which additions, property improvements, and redevelopment have presented regulatory challenges;
E.
Brownfield or previously developed properties whose redevelopment presented regulatory challenges.
181.673 Definitions.
For the purposes of this section, these words and phrases have the following definitions:
The reuse, conversion, or expansion of an existing mill or other building, or portion thereof, or redevelopment of property, to a use or uses in some combination determined by the Planning Board to be consistent with the intent of this section and does not cause significant detriment to the neighborhood pursuant to Section 181.6782.
Any use or combination of uses set forth in the Table of Principle Use Regulations, Section 181.313, or any accessory use or structure as the Planning Board may deem, in their sole discretion, as appropriate by special permit.
181.674 Adaptive Industrial District.
The owner of a property within the AI District may elect to have the property governed by the provisions of the Industrial District which shall be deemed the default zoning in the event the owner decides to not utilize the provisions of this section. If a special permit pursuant to this section is sought for an adaptive reuse project, the provisions of this section shall supersede such requirements in the default zoning or provide an alternative to such requirements.
181.675 Special Permit Required.
Within the AI, an adaptive reuse project (ARP) may be constructed upon the issuance of a special permit pursuant to Section 181.94 by the Planning Board, and upon site plan approval pursuant to Section 181.95, subject to the requirements set forth herein. No other use or structures shall be permitted in conjunction with an ARP, except as specifically provided herein.
181.676 Special Permit Granting Authority.
The Planning Board shall serve as the special permit granting authority pursuant to this section. The Planning Board may waive the submittal of technical information or documents otherwise required hereunder where the applicant demonstrates that, due to the simplicity of the proposal, such information is not necessary for or applicable to the Planning Board's decision pursuant to this section. An application for a special permit shall be governed by the Planning Board's regulations and Section 181.94. In addition, the applicant shall submit:
181.6761.
Information pertaining to any organization which the applicant proposes to form where the development is to be a condominium development, including forms and plans to be used to organize and manage the same, for approval as to form by the City Solicitor; and
181.6762.
Copies of all proposed covenants, easements, and other restrictions which the applicant proposes to grant to the City, the Conservation Commission, utility companies, any condominium organization and the owners thereof, including plans of land to which they are intended to apply, for approval as to form by City Solicitor.
181.677 Standards.
In order to be eligible for consideration for a special permit pursuant to this section, the proposed development shall meet all the following standards:
181.6771.
Roadways. The principal roadway(s) within the site shall be adequate for the intended use and vehicular traffic and shall be maintained by an association of unit owners or by the applicant.
181.6772.
Parking. The applicant shall provide adequate parking to serve all anticipated uses on the property, with information detailing the method of computation of parking spaces. The minimum number of parking spaces shall be computed using the requirements of Section 181.51 or other applicable provisions acceptable to the Planning Board.
181.6773.
Loading. Loading areas may be required by the Planning Board where deemed necessary for the efficient operation of the ARP.
181.6774.
Utilities. All electric, gas, telephone, and water distribution lines shall be placed underground, except upon a demonstration of exceptional circumstances. The facility shall be served by the municipal water and sewer system.
181.6775.
Expansion of Existing Buildings. Existing buildings within an AI may be expanded in accordance with the following requirements:
181.6776.
New Buildings. Within the Adaptive Industrial District, new buildings may be constructed in accordance with the following requirements:
181.678 Number of Dwelling Units.
The maximum number of dwelling units shall be established by the Planning Board after reviewing the following criteria: existing structures; proposed method and efficacy of wastewater disposal; availability of public water; parking availability and proximity to public transit, trip generation and traffic safety; character of the proposed ARP and its relation to the surrounding neighborhood(s); character of the existing buildings and the potential for reuse thereof.
181.6781.
Number of Bedrooms. The Planning Board may ensure the diversification of dwelling units within an ARP by establishing the number of dwelling units with one, two, or three bedrooms.
181.679 Action by the Planning Board.
The Planning Board may grant a special permit for an ARP where it makes the following findings:
181.6791.
The proposed ARP complies with the requirements of this section;
181.6792.
The proposed ARP does not cause substantial detriment to the neighborhood after considering the following factors:
181.6793.
The Planning Board may impose conditions in the grant of any special permit, including, but not limited to, the following:
A.
That all construction or infrastructure and improvements shall be completed within a specific time period;
B.
That all aspects of the ARP, including authorized uses, building occupancy, and intensity of use, shall remain in substantial conformance with the plans and other documents submitted to the Planning Board as part of the special permit proceeding unless modification of the special permit for the ARP is authorized, after public hearing, by the Planning Board;
C.
That a performance guarantee suitable to the Planning Board may be required.
181.681 Purpose.
The purpose of this section is to promote farmers' markets for connecting and mutually benefiting Massachusetts farmers, communities, and shoppers while promoting and selling products grown and raised by participating farmers.
181.682 Standards.
181.6821.
Compliance with all laws. All farmers' markets and their vendors shall comply with all federal, state, and local laws and regulations relating to the operation, use, and enjoyment of the market premises.
181.6822.
Permits and licenses. All farmers' markets and their vendors shall receive all required operating and health permits, and these permits (or copies) shall be in the possession of the farmers' market manager or the vendor, as applicable.
181.6823.
Acceptance of payment from food assistance programs is strongly encouraged. For eligible goods or products sold, all farmers' markets and their vendors shall accept all forms of payment, or shall allow a legitimate and duly authorized third party to occupy space within the farmers' market area to operate a redemption program, by participants of federal, state, or local food assistance programs, including, but not limited to, the Supplemental Nutrition Assistance Program (SNAP); the Women, Infants, and Children (WIC) Farmers' Market Nutrition Program; and the Senior Farmers' Market Nutrition Program, all in a manner allowed by, and in conformance with, both federal and state laws and regulations as those laws and regulations may be amended from time to time.
181.6824.
Operating rules. All farmers' markets shall have an established set of operating rules addressing the governance structure of the farmers' market, hours of operation, maintenance and security requirements and responsibilities; and a market manager.
181.6825.
Market Manager. All farmers' markets shall have a market manager authorized to direct the operations of all vendors participating in the market on the site of the market during all hours of operation.
181.6826.
Parking. All farmers' markets shall provide for a minimum of one vehicle parking space for each vendor stall. Farmer's markets located in the Downtown Business and Intown Business Districts are exempt from this parking requirement.
181.6827.
Waste. All farmers' markets shall arrange for waste removal in accordance with all applicable Fitchburg Codes. The farmers' market manager is responsible for ensuring that the site is restored to a neat condition by no later than the end of the farmers' market day.
181.6828.
Temporary facilities. Farmers' market facilities are designed to be temporary in nature and use the existing parking and infrastructure of the site. The use of any permanent open-air structures or other permanent facilities shall be subject to site plan review by the Planning Board.
181.6829.
Food permits. Farmer's market vendors that sell food products and processed foods shall be licensed as a retail food operation and inspected by the local Board of Health (LBOH) in accordance with Massachusetts Regulation 105 CMR 590.000, Minimum Sanitation Standards for Food Establishments.
181.691 Applicability.
Earth removal shall be permitted only upon grant of a special permit in accordance with Section 181.94 from the Planning Board.
181.692 Conditions.
The following conditions shall be met prior to issuance of any special permit under this section:
181.6921.
The application shall be accompanied by a plan showing existing grades in the area from which the above material is to be removed, and in surrounding areas, together with the proposed finished grades at the conclusion of the operation, and the proposed cover vegetation and trees. Plans should also include provisions for construction phase and post-construction stormwater management and indicate temporary and permanent slope stabilization measures that will be used.
181.6922.
A performance bond in an amount determined by the City Engineer shall be posted in the name of the City assuring satisfactory performance in the fulfillment of the requirements of this chapter and such other conditions as the Planning Board may impose as conditions to the issuance of its permit in the interests of safeguarding the district and the City against injury, the future use of the land after operations are completed, or to control the transportation of such material through the City. Upon failure to comply and forfeiture of the bond, monies therefrom shall be utilized by the town for the purpose of fulfilling these requirements.
181.6923.
The Planning Board shall give due consideration to the location of the proposed earth removal, to the general character of the neighborhood surrounding such location, and to the general safety of the public on the public ways in the vicinity.
181.693 Removal.
Removal operations shall be subject to the following conditions.
181.6931.
Removal shall not take place on any grade less than one foot above the grade level of any adjacent street or way, or below a level that would reasonably be considered a desirable grade for the later development of the area or below the grades specified on the plan accompanying the permit application.
181.6932.
During removal operations, no slope shall exceed one foot vertical rise to two feet horizontal distance or the natural angle of repose of the material in a dry state, whichever is the lower, except in ledge rock.
181.6933.
Provision shall be made for safe drainage of water and for prevention of wind or water erosion carrying material onto adjoining properties or protected resources areas.
181.6934.
Soil shall not be disturbed within 100 feet of the boundaries of the premises, excepting at the conclusion of operations if required in order to improve the overall grading.
181.6935.
Earth removal activities conducted in the Water Resource Protection Overlay District (WRPOD) shall comply with additional requirements set forth in Section 181.81.
181.6936.
Earth removal activities shall comply with City of Fitchburg Code Chapter 154, Stormwater Management, and applicable provisions of the Massachusetts Department of Environmental Protection Stormwater Management Policy Handbook Volume I & Stormwater Technical Handbook Volume II, and all other applicable stormwater regulations. Site drainage designs must be approved by the City Engineer.
181.694 Restoration.
Forthwith following the expiration or withdrawal of a permit, or upon voluntary cessation of operation, or upon completion of removal in a substantial area, that entire area shall be restored to reasonable condition for the uses allowed in the zoning district in which the land is located as follows:
181.6941.
All land shall be so graded that no slope exceeds one foot vertical rise in three feet horizontal distance and shall be so graded as to safely provide for drainage without erosion.
181.6942.
All boulders larger than 1/2 cubic yard shall be removed or buried.
181.6943.
The entire area excepting exposed ledge rock shall be covered with not less than four inches of good quality loam, which shall be planted with cover vegetation adequate to prevent soil erosion using either grasses or ground cover, depending upon conditions.
181.6944.
Bond shall not be released until sufficient time has lapsed to ascertain that the vegetation planted has successfully been established and that drainage is satisfactory.
181.6945.
Additional Conditions. The Planning Board may set conditions in addition to the above before issuance of a permit, including but not limited to, duration of the permit, hours of the day during which removal may be permitted, hours during which vehicles may be permitted to leave the premises, trees to be planted, and the use of covers on loaded vehicles.
181.6946.
Renewal or Revocation of Permit. A permit may be renewed only upon application and following a public hearing. Prior to renewal, inspection of the premises shall be made by the Building Commissioner to determine that the provisions of this bylaw are being complied with. The Planning Board, after hearing and proof of violation of the conditions of the agreement, of the permit, or of this bylaw, shall withdraw the permit, after which the operation shall be discontinued and the area restored in accordance with Section 181.694.