Fitchburg, MA Zoning Ordinance

181.911 Permits.

This chapter shall be administered by the Building Commissioner. Pursuant to the State Building Code, the Building Commissioner may require such plans and specifications as may be necessary to determine compliance with all pertinent laws of the commonwealth and may request advisory reviews by other municipal boards and officials. Buildings, structures or signs may not be erected, substantially altered, moved, or changed in use and land may not be substantially altered or changed with regard to size or shape or principal use unless in compliance with then applicable zoning, and after all necessary permits have been received under federal, state, or local law. Issuance of a building permit or certificate of use and occupancy, where required under the commonwealth's State Building Code, may serve as certification of such compliance.

181.9111.

Occupancy permit. No building hereafter erected, altered or relocated shall be used and no change shall be made of the use of any building or any parcel of land, except for the use of land for agriculture, horticulture, or floriculture, unless an occupancy permit signed by the Building Commissioner has been granted to the owner or occupant of such land or building. Such permit shall not be granted unless the proposed use of the land or building and all accessory uses comply in all respects with this chapter, and no use shall be made of such land or building except the use or uses authorized by such occupancy permit.

181.912 Enforcement.

The Building Commissioner of the City of Fitchburg is hereby designated as the officer charged with the enforcement of this chapter.

181.9121.

Enforcement Action. The Building Commissioner, upon a written complaint of any citizen of Fitchburg or owner of property within Fitchburg or upon such Commissioner's own initiative, shall institute any appropriate action or proceedings in the name of the City of Fitchburg to prevent, correct, restrain or abate violation of this chapter. In the case where the Building Commissioner is requested, in writing, to enforce this chapter against any person allegedly in violation of the same and the Commissioner declines to act, the Commissioner shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within 14 days of receipt of such request.

181.9122.

Noncriminal Disposition. In addition to the provisions for enforcement of this chapter described in Section 181.9121, the provisions of this chapter may also be enforced by and in the discretion of the Building Commissioner by a noncriminal complaint filed in the District Court or Worcester County Housing Court pursuant to the provisions of MGL c. 40, § 21D. Each day on which a violation exists shall be deemed a separate offense. The penalty for violation of any provision of this chapter pursuant to this section shall be $50.00 for the first offense; $75.00 for the second offense; $100.00 for the third offense; and $125.00 for the fourth and each subsequent offense.

181.913 Penalties.

The penalty for violation of any provision of this chapter, of any of the conditions under which a permit is issued, or of any decision rendered by the Board of Appeals, any special permit granting authority, or the site plan approval board shall be $300.00 for each offense. Each day that each violation continues shall constitute a separate offense.

181.921 Establishment.

The City of Fitchburg Board of Appeals is hereby designated as the Board of Appeals required by the Zoning Act of the Commonwealth of Massachusetts. The Board of Appeals shall consist of five members with two associate members who shall all be residents of the City of Fitchburg. At least one member shall be a member of the Bar. Each member shall be appointed by the Mayor, subject to confirmation by the City Council, for terms of five years, and the appointments shall be so arranged that the term of one member shall expire each year. Vacancies, removals and other organizational matters shall be governed by MGL c. 40A, § 12.

181.922 Powers.

The Board of Appeals shall have and exercise all the powers granted to it by Chapters 40A, 40B, and 41 of the General Laws of the Commonwealth and by this chapter. The Board's powers are as follows:

181.9221.

To hear and decide applications for special permits. Unless otherwise specified herein, the Board of Appeals shall serve as the special permit granting authority, to act in all matters in accordance with the provisions of Section 181.94, or as otherwise specified.

181.9222.

To hear and decide appeals or petitions for variances from the terms of this chapter, with respect to particular land or structures, as set forth in MGL c. 40A, § 10. The Board of Appeals shall not grant use variances in the residential districts.

181.9223.

To hear and decide appeals taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of MGL c. 40A, §§ 7, 8 and 15.

181.9224.

To hear and decide comprehensive permits for construction of low or moderate income housing by a public agency or limited dividend or nonprofit corporation, as set forth in MGL c. 40B, §§ 20 through 23.

181.923 Conditions.

Variances may be granted with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees, as the Board of Appeals may deem necessary to serve the purposes of this chapter. Such conditions may include, but are not limited to, private disposal of waste; deadline to commence construction; signage; alarm system; limits on vehicles, number of students, gender of residents, noise, possession of substances; maintenance requirements; landscaping, parking spaces; dust control; term for years with or without automatic renewals; sewer connection; bond.

181.924 Regulations.

The Board of Appeals may adopt rules and regulations for the administration of its powers.

181.925 Fees.

The Board of Appeals may adopt reasonable administrative fees and technical review fees for petitions for variances, administrative appeals, and applications for comprehensive permits.

181.931 General.

A variance from the specific requirements of this chapter, excluding a variance authorizing a use not otherwise permitted, may be authorized by the Board of Appeals.

181.9311.

Rules and regulations and fees. The Board of Appeals shall adopt and from time to time amend rules and regulations not inconsistent with the provisions of this chapter or MGL c. 40A or other applicable provision of the General Laws and shall file a copy of said rules and regulations with the City Clerk. Such rules shall prescribe, as a minimum, the size, form, contents, style and number of copies of plans and specifications, the City boards or agencies from which the Board of Appeals shall request written reports and the procedure for submission and approval of such permits. The Board of Appeals may adopt and from time to time amend fees sufficient to cover reasonable costs incurred by the City in the review and administration of variances.

181.9312.

Application. Any person who desires to obtain a variance from the requirements of this chapter shall submit a written application to the Board of Appeals on a form prescribed by the Board of Appeals.

181.9313.

Public hearing and decision. The Board of Appeals shall hold a public hearing no later than 65 days after the filing of an application. The Board of Appeals shall have the power to continue a public hearing under this section if it finds that such continuance is necessary to allow the petitioner or applicant to provide information of an unusual nature and which is not otherwise required as part of the variance application. The Board of Appeals shall issue a decision of such variance no later than 100 days following the filing of the variance petition with the Board of Appeals.

181.9314.

Mandatory findings. Before the grant of any variance from the requirements of this chapter, the Board of Appeals must specifically find that owing to circumstances relating to the soil conditions, shape or topography of land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter.

181.9315.

Conditions and safeguards. The Board of Appeals may impose such conditions, safeguards and limitations as it deems appropriate upon the grant of any variance.

181.9316.

Time limitation on variance. Any rights authorized by a variance which are not exercised within one year from the date of grant of such variance shall lapse and may be reestablished only after notice and a new hearing pursuant to this section, except that the Board, in its discretion and upon written application by the grantee of the right in a variance, may extend the time for exercise of such rights for a period not to exceed an additional six months if the grantee applies for the extension prior to the expiration of the one-year period.

181.9317.

Effective date of a variance. No variance or any modification, extension or renewal thereof shall take effect until a copy of the decision has been recorded in the Northern Worcester County Registry of Deeds. Such decision shall bear the certification of the City Clerk that 20 days has elapsed after the decision has been filed in the office of the City Clerk and no appeal has been filed or that, if such an appeal has been filed, it has been dismissed or denied.

181.932 Use Variance.

181.9321.

The Board of Appeals may authorize a use variance, but no use variances shall be granted in the Residential Districts. In addition to the requirements of Section 181.931 of this chapter and Massachusetts General Law, the Board must unanimously find:

That the proposed use is in the public interest.

That the applicant has demonstrated that the proposed use would not create any hardship to the neighborhood.

That the applicant has demonstrated that the proposed use would not disturb the existing character of the neighborhood.

181.9322.

It is the intent of this section to allow use variances only in those rare cases when the applicant, the neighborhood and the general public equally benefit.

181.941 Special Permit Granting Authority.

Unless specifically designated otherwise, the Board of Appeals shall act as the special permit granting authority.

181.942 Criteria.

Special permits shall be granted by the special permit granting authority, unless otherwise specified herein, only upon its written determination that the benefit to the City and the neighborhood outweigh the adverse effects of the proposed use, taking into account the characteristics of the site and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this chapter, the determination shall include consideration of each of the following:

181.9421.

Social, economic, or community needs which are served by the proposal;

181.9422.

Traffic flow and safety, including parking and loading;

181.9423.

Adequacy of utilities and other public services;

181.9424.

Neighborhood character and social structures;

181.9425.

Impacts on the natural environment, including drainage; and

181.9426.

Potential fiscal impact, including impact on City services, tax base, and employment.

181.943 Procedures.

Applicants shall file with the City Clerk the number of copies of the special permit application and plans, and follow the procedures as listed in the Special Permit Granting regulations.

181.9431.

An application shall not be deemed complete until all copies of required information and documentation have been filed with the special permit granting authority.

181.9432.

The special permit granting authority shall notify applicants by registered mail, within 14 days of submittal, of incomplete application status, and the applicant shall have 14 days from the mailing of such notice to complete an application. Failure to complete an application within such time or to file plans with the agencies or officials set forth above shall be deemed nonsubmittal of the application, without prejudice.

181.9433.

Reports from other boards and officials shall be submitted to the special permit granting authority by the date of the public hearing, but in any case within 35 days of receipt of the reviewing party of all of the required materials; failure of these reviewing parties to make recommendations after having received copies of all such required materials shall be deemed a lack of opposition thereto.

181.9434.

In the event that the public hearing by the special permit granting authority is held prior to the expiration of the thirty-five-day period, said authority shall continue the public hearing to permit the formal submission of reports and recommendations within that thirty-five-day period.

181.9435.

The provisions of this Section 181.943 shall not apply to applications for special permits to reconstruct, extend, alter, or structurally change a nonconforming single or two family structure. The Board of Appeals may adopt regulations to establish procedures governing the form of such applications.

181.944 Plans and Other Submittals.

Unless waived by the special permit granting authority, an applicant for a special permit shall submit a plan in substantial conformance with the requirements of Section 181.94 herein. At the discretion of the special permit granting authority, the submittal of a development impact statement (DIS) may be required. The DIS shall be prepared by an interdisciplinary team including a registered landscape architect or architect, a registered professional or civil engineer, and a registered surveyor.

181.9441.

Physical Environment.

Describe the general physical conditions of the site, including amounts and varieties of vegetation, general topography, unusual geologic, archeological, scenic and historical features or structures, location of significant viewpoints, stone walls, trees over 16 inches in diameter, trails and open space links, and indigenous wildlife.

Describe how the project will affect these conditions, providing a complete physical description of the project and its relationship to the immediate surrounding area.

181.9442.

Surface Water and Subsurface Conditions.

Describe location, extent, and type of existing water and wetlands, including existing surface drainage characteristics, both within and adjacent to the site.

Describe any proposed alterations of shore lines, marshes, or seasonal wet areas.

Describe any limitations imposed on the project by the site's soil and water conditions.

Describe the impact upon ground and surface water quality and recharge, including estimated phosphate and nitrate loading on groundwater and surface water from septic tanks, lawn fertilizer, and other activities within the site.

181.9443.

Circulation Systems.

Project the number of motor vehicles to enter or depart the site per average day and peak hour. Also state the number of motor vehicles to use streets adjacent to the site per average day and peak hour. Such data shall be sufficient to enable the special permit granting authority to evaluate i) existing traffic on streets adjacent to or approaching the site, ii) traffic generated or resulting from the site, and iii) the impact of such additional traffic on all ways within and providing access to the site. Actual study results, a description of the study methodology, and the name, address, and telephone number of the person responsible for implementing the study, shall be attached to the DIS.

181.9444.

Support Systems.

Water Distribution. Discuss the types of wells or water system proposed for the site, means of providing water for firefighting, and any problems unique to the site.

Sewage Disposal. Discuss the type of on-site or sewer system to be used, suitability of soils, procedures and results of percolation tests, and evaluate impact of disposal methods on surface water and groundwater.

Refuse Disposal. Discuss the location and type of facilities, the impact on existing City refuse disposal capacity, hazardous materials requiring special precautions.

Fire Protection. Discuss the type, location, and capacity of fuel storage facilities or other flammables, distance to fire station, and adequacy of existing firefighting equipment to confront potential fires on the proposed site.

Recreation. Discuss the distance to and type of public facilities to be used by residents of the proposed site and the type of private recreation facilities to be provided on the site.

Schools. Project the increase to the student population for nursery, elementary, junior high school, and high school levels, also indicating present enrollment in the nearest public schools serving these categories of students.

181.9445.

Phasing. Where development of the site will be phased over more than one year, indicate the following:

Describe the methods to be used during construction to control erosion and sedimentation through use of sediment basins, mulching, matting, temporary vegetation, or covering of soil stockpiles. Describe the approximate size and location of portion of the parcel to be cleared at any given time and length of time of exposure.

Describe the phased construction, if any, of any required public improvements, and how such improvements are to be integrated into site development.

181.945 Conditions.

Special permits may be granted with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees, as the special permit granting authority may deem necessary to serve the purposes of this chapter. Such conditions may include, but are not limited to, private disposal of waste; deadline to commence construction; signage; alarm system; limits on vehicles, number of students, gender of residents, noise, possession of substances; maintenance requirements; landscaping, parking spaces; dust control; term for years with or without automatic renewals; sewer connection; bond; limitation to the term of ownership or use by the applicant.

181.946 Lapse.

Special permits shall lapse if a substantial use thereof or construction thereunder has not begun and continued without interruption, except for good cause, up to 24 months as determined by the special permit granting authority following the filing of the special permit approval (plus such time required to pursue or await the determination of an appeal referred to in MGL c. 40A, § 17, from the grant thereof) with the City Clerk. The special permit granting authority may consider an extension of time upon request from the applicant prior to expiration.

181.947 Regulations.

The special permit granting authority may adopt rules and regulations for the administration of this section.

181.948 Fees.

The City Council may adopt reasonable administrative fees and technical review fees for applications for special permits.

181.951 Applicability.

The following types of activities and uses require site plan review by the Planning Board:

181.9511.

Construction, exterior expansion of, or change of use within a municipal, institutional, commercial, industrial, multifamily or three-family structure.

181.9512.

Construction or expansion of a parking lot for a municipal, institutional, commercial, industrial, or multifamily or three-family structure or purpose.

181.9513.

Siting, construction or expansion of a marijuana establishment (ME).

181.9514.

Siting, construction or expansion of a wireless communications facility.

181.9515.

Lodging houses and boardinghouses.

181.9516.

Siting, construction or expansion of large ground mounted photovoltaic energy system.

181.9517.

Siting, construction or expansion of a nonexempt container farming.

181.9518.

Siting, construction or expansion of a contractor's yard, lumberyard or salvage yard.

181.9519.

Earth removal or timber harvesting.

181.9520.

Siting, construction or expansion of a drive-through facility.

181.9521.

Siting, construction or expansion of uses, where site plan review is otherwise referenced within Chapter 181, Zoning, of City of Fitchburg Code.

181.952 Exemptions from Site Plan Review.

Construction of less than 500 gross square feet of floor area.

181.953 Procedures.

Minor site plan review, as set forth in Section 181.955 below, shall follow the procedures set forth herein. Major site plan review shall require a public hearing in accordance with the procedures set forth in MGL c. 40A, §§ 9 and 11. Applicants shall submit the number of copies as required by the Planning Board's site plan regulations for site plan review. The Planning Board shall review and act upon the site plan, with such conditions as may be deemed appropriate, within 90 days of its receipt, and notify the applicant of its decision. This timeline may be extended upon agreement between the Planning Board and the applicant. The decision of the Planning Board shall be upon a majority of the members present which comprises a quorum and shall be in writing. No building permit or certificate of occupancy shall be issued by the Building Inspector without the written approval of the site plan by the Planning Board, or unless 90 days lapse from the date of the submittal of the site plan or extended review period (whichever is greater) without action by the Planning Board.

181.9531.

Application for Building Permit. An application for a building permit to perform work as set forth in Section 181.951 available as of right shall be accompanied by an approved site plan.

181.9532.

Application for Special Permit or Variance. An application for a special permit or a variance to perform work as set forth in Section 181.951 shall be accompanied by an approved site plan; in the alternative, any special permit or variance granted for work set forth in Section 181.951 shall contain the following condition:

"The work described herein requires the approval of a site plan by the Fitchburg Planning Board pursuant to Section 181.95 of the Zoning Ordinance. Any conditions imposed in such site plan approval shall also be conditions of this special permit/variance."

181.9533.

Where the Planning Board approves a site plan "with conditions," and said approved site plan accompanies a special permit or variance application to the Board of Appeals, the conditions imposed by the Planning Board shall be incorporated into the issuance, if any, of a special permit or variance by the Board of Appeals.

181.9534.

Where the Planning Board serves as the special permit granting authority for proposed work, it shall consolidate its site plan review and special permit procedures.

181.9535.

The applicant may request, and the Planning Board may grant by majority vote, an extension of the time limits set forth herein.

181.9536.

No deviation from an approved site plan shall be permitted without modification thereof.

181.9537.

Where a site plan is submitted with a special permit, the site plan review timeline shall run concurrent with the special permit review and not be subject to a grant of constructive approval.

181.954 Preparation of Plans.

Applicants are invited to submit a preapplication sketch of the proposed project to the Planning Board and to schedule a comment period at a regular meeting of the Planning Board. Unless waived by the Board, the size, scale, contents and number of copies of plans shall be as required by the Board's site plan regulations referred to in Section 181.958.

181.955 Waiver of Compliance; Minor and Major Site Plans.

The Planning Board may, upon written request of the applicant, waive any of the technical requirements of Section 181.953 where the project involves relatively simple development plans or constitutes a minor site plan. The Planning Board may, upon request of the applicant, reduce parking and landscaping requirements set forth in Sections 181.512, 181.514, 181.515, 181.516, 181.517, 181.543, 181.544 and 181.545 upon a finding that the reduction is not a detriment to public health and safety, and meets the objectives of Sections 181.51, 181.54 and 181.956.

181.9551.

Minor Site Plan. An application for permits to build, alter or expand any nonresidential building, structure or use in any district where such construction will not exceed a total gross floor area of 2,000 square feet, or an application which will not generate the need for more than 10 parking spaces shall be deemed a "minor site plan." For the purposes of computing the total gross floor area of a minor site plan, the Planning Board shall aggregate all such applications made within the five previous calendar years. Minor site plans, at the discretion of the Planning Board, may be required to set forth all of the information required by Section 181.953; provided, however, that the requirements for the preparation of such plans shall normally be relaxed by the Planning Board.

181.956 Approval.

Site plan approval shall be granted upon determination by the Planning Board that the plan meets the following objectives. The Planning Board may impose reasonable conditions at the expense of the applicant, including but not limited to those set forth in Section 181.945, to promote these objectives. Any new building construction or other site alteration shall provide adequate access to each structure for fire and service equipment and adequate provision for utilities and stormwater drainage consistent with the functional requirements of the Planning Board's subdivision rules and regulations, and applicable local, state or federal requirements. New building construction or other site alteration shall be designed in the site plan, after considering the qualities of the specific location, the proposed land use, the design of building form, grading, egress points, and other aspects of the development, so as to:

181.9561.

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;

181.9562.

Maximize pedestrian and vehicular safety both on the site and egressing from it;

181.9563.

Minimize obstruction of scenic views from publicly accessible locations;

181.9564.

Minimize visual intrusion by controlling the visibility of parking, storage, or other outdoor service areas viewed from public ways or premises residentially used or zoned;

181.9565.

Minimize glare from headlights and lighting intrusion;

181.9566.

Minimize unreasonable departure from the character, materials, and scale of buildings in the vicinity, as viewed from public ways and places;

181.9567.

Minimize contamination of groundwater from on-site waste-water disposal systems or operations on the premises involving the use, storage, handling, or containment of hazardous substances;

181.9568.

Ensure compliance with the provisions of this chapter, including parking and landscaping.

181.957 Lapse.

Site plan approval shall lapse after one year from the grant thereof if a substantial use thereof has not sooner commenced except for good cause. Such approval may, for good cause, be extended in writing by the Planning Board upon the written request of the applicant.

181.958 Regulations; Fees.

The Planning Board may adopt and from time to time amend reasonable regulations for the administration of these site plan guidelines. The Planning Board may adopt reasonable administrative fees and technical review fees for site plan review.

181.959 Appeal.

Any decision of the Planning Board pursuant to this Section 181.95 shall be appealed in accordance with the provisions of MGL c. 40A, § 17 to a court of competent jurisdiction.

181.961 General.

To assist in carrying out its duties as a special permit granting authority, there shall be two associate members of the Planning Board appointed by the Mayor, subject to confirmation by City Council, under authority of MGL c. 40A, § 9. The associate members shall sit on the Planning Board for the purposes of acting at special permit application hearings in case of absence, inability to act or conflict of interest on the part of any member of the Planning Board or in the event of a vacancy on the Board.

Fitchburg City Zoning Code

SECTION 181