Harwich City Zoning Code
ARTICLE X
Administration and Enforcement
§ 325-45 Building Official.
The Building Official is hereby appointed and authorized to administer and enforce the provisions of this bylaw.
§ 325-46 Other approvals required.
A.
Where authorization of a use of land or of a structure is required by a board, a copy of such written authorization shall be sent by the clerk of the board to the Building Official within 22 days of a granting of the approval by the board and shall be received by the Building Official prior to issuance of a permit. In addition, the Building Official, in such case, shall not issue a permit until the applicant submits an affidavit from the Barnstable County Registrar of Deeds that the authorization of the board is recorded, if such recording is required by law. Where approval under the Subdivision Control Law[1] by the Planning Board is required and/or Conservation Commission and the State Department of Public Works, no permit shall be issued by the Building Official until these requirements also are met in writing and any other necessary permits or licenses are obtained. Within 10 days of the completion of all these actions, the Building Official shall act upon the application.
[1]
Editor's Note: See MGL c. 41, §§ 81K to 81GG.
B.
The rights authorized by a variance must be exercised within one year of the date of grant of such variance or said rights shall lapse. Rights authorized by a special permit must be exercised within two years of the date of grant thereof. Said time periods shall not include the period of time during which any appeal of a decision is being processed to final judgment in any court. Notwithstanding the foregoing provisions, any subsequent amendment of this Zoning Bylaw shall apply to construction or use authorized by a special permit, unless the construction or use is commenced within a period of not more than six months after the issuance of the permit, exclusive of any time periods involved in appealing the grant of a permit through the courts, and in cases involving construction after a bona fide start, unless said construction is continued through to completion as continuously and expeditiously as is reasonable under the applicable circumstances.
§ 325-47 Notice of violation.
The Building Official shall serve, by certified mail, a notice of violation on any person responsible for any violation of this bylaw, and such notice shall direct the immediate discontinuance of the unlawful action, use or condition and the abatement of the violation. Any owner who has been served with a notice and ceases any work or other activity shall not leave any structure or lot in such a condition as to be a hazard or menace to the public safety, health, morals or general welfare.
§ 325-48 Violations and penalties.
A.
Any person who, after receipt of the notice above provided, continues in violation or refuses to comply with any of the provisions of this bylaw may be prosecuted in a criminal action brought by the Building Official on behalf of the Town and, upon conviction, be fined a sum of $150 for each offense. Each day, or portion of a day, that any violation is allowed to continue shall constitute a separate offense.
B.
In addition to the enforcement procedures set forth in Subsection A above, the Building Official may enforce the provisions of this bylaw by the noncriminal complaint procedures as established by MGL c. 40, § 21D. The penalty for each offense shall be $150 as provided in Subsection A, and each day, or portion of a day, that any violation is allowed to continue shall constitute a separate offense.
C.
Nothing herein contained shall be construed so as to limit the Building Official from enforcing this bylaw through an appropriate civil action seeking injunctive as well as other relief, commenced in a court of competent jurisdiction.
§ 325-49 Board of Appeals.
There is hereby created a Board of Appeals of five members and five associate members. Members in office at the effective date of this bylaw shall continue in office. Hereafter, as terms expire or vacancies occur, the Board of Selectmen shall make appointments pursuant to the Zoning Act.[1] The Board shall have those powers and duties granted under the Zoning Act, by this bylaw and all other pertinent acts of the commonwealth. The Board shall adopt rules to govern its proceedings pursuant to the Zoning Act. The Board of Appeals is hereby authorized to establish, from time to time, by regulation, the filing fee to be charged for filing a petition or appeal with the Board.
[1]
Editor's Note: See MGL c. 40A.
§ 325-50 Petitions, applications and appeals.
[Amended 5-4-2010 STM by Art. 9]
All petitions, applications and appeals to the Board of Appeals shall be made in accordance with the filing policy requirements in effect at the time of the application on forms provided by the Board of Appeals and shall be filed together with copies of all information previously submitted to the Building Inspector with or in the original application for a building permit, if any, and with the required number of copies of a site plan, as instructed on the application when a site plan is required under Article X, § 325-55, of this bylaw. In addition, one copy of the application material and site plan, if any, shall be submitted to the Planning Board at the time of submission to the Board of Appeals. The Planning Board shall render an advisory opinion on the application to the Board of Appeals, and if no such advisory opinion is submitted by the Planning Board prior to the Board of Appeals hearing on the application, the Board of Appeals may act without such advisory opinion.
§ 325-51 Special permits.
[Amended 5-4-2010 STM by Art. 8; 5-3-2011 STM by Art. 24]
The Board of Appeals shall have authority to hear and decide applications for all changes, alterations, or extensions of a nonconforming structure or use that require a special permit and for certification of continuance of existing dwellings under § 325-51P. The Planning Board shall have authority to hear and decide all other applications for special permits. Special permits shall only be issued following public hearings held within 65 days after filing of an application with the Board of Appeals or the Planning, Board, a copy of which shall forthwith be given to the Clerk by the applicant, and all notices and other requirements provided by the Zoning Act shall govern said hearing.
A.
Conditions of approval.
(1)
The Board of Appeals or Planning Board shall not approve any application for a special permit, except a special permit for a site plan, unless it finds that in its judgment all of the following conditions are met:
(a)
The use as developed will not adversely affect the neighborhood.
(b)
The specific site is an appropriate location for such a use, structure or condition.
(c)
There will be no nuisance or serious hazard to vehicles or pedestrians.
(d)
Adequate and appropriate facilities will be provided for the proper operation of the proposed use. This includes the provision of appropriate sewage treatment facilities which provide for denitrification, when the permit granting authority deems such facilities necessary for protection of drinking water supply wells, ponds or saltwater embayments.
(2)
The permit granting authority may require the applicant to submit professionally prepared documentation of the environmental, traffic or other impacts of a particular project or project element in order to determine compliance with these general conditions.
B.
In approving a special permit, except a special permit for a site plan, the Board of Appeals or Planning Board may attach such conditions and safeguards as are deemed necessary to protect the public and the neighborhood, such as but not limited to the following:
(1)
Modification of the exterior features or appearances of the structure or structures.
(2)
Limitation of size, number of occupants, method or time of operation, or extent of facilities.
(3)
Regulation of number, design, and location of access drives or other traffic features.
(4)
Requirement of off-street parking or other special features beyond the minimum required by this or other applicable bylaws.
(5)
Limitation of the total projected volume of sewage or nitrate discharge from the project based on standard sewage flow projection or nitrate loading calculations to be provided by the applicant when required by the permit granting authority. Such calculations must be reviewed and approved by the Harwich Town Engineer prior to their acceptance as facts by the permit granting authority.
C.
Notwithstanding the provisions of Subsection A above, the conditions set forth therein shall not apply to applications for special permits in the Drinking Water Resource Protection Districts unless a special permit is required for the intended use in the underlying zoning district.
(1)
In granting a special permit for a use requiring such permit in the Drinking Water Resource Protection District, the Planning Board shall make the following findings:
(a)
Adequate provision has been made to safely and adequately store, handle and dispose of all toxic or hazardous materials, as well as to protect said materials from vandalism, corrosion, leakage and spills.
(b)
Any proposed wastewater treatment or disposal system must be submitted for approval by responsible state and local health agencies as a condition precedent to construction.
(c)
All anticipated runoff from impervious surfaces will, whenever possible, be diverted to areas covered with vegetation.
(d)
In cases where part of a site is located outside the Drinking Water Resource Protection District, maximum possible use of the area outside the district will be made for disposal of toxic or hazardous materials and sewage.
(e)
All systems designed and intended to minimize or eliminate the threat of pollution to the groundwater resource are adequate in terms of design and proposed construction to provide reasonable protection against such pollution and, in the event said systems should fail, corrective measures and procedures are available to warrant the conclusion that no unreasonable threat of pollution to groundwater resources will be created. In making this required finding, the special permit granting authority shall require submission by the applicant of a written determination by the Board of Health of the Town of Harwich that all such systems called for or required are designed and intended to meet all applicable design and construction standards for such facilities and will limit to five parts per million the total concentration of nitrate nitrogen discharged to the groundwater on the site.
(2)
To assist in making the required findings, the Board shall require, by regulation, an hydrogeologic impact statement which addresses the specific issues herein set forth, and the Board shall, by regulation, establish a format for such hydrogeologic impact statement. Upon receipt of an application for a special permit under this section, the Building Official or the applicant at the direction of the Building Official will provide to the Planning Board, Conservation Commission, Board of Health, Town Engineer, Water Department, and such other affected Town agencies as the Building Official shall determine a complete copy of the application and accompanying documents for review and such comment and advice to the Board as the affected departments should deem appropriate.
D.
Special permit to construct multifamily dwellings, hotels or motels.
[Amended 9-26-2020 ATM by Art. 22]
(1)
The Planning Board, in acting upon an application for special permit to construct hotels or motels, shall have the authority, pursuant to MGL c. 40A, § 9, to include in the grant of permission authorization to increase the permissible density of population or intensity of a particular use in a proposed development, provided that the petitioner or applicant shall, as a condition for the grant of authority to increase permissible density, provide certain open space or some or all of the amenities hereafter listed, but the Board shall not have the authority to increase the density of population or intensity of uses beyond the maximums hereafter specified.
Amenity | Maximum Density Increase |
|---|---|
Swimming pool | 8% |
Tennis courts | 4% |
Golf course | 16% |
Community building or recreation building | 2% |
E.
Special permits for open space residential development. Special permits for open space residential development may be granted upon a determination by the Planning Board that the plan is preferable to a conventional residential subdivision and that it conforms to the requirements of this section and other applicable provisions of this bylaw.
(1)
Rules and regulations. The Planning Board shall adopt and may from time to time amend rules and regulations consistent with the provisions of this bylaw and shall file the same with the Town Clerk. Such rules and regulations shall address, at the minimum, procedures and submission requirements for open space residential development applications.
(2)
Density/number of dwelling units.
(a)
The total number of dwelling units permitted in an open space residential development shall not exceed that which would be permitted under a conventional subdivision that complies with the Harwich Zoning Bylaw and Planning Board Rules and Regulations Governing the Subdivision of Land[1] and other applicable laws of the Town, County of Barnstable, or Commonwealth of Massachusetts, unless said total is increased in accordance with the provisions of Subsection E(8) hereunder which sets forth opportunities for density increases.
[1]
Editor's Note: See Ch. 400, Subdivision of Land and Site Plan Special Permits.
(b)
The exact number of dwelling units shall be determined by the Planning Board following its review of a preliminary subdivision plan depicting compliance with the aforesaid laws. Such plan may be submitted prior to the formal submission of an application or together with all other materials submitted with a formal application for a special permit.
(3)
Criteria for special permit decision.
(a)
Findings. The Planning Board may approve a special permit for an open space residential development upon finding that it complies with the requirements of this bylaw and the rules and regulations adopted pursuant to Subsection E(1) above and that it is superior in design to a conventional subdivision with regard to protection of natural features and scenic resources on the site.
[1]
In making its finding on design, the Planning Board shall consider the following criteria:
[a]
Open space as required by this bylaw has been provided and generally conforms to the design requirements in Subsection E(7) below.
[b]
Approximate building sites have been identified and none are located closer than 100 feet to wetlands or water bodies.
[c]
Proposed streets have been aligned to provide vehicular access to each house in a reasonable and economical manner. Lots and streets have been located to avoid or minimize adverse impacts on open space areas and to provide views of and access to the open space for most, if not all, of the home sites.
[d]
All lots meet the applicable dimensional requirements of Subsection D(4) below.
[2]
The Planning Board's findings, including the basis of such findings, shall be stated in the written decision of approval, conditional approval, or denial of the application for special permit and shall require a two-thirds vote for approval.
(b)
Conditions. The Planning Board may impose conditions in its decision as necessary to ensure compliance with the purposes of this bylaw. Approval of an open space residential development shall be conditioned upon definitive subdivision approval and shall be conditioned to provide that no further division of land which increases the number of lots or results in an alteration to the area to be set aside as open space may occur without a modification of the special permit. Any alteration of lot lines or layout of ways shall require modification of the special permit issued by the Planning Board and shall be in compliance with the governing provisions of this bylaw and the Subdivision Rules and Regulations.
(4)
Standards and dimensional requirements.
(a)
Minimum lot size. The minimum lot size shall be 12,000 square feet.
(b)
Minimum frontage. The minimum frontage shall be 50 feet for lots fronting on any proposed roadway within the development. Lots which will utilize existing frontage shall have a minimum frontage of 100 feet. Lots may have a minimum of 25 feet of frontage on any roadway within the development where the building site is to be generally behind another building site relative to the same road frontage or at least 75 feet from the front lot line.
(c)
Lot shape. All building lots must be designed to contain within them a circle with a diameter of 50 feet with said circle being tangent to the front lot line, provided that in cases where the frontage will be less than 50 feet, the fifty-foot circle must fit within the boundaries of the proposed building site on the same lot.
(d)
Setbacks. The Planning Board may reduce by up to 1/2 the setbacks listed in Table 2, Area Regulations, of this bylaw, if the Board finds that such reduction will result in better overall design and improved protection of natural and scenic resources and will otherwise comply with this bylaw. Notwithstanding this provision or the requirements of the Zoning Bylaw, every dwelling fronting on a proposed roadway shall be set back a minimum of 15 feet from the roadway right-of-way and a minimum of 50 feet from the outer perimeter of the entire open space residential development site. This fifty-foot setback shall be maintained in a naturally vegetated state to screen and buffer the development and may be included within the open space. This fifty-foot setback may be eliminated where the proposed development abuts existing protected open space.
(5)
Permissible uses.
(a)
Purposes. Open space shall be used solely for noncommercial recreation, conservation, or commercial or noncommercial agriculture. Proposed use of the open space area(s) shall be specified in the application. The Planning Board shall have the authority to specify what uses will be allowed in the open space, what uses will occur in what areas of the open space, and how much of the open space shall remain undisturbed.
(b)
Recreation areas. Where appropriate to the topography and natural features of the site, the Planning Board may require that at least 10% of the open space or two acres (whichever is less) shall be of a shape, slope, location and condition to provide an informal field for group recreation or community gardens for the residents of the subdivision.
(c)
Leaching facilities. Subject to the approval of the Board of Health and as otherwise required by law, the Planning Board may permit a portion of the open space to be used for components of sewage disposal systems serving the subdivision, where the Planning Board finds that such use will not be detrimental to the character, quality, or use of the open space, wetlands or water bodies, and enhances the site design, consistent with these regulations. In permitting such use of the open space area, the Planning Board shall find, based on the report of the Board of Health, that the use of open space for sewage disposal system components shall not result in more building lots than achievable under a conventional subdivision. The Planning Board shall require adequate legal safeguards and covenants that such facilities shall be adequately maintained by the lot owners within the development.
(d)
Accessory structures. Up to 10% of the open space may be set aside and designated to allow for the construction of structures and facilities accessory to the proposed use of the open space, including parking and paved pathways. With this exception, no other impervious areas may be included within the open space.
(6)
Ownership of open space.
(a)
Options. At the developer's option and subject to approval by the Planning Board, all areas to be protected as permanent open space shall be:
[1]
Conveyed to the Town to be placed under the care, custody and control of the Conservation Commission and be accepted by it for a park or open space use; land conveyed to the Town will be open for public use;
[2]
Conveyed to a nonprofit organization, the principal purpose of which is the conservation or preservation of open space, with a conservation restriction as specified in Subsection E(6)(b) below; such organization shall be acceptable to the Board as a bona fide conservation organization; or
[3]
Conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the development (i.e., "homeowners' association") and placed under conservation restriction. The documents which form said association are subject to approval by the Planning Board. If such a corporation or trust is utilized, as indicated herein, ownership thereof shall pass with conveyance of the lots or residential units. The developer is responsible for the maintenance of the open space and other facilities to be held in common until such time as the homeowners' association is capable of assuming such responsibility. Thereafter, the members of the association shall share the cost of maintaining the open space. The Planning Board shall require the applicant to provide documentation that the homeowners' association is an automatic (mandatory) association that has been established prior to the conveyance of any lots within the subdivision.
(b)
Permanent restriction. In any case where open space is not conveyed to the Town, a permanent conservation or agricultural preservation restriction approved by the Board of Selectmen and enforceable by the Town, conforming to the standards of the Massachusetts Executive Office of Environmental Affairs, Division of Conservation Services, shall be recorded to ensure that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadways except as permitted by this bylaw and approved by the Planning Board. Restrictions shall provide for periodic inspection of the open space by the Town. Such restriction shall be submitted to the Planning Board prior to endorsement of the definitive subdivision plan and covenant for the project and recorded at the Registry of Deeds/Land Court prior to release of the covenant or performance guarantee for any lot.
[Amended 5-8-2012 STM by Art. 5]
(c)
Encumbrances. All areas to be set aside as open space shall be conveyed free of any mortgage interest, security interest, liens or other encumbrances. Certification of said condition by a qualified title examiner shall be provided to the Planning Board at the time of conveyance.
(d)
Maintenance of open space. Removal of underbrush in designated open space shall be permitted only when a plan for such activity is approved by the Planning Board as part of approval of a special permit to create an open space residential development.
(e)
Monumentation. The Planning Board may require placement of surveyed bounds sufficient to identify the location of the open space.
(7)
Design requirements. The location of open space provided through this bylaw shall be substantially consistent with the policies contained in the local Comprehensive Plan and the Open Space and Recreation Plan of the Town (where available). The following design requirements shall apply to open space and lots provided through this bylaw:
(a)
Open space shall be planned as large, wide, contiguous areas whenever possible. Long, thin strips or narrow areas of open space (less than 100 feet wide) shall occur only when necessary for access, as vegetated buffers along wetlands or the perimeter of the site, or as connections between open space areas.
(b)
Open space shall be arranged to protect valuable natural and cultural environments such as stream valleys, wetland buffers, unfragmented forestland and significant trees, wildlife habitat, open fields, scenic views, trails, and archaeological sites and to avoid development in hazardous areas such as floodplains and steep slopes. The development plan shall take advantage of the natural topography of the parcel and cuts and fills shall be minimized.
(c)
Open space may be in more than one parcel, provided that the size, shape and location of such parcels are suitable for the designated uses. Where feasible, these parcels shall be linked by trails. Said trails shall be shown on the open space residential definitive plan.
(d)
Where the proposed development abuts or includes a body of water or a wetland, these areas and the one-hundred-foot buffer to such areas shall be incorporated into the open space. Where appropriate, reasonable access shall be provided to shorelines.
(e)
The maximum number of house lots compatible with good design shall abut the open space and all house lots shall have reasonable physical and visual access to the open space through internal roads, sidewalks or paths. An exception may be made for resource areas vulnerable to trampling or other disturbance.
(f)
Open space shall be provided with adequate access, by a strip of land at least 20 feet wide and suitable for a footpath, from one or more streets in the development.
(g)
Development along existing scenic roads and creation of new driveway openings on existing roadways shall be minimized.
(h)
Where a proposed development abuts land held for conservation purposes, the development shall be configured to minimize adverse impacts to abutting conservation land. Trail connections should be provided where appropriate.
(8)
Optional incentive provisions.
(a)
Reduction of roadway standards. The Planning Board may reduce applicable subdivision road construction standards (roadway width, center line radii, curbing, cul-de-sac radius, drainage requirements, etc.) in exchange for the provision of greater than 50% open space within the open space residential development where, in the opinion of the Planning Board, such reductions will result in enhanced overall site design and provide adequate and safe access for the development.
(9)
Enforcement. The Building Official shall enforce the provisions of this Subsection E.
F.
The Planning Board, in granting a special permit for cluster development, shall have the authority, pursuant to MGL c. 40A, § 9 and MGL c. 41, §§ 81K through 81GG, to require that open space be conveyed to the Town or a nonprofit organization, the principal purpose of which is the conservation of open space, or a corporation or trust owned or to be owned by the owners of lots or residential units within the development. If such a corporation or trust is utilized, ownership thereof shall pass with conveyance of the lots or residential units. In any case, where the open space is not conveyed to the Town, a restriction enforceable by the Town shall be recorded providing that such land be kept in an open or natural state, not to be built upon or developed for accessory uses such as parking or roadways.
G.
In a cluster development, the total number of dwelling units shall not exceed the number of units which could be developed under a conventional grid-type subdivision.
(1)
The maximum number of dwellings per development shall equal the applicable land area divided by the minimum lot area requirements for a conventional grid-type subdivision in that district or districts.
(2)
Applicable land area shall be determined by a registered land surveyor and equal the total area encompassed by the development plan minus all marsh or wetland and minus land for road construction or land otherwise prohibited from development by local bylaw or other regulations.
(3)
When the cluster development includes more than one ownership and/or lies in more than one district, the number of units allowed shall be calculated as above for each zoning district and summed to give an overall total, which may be located on the plan without respect to allowable subtotals by district or ownership.
H.
(Reserved)[2]
[2]
Editor’s Note: Former Subsection H, Single-family dwelling with accessory apartment, was renumbered as § 325-14T 12-13-2004 STM by Art. 2.
I.
(Reserved)[3]
[3]
Editor’s Note: Former Subsection I, regarding the intent of permitting accessory apartments, was repealed 5-7-2013 STM by Art. 12. See now § 325-14T(1).
I.1.
Granting of a special permit for a dwelling with an accessory apartment shall be conditioned upon the owner maintaining occupancy of one of the units. Prior to the issuance of the special permit, a certificate in the form of a notarized affidavit to verify that the owner is or shall be in residence in one of the units shall be submitted to the special permit granting authority and, thereafter, every two years such notarized affidavit shall be submitted to the Building Inspector by January 31. Failure to comply with these provisions or termination of occupancy by the owner shall result in the special permit becoming null and void and within 12 months thereafter one kitchen unit shall be removed and the property returned to a single-family dwelling.
J.
Granting of a special permit for a personal wireless service facility shall be pursuant to the requirements of Article XI, Personal Wireless Service Facilities, in addition to all other special permit requirements hereunder.
K.
Granting of a special permit for an adult entertainment use shall be pursuant to the requirements of Article XIII, Adult Entertainment, in addition to all other special permit requirements hereunder.
L.
Village Commercial Overlay District.
(1)
Purpose. The Village Commercial Overlay District enables the development and redevelopment of Harwich Port's village center to be in keeping with its historic development patterns, including the size and spacing of structures and additional open space. The redevelopment of existing structures will allow them to come into compliance with current plumbing, electric and building codes, as well as the latest fire and handicapped access regulations.
(2)
Scope.
(a)
Within the Village Commercial District only property that has frontage on Route 28 (Main Street), Harwich Port, is permitted to utilize this section. Property located on the south side of Lower County Road between Ayer Lane and the intersection of Route 28 and Lower County Road is also permitted to utilize this section. A contiguous section of property is permitted for commercial uses and mixed-use development. All property owners, including the Town of Harwich, are required to locate the majority of these structures on the portion of this property facing Route 28 and to locate parking, septic and open space to the rear of this property. All single uses remain under the present Town of Harwich Zoning Bylaw. All other property that does not have frontage on Route 28 in this overlay district is not affected by this section.
(b)
The dimensional requirements, including building setbacks, maximum site coverage and heights of these structures, are outlined in Subsection L(5) of this section.
(c)
This bylaw is intended to be used in conjunction with other regulations of the Town, including site plan review and other bylaws designed to encourage appropriate and consistent patterns of village development.
(d)
Applicants, with the approval of the Board of Health and Water Quality Management Task Force, are encouraged to utilize new and improved technologies for septic treatment and rainwater drainage purposes.
(3)
Location. The Village Commercial Overlay District is shown on the following map: Village Commercial Overlay District, dated June 2001, prepared by the Town of Harwich Planning Department. Only contiguous sections of property with frontage on Route 28 (Main Street), Harwich Port, or Lower County Road in Harwich Port as described in Subsection L(2) are included in this overlay district. The overlay district is bounded on the north side of Route 28 by Freeman Street to the east and by the east side of Bank Street to the west to a depth of 200 feet; also by the west side of Bank Street to the east and the east side of South Street to the west to a depth of 200 feet; also by the west side of South Street to the east and Miles Street to the west to a depth of 200 feet. The overlay district is bounded on the south of Route 28 by Bay View Road to the east and by the intersection of Route 28 and Lower County Road to the west to a depth of 200 feet. In addition, the overlay district includes the south side of Route 28 bounded by Route 28, Lower County Road and the irregular line formed by the westernmost property line of Assessor's Map 13, Parcel W7-10.
(4)
Procedure.
(a)
The Planning Board shall serve as the special permit granting authority for developments within the Village Commercial Overlay District.
(b)
Prior to the submission of an application for special permit under this bylaw, the applicant may meet with the Planning Board at a public meeting for a preapplication conference to discuss the proposed development in general terms and establish the plan filing requirements. The Planning Board shall schedule a meeting for a preapplication conference following a written request from the applicant, inviting preliminary comments from the Board of Health, Conservation Commission, and any other interested officials or agencies. The purpose of this preapplication conference is to inform the Planning Board as to the nature of the proposed project. As such, no formal filings are required for the preapplication conference. However, the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the Planning Board of the scale and overall concept of the proposed project and its relationship to abutting properties.
(c)
Special permit applications shall comply with and be subject to the requirements of § 325-55, Site plan approval.
(5)
Dimensional requirements.
(a)
Lots shall have frontage along Route 28 (Main Street) to utilize the dimensional requirements of this Subsection L(5). Adjacent parcels may be included provided that they are under the same ownership and are also located within the overlay district. Where possible, lots should be combined by plan or deed prior to the issuance of the special permit.
(b)
Setback requirements.
[1]
Front setback requirements shall be determined at the time of site plan review based on existing development patterns and the elements of the proposed project.
[2]
Side lot line setback shall be 10 feet.
[3]
Rear lot line setback shall be 20 feet.
(c)
Parking shall be permitted at the side or rear of the property.
(d)
Maximum site coverage shall not exceed 80%.
(e)
The maximum permitted height for new constructions shall not exceed 30 feet or 2 1/2 stories.
(f)
Minimum lot size shall be 15,000 square feet.
[Added 5-5-2015 STM by Art. 4[4]]
[4]
Editor’s Note: This article also provided for the redesignation of former Subsection L(5)(f) and (g) as Subsection L(5)(g) and (h), respectively.
(g)
Assessor's Map 13, Parcel W7-10 is included in this overlay district with the provision that the westernmost property line, that abuts residential property, must comply with the minimum of twenty-foot setback and open space, if the property is redeveloped.
(h)
The Board may waive or modify these dimensional requirements if it is found that such waiver or modification will not substantially derogate from the purpose and intent of this bylaw and that such waiver or modification may be granted without substantial detriment to the neighborhood or overall public good.
M.
Mixed-use development. Special permits for mixed-use development may be granted upon a determination by the Planning Board that the following additional criteria have been met:
(1)
There shall be no less than 33% of the floor area of the building or buildings dedicated to a commercial use(s). A commercial use(s) shall be located at the front of the building, facing the street, and shall be located on the ground level.
(2)
For each mixed-use development, there shall be a minimum of 5,000 square feet of lot area per residential unit in the Commercial Village (C-V) District and a minimum of 10,000 square feet of lot area per residential unit in all other permitted districts. Applications for mixed-use development shall also comply with the Board of Health regulations.
[Amended 5-5-2015 STM by Art. 3]
(3)
The parking shall comply with the requirements of Article IX, Off-Street Parking Regulations.
(4)
There shall be an outdoor landscaped public area provided as part of the landscaping requirement.
(5)
Special permit applications shall comply with the requirements of § 325-55, Site plan approval.
(6)
Screening of parking shall comply with the provisions of § 325-43.
N.
Two-family dwelling. Special permits for two-family dwellings may be granted upon a determination by the Planning Board that the following additional criteria have been met:
(1)
The lot area shall contain a minimum of 40,000 square feet of contiguous upland in all applicable zoning districts; however, in the Drinking Water Resource Protection District (WR) the minimum lot area shall be 60,000 square feet of contiguous upland.
(2)
The floor area for each dwelling unit shall be a minimum of 800 square feet.
(3)
A common roof or a series of roofs shall connect the dwelling units.
(4)
There shall be two off-street parking spaces per each unit.
O.
Harwich Center Overlay District.
(1)
Purpose. The Harwich Center Overlay District enables the development and redevelopment of Harwich Center to be in keeping with its historic development patterns, including the size and spacing of structures and provision of open space. The redevelopment of existing structures will encourage them to come into compliance with current plumbing, electric and building codes, as well as the latest fire and handicapped access regulations. Agencies involved with historic preservation will be encouraged to make recommendations on proposed development or redevelopment.
(2)
Scope.
(a)
Within the Harwich Center Overlay District, only property that is currently within the Commercial - Village (CV) Zoning District in Harwich Center is permitted to utilize this section, with the following two exceptions: property located on the southeast corner of the intersection of Sisson Road and Parallel Street just east of Forest Street, currently shown on Assessor's Map 40 as Parcel Z5, and the parcel located at the southwest corner of the intersection of Bank Street and Parallel Street, currently shown on Assessor's Map 41 as Parcel N4, are also permitted to utilize this section. All property owners, including the Town of Harwich, are required to locate the majority of structures on the street frontage portion of the property and to locate parking, septic and open space to the rear of the property.
(b)
The dimensional requirements, including building setbacks, maximum site coverage and heights of these structures, are outlined in Subsection O(5) of this section.
(c)
This bylaw is intended to be used in conjunction with other regulations of the Town, including site plan review and other bylaws designed to encourage appropriate and consistent patterns of village development.
(d)
Applicants, with the approval of the Board of Health, and other agencies as required are encouraged to utilize new and improved technologies for septic treatment and stormwater drainage purposes.
(3)
Location. The Harwich Center Overlay District is shown on the following map: Harwich Center Overlay District, October 2003, prepared by the Town of Harwich Planning Department. The Harwich Center Overlay District is bounded on the south by Parallel Street from Bank Street to Sisson Road, but including the parcel on the south side of Parallel Street at Bank Street (also shown on Harwich Assessor's Map 41 as Parcel N4) and the parcel on the south side of Parallel Street at Sisson Road (also shown on Harwich Assessor's Map 40 as Parcel Z5); the district is bounded on the west by Sisson Road, Route 39 (Main Street) and Route 124 (Pleasant Lake Avenue); the district is bounded on the north by Old Colony Way to the west boundary line of Parcel C4-B, on Assessor's Map 41; the district is bound on the east by the west boundary line of Parcel C4-B, on Assessor's Map 41, and the east boundary line of the Town of Harwich owned land (Parcel C302 and C5, on Assessor's Map 41) and Bank Street to the southeast corner of Parcel N4 at Bank Street.
(4)
Procedure.
(a)
The Planning Board shall serve as the special permit granting authority for developments within the Harwich Center Overlay District.
(b)
Prior to the submission of an application for special permit under this bylaw, the applicant may meet with the Planning Board at a public meeting for a preapplication conference to discuss the proposed development in general terms and establish the plan filing requirements. The Planning Board shall schedule a meeting for a preapplication conference following a written request from the applicant, inviting preliminary comments from the Board of Health, Conservation Commission, and any other interested officials or agencies. The purpose of this preapplication conference is to inform the Planning Board as to the nature of the proposed project. As such, no formal filings are required for the preapplication conference. However, the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the Planning Board of the scale and overall concept of the proposed project and its relationship to abutting properties.
(c)
Special permit applications shall comply with and be subject to the requirements of § 325-55, Site plan approval.
(5)
Dimensional requirements.
(a)
Setback requirements:
[1]
Front setback requirements shall be determined at the time of site plan review based on existing development patterns and the elements of the proposed project.
[2]
Side lot line setback shall be 10 feet.
[3]
Rear lot line setback shall be 10 feet.
(b)
Parking shall be permitted at the side or rear of the property.
(c)
Maximum site coverage shall not exceed 80%.
(d)
The maximum permitted height for new constructions shall not exceed 30 feet or 2 1/2 stories.
(e)
Minimum lot size shall be 15,000 square feet.
[Added 5-5-2015 STM by Art. 4[5]]
[5]
Editor’s Note: This article also provided for the redesignation of former Subsection O(5)(e) as Subsection O(5)(f).
(f)
The Board may waive or modify these dimensional requirements if it finds that such waiver or modification will not substantially derogate from the purpose and intent of this bylaw and that such waiver or modification may be granted without substantial detriment to the neighborhood or overall public good.
(6)
Uses. Uses permitted by right or special permit for the underlaying zoning district remain. However, the following additional uses are allowable by special permit in the Harwich Center Overlay District, provided that all other zoning requirements herein are met:
(a)
Inn.
(b)
Bed-and-breakfast.
P.
Certification of dwelling units.
(1)
An accessory apartment or any dwellings in existence on the effective date of this bylaw that were not in compliance with existing zoning when constructed may be granted a special permit from the Board of Appeals to allow the use to continue, provided that any unit (either the main or accessory unit or a number of units equal to the number not permitted) is deed restricted to remain affordable as defined by the Department of Housing and Community Development for a period of 20 years and that the Board of Appeals finds that the issuance of the special permit will not be detrimental to the neighborhood. Prior to appearance before the Board of Appeals, the dwelling in question must be inspected and found to comply with all building codes and Board of Health regulations.
(2)
For the purpose of this section, any accessory apartment or dwelling being brought up to code within 60 days of the discovery of the violations will remain eligible for a special permit. Once the violations are corrected, if zoning violations are also present, an application for a special permit to the Board of Appeals is required, pursuant to Subsection I above.
Q.
Multifamily special permit.
[Added 9-26-2020 ATM by Art. 22]
(1)
The Planning Board shall serve as the special permit granting authority for multifamily developments, including conversion of existing structures/uses to multifamily and/or new construction.
(2)
A site plan review special permit pursuant to § 325-55 is also required.
(3)
All multifamily dwellings must be connected to a municipal water system.
(4)
A habitable room in a multifamily dwelling unit shall have a minimum floor area of not less than 120 square feet and shall have no major width or length dimension less than 10 feet. Closets, storage spaces, bathrooms and kitchens are not habitable rooms for the purpose of these minimum area and dimension requirements.
(5)
The number of multifamily dwelling units shall be determined by the ability to place an adequately size septic system for the number of bedrooms; and required parking per number of units and landscaping on the site pursuant to Article IX, Off-Street Parking and Loading Requirements.
(6)
All outside entrances to multifamily dwellings shall provide protection to the immediate area in front of said entrance from the weather.
(7)
Whenever the land upon which a multifamily dwelling is to be erected is located partially within a Drinking Water Resource Protection District, maximum possible use of the area outside the Drinking Water Resource Protection District will be made for the disposal of stormwater runoff and sewage.
(8)
Recreation areas. Where appropriate to the topography and natural features of the site, the Planning Board may require that at least 10% of the open space or two acres (whichever is less) shall be of a shape, slope, location and condition to provide an informal field for group recreation or community gardens for the residents of the multifamily development.
§ 325-52 Variances.
The Board of Appeals shall have the power to hear and decide applications for variances from the provisions of the protective bylaws, including the power to grant a variance authorizing a use or activity not otherwise permitted in the district in which the land or structure is located, except that no variance shall be granted to allow food sales with drive-up or drive-through facilities. Variances may be granted by the Board only after a public hearing and only after the Board has made the finding required by the Zoning Act.[1]
[1]
Editor's Note: See MGL c. 40A.
§ 325-53 Other requirements.
The granting of any appeal by a permit granting authority shall not exempt the applicant from compliance with any applicable provisions of the Zoning Bylaw not specifically varied by the Board of Appeals.
§ 325-54 Nonconforming structures and uses.
A.
Nonconforming structures.
(1)
Alteration or extension of single- or two-family residential structure.
(a)
A preexisting nonconforming single- or two-family residential structure may be altered or extended by right if the Building Official determines that it meets the following criteria:
[1]
The proposed addition/extension will conform to current setbacks and coverage for the zoning district in which the existing structure and addition/extension are located; and
[2]
The nonconformance concerns the size of the lot in question and/or the frontage of said lot and/or an encroachment of the existing structure.
(b)
In addition, a preexisting nonconforming single- or two-family structure may be altered by right through the addition of a dormer or dormers if the Building Official determines that it meets the following criteria:
[1]
The proposed dormer or dormers do not allow for any increase in the square footage of the single- or two-family dwelling; and
[2]
The nonconformance concerns the size of the lot in question and/or the frontage of said lot and/or an encroachment of the existing structure.
(c)
In making such determination, the Building Official, after identifying the particular respect or respects in which the structure or lot does not presently conform to the Zoning Bylaw, shall consider whether the proposed addition/extension meets the criteria stated above. If the Building Official determines that the addition/extension meets the criteria stated above, the Building Official may allow the addition/extension or rebuild by right.
(2)
If the Building Official determines that a proposed addition/extension to a nonconforming single- or two-family residential structure increases the nonconforming nature of the structure, the applicant may seek a new determination from the Board of Appeals. If the Board of Appeals determines that the alteration or extension will increase the nonconforming nature of the structure, no such alteration or extension may occur unless the Board of Appeals issues a special permit for alteration or extension after finding that the alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconformity. An addition/extension that increases the nonconforming nature of the structure would include:
(a)
A structure built in the same footprint to an increased building height.
(b)
A structure built in the same footprint that does increase the habitable floor area.
(c)
A structure that continues along the same line as an existing encroachment without increasing that encroachment.
(3)
A single- or two-family residential structure is determined to be demolished and replaced if the area of the existing structure to be removed meets the definition of "demolition" in this bylaw.[1]
[1]
Editor's Note: See § 325-2.
(4)
A lawfully preexisting nonconforming single- or two-family residential structure may, by right, be demolished and replaced with a new structure on the same site, provided that:
(a)
The proposed new construction will conform to current setbacks and coverage for the zoning district in which the lot is located; and
(b)
The nonconformance concerns the size of the lot in question and/or the frontage of said lot.
(5)
A lawfully preexisting nonconforming single- or two-family residential structure may, by special permit, be demolished and replaced with a new structure on the same site, provided that it is determined by the Board of Appeals that:
(a)
The replacement of the structure will not be substantially more detrimental to the neighborhood than the existing structure;
(b)
The replacement of the structure will not cause or contribute to any undue nuisance, hazard or congestion in the neighborhood, zoning district or Town;
(c)
The replacement structure will not increase any of the following existing nonconformances: building coverage, site coverage, or setback encroachment;
(d)
The replacement structure will reduce at least one of the following existing nonconformances: building coverage, site coverage, or setback encroachment; and
(e)
The replacement structure may not increase the habitable square footage of the structure by more than 25% over the habitable square footage of the existing structure over a ten-year period beginning on the date of the issuance of the special permit by the Board of Appeals.
(6)
A proposal to demolish and replace a single- or two-family residential structure which will increase the nonconforming nature of the structure will require a variance from the Board of Appeals pursuant to MGL c. 40A, § 10.
(7)
Alteration or extension of other structures.
(a)
A preexisting nonconforming structure other than a single- or two-family residential structure may be altered or extended by right if the Building Official determines that it meets the following criteria:
[1]
The proposed addition/extension will conform to current setbacks and coverage for the zoning district in which the existing structure and addition/extension are located; and
[2]
The nonconformance concerns the size of the lot in question and/or the frontage of said lot and/or an encroachment of the existing structure.
(b)
All other nonconforming structures shall require a variance from the Board of Appeals pursuant to MGL c. 40A , § 10 for any alteration/extension or reconstruction.
B.
Nonconforming uses.
(1)
Except for single- and two-family dwellings provided for in Subsection A(5) of this section, a lawfully preexisting structure, whether conforming or not, used for a lawfully nonconforming use may, by special permit, be changed, altered, or razed and replaced with a new structure on the same site, provided that it is determined by the Board of Appeals that:
(a)
The replacement, alteration or change of the structure will not be substantially more detrimental to the neighborhood than the existing structure;
(b)
The replacement, alteration or change of the structure will not cause or contribute to any undue nuisance, hazard or congestion in the neighborhood, zoning district or Town; and
(c)
The replacement, altered or changed structure will be used for the same use or for a conforming use.
(2)
In no case shall a nonconforming use be changed to another nonconforming use.
(3)
Notwithstanding the provisions hereof, nonconforming uses, actual use of which has been discontinued for a period of two consecutive years, shall be conclusively presumed to be abandoned and thereafter shall not be reestablished, changed (except to a conforming use), or extended without a variance from the Board of Appeals.
§ 325-55 Site plan approval.
A.
Purpose. The purpose of this section is to protect the safety, public health, convenience and general welfare of the inhabitants of the Town of Harwich by providing detailed review of the design and layout of certain developments which have a substantial impact upon the character of the Town and upon traffic, utilities and services therein.
B.
Powers. The Planning Board is hereby designated the special permit granting authority for site plan approval regarding activities which are set forth in Subsection C.
C.
Applicability. In addition to any special permit or variance required under the Table of Use Regulations, the following development activities shall require a site plan special permit from the Planning Board:
[Amended 5-4-2010 STM by Art. 9]
(1)
Any floor area expansion of any structure or expansion of exterior space, other than parking, serving any of the following: a commercial, industrial, multifamily, educational or municipal use, or personal wireless service facility; or the creation of a drive-up or drive-through window.
(2)
Expansion or reconfiguration of an existing parking lot and/or driveway(s) in connection with a commercial, industrial, multifamily, educational or municipal use, or personal wireless service facility.
(3)
Establishment of any new commercial, industrial, multifamily, educational, municipal, fast-food/takeout restaurant or personal wireless service facility.
(4)
Establishment of any new retail use(s) in the Industrial (IL) Zone.
D.
Required submission. The submission of an application and plans for site plan approval shall conform to the Planning Board Rules and Regulations Governing Subdivision of Land and Site Plan Review, as amended.[1] The Planning Board shall consider all applications at a public hearing according to the procedure set forth in MGL c. 40A.
[1]
Editor's Note: See Ch. 400, Subdivision of Land and Site Plan Special Permits.
E.
Conditions of approval.
(1)
If the site plan meets the requirements of this bylaw and the Planning Board Rules and Regulations Governing Subdivision of Land and Site Plan Review, as amended, the Planning Board shall approve it. Notwithstanding the foregoing, such approval may include reasonable conditions to ensure that:
(a)
Reasonable measures are implemented to provide for screening of parking areas or other parts of the premises, for adjoining premises or from the street, by walls, fences, plantings or other devices.
(b)
The convenience and safety of vehicular and pedestrian traffic are enhanced.
(c)
Surface water from parking areas and driveways will be efficiently and safely disposed of by means of a proper drainage system as specified in the Board's approval.
(2)
However, the Board cannot deny approval of a site plan for a use which is allowed by right (not by special permit) in the district but may impose reasonable conditions on the proposed use. The Board may not impose conditions on the grant of a special permit the implementation of which would be contrary to any requirement of this bylaw or require a variance from it or any other applicable provision of law.
F.
Waivers. When in the opinion of the Planning Board the requirements of Subsection C, Applicability, do not substantially change the relationship of the structure to the site and to abutting properties and structures, the Planning Board may determine, without a public hearing, that submission of a site plan for special permit approval is not required. Upon application consistent with the Planning Board Rules and Regulations Governing Site Plan Review, such a determination may be made by an affirmative vote of a majority of the Planning Board present, and in no event fewer than four members, in a manner consistent with the Planning Board Rules and Regulations Governing Site Plan Review.
§ 325-56 Conversion.
Conversion of any nonconforming motel, hotel, multifamily dwelling, two-family dwelling or two or more buildings designated for human habitation on one lot to a condominium form of ownership, cooperative form of ownership, time-sharing or similar usage, if such conversion changes, extends, or alters the existing usage, shall require a permit from the Board of Appeals to change or extend such nonconforming use in accordance with § 325-54 of the Harwich Zoning Bylaw.