A Waterfront West Overlay District (WWOD) and WWOD special permit (WWOD-SP) are established due to the unique land use, historic, cultural and architectural resources of the properties located along the central waterfront to encourage implementation of the recommendations of the 2001 Master Plan and 2003 Waterfront Strategic Plan, as amended and supplemented from time to time, to:

a.

Encourage a building pattern, scale, setbacks, height, density, and design conforming to that now found in the historic downtown business district;

b.

Encourage a pattern of building development similar to the existing downtown by eliminating excessive "yard setback requirements," providing mandatory "build-to" lines, and increasing the percentage of a lot area that can be covered by a building;

c.

Encourage mixed-use buildings with commercial uses on the ground floor and housing and/or offices above;

d.

Promote a lively mixed-use waterfront district that will serve Newburyport's citizens and visitors with ample public space and intimately scaled streets and public pedestrian ways with key views to the water from Merrimac Street;

e.

Maintain and protect marine-dependent uses consistent with the requirements of Commonwealth Chapter 91;

f.

Diminish the visual impact of the parked car by discouraging expansive surface parking lots and encouraging structured parking;

g.

Encourage "shared parking" strategies in mixed-use projects to diminish overall parking requirements;

h.

Provide incentives to construct pedestrian ways to the water such as pedestrian alleys, sidewalk plazas and other public open spaces. Also provide incentives to pool and contribute private open space required by zoning to public open space areas;

i.

Protect the architectural, cultural, economic and cultural heritage of the waterfront through preservation and adaptive reuse of existing historic structures; and

j.

Encourage affordable housing within an overall density that is generally consistent with the Zoning Ordinances and the downtown districts.

(Ord. of 2-14-05, § A)

The WWOD is hereby established as an overlay district as shown on the city's zoning map. Within the WWOD, the provisions of the underlying Waterfront Mixed Use (WMU) Zoning District shall remain in full force and effect except where a WWOD-SP is issued whereby the provisions of the WWOD shall apply to the extent different than those of the WMU district.

(Ord. of 2-14-05, § A)

In addition to uses permitted in the WMU district in the table of allowable uses, the following uses may be permitted in the WWOD by a WWOD-SP issued by the planning board without the approval of any other special permit granting authority:

* Use #104. Multi-family, over twenty (20) units.

* Use #108. Congregate elderly housing.

* Use #402. Specialty shopping center (only if part of mixed use (#405)).

* Use #406. Health/recreation.

* Use #413B. Parking structure

* Use #414. Retail/service kiosk automated teller machine.

* Use #502. Fast food/carry out (carry-out of prepared food only).

* Use #612. Corporate headquarters.

The WWOD-SP may also allow any other uses permitted by special permit within the WMU district under the table of allowable uses.

(Ord. of 2-14-05, § A)

For all new construction, alterations or additions in the WWOD and subject to a WWOD-SP, the following requirements shall apply:

A.

Dimensional and density requirements:

Waterfront West Overlay District—Special permit area (WWOD-SP area): All use categories allowed in the WWOD shall comply with the following requirements as applied to the WWOD-SP area, notwithstanding the subdivision of the WWOD-SP area into separate lots. The WWOD-SP area shall include the total land area that is subject to the WWOD-SP application as approved by the WWOD-SP, and shall comply with the following requirements:

* Minimum open space (as defined below): Thirty-three (33) percent of the WWOD-SP area, excluding public streets.

* Minimum area coverage: Fifty (50) percent of portion of WWOD-SP area not within one hundred (100) feet of Merrimack River.

WWOD-SP area—Lot requirements: Each lot and the buildings on each lot within the WWOD-SP area shall comply with the following requirements:

* Minimum street frontage: Sixty (60) feet;

* Front yard setbacks: Zero feet minimum with up to a six-foot maximum building setback to allow for traffic visibility across corners and driveways and design articulations such as protruding architectural features (i.e. bay windows, porches and stoops) provided such setbacks do not affect more than forty (40) percent of the streetwall on any block;

* Minimum side and rear yard setbacks: Zero feet, except for twenty (20) feet from existing residential uses above the first level outside the WWOD-SP area;

* Minimum lot area: Five thousand (5,000) square feet;

* Maximum building height: Thirty-five (35) feet, except as follows: (a) Forty (40) feet for parking structures located directly along Route 1, as measured to the upper plane of the top floor of the upper parking level but no higher than four (4) levels above grade with an open roof and parapet design and excluding from the measurement of "height" appurtenances normally constructed above such level such as guardrails and light standards; such parking structure shall not be located directly along Merrimac Street; and (b) forty (40) feet for buildings located on streets perpendicular to the Merrimack River between Route 1 and Titcomb St. that include design layout and floor height suitable for ground floor commercial uses or other areas of public accommodation.

B.

Public open space requirements: At least thirty-three (33) percent of the WWOD-SP area shall be open space, excluding public streets. All sidewalks adjacent to a public street layout shall be dedicated by easement or deed for public access. Fifty (50) percent of the required minimum open space shall be so dedicated. All open space dedicated by easement or deed for public access shall be improved by the project applicant to quality standards and configurations suitable for their intended uses and acceptable to the planning board.

For purposes of this section, open space shall be defined as usable areas devoted exclusively for outdoor active or passive recreation, pedestrian alleys, walkways, sidewalks (other than the existing Merrimac Street sidewalks), public parks, plazas, outdoor public markets, public restrooms, boardwalks, outdoor cafe space on private property or licensed from the city if located on a sidewalk, and suitably designed and accessible space on roofs of a parking garage with at grade public access on at least two sides and alleyway connections to the abutting streets, or other similar outdoor public open space areas. At least one public open space area within each WWOD-SP area shall be at least ten thousand (10,000) square feet in area excluding any adjacent parking, driveway, sidewalk or pedestrian walkways.

C.

Chapter 91 Commonwealth and Zoning Requirements: Any Commonwealth Chapter 91 requirement for the provision of publicly-accessible open space, facilities of public accommodation, pathways along the waterfront edge or the like shall be fully complied with. No more than fifty (50) percent of the open space area required by this Section shall be part of the public open space required under Chapter 91 within the one hundred-foot buffer area of the Merrimack River. No building or structure including a non-water dependent/related use as defined in section XVIII-B of this appendix shall be permitted within the lesser of (i) fifty (50) feet of the high water mark of the Merrimack River, or (ii) the limits of the water dependent use zone under Chapter 91 (notwithstanding the provisions of section VI-O).

D.

Implementation of development: Minimum lot area coverage, open space, affordable housing, off-street parking requirements and other required mitigation, shall correspond with the sequence of development implemented in the WWOD-SP Area, so that at all times such requirements shall be met as applied only to those portions of the WWOD-SP Area for which building permits have been issued; such requirements shall be met prior to the issuance of certificates of occupancy for such buildings. The planning board shall follow the requirements listed in Section 5.8-5.11 of the Newburyport Subdivision Rules and Regulations to insure compliance with such mitigation requirements related to such issued building permits under the WWOD-SP. The planning board shall follow the requirements listed in Section 5.8-5.11 of the Newburyport Subdivision Rules and Regulations to insure adequate construction of ways and compliance with other requirements of the subdivision rules and regulations.

(Ord. of 2-14-05, § A)

All required parking within the WWOD-SP Area shall be provided by the applicant without the use of municipal parking lots or structures or Newburyport Redevelopment Authority parking lots or structures. The off-street parking requirements for (i) non-residential uses, including hotel /inns, shall be within five hundred (500) feet of the principal building, structure or use on the premises; and (ii) residential uses, excluding hotel /inns, shall be within three hundred (300) feet of the principal building, structure or use on the premises; and (iii) parking for hotel/inns shall not be required to be on the same or contiguous lots. The WWOD-SP may allow "shared" reduced parking requirements for uses having different peak times of parking demand requirements, as determined based on the report of a traffic engineer engaged by the applicant and approved by the planning board. Within the WWOD-SP area, parking requirements may be met by off-street parking in accordance with section VII, as modified by this paragraph, and by proposed on-street parking within the WWOD-SP area.

(Ord. of 2-14-05, § A)

An application for a WWOD-SP and amendment to a WWOD-SP shall be submitted and reviewed in accordance with the procedures listed in section X-H.8. The planning board may issue a WWOD-SP for a project located within the WWOD if it determines that the project meets the requirements of this section and the special permit criteria of section X-H.7.

(Ord. of 2-14-05, § A)

A.

WWOD-SP area requirements: The minimum land area eligible for a WWOD-SP in a single or consolidated ownership or control at the time of application is four (4) contiguous acres. For the purposes of this section, land divided by public and private streets and public and private open space shall be deemed to be contiguous. Subsequent to the issuance of a WWOD-SP, applications for amendments or additions to the WWOD-SP shall not require that the land be in a single or consolidated ownership or control. The planning board may allow subsequent land area to be added to the WWOD-SP area, by way of an amendment to the WWOD-SP, which shall require the consent of the original applicant(s) or its/their successor(s). An amendment to the WWOD-SP to add land to the WWOD-SP area that is not in consolidated ownership or control of the original applicant(s) or its/their successor(s), may not utilize any of the open space, utilities, streets, parking or any other requirements of the WWOD-SP to meet the requirements of zoning unless authorized by the planning board and the original applicant(s) or its/their successor(s). Any resulting amended plan must meet all of the applicable open space, utilities, parking and other requirements.

B.

Affordable housing: At least ten (10) percent of all proposed residential dwelling units in the WWOD-SP area shall be affordable as defined under M.G.L.A. 40B s.20 and 760 CMR 45 (except that such units shall not be required to be subsidized and may be built and operated by a private entity) for a period of at least forty (40) years. Such units may be rental or ownership units and shall be designated as affordable or as affordable and restricted for occupants fifty-five (55) years of age or older.

C.

Historic buildings: Deeded preservation restrictions shall be provided governing the rehabilitation of any buildings located within the WWOD-SP area that are listed on the National Register of Historic Places and are contributing structures to Newburyport's National Register Historic District. Historic rehabilitation standards for these buildings shall conform to the Federal Secretary of the Interior's "Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings"

D.

Declaration of covenants, conditions and restrictions: Prior to the issuance of a building permit for any land within the WWOD-SP area, a declaration of covenants, conditions and restrictions shall be recorded by the owner(s) against all the land in the WWOD-SP area containing provisions consistent with the requirements and restrictions of the WWOD-SP.

E.

Term of WWOD-SP: The issuance of a building permit and commencement of construction under a WWOD-SP within two (2) years of the date of filing of the planning board's WWOD-SP decision with the city clerk (or the date of final resolution of any appeal of such decision) shall be deemed to constitute substantial use of rights under the WWOD-SP for all land under the WWOD-SP within the WWOD-SP area. Subsequent to such issuance and commencement of construction, the WWOD-SP shall remain in effect and not lapse as to building permits issued after such two-year period.

(Ord. of 2-14-05, § A)

A.

Master plan: All WWOD-SP projects require site plan review (SPR) of the master plan by the planning board before any building permit is issued. Such review shall be based upon the submission of a master plan for the project under the major project procedures of section XV-D(c) and the supplemental material submission requirements listed as required under section XV-H.m 2) and 3).

B.

Waivers: With respect to the requirements of section XV-SPR, waivers may be authorized by the planning board upon the planning board's finding that the proposed waiver will be consistent with and substantially advance the intent of the Zoning Ordinance.

(Ord. of 2-14-05, § A)

A.

If future implementation of development subsequently requires major changes or alterations to the approved WWOD-SP, such changes or alterations are subject to the planning board's approval of (1) an amendment to the WWOD-SP and (2) an amendment to the initial SPR decision, administratively reviewed by the planning board as part of a "major project" review under section XV-D(c), SPR. Amendments to the WWOD-SP and the SPR decision shall be based upon the zoning provisions in effect at the time of issuance of the approved WWOD-SP unless the applicant and the planning board agree that such amendment shall be based upon the zoning provisions in effect at the time of application for such amendment. Any resulting amended plan must meet all of the applicable open space, utilities, parking and other requirements.

Major changes or alterations shall be defined as those that:

(a)

Increase the aggregate approved amount of development by greater than ten (10) percent of the approved gross floor area in the WWOD-SP area; or

(b)

Increase the approved density of multi-family uses, alter the approved location and/or increase the gross floor area of all hotel uses, and/or increase the approved gross floor area of business and food service uses by greater than twenty (20) percent of the aggregate approved amount of development for each such applicable use categories in the WWOD-SP area, excluding from such twenty (20) percent limit the increase in any use category which is attributable to conversion of ground floor residential use to another use;

(c)

Substantially change the pattern of streets, substantially change the building design standards, or substantially alter the distribution or use of open space within the WWOD-SP area; or

(d)

Are based on a request by the applicant that a change or alteration be based upon the zoning provisions in effect at the time of application for the change or alteration.

In determining whether a change is "substantial" for the purposes of clause (c), a change which conforms to the supplemental design guidelines of section XV-H.l (iii) shall not be considered to be substantial. Minor additions, alterations or extensions of pre-existing non-conforming buildings within the WWOD-SP area may also be permitted by a revision to the approved WWOD-SP, which shall not be considered to be substantial, provided that such additions, alterations or extensions are in conformity with section XXIV and the WWOD-SP and are approved by the original applicant(s) and its/their successor(s) for the WWOD-SP as provided in section XXIV 7(A).

All changes or alterations below these thresholds shall be regarded as minor and shall not require an amendment to the WWOD-SP. Minor changes or alterations shall require administrative approval by the planning director, but shall not otherwise be subject to the procedures of section XV-D(d), SPR. If minor changes or alterations are determined by the planning director to not be in substantial compliance with the requirements of this section, additional review and approval by the planning board must be obtained prior to issuance of the building permit.

B.

Revised master plan documents submitted to the planning board in connection with any requested amendments to the WWOD-SP or SPR shall reflect any changes approved both within the WWOD-SP area as well as any approved and/or constructed changes on adjacent properties or along adjacent streets in the immediate vicinity of the WWOD-SP area.

(Ord. of 2-14-05, § A)

The provisions of this section are severable and, in the event that any provision of this section is determined to be invalid for any reason, the remaining provisions shall remain in full force and effect.

(Ord. of 2-14-05, § A)