The Port Plaza Overlay District ("PPOD") is established to account for the unique nature of an approximately 50,851 square-foot vacant store located with the Port Plaza Shopping Center, with a current street address of 45 Storey Avenue (Assessors Map/Lot 43-8), most recently occupied by Kmart (the "Kmart Site").

(Ord. of 11-25-2024(1))

The boundaries of the PPOD shall be as approximately depicted on a plan accompanying this ordinance entitled "Port Plaza Overlay District (PPOD)" dated July 22, 2024. Upon application under this section, the applicant shall provide metes and bounds. The PPOD is an overlay zoning district superimposed on all underlying zoning districts. The regulations for uses, dimensions, and all other provisions of this ordinance governing the underlying zoning districts shall remain in full force except for those projects undergoing development pursuant to this section XXXIII. Within the boundaries of the PPOD, an applicant may elect either to develop a project by applying for plan approval in accordance with the requirements of this section XXXIII, or, in the alternative, to develop in accordance with requirements of the regulations for uses, dimensions, and all other provisions of this ordinance governing the underlying zoning district.

(Ord. of 11-25-2024(1))

Application for plan approval from the planning board under this section shall be contingent upon the execution and submission therewith of a written, binding development agreement approved by simple majority vote of the city council and signed by the mayor on behalf of the city, and countersigned by the then-fee owner of the Kmart site addressing the nature of mitigation and public benefits associated with the proposed development project. Such agreement shall provide that: (A) it runs with the land; (B) any amendment thereto shall require approval in the same manner as its original approval; and (C) at such time as the agreement expires or is terminated, by any party, for any reason, application of this section XXXIII, and permits thereunder, shall also terminate automatically, without any further action required by the city council. Unless prescribed explicitly in the development agreement, all city fees shall be levied without waiver or reduction.

While the contents of the agreement are not fully prescribed herein, the agreement shall stipulate, at minimum, that twenty-five (25%) percent of the units developed shall be statutorily affordable as that term is defined and utilized in MGL 40B and 760 CMR 56, in perpetuity. It is further expected that the agreement will stipulate that all units developed within the PPOD be operated as rentals (e.g. not sold off as condominiums). It is the intention herein that all such units shall be qualified for listing on the city's subsidized housing inventory (SHI) utilized by the Commonwealth of Massachusetts Executive Office of Livable Communities (EOHLC). Finally, the agreement is envisioned to stipulate mitigations specifically around traffic control signalization, roadway reconfiguration, and water/sewer distribution and collection respectively as it relates specifically to the development under this section and associated impacts.

(Ord. of 11-25-2024(1))

Within the PPOD, the provisions of the underlying Business 1 ("B-1") district as defined in section III-A of the Newburyport Zoning Ordinance shall be in full force and effect, except to the extent that the provisions of this section XXXIII-D expressly provide otherwise, in which case the provisions of this section XXXIII-D shall control.

(1)

Prior to the issuance by the city of any permits to develop or operate a residential use at the Kmart site, such real property as defined in section XXXIII-B shall have been created as a separate "lot" as that term is defined under Newburyport Zoning Code section 11-B.

(2)

To the extent that any further subdivision is undertaken inside of the area defined under XXX III-B, establishment, then any plan approval sought under this section XXXIII shall include all lots comprising the Kmart site.

(3)

All of the following provisions of section XXIX of the Newburyport Zoning Ordinance shall apply within the PPOD, and are incorporated within this section XXXIII-D by this reference, with the term "PPOD" substituted for the term "SGD," as appropriate:

a.

Section XXIX-C—Definitions;

b.

Section XXIX-E—Prohibited uses;

c.

Section XXIX F—Dimensional and parking requirements;

d.

Section XXIX-G—Requirements for housing affordability;

e.

Section XXIX-H—Permitting procedure and criteria for approval;

f.

Section XXIX-I—Design standards; and

g.

Section XXIX-J—Appeals.

To the extent that there is any conflict or disagreement between terms within any of the sections listed above, the PPOD shall be treated as though it is within subdistrict "A" of the smart growth overlay district (SGD).

(4)

Notwithstanding anything in this section XXXIII or the remainder of this ordinance to the contrary, within the PPOD:

a.

The following uses are permitted as-of-right with plan approval subject to the requirements of this section, including compliance with the design standards:

1.

Multifamily (use #103 as defined the Newburyport Zoning Ordinance. section V-E).

2.

Mixed-use development incorporating multifamily residential use and any of the following non-residential uses, where such non-residential uses are located on the first floor: retail trade, retail services, restaurant, outdoor cafe.

b.

For purposes of reviewing project applications and issuing decisions on development projects within the PPOD, the city planning board, consistent with G.L. Chapter 40R and 760 CMR 59.00, shall be the plan approval authority (the "PAA"),and is authorized to approve projects consistent with this section XXXIII.

1.

The PAA shall exercise its independent judgment in reviewing any plan approval application for consistency with the purpose and intent of this section XXXIII, and with the dimensional, parking, design standards and other requirements applicable to the PPOD. Such plan approval application shall be construed as an as-of-right review and approval process.

2.

In any plan approval decision issued by the PAA under this section XXXIII, the PAA shall have no power to waive any requirements (e.g. mitigations, or public benefits), specified in the development agreement.

c.

The PAA shall require the applicant to submit with its application for plan approval, and shall have no authority to waive such submittal, a detailed traffic access and impact study regarding the proposed development. At the applicant's expense, the PAA may engage a traffic consultant to review said report and make its recommendations to the PAA within no later than thirty (30) days before the PAA is required to make its decision under subsection 2.c of section XXIX-H of this ordinance.

d.

Maximum building/structure elevation (at the highest point of any roof) shall be elevation one hundred twenty (120) feet NAVD88 except as follows:

1.

Within 15 feet of Low St right-of-way: elevation 95 feet

2.

Within 25 feet of Low St right-of-way: elevation 106 feet

e.

The development shall include one or more public or semi-public common spaces adjoining a sidewalk to create activate pedestrian areas for dining or social activities.

f.

The PAA shall not waive, reduce, or alter any of the minimum parking requirements specified in the table published at subsection 6.a of section XXIX-I of this ordinance. For example, and without limitation, the minimum number of parking spaces per two-bedroom dwelling unit shall be 1.3. Within the PPOD, the total number of surface parking spaces, regardless of whether screened from view, as distinguished from underground and/or structured parking spaces shall not exceed twenty (20).

g.

Multifamily residential use and mixed-use may be developed as-of-right at a minimum density of thirty (30) dwelling units per acre, and up to sixty (60) units per acre.

h.

Buildings shall have the following relationships to sidewalks.

1.

South side: Buildings shall be set back at least fifteen (15) feet from the back of the sidewalk and landscape buffer along Low Street.

2.

North and west sides: Buildings shall be set no more than ten (10) feet from the back of the sidewalk for at least sixty (60%) percent of the length of the building.

i.

Sidewalks and landscaping shall be provided along all public facing sides of the site as follows:

1.

South and west sides: Five (5) foot {minimum) sidewalk and six (6) foot (minimum) tree and landscaping buffer between the sidewalk and Low Street and between the sidewalk and the site driveway.

(5)

Within seven (7) days of any permit application, the city planning office shall transmit a copy to the city's department of public services ("DPS"). Within thirty (30) days of its receipt of said copy, DPS shall certify by one or more signed letters addressed and delivered to the PAA, with copies to the city council, that:

a.

There exists sufficient public water service (including, without limitation existing and usable supply, treatment, and distribution) to serve all development proposed under the project application, or that such service could be created by the PAA's imposing upon the applicant specific mitigation measures, such as, without limitation, the installation of new distribution and/or collection systems, pump and/or lift stations, related public infrastructure and utilities, and/or the payment of an in lieu fee to fund the implementation of such mitigation measures;

b.

There exists sufficient public sewer service (including, without limitation, existing and usable capacity for collection and treatment) to serve all development proposed under the project application, or that such service could be created by the PAA's imposing upon the applicant through specific mitigation measures, such as, without limitation, the installation of new distribution and/or collection systems, pump and/or lift stations, and/or the upgrade/replacement of any such existing public infrastructure and utilities and/or the payment of an in lieu fee to fund the implementation of such mitigation measures; and

c.

Existing transportation improvements, including public improvements under the jurisdiction of the city and/or the state department of transportation, are sufficient to ensure that any development proposed under the project application will not cause or contribute significantly to negative impacts on automobile, bicycle, pedestrian or other modes of travel, or that such improvements could be created through the PAA's imposing upon the applicant specific mitigation measures, such as, without limitation, the installation of new traffic control devices, and/or the payment of an in lieu fee to fund the implementation of such mitigations measures.

(Ord. of 11-25-2024(1))

The provisions of this section XXXIII are severable. If any provision of this section XXXIII is determined by a court of competent jurisdiction to be invalid, then the remaining provisions shall remain in full force and effect.

(Ord. of 11-25-2024(1))