Orleans City Zoning Code
ARTICLE VII
Special Use Regulations
§ 164-7.1 Soil Removal and Filling.
A.
No topsoil, gravel, loam or stone in the town may be removed to be transported outside the Town of Orleans except, from an established pit, stockpile or surplus, unless authorized by a Special Permit from the Zoning Board of Appeals.
B.
No topsoil, subsoil, gravel, loam, sand, stone or other earth in the town may be removed to be transported either outside the town or from place to place within the Town of Orleans, nor may any land be filled, unless the entire area of such removal or filling shall be graded and replanted with soil-improving plants, with a permanent cover crop or by reforestation so that any scars resulting from such removal shall not remain unplanted for a period of longer than 6 months, with the exception of the town disposal area.
Any fill material added to land within the Town must be clean, and free of hazardous materials. The filling must be completed within 6 months of commencement, and any new filling of land on the same parcel shall not be commenced for a period of 2 years from the time of completion of the original filling activity.
C.
Removal or filling of topsoil, gravel, loam, sand, or stone which exceeds 2,000 cubic yards in volume shall require the granting of a Special Permit from the Zoning Board of Appeals. In reviewing a Special Permit application, the Board shall require the following:
(1)
A professionally prepared, stamped plan shall be submitted showing existing and proposed topography, elevation of seasonal high groundwater, quantities of material to be removed or filled, proposed drainage, and a replanting plan. A schedule of proposed activities must be provided.
(2)
No excavation may be closer than 10 feet to the seasonal high groundwater table.
(3)
No Special Permit shall be issued for more than 3 years.
(4)
Proposed methods to control noise and dust. Hours of operation shall be limited to between 7:00 a.m. and 5:00 p.m.
(5)
Filling with debris, stumps, or hazardous materials is prohibited.
§ 164-7.2 Tidewater Marshland Areas.
The removing, filling, dredging, excavating, obstructing or otherwise altering of tidewater marshland areas or inland wetland areas and areas of exposed groundwater table in the town shall be prohibited unless authorized by a Special Permit from the Zoning Board of Appeals. The Board shall establish such rules, regulations and standards consistent with state or federal law as may be necessary to establish the basis upon which permits shall be granted under authority of this section.
§ 164-7.3 Motels.
The following provisions shall apply to the design and use of hotels, motels or motor inns wherever provided for in this chapter and wherever the words "motel" or "motels" appear, it shall apply equally to hotels, inns, motels and other accommodations for tourists and guests.
A.
For each lot upon which a motel is to be erected, there shall be a minimum frontage of 200 feet and a minimum of 3,000 square feet of contiguous buildable upland lot area for each of the first 10 motel units. For each motel unit in excess of 10 motel units, there shall be provided an additional 2,000 square feet of contiguous buildable upland lot area.
B.
No motel or addition to a motel shall be erected or placed on a lot which will result in the covering by all buildings of more than 25% of the lot.
C.
For each lot upon which a motel is erected, there shall be provided a front yard or setback distance of not less than 50 feet, a side yard on each side of not less than 25 feet and a rear yard of not less than 25 feet.
No other uses are permitted in these yard areas except that of a driveway in the front or side yard, provided that said driveway is not within 5 feet of the property side line. All yard areas shall be appropriately landscaped and adequately maintained.
D.
A site plan for each proposed motel shall be submitted to the Building Commissioner with the request for a building permit. Said site plan shall show, among other things, all existing and proposed buildings, structures, parking spaces, driveway openings, driveways, service areas and other open uses, all facilities for sewage, refuse and other waste disposal and for surface water drainage and all landscape features, such as fences, walls, planting areas and walks, on the lot. Three copies of the site plan shall be filed with the Building Commissioner, one of which shall be forwarded forthwith to the Architectural Review Committee for its review and recommendations. In reviewing a site plan, the Architectural Review Committee and the Building Commissioner shall consider, among other things, the following:
(1)
Protection of adjoining premises and the general neighborhood from any detrimental use of the lot.
(2)
Convenience and safety of vehicular and pedestrian movement within the site and in relation to adjacent streets, properties or improvements.
(3)
Adequacy of the methods of disposal for sewage, refuse and other wastes and of the methods of drainage and surface water.
(4)
Provision for off-street loading and unloading of vehicles incidental to the servicing of the buildings and related uses on the lot.
(5)
Adequacy of all other municipal facilities relative to fire and police protection, education, recreation and other municipal services.
§ 164-7.4 Tents, Trailers and Mobile Camping Units.
A.
No person shall park, store or occupy a tent or trailer for living or business purposes except in a garage or other accessory building or in the rear half of a lot owned or occupied by the owner of the tent or trailer, if placed so as to conform to the yard requirements for main buildings in the same district, but its use for living and/or business purposes is prohibited, unless temporary occupancy for a period not exceeding 6 months in any 1 calendar year is permitted by the Select Board in connection with the construction of a permanent home.
B.
Trailers used for the purpose of storing goods, materials, equipment and the like or warehousing are prohibited unless the use is incidental to the construction of a permanent home or business. A temporary permit may be issued by the Building Commissioner for a period not to exceed 6 months with one 6-month renewal allowed.
C.
Notwithstanding the above, trailers may be used for storage on a lot in the Industrial Zoning District, provided the following conditions are met:
(1)
Trailers may not be occupied.
(2)
Trailers must be screened from all street frontages by landscaping, fencing or other means.
(3)
A trailer must be set back from side and rear property lines a distance equal to its height. It shall not obstruct egress, parking or access to dumpsters on the premise.
(4)
Trailers may not contain hazardous materials unless approved by the Orleans Fire Chief, and shall be posted on the door if required.
(5)
Trailers shall not have electricity, heating, or refrigeration.
All trailers must comply with this subsection by May 12, 2016.
§ 164-7.5 Drive-Throughs.
A.
Drive-in, drive-through, and similar pickup stations servicing motorized vehicles are prohibited in the Village Center District, and are allowed in other business districts in the LB, GB, and CC Districts by Special Permit from the Zoning Board of Appeals under the following conditions:
The drive-through is ancillary to the main walk-in use;
The drive-through does not impede pedestrian safety or convenience;
The drive-through does not front on or face the public street; and
The overall proposal is approved by the Architectural Review Committee.
§ 164-7.6 Formula-Based Restaurants.
A.
The purpose and intent of regulating formula-based restaurants is to address the negative impact on the town's historical and cultural relevance, unique Cape Cod rural character, and overall attractiveness as a small town, locally-oriented tourist destination. These uses are therefore regulated in order to maintain Orleans' distinct community and natural experiences.
B.
The proposed use of any building, structure, or premises for a formula-based restaurant shall require a Special Permit from the Zoning Board of Appeals. In addition to the Special Permit Criteria in § 164-11.4, the following additional criteria shall be required:
(1)
Approval of the formula-based restaurant will not alter the character of the zoning district in a way that detracts from its uniqueness;
(2)
Approval of the formula-based restaurant will contribute to a diverse blend of businesses in the zoning district;
(3)
Approval of the formula-based restaurant will complement those businesses already in the zoning district and help promote and foster the local economic base as a whole.
(4)
The formula-based restaurant will be compatible with existing surrounding uses and has been designed and will be operated in a non-obtrusive manner to preserve the community's character, and the proposed intensity of use on the site is appropriate given the uses permitted on the site and on adjoining sites.
(5)
No drive-through windows shall be permitted.
(6)
Approval of the formula-based restaurant will 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.
§ 164-7.7 Mobile Food Establishments.
A.
Purpose. To encourage employment and small business growth by providing a broad range of food choices to the public.
B.
Requirements. Mobile Food Establishments must obtain all required permits, licenses and approvals from the Board of Health, Select Board, Building Department, Police Department, Fire Department, and any other required approvals.
§ 164-7.8 Accessory Scientific Uses.
Uses, whether or not on the same parcel as activities permitted as a matter of right, accessory to activities permitted as a matter of right, which activities are necessary in connection with scientific research or scientific development or related production, may be permitted upon the issuance of a Special Permit by the Zoning Board of Appeals, provided that the Board finds that the proposed accessory use does not substantially derogate from the public good.
§ 164-7.9 Cottage Colonies.
An existing nonconforming cottage colony may not be converted to single-family dwelling use under separate ownership unless the lot upon which each dwelling is located complies with the minimum requirements for single-family dwellings in the zoning district in which the land is located, and such nonconforming cottage colony may not be converted to a single-family use under condominium-type or cooperative ownership unless the lot meets the minimum zoning requirements for single-family dwellings in the zoning district in which the land is located.
§ 164-7.10 Apartment Development.
A.
Applicability. Apartments may be developed only in districts as provided in § 164-4.2. A Special Permit for apartments shall be granted only in accordance with Subsections B through F of this section and only upon the specific findings being made by the Zoning Board of Appeals:
(1)
By virtue of its sponsorship, financing, or design, the development will serve an important unmet housing need of the community. Any housing that is deed restricted for individuals or families that earn 80% or less of the Area Median Income (AMI) for Barnstable County shall be so restricted for a minimum of 30 years;
(2)
The development will not adversely affect business operation on the subject property within the zoning district;
(3)
The development will provide for adequate traffic circulation on and off-site, including pedestrian safety and convenience;
(4)
The development is designed to result in an appropriately lighted neighborhood, and meet the requirements of Chapter 122, Outdoor Lighting;
(5)
The development has complied with §§ 164-10.1 and 164-10.2 with, respectively, the Architectural and the Site Plan Review Committees reporting to the Zoning Board of Appeals. Building design shall provide for variation in building height between large buildings and other buildings on the same lot, or adjacent lots;
(6)
The development is consistent with the Orleans Comprehensive Plan;
(7)
The development meets all requirements of a Special Permit under § 164-11.4; and
(8)
A copy of any Special Permit application under this section shall be filed with the Planning Board when the application is filed with the Town Clerk, and the Planning Board shall review it and make recommendations to the Zoning Board of Appeals within 45 days of the filing date. The Zoning Board of Appeals shall consider any such recommendation in its review of the project.
B.
Dimensional Requirements.
(1)
Lot Area and Density.
(a)
Lot Area. Minimum lot area for apartment development shall be as follows:
RB District: 60,000 square feet of contiguous buildable upland
LB, GB Districts: 0 square feet of contiguous buildable upland
VC District: 0 square feet of contiguous buildable upland
Residential Density in dwelling units per acre of contiguous buildable upland: |
RB District: 3 dwelling units per acre
LB and GB Districts: 8 dwelling units per acre
VC District: 10 dwelling units per acre
In mixed residential and commercial developments in the GB and LB Districts, 1/2 of the total lot area that is covered by the commercial building plus the parking area required to support the commercial use, shall be subtracted from the lot area for the purposes of calculating allowed density of residential units. Any required parking that is located under or within project buildings shall increase the lot area available for calculating unit density by reducing the parking lot area required to support the commercial use. (In calculating required parking, each space shall be equal to 300 square feet of area). |
(2)
Additional Units for Meeting Community Goals.
In addition to the density allowed herein, projects with the following components that support community goals shall be allowed additional dwelling units as follows:
(a)
For each 1-bedroom dwelling unit: 1 additional 1-bedroom dwelling unit; For each Affordable Housing Unit[1]: 1 additional dwelling unit; and For each 1,500 square feet of preserved Significant Building[2]: 1 additional dwelling unit.
The above additional units may be permitted, up to a total project density of 14 dwelling units per acre of contiguous buildable upland in the VC District, and 12 dwelling units per acre of contiguous buildable upland in the GB and LB Districts.
[1]
Editor's Note: As defined in § 164-2.1.
[2]
Editor's Note: As defined in Chapter 106, Demolition of Historic Structures, of the Orleans Town Code.
(3)
Affordable Housing Requirement.
In order to further Town goals and meet the need for affordable housing, any apartment development with 10 or more dwelling units shall include 1 Affordable Housing Unit, as defined in § 164-2.1, for each 10 units of housing. Any fraction of a required Affordable Housing Unit shall be rounded up to the nearest whole unit.
C.
Other Dimensional Requirements.
The applicable district frontage and yard requirements shall be observed. With third floor housing, the building height provisions of § 164-3.11C(3) may be utilized in the Village Center, General Business and Limited Business Districts for apartment development. In such instances the mean height measured between the bottom of the eave and the highest point of the ridge on a pitched roof shall not exceed 35 feet.
D.
Design Requirements.
No structure shall contain more than 15 dwelling units, except that in the Village Center District, up to 20 dwelling units in a single structure may be allowed. No dwelling unit shall have its lowest floor below grade at any point within its entire perimeter.
E.
Nitrogen Discharge Limits.
No Special Permit shall be granted by the Zoning Board of Appeals for apartment or other multi-family housing development when the density exceeds 2 units per acre of buildable upland area unless the Board of Health certifies that the septic system can achieve an effluent nitrogen concentration of 19 milligrams per liter (mgl) or less, as measured at the point of discharge.
F.
Master Plan Special Permit.
The Zoning Board of Appeals may grant a Special Permit for phased apartment development on one or more adjacent parcels in a coordinated fashion. Review of these proposals shall conform to the requirements for a Special Permit (§ 164-11.4), Site Plan Review (§ 164-10.1), and Architectural Review (§ 164-10.2) as applicable. Additionally, the following procedures and standards shall apply:
(1)
The Master Plan Special Permit review shall run concurrently with all Special Permits required for the proposal. The other Special Permits required may include, but are not limited to, Special Permits for parking reduction (§ 164-8.1B(3)), uses allowed through Special Permit (§ 164-4.2), an increase in the number of units per structure (§ 164-7.10D), and exemptions for sidewalks (§ 164-3.11D(2)). The approval of a Master Plan Special Permit shall include all applicable Special Permits by reference and shall be administered in accordance with Subsections F(2) through (4) below.
(2)
After the initial Master Plan Special Permit is final, subsequent phases of development shall only require Site Plan approval (§ 164-10.1) if the Building Commissioner determines that the phase is consistent with the terms of the Special Permit, and that no major changes are proposed. For the purposes of this section, a major change is defined as:
(a)
An increase in the number of residential units such that it would exceed the number of residential units originally approved.
A decrease of more than 10% of the aggregate amount of parking that was originally approved.
A change that would eliminate elements of the original proposal needed in order to earn incentive housing units under § 164-7.10.B(2) (Additional Units for Meeting Community Goals).
If the Building Commissioner determines that the phase being reviewed qualifies as a major change, a modification to the original Master Plan Special Permit from the Zoning Board of Appeals pursuant to § 164-11.4 shall be required for the approval of the change.
(3)
Any Master Plan Special Permit granted under this section shall be subject to the expiration provisions of § 164-11.4 Special Permits.
(4)
For the purposes of coordinating development across multiple parcels, the Zoning Board of Appeals may treat adjacent properties as a single property for measuring setbacks and other dimensional standards. Proposed buildings, travel lanes, parking areas, and other site features may cross interior property lines or be sited closer to those lot lines than what would otherwise be allowable. The Zoning Board of Appeals shall require that these adjacent parcels be in common ownership as a condition of the Master Plan Special Permit.
G.
Tenure of Rental Units. Units that are rented shall be rented for periods of not less than 30 days.
§ 164-7.11 Dwellings in Commercial Structures or Accessory to Commercial Uses.
Up to four dwellings in commercial structures or accessory to commercial uses may be permitted on a lot either within the commercial structure or in a separate structure on the same lot where allowed under § 164-4.2, subject to the following conditions:
A.
General Requirements.
(1)
A site plan shall be submitted and reviewed as provided in § 164-10.1.
(2)
Architectural Review Committee approval is required, as provided in § 164-10.2.
(3)
Prior to occupancy of any dwelling unit in a commercial structure, screening as required in the RB, MB, LB, GB and I District regulations and as required under Site Plan approval must be installed along side and rear lot lines, except in the Village Center District.
(4)
At least 30% of the floor area on the parcel shall be used for commercial purposes.
(5)
First floor units fronting on streets shall be reserved for commercial uses.
§ 164-7.12 Accessory Dwellings.
Accessory dwellings shall be permitted subject to the following provisions:
A.
The accessory dwelling shall contain no more than 1,200 square feet of floor area.
B.
The Board of Health must have documented to the Building Commissioner that sewage disposal will be satisfactorily provided for in accordance with the provisions of Title 5 and local Board of Health regulations, including provisions for an appropriate reserve area on the site.
C.
No minimum lot size is required.
D.
The dwellings if leased shall be for periods of not less than 90 days.
§ 164-7.13 Congregate Housing.
A.
Lot area requirements. Minimum lot area per congregate housing unit shall be the same as required for any dwelling unit at that location, except that lot area per congregate housing unit need not exceed the average lot area per dwelling unit for legally existing dwellings located within 500 feet of the proposed premises.
B.
Structure size limitation. No structure shall contain more than 2 congregate housing units, except that up to 6 congregate housing units may be authorized in a single congregate dwelling if the gross floor area of the proposed structure is not more than 50% larger than that of the largest structure within 500 feet of the one proposed. Congregate dwellings located in the Residence District shall be limited to 1 congregate housing unit unless residency is restricted to persons 55 years of age or older.
C.
Locational limitation. No congregate dwelling shall be located within 1,500 feet of 2 or more other congregated dwellings authorized under these provisions.
§ 164-7.14 Open Space Residential Development.
A.
Objectives. The objectives of the Open Space Residential Development bylaw are to preserve in perpetuity open space which provides views and scenery which enhance property values and increase the town's attractiveness to vacationers and year-round residents, as well as providing wildlife habitat; and to allow greater opportunities for development harmonious with a site's existing topography and natural features.
B.
Applicability. In accordance with the procedures set forth herein, the Planning Board may approve an Open Space Residential Development on any parcel of land containing a minimum of 120,000 square feet of buildable upland.
C.
Procedure. Open Space Residential Developments may be permitted upon review and approval of the Planning Board pursuant to the applicable provisions of MGL c. 41, §§ 81K to 81GG, inclusive, and in accordance with the Town of Orleans Rules and Regulations Governing the Subdivision of Land. The Planning Board shall require the submittal of a plan showing the subdivision of the property in both clustered and conventional fashion.
D.
Design Standards for Open Space Residential Developments.
(1)
Housing Type. Only detached, single-family dwellings shall be allowed.
(2)
Lot Area. Each lot shall contain a minimum of 20,000 square feet of buildable upland and 50 feet of frontage, except that 150 feet of frontage shall be required for lots fronting on preexisting streets.
(3)
Setbacks. Minimum building setbacks shall be 25 feet from front, side and rear lot lines, except that the front setbacks from preexisting streets shall be 50 feet.
(4)
Improvements. Access, drainage, utilities and road grading shall meet functional standards equivalent to those of the Orleans Subdivision Rules and Regulations of December 1987, except that road pavement width may be reduced to 16 feet where the Planning Board finds this will be in the best interest of the town, i.e. to reduce the impact of runoff on wetlands. In such cases, the Planning Board shall make written findings of the reason waivers were granted. All other applicable sections of the Orleans Zoning Bylaw and Subdivision Rules and Regulations shall apply.
(5)
Density. The number of dwelling units on the parcel shall not exceed the maximum that would be built under ordinary residential zoning using a conventional subdivision, as demonstrated on a Preliminary subdivision plan submitted by the applicant.
(6)
Designated Open Space. Land set aside as open space shall consist of buildable upland equal or greater than 35% of the parcel's buildable upland. This area shall be set aside to be maintained as open space in perpetuity and shall not include land set aside for roads and/or parking uses. Walking trails with pervious surfaces are encouraged. When these are proposed, width and type of surface shall be shown on plans submitted to the Planning Board.
Open space shall be planned as contiguous areas wherever possible, including buffers around wetlands or boundaries of the parcel. Designated open space shall be conveyed to:
(a)
The Town, if accepted by it for park or open space use and any such acceptance is approved by the Select Board;
(b)
A nonprofit corporation, the principal purpose of which is the conservation of open space; or
(c)
A corporation or trust owned or to be owned by the owners of lots or residential units within the development.
[1]
If a corporation or trust owned by the owners of lots or residential units is utilized, ownership thereof shall pass with the conveyance of the lots or units.
In cases where the designated 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 and not be built upon for residential use or developed for accessory uses such as parking or roadways. In these cases, a management plan shall be submitted describing how the existing woods, fields, meadows or other natural areas shall be maintained in accordance with good conservation practices.
The management plan shall include an agreement empowering the town to perform maintenance of the common open space in the event of failure to comply with the maintenance program. This agreement shall provide that if the town is required to perform any maintenance, the owners of lots or units within the Open Space Residential Development shall pay any costs and that cost shall constitute a lien upon their properties until said cost has been paid.
(7)
All dwellings and accessory buildings erected under the provisions of this section shall conform to all other provisions of this bylaw not addressed in this section.
§ 164-7.15 Commercial and Non-Commercial Wind Energy Facilities.
A.
Purpose. The purpose of this bylaw is to minimize the adverse impacts of wind turbines on the character of neighborhoods, property values, scenic, historic, environmental resources of the Town; and to protect health and safety while allowing wind energy technologies to be utilized.
B.
Applicability. Any application to erect a structure that utilizes energy from the wind shall comply with this section.
C.
Requirements.
(1)
No Wind facility shall be erected, constructed or installed without approval under § 164-10.1, Site Plan Review and the issuance of a Special Permit from the Zoning Board of Appeals.
(2)
Minimum lot area. Wind facilities shall be located on a parcel of land that contains at least 5 acres of land, of which at least 4 acres must be buildable upland.
(3)
Height. The height of any wind turbine as measured from average grade shall be less than 300 feet and have a minimum blade clearance from the ground immediately below each wind turbine of 30 feet. A waiver from this provision may be granted if the Zoning Board of Appeals makes a finding that the additional height is necessary for adequate operation of the wind facility.
(4)
Height calculation. For purposes of calculating the overall height of a wind turbine, the total height shall be measured from average grade to the uppermost extension of any blade or the maximum height reached by any part of the wind turbine.
(5)
Setbacks from adjacent parcels. A minimum setback for each wind turbine shall be maintained equal to the overall engineer designed fall zone plus 100 feet, or 300 feet, whichever is greater, from all boundaries of the site on which the wind facility is located.
(6)
Fencing. Shall be provided to control access to the site of the wind turbine and related structures.
(7)
Signs. There shall be no signs except a sign identifying the wind facility, the owner and operator and an emergency telephone number; no-trespassing signs; and any signs required to warn of danger. All signs shall comply with the requirements of the Zoning Bylaw.
(8)
Noise. Except during short-term events such as high windstorms or utility outages, noise from the proposed wind turbine shall not exceed 60 dBA as measured from the nearest property line. This standard can be achieved through a 600 foot setback from any property line or must be otherwise demonstrated by the applicant through scientific analysis to the satisfaction of the Zoning Board of Appeals.
(9)
Removal. The owner shall remove any wind facility that's use has been abandoned or discontinued for 12 months. If removal is required, all wind turbines and appurtenant structures shall also be removed and the wind facility site shall be re-vegetated. The Zoning Board of Appeals may require that an escrow account be established and annual deposits made to ensure adequate funds are available for removal.
(10)
Communications. A wind turbine may be used as a communication structure, subject to the requirements of § 164-7.18 herein.
D.
Non-Commercial Wind Facilities. When issuing a Special Permit for a non-commercial wind facility, the Zoning Board of Appeals may waive any of the requirements of Subsection C herein, provided the Board finds that the criteria for issuance of a Special Permit as set forth in § 164-7.18 are met.
§ 164-7.16 Open-Air Art Businesses.
No person shall operate a commercial open-air or sidewalk art business, including painting, sketching, silhouetting or molding of likenesses or objects of any material, within 15 feet of the side line of a public street or sidewalk except in a Business District on Special Permit by the Zoning Board of Appeals.
§ 164-7.17 Commercial Regulations.
Commercial uses requiring Special Permits under § 164-4.2, if consistent with this section in all other respects, shall be authorized only if the Zoning Board of Appeals determines that the proposal's benefits to the town or vicinity will outweigh any adverse effects, after consideration of the following:
A.
Locations are best if:
(1)
The proposal will be located near uses which are similar to the proposed use, or, if not, the nearby uses will be ones likely to benefit from rather than be damaged by having the proposed activity nearby.
(2)
They are not more sensitive to environmental stress from erosion, siltation, groundwater or surface water contaminants or habitat disturbance than are most similarly zoned locations.
B.
Activity type and mix are best if:
(1)
The proposed activity will contribute to the diversity of services available in the town.
(2)
The proposed activity will provide service to the town's year-round residents and will strengthen off-season employment opportunities.
(3)
The proposal will add relatively little to summer traffic congestion in relation to its size, considering the location, the number of single-purpose trips likely to be attracted and any special access provisions committed, e.g. bike-storage facilities, employee ride sharing.
(4)
The proposal poses no environmental hazard because of use or storage of explosive, flammable, toxic or radioactive materials.
(5)
The proposal will not result in air pollution or excessive noise.
C.
Site design is best if:
(1)
Scenic views from public ways and other developed properties are considerately treated in the design of the site.
(2)
Topographic change is minimized.
(3)
Unnecessary removal of existing trees or other important natural features is avoided.
(4)
Pedestrian movement within the site and to other places is well provided for.
(5)
Vehicular movement within the site is safe and convenient and arranged so as not to disturb abutting properties.
(6)
Visibility of parking and service areas from public streets is minimized through facility location and the use of topography and vegetation.
(7)
Potential disturbances such as noise, glare and odors are effectively confined to the premises through buffering or other means.
D.
Facility design is best if:
(1)
Scenic views from public ways and other developed properties are considerately treated in the design of buildings.
(2)
Primary exterior materials match the appearance of materials commonly found on existing buildings within the town (not to be construed by the Zoning Board of Appeals as authority to regulate or restrict materials regulated by the State Building Code).
(3)
Domestic scale is produced in the building's design through massing devices such as breaks in wall and roof planes and through the design of architectural features.
§ 164-7.18 Communication Structures, Buildings and Appurtenances.
A.
Purpose. The purpose of this Bylaw is to minimize adverse impacts of communication structures, towers, monopoles, buildings and appurtenances on adjacent properties and residential neighborhoods; to limit the number and height of such facilities to only what is essential; to protect, to the maximum extent practicable, the rural character and aesthetic qualities of the Town of Orleans, the property values of the community and the health and safety of citizens.
B.
Exemptions.
The following uses and activities are specifically exempt from this bylaw.
(1)
Antennas used by a federally licensed amateur radio operator for that sole purpose.
(2)
Communication appurtenances for governmental uses.
(3)
Television antennas - see § 164-2.1 definition of Building Height.
C.
Requirements.
(1)
No Communication tower, monopole, building, or appurtenance shall be erected, constructed, or installed without first submitting a plan to the Site Plan Review Committee as described in § 164-10.1.
(2)
Setbacks. Any supporting structure for a communication tower or monopole, such as a guy wire, shall be set back a minimum of 25 feet from any property line.
(a)
Setbacks for communication towers and monopoles shall be equal to the engineered design fall zone of the structure plus 50 feet to any property line where the structure is located.
(b)
Communication towers and monopoles shall provide a minimum setback equal to the height of the structure plus 100 feet from any residential zoning district.
(c)
The setbacks for a communication building shall comply with the setback requirements of the underlying zoning district unless otherwise regulated by § 164-5.3.E.
(3)
Safety. Communication structures, buildings and appurtenances shall be installed, maintained and operated in accordance with applicable federal, state, local codes, standards and regulations and shall be designed to withstand sustained winds and gusts of a Category 5 hurricane.
(4)
Removal. Communication structures, buildings or appurtenances that have not been operated for 4 consecutive months shall be removed by the owner within 6 months of the cessation of the originally permitted use.
(5)
Fencing. Fencing shall be provided to control access to the site of the communication structure (except guy wires) and buildings. Fencing is not required for antennas or other appurtenances mounted on a pre-existing structure.
(6)
Lighting. Communication structures and appurtenances shall be lighted only if required by the Federal Aeronautics Administration (FAA). Communication buildings and the site may be lighted for safety and security reasons. All lighting shall be shielded to prevent undue impact on the surrounding neighborhood.
(7)
Signs. There shall be no signs except a sign identifying the facility, the owner and operator, and an emergency telephone number; no-trespassing sign; and any signs required to warn of danger. All signs shall comply with the requirements of the Zoning Bylaw.
(8)
Visual. The installation of communication structures, building and appurtenances shall be designed to minimize visual impact; the maximum amount of natural vegetation shall be preserved; details of construction and finish shall blend with the surroundings; additional vegetation screening shall be employed where practical and particularly to screen abutting residential properties. All communications buildings require the approval of the Architectural Review Committee as described in § 164-10.2.
(9)
Height.
The following are maximum height restrictions for all communication structures and appurtenances.
(a)
Communication Towers: 150 feet.
(b)
Communication Monopole: 75 feet in the General Business zone, 150 feet in the Industrial zoning district.
(c)
Communication Appurtenance: 10 feet above the existing structure.
[1]
The height of communications structures, including antennas, microwave dishes, wiring or other devices attached thereto, shall be determined by measuring from the elevation of the naturally existing grade at the foundation of the structure to the highest point of the structure.
Proposed communications structures and appurtenances that are higher than the maximum heights listed above can only be authorized by a Special Permit issued by the Zoning Board of Appeals.
(10)
Regional Criteria. Siting shall be consistent with regional siting criteria established by the Cape Cod Commission.
(11)
Siting Standards.
(a)
Communication structures and appurtenances shall, if feasible, be located on pre-existing structures, provided such installation shall preserve the character of the structure and painted or designed in such a way that its visibility is minimized to the maximum extent feasible.
(b)
If there are no feasible pre-existing structures, then communication monopoles or towers, buildings and appurtenances shall, if feasible, be located on public land.
(c)
To the extent feasible, all service providers shall co-locate on communication structures. Communication structures shall be designed to structurally accommodate the maximum number of foreseeable users (within a 10-year period) if technically practicable.
D.
Procedures. Prior to applying for a Special Permit or building permit for the construction of a communications structure, building, or appurtenance, the applicant must receive the approval of the Site Plan Review Committee as described in § 164-10.1.
In addition to the information required in § 164-10.1 the applicant shall also provide the following to the Site Plan Review Committee and, if a Special Permit is required, to the Zoning Board of Appeals:
(1)
A statement of the services to be supported by the proposed communication structure, building or appurtenance;
(2)
A description of the special design features utilized to minimize the visual and noise impacts of the proposed communication structure, building and appurtenances;
(3)
A certification that the applicant has complied with all federal and state requirements to provide the proposed service;
(4)
A description of efforts to co-locate on existing and proposed structures, or consolidate telecommunications antennas of public and private services onto the proposed facility;
(5)
A landscape plan showing the proposed site before and after development including topography and screening proposed to minimize adverse visual impacts to abutting properties;
(6)
If a communications tower or monopole is proposed, prior to the meeting with the Site Plan Review Committee, the applicant shall arrange to fly a brightly colored 3-foot diameter balloon at the site that is at the maximum height of the proposed installation. The date and location of the flight shall be advertised at least 14 days, but not more than 21 days, before the flight in a newspaper with a general circulation in the Town of Orleans. The applicant shall provide written notification to the Site Plan Review Committee, at least 10 days in advance, of the time and date of the flight.
(7)
Following completion of the site plan review process the applicant should proceed with applying for a Special Permit, if required, as described in § 164-10.1 or a building permit.
§ 164-7.19 Amateur Radio Towers.
A.
Purpose. The purpose of this bylaw is to provide for the minimum practicable regulation necessary to protect the health, safety, and aesthetics of the Town of Orleans from potential negative impacts resulting from the installation and use of amateur radio towers.
B.
Requirements.
(1)
Setbacks. Any supporting structure for an amateur radio tower, such as a guy wire, shall be set back a minimum of 25 feet from any property line. Any amateur radio tower shall be setback a distance equal to the engineered fall zone for the tower from any property line.
(2)
Safety. Amateur radio towers shall be installed, maintained, and operated in accordance with applicable federal, state, and local codes, standards and regulations.
(3)
Access Control. Fencing, an anti-climbing device, or other form of access control determined by the building commissioner to be adequate to protect public safety shall be provided.
(4)
Lighting. Amateur radio towers shall be lighted only if required by the Federal Aviation Administration (FAA).
(5)
Aesthetics. Amateur radio towers shall be designed and installed to minimize visual impact; the maximum amount of natural vegetation shall be preserved; the design and finish of the tower shall be made to blend with the surroundings to the greatest extent practicable.
(6)
Height. The height of an amateur radio tower shall not exceed that which is necessary to effectively accommodate amateur radio communications. Amateur radio towers exceeding 35 feet in height shall require a Special Permit granted by the Zoning Board of Appeals subject to § 164-11.4.
§ 164-7.20 Medical Marijuana Facilities.
A.
Purposes.
(1)
To provide for the establishment of Medical Marijuana Facilities in appropriate places and under strict conditions in accordance with the Humanitarian Medical Use of Marijuana Act, MGL c. 94C, App. § 1-1, et seq. and the Department of Public Health Regulations promulgated thereunder, 105 CMR 725.000 et seq.
(2)
To minimize the adverse impacts of Medical Marijuana Facilities on adjacent properties, residential neighborhoods, schools, and other places where children congregate, local historic districts, and other land uses potentially incompatible with said Facilities.
(3)
To regulate the siting, design, placement, security, safety, monitoring, modification, and removal of Medical Marijuana Facilities.
B.
Applicability.
(1)
The commercial cultivation [unless it meets the requirements for an agricultural exemption under MGL c. 40A, § 3], production, processing, assembly, packaging, retail or wholesale sale, trade, distribution or dispensing of marijuana for medical use is prohibited unless permitted as a Medical Marijuana Facility under this section.
(2)
No Medical Marijuana Facility shall be established except in compliance with the provisions of this section.
(3)
Nothing in this Bylaw shall be construed to supersede federal and state laws governing the sale and distribution of narcotic drugs.
(4)
Medical Marijuana Facilities, other than agricultural operations meeting exemption standards under MGL c. 40A, § 3, may be allowed by Special Permit from the Zoning Board of Appeals in accordance with § 164-4.2, Schedule of Use Regulations.
C.
General Requirements for Medical Marijuana Facilities.
(1)
All non-exempt Medical Marijuana Facilities shall be contained within a building or structure.
(2)
A Medical Marijuana Facility shall not be located in buildings that contain any medical doctor offices or the offices of any other professional practitioner authorized to prescribe the use of medical marijuana.
(3)
The hours of operation of a Medical Marijuana Facility shall be set by the Zoning Board of Appeals, but in no event shall said Facility be open and/or operating between the hours of 8:00 PM and 8:00 AM.
(4)
No Medical Marijuana Facility shall be located within 500 feet of any lot with a school, or day care facility or other site where children commonly congregate as defined in 105 CMR 725.110(A)(14).
(5)
No smoking, burning or consumption of any product containing marijuana or marijuana-related products shall be permitted on the premises of a Medical Marijuana Facility.
(6)
No Medical Marijuana Facility shall be located inside a building containing residential units.
(7)
A Medical Marijuana Facility shall provide the Zoning Board of Appeals with the names, phone numbers and email addresses of all management staff and key holders to whom one can provide notice if there are operating problems associated with the establishment.
(8)
Special Permits shall remain exclusively with the applicant, who shall be the owner or lessee of the premises described in the application. The Special Permit shall terminate automatically on the date the applicant alienates that title or leasehold interest in the premises.
(9)
Special Permits shall be valid for a period of 3 years from the date of the decision. It shall be renewed for successive 3-year periods provided that a written request for renewal is made to the Zoning Board of Appeals not less than 3 months prior to the expiration of the then-existing 3-year period.
Publication of notice of said request shall be made in the same manner as would be required for an original application for a Special Permit. Said notice shall state that the renewal request will be granted unless, prior to the expiration of the then-existing permit, a written objection to the renewal, stating reasons, is received by the Zoning Board of Appeals. In the event of such an objection, a hearing on the renewal shall be held and shall proceed in a manner identical to the course of proceedings in connection with an original permit application.
The Special Permit shall remain in effect until the conclusion of the public hearing and decision of the Zoning Board of Appeals either granting or denying the Special Permit renewal. In granting the renewal, the Zoning Board of Appeals may impose additional conditions, including, without limiting the foregoing, time limits to correct violations, hours of operation and additional screening, upon which a specific lapse of time without correction or compliance shall result in a revocation of the permit.
D.
Special Permit Requirements.
(1)
A Medical Marijuana Facility shall only be allowed by Special Permit from the Zoning Board of Appeals in accordance with MGL c. 40A, § 9, and § 164-11.4 of this bylaw, subject to the following statements, regulations, requirements, conditions and limitations.
(2)
A Special Permit application for a Medical Marijuana Facility shall include the following:
(a)
the name and address of each owner of the facility;
(b)
copies of all required licenses and permits issued to the applicant by the Commonwealth of Massachusetts and any of its agencies for the Facility;
(c)
evidence of the Applicant's right to use the site of the Facility for the Facility, such as a deed, or lease;
(d)
if the Applicant is a business organization, a statement under oath disclosing all of its owners, shareholders, partners, members, managers, directors, officers, or other similarly-situated individuals and entities and their addresses. If any of the above are entities rather than persons, the Applicant must disclose the identity of the owners of such entities until the disclosure contains the names of individuals;
(e)
Proposed security measures for the Medical Marijuana Facility, including lighting, fencing, gates and alarms, surveillance cameras, etc., to ensure the safety of persons and to protect the premises from theft. Vehicular access to all sides of the building for security shall be provided.
E.
Mandatory findings.
(1)
The Zoning Board of Appeals shall not issue a Special Permit for a Medical Marijuana Facility unless it finds that:
(a)
the Facility is designed to minimize any adverse visual or economic impacts on abutters and other parties in interest, as defined in MGL c. 40A, § 11;
(b)
the Facility demonstrates that it will meet all the permitting requirements; and
(c)
the applicant has satisfied all of the General and Special Permit Requirements of this section and § 164-11.4.
(2)
The Board shall require the applicant to post a bond at the time of construction to cover costs for the removal of the Medical Marijuana Facility in the event the Town must remove the facility. The value of the bond shall be developed based upon the applicant providing the Zoning Board of Appeals with 3 written bids. An incentive factor of 1.5 shall be applied to all bonds to ensure compliance and adequate funds for the town to remove the Facility at prevailing wages.
F.
Abandonment and Discontinuance of Use. A Medical Marijuana Facility shall be required to remove all material, plants equipment and other paraphernalia:
(1)
prior to surrendering its state issued licenses or permits; or
(2)
within 6 months of ceasing operations; whichever comes first.
§ 164-7.21 Marijuana Establishments.
A.
Purposes.
(1)
To provide for the placement of marijuana establishments in appropriate places and under strict conditions in accordance with MGL c. 94G, Regulation of the Use and Distribution of Marijuana Not Medically Prescribed, and the Cannabis Control Commission regulations promulgated thereunder, 935 CMR 500.000.
(2)
To minimize the adverse effects of marijuana establishments on adjacent properties, residential neighborhoods, schools and other places where children congregate, and other land uses potentially incompatible with said establishments.
(3)
To regulate the siting, design, placement, security, safety, monitoring, modification, and removal of marijuana establishments.
B.
Applicability.
(1)
No ME shall be established except in compliance with the provisions of this section.
(2)
Pursuant to MGL c. 94G, § 3(a)(2), the number of Marijuana Retailers shall be limited to 2 establishments in Orleans, each required to be an unrelated, licensed entity.
(3)
Nothing in this bylaw shall be construed to supersede federal and state laws governing the sale and distribution of narcotic drugs.
C.
General requirements for marijuana establishments.
(1)
A ME shall be contained within a building or structure, except open-air marijuana cultivator which may be allowed in accordance with § 164-4.2, Schedule of Use Regulations.
Marijuana plants, products, and paraphernalia shall not be clearly visible to a person from the exterior of a ME.
(2)
No ME shall be located within 500 feet of a pre-existing public or private school providing education in kindergarten or any of grades 1 through 12. Distance shall be measured in a straight line from the nearest point of the property line in question to the nearest point of the property line where the ME is or will be located.
(3)
The hours of operation of a Marijuana Retailer shall not exceed the Alcoholic Beverages Control Commission (ABCC) maximum hours of operation for liquor licenses not to be drunk on premises pursuant to MGL c. 138, § 15, but may be limited by conditions of the Special Permit.
(4)
No smoking, burning or consumption of any product containing marijuana or marijuana-related products shall be permitted on the premises of a ME.
(5)
A ME shall provide the Zoning Board of Appeals with the names, phone numbers and email addresses of all management staff and key holders to whom one can provide notice if there are operating problems associated with the establishment. The applicant shall also provide a statement from the Orleans Police Department verifying completion of background checks by the Cannabis Control Commission.
(6)
Special Permits shall remain exclusively with the applicant, who shall be the owner or lessee of the premises described in the application. The Special Permit shall terminate automatically on the date the applicant alienates that title or leasehold interest in the premises.
(7)
Special Permits shall be valid for a period of 3 years from the date of the decision. A Special Permit shall be renewed for successive 3-year periods provided that a written request for renewal is made to the Zoning Board of Appeals not less than 3 months prior to the expiration of the then-existing 3-year period.
Publication of notice of said request shall be made in the same manner as would be required for an original application for a Special Permit. Said notice shall state that the renewal request will be granted unless, prior to the expiration of the then-existing permit, a written objection to the renewal, stating reasons, is received by the Zoning Board of Appeals. In the event of such an objection, a hearing on the renewal shall be held and shall proceed in a manner identical to the course of proceedings in connection with an original permit application.
The Special Permit shall remain in effect until the conclusion of the public hearing and decision of the Zoning Board of Appeals either granting or denying the Special Permit renewal, including the outcome of any appeal under MGL c. 40A, § 17. In granting the renewal, the Zoning Board of Appeals may impose additional conditions, including, without limiting the foregoing, time limits to correct violations and hours of operation, upon which a specific lapse of time without correction or compliance shall result in a denial of the renewal.
D.
Special Permit Requirements.
(1)
A ME shall only be allowed by Special Permit from the Zoning Board of Appeals in accordance with MGL c. 40A, § 9, and § 164-11.4 of this bylaw, subject to the following statements, regulations, requirements, conditions and limitations.
(2)
A Special Permit application for a ME shall include the following:
(a)
The name and address of each owner of the ME;
Copies of all required licenses and permits issued to the applicant by the Commonwealth of Massachusetts and any of its agencies for the marijuana establishment;
Evidence of the applicant's right to use the site of the ME for the ME use, such as a deed, or lease;
If the applicant is a business organization, a statement under oath disclosing all of its owners, shareholders, partners, members, managers, directors, officers, or other similarly-situated individuals and entities and their addresses. If any of the above are entities rather than persons, the applicant must disclose the identity of the owners of each such entity until the disclosure contains the names and addresses of individuals;
Proposed security measures for the ME, including lighting, fencing, gates and alarms, surveillance cameras, etc., to ensure safety and security from theft or fire. Such measures shall be sent by the applicant to the Police and Fire Chiefs for review and comment.
E.
Mandatory findings.
(1)
The Zoning Board of Appeals shall not issue a Special Permit for a ME unless it finds that:
(a)
The facility is designed to address any environmental, visual, noise, odor, traffic or economic impacts on abutters and other "parties in interest," as defined in MGL c. 40A, § 11;
(b)
The facility demonstrates that it has met all the permitting requirements; and
(c)
The applicant has satisfied all of the general and special permit requirements of this section and § 164-11.4.
F.
Severability. The invalidity of any section or provision of this section shall not invalidate any other section or provision thereof.