Town of Newbury, MA REGULATIONS OF OVERLAY DISTRICTS

Purpose:

To promote the health, safety, and general welfare of the community by ensuring an adequate quality and quantity of drinking water for the residents, institutions, and businesses of the Town of Newbury;

To preserve and protect existing and potential sources of drinking water;

To conserve the natural resources of the Town of Newbury; and

To prevent temporary and permanent contamination of the environment.

Allowed Uses:

Residential development, subject to § 97-3C(2) (Prohibited Uses) and § 97-3C(3) (Uses and Activities by Special Permit);

Maintenance, repair, and enlargement of any existing structure, subject to § 97-3C(2) (Prohibited Uses) and § 97-3C(3) (Uses and Activities by Special Permit;

Farming, gardening, nursery, conservation, forestry, harvesting, and grazing, subject to § 97-3C(2) (Prohibited Uses) and § 97-3C(3) (Uses and Activities by Special Permit;

Normal operation and maintenance of existing water bodies and dams, splash boards, and other water control, supply, and conservation devices;

Construction, maintenance, repair, and enlargement of drinking water supply related facilities such as, but not limited to, wells, pipelines, aqueducts, and tunnels. Underground storage tanks related to these activities are not categorically permitted;

Foot, bicycle, and/or horse paths, and bridges;

Nature study and outdoor recreation, including play areas, boating, fishing, swimming, and hunting where otherwise legally permitted;

Conservation of soil, water, plants, and wildlife;

[Amended 5-23-2006 ATM Art. 17]

(i)

Religious or Non-profit Educational Uses;

(j)

Non-profit Community and/or Neighborhood Centers;

(k)

Retail stores, established for the benefit and convenience of the local general public provided such use is a permitted use in the underlying zoning district;

(l)

Restaurants without "drive-thru" facilities or taverns provided such use is a permitted use in the underlying zoning district;

(m)

Business, professional and general offices provided such use is a permitted use in the underlying zoning district.

Prohibited Uses:

Landfills and open dumps as defined in 310 CMR 19.006;

Storage of liquid petroleum products, except for the following:

Normal household use, outdoor maintenance, and heating of a structure;

Waste oil retention facilities required by MGL Chapter 21, Section 52A;

Emergency generators required by statute, rule, or regulation;

Treatment works approved under 314 CMR 5.00 for treatment of ground or surface waters, provided that storage, listed in items § 97-4B(3)(b) 01) through § 97-4B(3)(b) 04) above is in free-standing containers within buildings or above ground with secondary containment adequate to contain a spill the size of the container's total storage capacity.

Landfills receiving only wastewater residuals and/or septage (wastewater residuals "monofills") approved by the Department pursuant to MGL. c. 21, section 26 through 53; MGL. c. 11 section 17; MGL. c. 83, sections 6 and 7, and any regulations promulgated hereunder;

Storage of de-icing chemicals unless such storage, including loading areas, is within a structure designed to prevent the generation and escape of contaminated runoff or leachate;

Storage of animal manure unless covered or contained so as to prevent the escape of contaminated leachate or runoff in accordance with the specifications of the Natural Resources Conservation Services;

Earth removal, consisting of the removal of soil, loam, sand, gravel, or any other earth material (including mining activities) to within 6 feet of historical high groundwater as determined from monitoring wells and historical water table fluctuation data compiled by the United States Geological Survey, except for excavations for building foundations, roads, utility works, freshwater ponds, and individual sewage disposal systems;

Facilities that generate, treat, store, or dispose of hazardous waste subject to MGL Chapter 21C and 310 CMR 30.00, except the following:

Very small quantity generators as defined under 310 CMR 30.00;

Household hazardous waste collection centers and events operated pursuant to 310 CMR 30.390;

Waste oil retention facilities required by MGL Chapter 21, Section 52A;

Water remediation treatment works approved under 314 CMR 5.00 for the treatment of contaminated ground or surface waters;

Automobile graveyards and junkyards, as defined in MGL Chapter 140B, Section 1;

(i)

Truck terminals, truck maintenance terminals, bus maintenance terminals, commercial car washes;

(j)

Discharge to the ground of non-sanitary waste water including industrial and commercial process waste water except:

Replacement or repair of an existing treatment works that will not result in a design capacity greater than the design capacity of the existing treatment works;

Treatment works approved by the Massachusetts Department of Environmental Protection designed for the treatment of contaminated ground or surface water operating in compliance with 314 CMR 5.05(3) or 5.05(13);

Storage of liquid hazardous materials, as defined in MGL Chapter 21E, unless in a free-standing container within a building or above ground with secondary containment adequate to contain a spill the size of the container's total storage capacity;

Industrial and commercial uses which discharge process wastewater on site;

Stockpiling and disposal of snow and ice containing de-icing chemicals if brought in from outside the District;

Storage of commercial fertilizers and soil conditioners, as defined in MGL Chapter 128, Section 64, unless such storage is within a structure designed to prevent the generation and escape of contaminated leachate or runoff;

07)

Use of septic system cleaners which contain toxic or hazardous chemicals.

(k)

Public works department and garage;

[Added 5-24-2011 ATM, Art. 23]

(l)

Cemetery, municipal or private;

[Added 5-24-2011 ATM, Art. 23]

(m)

Contractor’s yard.

[Added 5-24-2011 ATM, Art. 23]

Uses and Activities By Special Permit

District boundary disputes:

If the location of the District boundary in relation to a particular parcel is in doubt or dispute, resolution of the boundary dispute shall be through a Special Permit application to the Zoning Board of Appeals. Any application for a special permit for this purpose shall be accompanied by adequate documentation;

The burden of proof shall be upon the owner(s) of the parcel in question to show where the bounds should properly be located. At the request of the owner(s), the Town may engage a professional civil or sanitary engineer, hydrologist, geologist, or soil scientist to determine more accurately the boundaries of the District with respect to individual parcels of land, and may charge the owner(s) for all or part of the cost of the investigation;

The determination of the location and extent of Zone II shall be in conformance with the criteria set forth in 310 CMR 22.00 and in the DEP's Guidelines and Policies for Public Water Systems.

The following uses and activities are allowed only upon the issuance of a Special Permit by the Board of Selectmen under such conditions as the Board may require:

Enlargement or alteration of existing uses that do not conform to the Water Supply Protection District;

Construction of dams or other water control devices, ponds, pools, or other changes in water bodies or courses, created for swimming, fishing, or other recreational uses, agricultural uses, or drainage improvements. Such activities shall not adversely affect water quality or quantity;

Any use that will render impervious more than 15% or 2,500 square feet of any lot, whichever is greater. A system for groundwater recharge must be provided which does not degrade groundwater quality. For non-residential uses, recharge shall be by stormwater infiltration basins or similar systems covered with natural vegetation, and dry wells shall be used only where other methods are infeasible. For all non-residential uses, all such basins and wells shall be preceded by oil, grease, and sediment traps to facilitate removal of contamination. Any and all recharge areas shall be permanently maintained in full working order by the owner.

Indoor and outdoor recreation areas and facilities, including, but not limited to, play grounds, health and fitness centers, miniature golf, golf driving range, batting cage, tennis courts, skating rink, boating, fishing, swimming, and hunting where otherwise legally permitted;

[Added 5-24-2011 ATM, Art. 23]

Establishment selling, servicing, and/or renting new and/or used automobiles, trucks, aircraft, boats, motorcycles, and household and camping trailers, and enclosed repair facilities accessory thereto;

[Added 5-24-2011 ATM, Art. 23]

Funeral home or mortuary establishments;

[Added 5-24-2011 ATM, Art. 23]

07)

Mini-storage warehouses;

[Added 5-24-2011 ATM, Art. 23]

08)

Boat building/sales/service/storage/rental/transport.

[Added 5-24-2011 ATM, Art. 23]

Procedures for issuance of special permit.

A special permit shall be granted if the Board of Selectmen determines, in conjunction with the Board of Health, the Conservation Commission, the Board of Water Commissioners, and the Planning Board, that the intent of this bylaw, as well as its specific criteria, are met. The Board of Selectmen shall not grant a special permit under this section unless the petitioner's application materials include, in the Board's opinion, sufficiently detailed, definite, and credible information to support positive findings in relation to the standards given in this section. The Board of Selectmen shall document the basis for any departures from the recommendations of other Town boards in its decision.

Upon receipt of the special permit application, the Board of Selectmen shall transmit one copy each to the Board of Health, the Conservation Commission, the Board of Water Commissioners, and the Planning Board for their written recommendations. Failure to respond in writing within 35 days of receipt shall indicate approval or no desire to comment by said agencies, The requisite five (5) copies of the special permit application shall be furnished by the applicant.

The Board of Selectmen may grant the required special permit only upon finding that the proposed use meets the following standards, those specified in § 97-11C of this bylaw, and any regulations or guidelines adopted by the Board of Appeals. The proposed use must:

In no way, during construction or thereafter, adversely affect the existing or potential quality or quantity of water that is available in the Water Supply Protection District; and

Be designed to avoid substantial disturbance of the soils, topography, drainage, vegetation, and other water-related natural characteristics of the site to be developed.

The Board of Selectmen may adopt specific requirements to govern design features of projects. Such requirements shall be consistent with all subdivision regulations adopted by the Planning Board.

The applicant shall file five (5) copies of a site plan and attachments. The site plan shall be drawn at a proper scale as determined by the Board of Appeals and be stamped by a professional engineer. All additional submittals shall be prepared by qualified professionals. The site plan and its attachments shall include, at a minimum, the following information where pertinent:

A non-refundable application fee of $500, plus $1000 or sufficient funds, as determined by the Board of Appeals, to ensure review of the plan as needed by independent engineers or other professions as provided in MGL Chapter 44 Section 53G. Said review fees shall be used only for engineering or other professional services related to the review of the permit application.

A complete list of chemicals, pesticides, herbicides, fertilizers, fuels, and other potentially hazardous materials to be used or stored on the premises in quantities greater than those associated with normal household use.

For those activities using or storing such hazardous materials, a Hazardous Materials Management Plan shall be prepared and filed with the Board of Health and Fire Chief. The Plan shall include:

Provisions to protect against the discharge of hazardous materials or wastes to the environment due to spillage, accidental damage, corrosion, leakage, or vandalism, including spill containment and cleanup procedures;

Provisions for indoor, secured storage of hazardous materials and wastes on impervious floor surfaces;

Evidence of compliance with the Regulations of the Massachusetts Hazardous Waste Management Act 310 CMRa 30.00, including obtaining an EPA identification number from the Massachusetts Department of Environmental Protection;

Proposed down-gradient location(s) for groundwater monitoring well(s), should the Board of Selectmen deem the activity a potential groundwater threat;

The Board of Selectmen shall hold a hearing, in conformity with the provision of MGL Chapter 40A, Section 9, within 65 days after the filing of the application and after the review by the Town Boards, Departments, and Commissions. Notice of the public hearing shall be given by publication and posting and by first-class mailings to "parties of interest" as defined in MGL Chapter 40A, Section 11. The decision of the Board of Selectmen and any extension, modification, or renewal thereof shall be filed with the Board and Town Clerk within 90 days following the closing of the public hearing. Failure of the Board to act within 90 days shall be deemed as a granting of the permit. However, no work shall commence until a certification is recorded as required by said Section 11;

Written notice of any violations of this Section shall be given by the Building Inspector to the responsible person as soon as possible after detection of a violation or a continuing violation. Notice to the assessed owner of the property shall be deemed notice to the responsible person. Such notice shall specify the requirement or restriction violated and the nature of the violation, and may also identify the actions necessary to remove or remedy the violations and preventive measures required for avoiding future violations and a schedule of compliance. A copy of such notice shall be submitted to the Board of Health, Conservation Commission, Water Department, and Planning Board. The cost of containment, cleanup, or other action of compliance shall be borne by the owner and operator of the premises. For situations that require remedial action to prevent adverse impact to the water resources within the Water Supply Protection District, the Building Inspector, the Board of Health, or their agents, may order the owner or operator of the premises to remedy the violation. If said owner and/or operator fails to comply with said order, the Building Inspector, the Board of Health, or their agents, if authorized to enter upon such premises under the terms of the special permit or otherwise, may act to remedy the violation. The cost of remediation shall be the sole responsibility of the owner and operator of the premises.

Wireless Communications Facilities.

[Added 4-24-2001 ATM, Art. 26; amended 6-26-2001 STM, Art. 7; 5-24-2011 ATM, Art. 23; 4-23-2019 ATM, Art. 22; 4-26-2022 ATM, Art. 21]

Purpose:

The purpose of this Zoning Bylaw is to establish regulations for the placement, construction and modification of Wireless Communications Facilities (WCF) through which Wireless Communications Services (WCS) may be provided while preserving and protecting the public health, safety and general welfare. Specifically, these WCF regulations have been created to:

Protect the general public from hazards associated with WCFs;

Minimize visual impacts from WCFs;

Protect the scenic, historic, natural and human-made resources of the Town;

Protect property values;

Enable the provision of Personal Wireless Services (PWS) in a manner consistent with federal law;

Enable the town to enjoy the benefits of an effective wireless communications infrastructure.

Tower Use Restrictions.

A Wireless Communications Tower District (WCTD) has been created to enable wireless communications services to operate on tower-mounted facilities. A Wireless Communications Tower (WCT) may be erected by special permit in the following locations:

Business/Light Industrial District.

New WCTs are allowed by Special Permit and site plan review and approval from the Planning Board in the WCTD, initially for the deployment of Personal Wireless Service Facilities (PWSF), pursuant to the Town of Newbury Zoning By-Laws and subject to the criteria and to site plan approval as set forth in this Zoning By-Law. Additional WCFs, including without limitation, PWSFs, may be added to lawfully existing WCTs through the Special Permit process and/or the Eligible Facilities Request process, as applicable. Approval of a new WCF is subject to the following determinations by the Planning Board:

The benefits to the Town outweigh any adverse effects of the proposed tower and facility in view of the particular characteristics of the site and its surroundings.

The communications needs served by the proposed WCT are of substantial benefit to the Town;

Traffic flow and safety, including parking and loading are not significantly impacted;

The proposed WCT does not significantly impact the adequacy of utilities and other public services;

The proposed WCT does not significantly impact neighborhood character and natural environment, including, without limitation, aesthetics, visual blight and noise;

The proposed facility is consistent with the requirements of Site Plan Review set forth in § 97-9;

Potential fiscal impacts, including impacts on Town services, tax base and employment are not detrimental;

(8)

Potential hazards due to radio frequency energy, operations (such as falling object risks), traffic and other relevant factors, are appropriately addressed.

A WCT may be erected only in the WCTD, subject to the following conditions:

To the extent feasible, all PWS providers shall collocate their antennas on a single tower, unless limiting a tower's collocation capacity produces a demonstrably better result, singly and collectively, balancing the visual and other impacts of a single tall tower with the potential impacts of multiple shorter towers or other solutions to address the needs of providing service to an area of Town. Towers shall be designed to structurally accommodate the maximum technically practicable number of foreseeable users for their approved height;

New towers shall be considered only upon a finding by the Planning Board that existing or approved towers, or alternatives involving other i) existing structures or ii) placements of WCF antennas in the public way, cannot address the coverage needs with less overall impact;

Any new WCT shall be of the monopole type only and no lattice or guy-wire towers shall be permitted, unless the Planning Board finds an alternative design, including without limitation, disguised or camouflage design is an appropriate solution for the context of the site and surroundings.

The highest point of any tower or of any antenna or any component thereof or attachment thereto, with the exception of lightning rods and public safety antennas, shall not exceed whichever is greater: 65 feet above ground or such greater height necessary to provide adequate service based on a finding that the applicant has made a substantial showing of the need for the height and the lack of less impactful alternatives.

Finished grades shall not be distorted above the preexisting natural grades to achieve additional height.

A WCT shall not be erected nearer to any property line than a distance equal to the vertical height of the WCT with appurtenances, measured at the mean finished grade of the tower base. Upon finding that a better result is obtained by reducing the setback by up to 50% of the height of the tower facility, the Planning Board may reduce this requirement.

The area around a tower, including its communication equipment and shelters, shall be completely fenced for security to a height of six feet, and gated; and a sign shall be posted on or adjacent to all entry gates indicating the facility owner and a twenty-four-hour emergency telephone number. The Planning Board may waive this requirement if it finds the site design provides for the necessary security in another way.

General Use Restrictions.

WCFs are permitted in all districts subject to the following requirements, provided that new tower-based WCFs are further limited to the WCTD.

To the extent feasible, all utility interconnections to a WCF shall be via underground lines, except where existing overhead lines may be utilized. The Planning Board may waive this requirement upon a finding that the installation of new overhead lines is substantially not visible to adjacent properties.

Existing on-site vegetation shall be preserved to the maximum extent practicable.

The WCF shall minimize, to the extent feasible, adverse visual effects on the environment. The Planning Board may impose reasonable conditions to ensure this result, including concealments and mitigations such as: camouflage, screening, architectural design, height or other visibility limitations, and painting and lighting requirements or limitations.

Traffic associated with the WCF shall not adversely affect abutting ways.

The applicant shall obtain written, legally valid and binding authorization for the use of each facility site/structure from the owner(s) thereof.

Applicants shall demonstrate the proposed use, expanded to its projected maximum capacity, will be compliant with federal requirements regarding the limitation of human exposure to radio frequency energy.

Noise generated by any WCF, including auxiliary generators, shall not exceed 50 dBA at ground level at any non-residential property line and 35 dBA at any residential property line. The Planning Board may waive this restriction on a finding that the applicant demonstrated by professional technical analysis the noise generated by the facility is essentially inaudible to the public, based on the submittal requirements in Section 4. Generators may be excepted from this criterion, provided the Planning Board may require generator noise mitigation to minimize generator noise nuisance.

A WCF may be installed on an existing structure, provided the installation is compatible with the context of its surroundings. Such facilities will employ best practices to design a facility that does not appear visually objectionable, denigrate the historic or scenic fabric of the community, produce visual blight, obscure scenic or safety viewlines, or conflict with the character of its surroundings. The Planning Board may require such facilities to be concealed by architectural features consistent with the location, camouflaged by coloring and/or shape, and/or screened by vegetation or other construction. Camouflage/concealment solutions are preferred not only because they improve visual impacts, but also because they establish performance requirements for future collocators and for modifications under "Eligible Facilities Requests" criteria imposed under federal law. Under the federal Eligible Facilities Request criteria, a new WCF operator might be allowed by right to join a structure or building with an existing approved WCF, unless the existing WCF has been permitted with conditions that give the permit granting authority more control over future WCF collocators.

Heights of existing structures, other than WCTs, may be increased by up to 12 feet for attachment of antennas and related hardware, subject to the visual impact and other criteria in this bylaw. Such heights may exceed the height limit for the zoning district.

Submittal requirements.

As part of any application for a special permit for a WCF, applicants shall determine whether the application is also subject to the Town of Newbury Site Plan Review regulations (Ch. 97 Art. IX, § 97-9.A) Clause (4) Review Thresholds and include all material required for site plan review applications with the special permit application. When the special permit submission requirements overlap any site plan review submission requirements, a single submission addressing the overlapping requirements is acceptable. Notwithstanding the foregoing, all applications for a new WCT shall be considered Level II — Major Projects for the purposes of site plan review. Applicants that are required to comply with federal National Environmental Policy Act (NEPA) requirements shall submit their NEPA report with their application in support of their site plan review submission requirements. The Planning Board may waive any Site Plan Review submission requirements it deems not relevant to the application.

Applicants for a new or modified WCT shall describe the capacity of any tower, including the number and types of antennas and associated equipment to be mounted on the tower, and the number of projected collocators that it can accommodate, and the basis for the calculation of tower capacity.

The applicant for any WCF or WCT shall describe and show any accessory structures, equipment, utilities and other related development required to build and operate the facility.

Applicants shall submit:

The name and address of the applicant and all agents of the applicant and of all legal and beneficial owners of the site or sites proposed for a wireless communication facility, copies of all instruments, options, contracts or encumbrances affecting ownership of the site or sites;

A copy of the applicant's FCC license (and/or the licenses of any other WCF operators committed to using the facility, accompanied by evidence of such commitment);

Applications for a new WCT shall include a PWS provider as co-applicant or evidence of a binding commitment by a PWS provider to occupy the WCT upon installation;

An instrument executed by all persons or entities owning the property (site and structure, if the owners are different) proving that the applicant is authorized by them to make the application and agreeing to comply with provisions of this Zoning Bylaw;

A statement signed by the applicant, on oath and under penalties of perjury, that all information included in the submittal is materially accurate, true, complete and verifiable. Inaccurate, misleading or false information shall be grounds for disapproval of the application or revocation of approval;

Plans and other information identifying the site proposed, including:

A map at an appropriate scale (to be determined by the Planning Board), showing lot lines of the subject property and of all properties within 500 feet of the perimeter of the facility and showing the footprint of all buildings on all such properties;

Location on a copy of the Town Maps of the zoning district, including any overlay district, applicable to such properties;

The heights of all existing buildings and structures on such properties and the height of any proposed new structure on the subject property;

If a WCT is proposed: height of existing tree cover on such properties, specifying heights and principal species;

Plans and elevation drawings showing the design of the proposed facility, site development requirements, contours, grade changes, utilities, structures and fences, and environmental characteristics (such as wetlands and flood zones).

Photographs depicting views of the proposed WCF from locations off the parcel. For WCT applications, the applicant shall be required to conduct a balloon/crane test at the location of a proposed tower or antenna to show its height and visibility.

Such test shall be conducted two weeks prior to the public hearing and shall be advertised at the applicant's expense in a newspaper of general circulation in Newbury at least one week prior to the test.

Written notice of the test shall also be given to the owners of property within 300 feet of the proposed property.

A photosimulation report from a balloon/crane test, including report methodology, existing and simulated view photos, and map of photo locations. Photosimulations photographs shall be made with a focal length equivalent to a reference 35 mm film "full-frame" camera equipped with 50-55 mm focal length lens.

To improve efficiency, the Planning Board may delegate the oversight of a balloon test to staff, including determining whether a balloon test should occur prior to application or be left to the Planning Board's discretion in the hearing.

A complete description, including, but not limited to, data, drawings, catalogs, brochures, manufacturers' specifications, photographs and all other pertinent information relevant to the proposal describing antennas, equipment mounts and all other equipment and structures proposed for the site or related to the proposal; plus all of the information required by By-law.

Data as to noise, certified by an acoustical engineer, demonstrating compliance with the noise requirement in Section (3) above. Alternatively, the applicant may request a waiver of strict compliance with the noise requirement by providing a report from an acoustical engineer using quietest-hour 90th percentile background noise measurements of existing ambient noise and projections of the noise contribution of the proposed WCF to demonstrate the WCF noise will not be a nuisance to the community. The Planning Board may waive these submission requirements upon a finding that the general noise information submitted with the application is sufficient, which, for example, might apply to a proposed WCF with no noise-generating components or with indoor installation of equipment.

If the applicant intends to assert that non-approval of the requested special permit would constitute an effective prohibition of Personal Wireless Services under the Telecommunications Act of 1996, the applicant shall include substantial evidence demonstrating:

that there is a significant gap in service (coverage, for example),

ii)

there are no better alternatives available, and

iii)

if applicable, how a non-approval would materially inhibit the applicant's ability to provide Personal Wireless Services.

Review and action by the Planning Board. The Planning Board shall review and act upon an application for a special permit (and, when applicable, site plan review and approval) for a WCF in accordance with applicable provisions of MGL c. 40A, §§ 9 and 11; and in accordance with this Zoning By-Law; and:

Shall make such investigation as it deems appropriate to determine whether the application meets the requirements of § 97-4.C.(2) through § 97-4.C.(4);

May engage a radio frequency engineer, an acoustic engineer and such other professional consultants as it deems necessary to assist and advise it in its investigation and determination, whose services will be paid for by the applicant;

Shall require of each applicant and each holder of a special permit and site plan approval hereunder reasonable deposit for and reimbursement of all fees for the employment of appropriate consultants, which deposit shall be requested and held only for a specific inquiry by the Town in accordance with G.L. c. 44 sec. 53G;

Notice to parties in interest shall be given in accordance with the requirements under MGL Ch. 40A;

Shall render a written decision based on substantial evidence in the record within any statutory time limits established under state and federal law, including applicable tolling or extensions thereof.

Small Wireless Facilities Outside Rights-of-Way.

The purpose and intent of this bylaw section is to permit regulation of the installation of Small Wireless Facilities outside of rights-of-way so as to respect the neighborhood characteristics in which they are proposed, consistent with the purposes set forth in § 97-4.C.(1) and with federal and state law.

All installations of Small Wireless Facilities outside of rights-of-way require a Special Permit. The Special Permit Granting Authority for Small Wireless Facilities outside rights-of-way is the Planning Board.

The Planning Board shall adopt and from time to time amend policies, rules, and regulations relative to the issuance of special permits under this Section § 97-4.C.6. A copy of the policies, rules, and regulations shall be on file with the Town Clerk. Such rules shall prescribe the form, contents, style, and number for application forms, the fees collectible with the applications, the process by which the application will be reviewed, the design and location criteria for approval, the time within which the Planning Board will issue a decision, and requirements for recertification.

Monitoring and inspections.

If a wireless communications facility is determined to be in violation of any of the provisions of the special permit and/or site plan approval or any other applicable law or regulation, the Planning Board shall cause to be served on the operator of the facility and the owner of the land on or from which the violation is caused notice of such violation.

The Building Commissioner and/or the Planning Board may, upon reasonable concern regarding compliance with specific performance requirements, require the permittee(s) to respond with proof of compliance and may engage the services of independent expert consultants to assess compliance or review the permittee's response. Permittees must respond in a timely way (within 24 hours for an indicated life-threatening emergency, otherwise 14 days for routine requests for response). Failure to respond in good faith or to pay reasonable fees for independent consultants may result in revocation of the special permit by the Planning Board or the occupancy/use permit by the Building Commissioner, as applicable.

Compliance and violations.

Every WCF for which a special permit is granted hereunder shall continue at all times to comply with the provisions thereof and of this Zoning By-Law; and the holder of such special permit shall comply with requirements of the Planning Board in fulfillment of the provisions for monitoring herein.

Every WCF and every application for a special permit for such facility shall comply with all other applicable provisions of this Zoning By-Law, including, without limitation, requirements with respect to:

The permit application;

Special permits;

Signs and exterior lighting;

Site plan approval for WCTs and for any other WCF that satisfies the criteria for site plan review and approval.

Modifications and Eligible Facilities Requests.

Any modifications to an already approved WCF not defined as an Eligible Facilities Request defined herein, shall be made through the special permit/site plan review and approval process described above. Such modifications involving new permittees at existing permitted sites shall require an application for a new special permit. Such modifications of existing permitted facilities may be reviewed as an application for a special permit modification, if applicable. The foregoing apply also to Eligible Facilities Requests, to the extent as outlined in (b) below and to the extent allowed by law.

Request for Modification of Eligible Facilities.

Submission Requirements. Applications for an Eligible Facilities Request shall be filed with the Building Commissioner. Applications shall contain information in sufficient detail, including without limitation site plans and drawings of existing and proposed conditions, to demonstrate the proposed modifications satisfy the following requirements:

The currently operating WCF is constructed and maintained in compliance with its existing permit(s), including but not limited to its dimensions and appearance as permitted;

Such information as is necessary to demonstrate that the modifications are within the limits established for Eligible Facilities Requests under federal law and such information as is necessary to demonstrate compliance with the existing permit to the extent it is not superseded by federal law, and applicable safety regulations including without limitation, building codes, noise and radio frequency energy exposure;

To render a determination on whether an application is an Eligible Facilities request, the Building Commissioner may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of an Eligible Facilities Request. The Building Commissioner may not require an applicant that is asserting in writing that the application is an Eligible Facilities Request to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.

Review process.

The Building Commissioner shall conduct an initial review of the application to determine: 1) whether the application is a bona fide Eligible Facilities Request, and 2) whether the application is complete. The Building Commissioner shall notify the applicant within thirty (30) days of receipt of the application if the application is deemed incomplete and/or whether the application is not an Eligible Facilities Request or requires the determination of the Planning Board as to its eligibility. Such notice shall delineate all missing documents or information.

If the Building Commissioner determines that the facts of the application require the judgment of the Planning Board to determine whether an application is an Eligible Facilities Request (such as for interpreting whether a proposal qualitatively defeats the intent of a previously approved camouflage design), the Building Commissioner shall timely refer the application to the Planning Board for an opinion on whether the application qualifies as an Eligible Facilities Request. The Planning Board, or staff, if so delegated by the Planning Board, shall respond in a timely manner, being cognizant of the federal shot clock for Eligible Facilities Requests.

If the application is determined to be an Eligible Facilities Request, and otherwise complies with applicable safety regulations, the Building Commissioner may not deny and shall approve the application, with such conditions as may be necessary to maintain safety code compliance.

If the application is determined not to be an Eligible Facilities Request, the Building Commissioner shall provide the applicant with an explanation in writing.

If an applicant that is aggrieved by the Building Commissioner failing to make a determination in favor of a claimed Eligible Facilities Request timely files an appeal with the Zoning Board of Appeals, the Zoning Board of Appeals shall conduct its appeal review. The Zoning Board of Appeals may consult with the Planning Board or staff, if so delegated by the Planning Board, who shall respond in a timely manner, being cognizant of the federal shot clock for Eligible Facilities Requests but shall not be required to do so.

Approval. Within sixty (60) days of the filing of a bona fide Eligible Facilities Request, plus any time that may be excluded pursuant to a tolling for incompleteness or by agreement between the applicant and the Building Commissioner, the Building Commissioner shall complete the statutory review under building, electrical and other relevant safety codes. If the bona fide Eligible Facilities Request application is deemed compliant under statutory review, the Building Commissioner must approve the application.

As of the date of adoption of this bylaw, federal regulations specified requirements for state/local government review of Eligible Facilities Requests. Those requirements in 47 CFR 1.6100(c) Review of applications, are included for reference, below. Section 1.16100(b) Definitions, is omitted here, as the Definitions herein are based on Section 1.16100(b). Section 1.6100(c) is reproduced below as guidance only, because the regulations can change and case-law can affect their interpretation:

47 CFR 1.6100(c) Review of applications. A State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure.
(1)	Documentation requirement for review. When an applicant asserts in writing that a request for modification is covered by this section, a State or local government may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of this section. A State or local government may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.
(2)	Timeframe for review. Within 60 days of the date on which an applicant submits a request seeking approval under this section, the State or local government shall approve the application unless it determines that the application is not covered by this section.
(3)	Tolling of the timeframe for review. The 60-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the reviewing State or local government determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
	(i)	To toll the timeframe for incompleteness, the reviewing State or local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under paragraph (c)(1) of this section.
	(ii)	The timeframe for review begins running again when the applicant makes a supplemental submission in response to the State or local government's notice of incompleteness.
	(iii)	Following a supplemental submission, the State or local government will have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this paragraph (c)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(4)	Failure to act. In the event the reviewing State or local government fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(5)	Remedies. Applicants and reviewing authorities may bring claims related to Section 6409(a) to any court of competent jurisdiction.
47 CFR 1.6100(c).

10.

Removal.

If a WCT is not substantially in commercial operation for a period of one year, it shall be removed, and the site shall be returned to its preexisting condition by the owner of the facility and/or by the owner of the property within 180 days of notice by the Town. As part of an application for any wireless communications tower, a plan shall be submitted detailing how the site will be returned to its preexisting condition, including planting of replacement trees, grading and removal of all structures and waste and any other work that may be required by the Planning Board.

11.

Exemption.

The following type of wireless communications facilities and towers are exempt from this Zoning Bylaw:

Amateur radio towers and antennas used in accordance with the terms of any amateur radio service license issued by the FCC, provided that the tower is not used or licensed for any commercial purpose.

Wireless communications facilities constructed by the Town of Newbury for municipal public safety and operational communications purposes.

12.

Definitions:

Base station. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower.

The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).

The term includes any structure other than a tower that, at the time the relevant application is filed, supports or houses equipment described in paragraphs (1) through (2) above that has been reviewed and approved under the applicable zoning or other regulatory process, even if the structure was not built for the sole or primary purpose of providing such support.

The term does not include any structure that, at the time the application is filed, does not support or house equipment described in paragraphs (i) through (ii) above.

(Based on 47 CFR 1.6100)

Eligible Facilities Request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

Collocation of new transmission equipment on an eligible support structure;

Removal of transmission equipment; or

Replacement of transmission equipment.

(Based on 47 CFR 1.6100)

Eligible support structure. Any tower or base station, provided that it is lawfully existing at the time the application is filed with the Town.

(Based on 47 CFR 1.6100)

Substantial change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;

Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.

For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;

It entails any excavation or deployment outside the current site;

It would defeat the concealment elements of the eligible support structure; or

It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in 01) through 04) above.

(Based on 47 CFR 1.6100)

Tower or Wireless Communications Tower (WCT). Any structure built for the sole or primary purpose of supporting any FCC-licensed or -authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

(Based on 47 CFR 1.6100)

Wireless Communications Facility (WCF). An installation of equipment belonging to one party that includes antennas, transmitters and/or receivers, other ancillary equipment, structural supports, enclosures, and utilities, that uses the radio frequency spectrum to communicate on one or more frequency bands.

Personal Wireless Service (PWS). Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services (47 USC 332(C)).

Personal Wireless Service Facility (PWSF). A WCF for the provision of Personal Wireless Services;

Small wireless facilities are facilities that meet each of the following conditions:

The facilities:

Are mounted on structures 50 feet or less in height including their antennas (as defined by the FCC: an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location); or

Are mounted on structures no more than 10 percent taller than other adjacent structures; or

Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

Each antenna associated with the deployment, excluding associated antenna equipment (equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna), is no more than three cubic feet in volume;

All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

The facilities do not require antenna structure registration under FCC regulations; and

The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards.

(Definition derived from 47 CFR § 1.6002)

Plum Island.

Purpose: To reduce damage to public and private property resulting from flood waters; ensure public safety by reducing threats to life and personal injury; eliminate costs associated with the response and cleanup of flooding conditions; preserve open space; and, limit the expansion of nonconforming single and two family structures so as to prevent the exacerbation of existing problems with density and intensity of use.

Allowed Uses:

Municipal uses owned or operated by the Town of Newbury;

Single family dwellings, subject to the dimensional requirements set forth in the table below:

01)	Maximum Building Height	35 feet*
02)	Maximum Number of Stories	2
03)	Maximum Floor Area Ratio	0.25
04)	Maximum Lot Coverage by Buildings	20%
* See height definition section 97-11D.

Prohibited uses: Any use not set forth in § 97-4D(2) is prohibited in the PIOD.

Nonconforming uses and structures, excluding single and two-family structures: The provisions of the PIOD shall not apply to pre-existing nonconforming structures or uses lawfully in existence as of [date of enactment].[1] Nonconforming uses and structures within the PIOD shall not be enlarged or extended; provided, however, that the following types of changes or alterations to nonconforming uses or structures may be authorized upon a finding by the Board of Appeals in the PIOD:

Change of a pre-existing nonconforming use;

Change of a pre-existing nonconforming use to another, less detrimental, nonconforming use;

Reconstruction or structural change to a nonconforming structure;

Alteration of a nonconforming structure to provide for a substantially different purpose or for the same purpose in a substantially different manner.

[1]

Editor's Note: So in original. This chapter was last amended 4-27-1999 ATM by Art. 25; reorganized 5-22-2007 ATM by Art. 23.

Non-conforming single and two-family residential structures.

General. No preexisting nonconforming single or two-family residential structure within the PIOD shall be altered, reconstructed, extended, or structurally changed except as set forth in this § 97-4D(5).

Additional Bedroom. One (1) additional bedroom may be created in a lawfully preexisting nonconforming single or two-family structure with one or two bedrooms, subject to the applicable regulations set forth in Subsections § 97-4.D(5)(c) and § 97-4.D(5)(d).

As of Right Changes. The alteration, reconstruction, or extension of, or change to such structures may be authorized upon the issuance of a building permit where the Building Inspector determines that such alteration, reconstruction, extension or change shall:

Not increase the footprint of the existing structure; and

Not exceed the height of the existing structure, or 35 feet (See height definition section 97-11D), whichever is lower.

Special Permit. The alteration, reconstruction, extension of, or change to such structures to an extent other than that authorized by Subsection § 97-4D(5)(c), may be authorized upon a finding by the Board of Appeals that such alteration, reconstruction, extension, or change shall not be substantially more detrimental than the existing nonconforming structure to the neighborhood or the PIOD. The Board of Appeals shall not make a positive finding for any alteration, reconstruction, extension of, or change to such structures that would cause such structure to be located less than ten (10) feet from the side lot line or less than twenty (20) feet from the street unless a nearer building line is already established by existing buildings or would add bedrooms in excess of the provisions of § 97-4D(5)(b).

Catastrophe or Demolition: Rebuilding As of Right. A nonconforming single or two-family residential structure may be demolished and rebuilt or rebuilt after[2] destroyed or damaged by a catastrophe; provided, however, that

The rebuilt structure shall not exceed the total volume of all demolished or destroyed structures on the locus; and

The rebuilt structure shall not exceed the height of the tallest demolished or destroyed structure on the locus; and

The rebuilt structure shall not contain more than the total number of bed rooms in all demolished or destroyed structures on the locus; provided, however, that one (1) additional bedroom may be created where the total number of bedrooms before the catastrophe or demolition was one or two and a bedroom had not been added under § 97-4D(5)(b); and

The rebuilt structure shall not be located less than ten (10) feet from the side lot line or less than twenty (20) feet from the street unless a nearer building line is already by existing buildings; and

Such structure shall be rebuilt not more than two years after the demolition or catastrophe; such period may be extended for one year for good cause shown upon a written request to the Building Inspector; and

Any such rebuilding shall be subject to the provisions of § 95-4 A and § 95-4 B of the Newbury Wetlands By-Law; and

07)

structures within the FEMA V-Zone or AO Zone are not eligible for such findings under the provisions of § 95-4 A and § 95-4 B; of the Newbury Wetlands By-Law.

[2]

Editor's Note: So in original.

Catastrophe or Demolition: Rebuilding after a Finding. A nonconforming single or two-family residential structure may be demolished and rebuilt or rebuilt after destroyed or damaged by a catastrophe so as to exceed the total volume of all demolished or destroyed structures on the locus and/or exceed the height of the tallest demolished or destroyed structure on the locus upon a finding by the Board of Appeals.

Such structure shall be rebuilt not more than two years after such finding; such period may be extended for one year for good cause shown upon a written request to the Building Inspector.

Such finding shall be made only upon the determination that the proposed alteration to the nonconforming structure or use shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood or the PIOD.

The rebuilt structure shall not contain more than the total number of bedrooms in all demolished or destroyed structures on the locus; provided, however, that one (1) additional bedroom may be created where the total number of bedrooms before the catastrophe or demolition was one or two and a bedroom had not been added under § 97-4D(5)(b).

Frontage: No building permit for a single family residential structure within the PIOD shall be issued unless the lot to be built upon has frontage on a street.

Unconstructed ways: No building permit shall be issued for a lot with frontage on an unconstructed way which does not qualify as a "street" until the Planning Board approves a plan, prepared by the applicant, demonstrating that the proposed way has sufficient width and suitable grades to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby and for the installation of municipal services to serve such land and the building erected or to be erected thereon and the first course of pavement for such way has been installed in accordance with such plan, as certified in writing by the Planning Board. No certificate of occupancy shall be issued for such lot until the second and final course of pavement has been installed in accordance with such plan, as certified in writing by the Planning Board.

(i)

Grandfathering. The provisions of § 97-10B of the Zoning By-Law shall not apply in the PIOD. The construction of single residences in the PIOD shall be governed by G.L. c. 40A, s. 6. Para. 4.

(j)

The Board of Appeals may grant use variances within the PIOD provided the Board of Appeals finds that the proposed use is not more detrimental than the current use.

Flood Hazard.

[Amended 5-22-2012 ATM, Art. 19]

Purpose: The purposes of the Flood Hazard Overlay District are to:

Ensure public safety through reducing the threats to life and personal injury;

Eliminate new hazards to emergency response officials;

Prevent the occurrence of public emergencies resulting from water quality, contamination, and pollution due to flooding;

Avoid the loss of utility services which if damaged by flooding would disrupt or shut down the utility network and impact regions of the community beyond the site of flooding;

Eliminate costs associated with the response and cleanup of flooding conditions;

Reduce damage to public and private property resulting from flooding waters.

Flood Hazard Overlay District Boundaries and Base Flood Elevation Data: The Flood Zone District is herein established as an overlay district. The District includes all special flood hazard areas within the Town of Newbury designated as Zone AE or VE on the Essex County Flood Insurance Rate Map (FIRM) issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program. The map panels of the Essex County FIRM that are wholly or partially within the Town of Newbury are panel numbers 25009C0114F, 25009C0116F, and 25009C0252F dated July 3, 2012; and panel numbers 25009C0117G, 25009C0118G, 25009C0119G, 25009C0136G, 25009C0137G, 25009C0138G, 25009C0139G, 25009C0141G, 25009C0143G, 25009C0256G, 25009C0257G, 25009C0276G, 25009C0277G and 25009C0281G dated July 16, 2014. The exact boundaries of the District may be defined by the 100-year base flood elevations shown on the FIRM and further defined by the Essex County Flood Insurance Study (FIS) report dated July 16, 2014. The FIRM and FIS report, incorporated herein by reference, shall be kept on file with the Town Clerk, the Planning Board, and Inspectional Services.

[Amended 5-20-2014 ATM, Art. 21]

In all Zones VE. The following Subsections shall be applicable in all districts of the Town which are classified on the FIRM as being within Zone VE (coastal high hazard area):

With respect to all new or substantially improved structures, the application and plans for the building permit shall provide the elevation (in relation to mean sea level) of the lowest horizontal structural member of the lowest floor (excluding pilings and columns) and whether or not such structures contain a basement and, if the structure is to be or has been flood-proofed, provide the elevation (in relation to mean sea level) to which the structure is or has been flood-proofed;

All new construction shall be located landward of the reach of mean high tide;

(Reserved)

(Reserved)

The use of fill for structural support of buildings or other structures shall be prohibited;

The placement of manufactured homes shall comply with the requirements of NFIP Floodplain Management Regulations 44 CFR 60.3(e);

Man-made alterations of sand dunes and/or mangrove stands which would increase potential flood damage shall be prohibited;

The provisions of § 97-4.E.(4) through § 97-4.E.(12) inclusive, including all subsections thereof, shall be applicable in all districts of the Town which are classified as being within Zone VE on the Federal Emergency Management Agency's Essex County FIRM effective July 3, 2012 and July 16, 2014.

[Amended 5-20-2014 ATM, Art. 21]

In all Zones AE. The following Subsections shall be applicable in all districts of the Town which are classified on the FIRM as being within Zone AE:

Along watercourses that have a regulatory floodway designated on the FIRM encroachments are prohibited in the regulatory floodway which would result in any increase in flood levels within the community during the occurrence of the base flood discharge.

In all Zones AO. Within all districts in the Town which are classified on the FIRM as being within Zone AO, adequate drainage paths must be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

The provisions of this sub-section shall apply in all districts in the Town which are classified as being within unnumbered A Zones, Zones AE, Zones AO, and Zones VE.

All proposed developments shall be reviewed to assure that all necessary permits have been received from those governmental agencies from which approval is required by Federal or State law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.;

All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and all new and replacement sanitary sewerage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and on-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

All the provisions of § 97-4.E.(4) and all subsections thereof shall apply in any unnumbered A Zone on the FIRM.

There shall be obtained, reviewed and reasonably utilized any base flood elevation data available from a Federal, State or other source as criteria for requiring that all new construction and substantial improvements of residential structures have the lowest floor (including basement) elevated to or above the base flood level and all new construction and substantial improvements of non-residential structures have the lowest floor (including basement) elevated or flood-proofed to or above the base floor level. The Building Inspector shall obtain the elevation (in relation to mean sea level) of the lowest habitable floor (including basement) of all new or substantially improved structures, obtain, if the structure had been flood-proofed, the elevation to which it has been flood-proofed, and shall maintain a record of all such information.

All subdivision proposals must be designed to assure that:

Such proposals minimize flood damage;

All public utilities and facilities are located and constructed to minimize or eliminate flood damage; and

Adequate drainage is provided to reduce exposure to flood hazards.

Existing contour intervals of site and elevations of existing structures may be required to be included on plan proposal.

The placement of manufactured homes and recreational vehicles shall be in compliance with NFIP Flood Plain Management Regulations 44 CFR 60.3(c).

Texts and maps may be inspected at the Town Hall, 25 High Road, Newbury, Massachusetts.

Reference to Existing Regulations:

The Flood Hazard District is established as an overlay district to all other districts. All development in the district, including structural and non-structural activities, whether permitted by right or by special permit must be in compliance with Chapter 131, Section 40 of the Massachusetts General Laws and with the following:

	-	Sections of the Massachusetts State Building Code (780 CMR) which address floodplain and coastal high hazard areas;
	-	Wetlands Protection Regulations, Department of Environmental Protection (DEP) (currently 310 CMR 10.00)
	-	Inland Wetlands Restriction, DEP (currently 310 CMR 13.00)
	-	Coastal Wetlands Restriction, DEP (currently 310 CMR 12.00)
	-	Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, DEP (currently 310 CMR 15, Title 5);

Any variances from the provisions and requirements of the above referenced state regulations may only be granted in accordance with the required variance procedures of these state regulations.

More restrictive regulations to apply. Where the flood zone regulations set forth in § 97-4.E., including all sections thereof, impose greater or lesser restrictions or requirements than those of other applicable By-Laws or regulations, whether Federal, State or local, the more restrictive restrictions or requirements shall be applicable.

(8)

Floodway provisions. In the regulatory floodway designated on the FIRM the following provisions shall apply:

All encroachments, including fill, new construction, substantial improvements to existing structures, and other development are prohibited unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment shall not result in any increase in flood levels within the community during the occurrence of the base flood discharge;

Notwithstanding the above, encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations may be permitted provided that the Town submits an application for a conditional FIRM and floodway revisions in accordance with the provisions of 44 CFR 65.12 and received the approval of the Federal Insurance Administrator.

Any encroachment meeting the above standard shall comply with the floodplain requirements of the State Building Code;

In Zones A and AE, along watercourses that have not had a regulatory floodway designated, the best available Federal, State, local, or other floodway data shall be used to prohibit encroachments in floodways which would result in any increase in flood levels within the community during the occurrence of the base flood discharge.

(9)

Flood Hazard Overlay District Variances.

The Permit Granting Authority may grant a variance from the requirements of § 97-4.E, including all sections thereof, subject to the requirements of Massachusetts General Laws, Chapter 40A, § 97-11.B of this By-Law and upon the following conditions and restrictions:

Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or on a State Inventory of Historic Places without regard to the procedures hereinafter set forth;

No variance shall be issued within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result;

Variances may be issued only for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level;

Variances shall only be issued upon a showing of good and sufficient cause, a determination that failure to grant the variances would result in exceptional hardship to the applicant and a determination that the granting of a variance would not result in increased flood heights, additional threats to public safety, extraordinary public expenses, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances, other than the provisions of § 97-4E. together with all sections thereof, of this By-Law;

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford the relief requested;

The Permit Granting Authority shall notify the applicant for a variance in writing over the signature of the Chairman of the Permit Granting Authority that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage and such construction below the base flood level increased risks to life and property. Such notification shall be maintained with the records of all variance actions maintained pursuant to requests for variances from the provisions of § 97-4E, together with all sections thereof.

(10)

Permitted Uses: The following uses of low flood damage potential and causing no obstructions to flood flows are encouraged provided they are permitted in the underlying district and they do not require permanent structures, fill, or storage of materials or equipment:

Agricultural uses such as farming, grazing, truck farming, horticulture, etc.;

Forestry and nursery uses;

Outdoor recreational uses, including fishing, boating, play areas, etc.;

Conservation of water, plants, wildlife;

Wildlife management areas, foot, bicycle, and/or horse paths;

Temporary non-residential structures used in connection with fishing, growing, harvesting, storage, or sale of crops raised on the premises;

Buildings lawfully existing prior to the adoption of these provisions.

(11)

In a riverine situation, the Town of Newbury Conservation Agent shall notify the following of any alteration or relocation of a watercourse:

	-	Adjacent Communities
	-	NFIP State Coordinator Massachusetts Dept. of Conservation and Recreation 251 Causeway Street, Suite 600-700 Boston, MA 02114-2104
	-	NFIP Program Specialist Federal Emergency Management Agency, Region I 99 High Street, 6th Floor Boston, MA 02110

(12)

Definitions: As used in this section, the following words and terms shall have the following meanings:

	*Area of Special Flood Hazard:* The land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. The area may be designated as Zone A, AO, AH, A1-30, AE, A99, V1-30, VE, or V.
	*Base Flood:* The flood having a one percent chance of being equaled or exceeded in any given year.
	*Coastal High Hazard Area:*An area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. The area is designated on a FIRM as Zone V, V1-30, VE.
	*Development:*Any manmade change to improved or unimproved real estate, including but not limited to building or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations.
	*District:*Floodplain district.
	*Federal Emergency Management Agency (FEMA):*The Agency which administers the National Flood Insurance Program. FEMA provides a nationwide flood hazard area mapping study program for communities as well as regulatory standards for development in the flood hazard areas.
	*Flood Boundary and Floodway Map:*An official map of a community issued by FEMA that depicts, based on detailed analyses, the boundaries of the 100-year and 500-year floods and the 100-year floodway. (For maps done in 1987 and later, the floodway designation is included on the FIRM.)
	*Flood Hazard Boundary Map (FHBM):*An official map of a community issued by FEMA where the boundaries of the flood and related erosion areas having special hazards have been designated as Zone A or E.
	*Flood Insurance Rate Map (FIRM):*An official map of a community on which FEMA has delineated both the areas of special flood hazard and the risk premium zones applicable to the community.
	*Flood Insurance Study:*An examination, evaluation, and determination of flood hazards, and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of flood-related erosion hazards.
	*Floodway:*The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation.
	*Lowest Floor:*The lowest floor of the lowest enclosed area (including basement or cellar). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor, PROVIDED that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of NFIP Regulations 60.3.
	*Manufactured Home:*A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes, the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles.
	*Manufactured Home Park or Subdivision:*A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
	*New Construction:For floodplain management purposes, structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by a community. For the purpose of determining insurance rates, New Construction* means structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later.
	*One-Hundred Year Flood:See Base Flood*.
	*Regulatory Floodway:See Floodway*.
	*Special Flood Hazard Area:*An area having special flood and/or flood-related erosion hazards, and shown on an FHBM or FIRM as Zone A, AO, A1-30, AE, A99, AH, V, V1-30, VE.
	*Structure:For floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home. Structure*, for insurance coverage purposes, means a walled and roofed building, other than a gas or liquid storage tank, that is principally above ground and affixed to a permanent site, as well as a manufactured home on foundation. For the latter purpose, the term includes a building while in the course of construction, alteration, or repair, but does not include building materials or supplies intended for use in such construction, alteration, or repair, unless such materials or supplies are within an enclosed building on the premises.
	*Substantial Damage:*Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.
	*Substantial Improvement:*Any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the market value of the structure either (a) before the improvement or repair is started, or (b) if the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.
	*Zone A1-30 and Zone AE (for new and revised maps):*The 100-year floodplain where the base flood elevation has been determined.
	*Zone AH and Zone AO:* The 100-year floodplain with flood depths of one (1) to three (3) feet, where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.
	*Zone B, C, and X:*Areas identified in the community Flood Insurance Study as areas of moderate or minimal flood hazard. Zone X replaces Zones B and C on new and revised maps.
	*Zone V1-30 and Zone VE (for new and revised maps):*A special flood hazard area along a coast subject to inundation by the 100-year flood with additional hazards due to velocity (wave action). Base flood elevations have been determined.

Adult Entertainment.

Nothing herein contained is intended or shall be construed to prohibit and/or limit the use of the land within this district for those uses permitted in the underlying Business and Light Industrial District.

[Amended 5-24-2011 ATM, Art. 23]

Location limitations of Adult Entertainment Businesses. No person shall establish or cause or permit to be established an Adult Entertainment Business within One Thousand Five Hundred feet (1500') of any other building or structure containing another Adult Entertainment Business nor within Seven Hundred Fifty feet (750') of any public or private school, public or private park or recreation area, public or private buildings with programs for minors, or religious institution, elder housing, library, hospital or emergency medical treatment clinic nor within Five Hundred feet (500') of an existing residence or residential use.

Requirements. No person shall establish or cause or permit to be established an Adult Entertainment Business without fulfilling each of the following requirements:

Special use permit — In appropriate cases and subject to appropriate conditions or safeguards and limitations on time and use, the Board of Selectmen may grant a Special Permit to conduct an Adult Entertainment Business within the Industrial District A. Such Special Permit must be renewed annually.

License and/or permit requirement — No person shall conduct an Adult Entertainment Business without first obtaining any and all necessary licenses and permits.

Conditions and Standards. Adult Entertainment Businesses shall comply with all of the following conditions and standards:

Advertisements, displays or other promotional materials depicting or describing "Specified Anatomical Areas", or "Specified Sexual Activities", or displaying instruments, devices, or paraphernalia which are designed for use in connection with "Specified Sexual Activities" shall not be shown or exhibited so as to be visible from other areas open to the general public.

All building openings, entries, and windows shall be located, covered, or screened in such a manner as to prevent a view into the interior from any area open to the general public.

All entrances shall be clearly and legibly posted by a notice indicating that minors are prohibited from entering the premises.

No loudspeakers or sound equipment shall be used for the amplification of sound to a level discernible by the public beyond the walls of the building in which the use is conducted.

All exterior areas, including buildings, landscaping and parking areas, shall be maintained in a clean and orderly manner.

An Adult Entertainment Business shall not remain open for business, or permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service between the hours of 1:00 AM. and 10:00 AM of any particular day. These hours of operation may be further restricted in the conditions approving the Special Use Permit.

No Adult Entertainment Business shall be established:

On any lot of less than 60,000 square feet with a frontage of not less than 200 feet. Not more than 20% of the minimum lot area (example: 12,000 sq. ft. of a 60,000 sq. ft. lot) shall be in wetlands. Such wetlands are defined in M.G.L., Chapter 131, Section 40 as amended, and include without limitation bogs, swamps, marshes, wet meadows, and areas of flowing or standing water, sometimes intermittent, and are characterized by their distinctive soils, including but not limited to peat or muck or by the existence of plant communities which require the presence of water at or near ground surface for the major portion of the year. Such plant communities are those described in M.G.L., Chapter 131, Section 40, as amended;

Any building utilized for an Adult Business shall be set back from its street line not less than 100 feet and from its side or rear boundaries not less than 50 feet nor shall exceed 35 feet in height as measured from the mean level of the established grade to the mean height of the roof, nor shall occupy more than 25% of the lot area;