Town of Newbury, MA GENERAL REGULATIONS

Nonconforming structures may be reconstructed, extended, altered, or structurally changed upon a determination by the Building Inspector that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of such structure. The following circumstances shall not be deemed to increase the nonconforming nature of such structure:

(i)

alteration to a structure located on a lot with insufficient area which complies with all current setback, yard, building coverage, and building height requirements.

(ii)

alteration to a structure located on a lot with insufficient frontage which complies with all current setback, yard, building coverage, and building height requirements.

(iii)

alteration to a structure which encroaches upon one or more required yard or setback areas, where the alteration will comply with all current setback, yard, building coverage and building height requirements.

In the event that the Building Inspector determines that the nonconforming nature of such structure would be increased by the proposed reconstruction, extension, alteration, or change, the Zoning Board of Appeals may, by finding, allow such reconstruction, extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood.

Constructions or operations under a building or special permit shall conform to any subsequent amendment to this By-Law unless the use or construction is commenced within a period of not more than six (6) months after the issuance of the permit and, in cases involving construction, unless such construction is continued through completion, as continuously and expeditiously as is reasonable.

Grandfathering:

(a)

Notwithstanding any provision of this By-Law, a single residence or any other permitted buildings or structures in all zones may be erected on any lot registered at the Registry of Deeds in Salem prior to July 1, 1959. Not withstanding any provisions of this By-Law, a single residence or any other permitted buildings or structures may be erected in the district on any lot which has not less than 100 feet of frontage on a street or way, and was recorded at the Registry of Deeds in Salem prior to March 21, 1978, and otherwise met all of the applicable requirement of the Zoning By-Law in effect at the time it was recorded or registered. Notwithstanding any provisions of this By-Law, a single residence or any other permitted buildings or structures may be erected in the district on any lot which has not less than 20,000 square feet, and was recorded at the Registry of Deeds in Salem prior to March 21, 1978, and otherwise met all of the applicable requirement of the Zoning By-Law in effect at the time it was recorded or registered. This provision shall not apply to the Plum Island Zoning District, which shall instead be governed by G. L. c.40A, s 6, Para 4.

Customary home occupations:

Customary home occupations (such as professional and business offices, arts and crafts shops, tradesman's shops and miscellaneous repair services) may be conducted in a dwelling or building accessory thereto by a person residing on the premises are permitted provided that:

Such use is clearly incidental and secondary to the residential use;

Not more than two (2) persons other than the resident is[1] regularly employed thereon;

[1]

Editor's Note: So in original.

No offensive noise, odors, glare or unsightliness is produced;

There is no public display of goods or wares except for such signs as are permitted; and

That there is no exterior storage of materials, equipment [including the parking of more than one (1) commercial vehicle] or waste material that would indicate the presence of the use or violate the residential character of the premises.

Accessory Apartments.

[Amended 10-24-2006 STM by Art. 3; 5-22-2012 ATM, Art. 24; 5-21-2013 ATM, Art. 27; 5-19-2015 ATM by Art. 21]

Purpose and Intent: The intent of permitting accessory apartments is to:

Recognize that the housing needs of the Town are changing and that zoning by-laws must be crafted to allow additional options in the provision of housing to the Town's citizens.

Provide homeowners with a means of obtaining rental income, companionship, security, and services, thereby enabling them to stay more comfortably in homes and neighborhoods they might otherwise be forced to leave.

Develop housing units in residential neighborhoods that are appropriate for households at a variety of stages in their life cycle and for multi-generational households.

Encourage a more balanced and diverse population and income mix, with particular attention to young adults and senior citizens.

Encourage the creation and addition of moderately priced rental units to the housing stock that meet the needs of small and moderate-income households who might otherwise have difficulty obtaining affordably priced housing in the community.

(f)

Protect the stability, property values, and the residential character of a neighborhood by ensuring that accessory apartments meet the criteria specified in this section.

Accessory Apartment Applicability:

Accessory apartments are deemed to be either WITHIN or DETACHED FROM an existing or new single-family dwelling.

Accessory apartments WITHIN an existing or new owner occupied single-family dwelling may be authorized by the Building Commissioner with the issuance of a building permit when the conditions and requirements of § 97-10.D.(3) and (4) below are met.

Accessory apartments in an accessory structure DETACHED from an existing or new single-family dwelling may be authorized by the Zoning Board of Appeals (ZBA) with the granting of a Special Permit issued when the conditions and requirements of § 97-10.D.(3) and (5) below are met.

A property owner may appeal the denial of a Building Permit for an accessory apartment WITHIN an existing or new owner-occupied single family dwelling by seeking a Variance from the ZBA.

General Requirements:

The accessory apartment will be a complete, separate dwelling unit that contains both permanent kitchen and bathroom and has its own means of egress.

The owner(s) of record of the residence in which the accessory apartment is created must continue to occupy at least one of the dwelling units as their primary residence, except for bona fide temporary absences of six months or less; see § 97-10.D.(8) Occupancy Requirements below[2] The Occupancy Permit or Special Permit for the accessory apartment automatically lapses if the owner no longer occupies one of the dwelling units.

[2]

Editor's Note: So in original.

For the purposes of this By-Law, the term "owner" shall mean one or more individuals residing in a dwelling unit, who holds title and for whom the dwelling unit is the principal residence.

The gross interior floor area of the primary dwelling (excluding unfinished attic and basement, garage, and porch) shall be at least sixteen hundred (1,600) square feet.

The gross interior floor area of the accessory apartment (excluding unfinished attic and basement, garage, and porch) shall not be greater than 35% of the gross interior floor area of the primary dwelling as defined in § 97-10.D.(3)(d) above or one thousand (1,000) square feet of gross interior floor area, whichever is less.

(f)

No more than one accessory apartment may be created on a lot. There shall be no more than two dwelling units in a structure, and no more than two dwelling units on a single-family lot.

(g)

There shall be no boarders or lodgers within either unit of a dwelling or lot with an accessory apartment.

(h)

An accessory apartment may not have more than two bedrooms. The total number of bedrooms in the primary dwelling and the accessory dwelling unit combined may not exceed the capacity of the permitted septic system, per Title V requirements.

(i)

The existing house and the accessory apartment shall comply with all applicable health, safety, building and other applicable codes in effect at the time of the granting of the Building Permit, and of the Special Permit where applicable.

(j)

The proposed accessory apartment shall not violate any deed restrictions applicable to the subject lot or residence. The Applicant shall certify in a notarized statement that to the best of his or her knowledge that there are no such deed restrictions.

(k)

Utilities such as water, electric and gas necessary for the accessory dwelling unit shall be extensions of the existing utilities serving the principal single-family dwelling.

(l)

A minimum of one parking space shall be required for the accessory apartment. Parking spaces shall be located so that both the principal dwelling unit and the accessory apartment shall have at least one parking space with direct and unimpeded access to the street without passing through a parking space designated to serve the other dwelling unit.

Attached Accessory Apartments: All attached accessory apartments shall meet the General Requirements set forth in § 97-10.D.(3) above and the following specific conditions:

An attached accessory apartment shall not change the single-family appearance and purpose of the principal dwelling, except for the provision of an additional access or egress.

An accessory apartment added to a single-family residence shall be within the dwelling unit or have a common wall and may have a common interior door with the dwelling unit.

All stairways to second or third stories shall be enclosed within exterior walls;

Any new entrance shall be located on the side or on the rear of the building.

Prior to issuance of a building permit, a floor plan and elevations, drawn to scale, shall be submitted showing the proposed interior and exterior changes to the building to demonstrate that the accessory apartment will not significantly alter the appearance of the single-family dwelling.

Detached Accessory Apartments: All detached accessory apartments shall meet the General Requirements set forth in § 97-10.D.(3) above and the following specific conditions:

The minimum lot size for accessory apartments in detached structures constructed after the date of adoption of this Accessory Apartment By-Law (May 21, 2013) shall be 60,000 s.f.

The minimum lot size for accessory apartments in detached structures in existence as of the date of adoption of this Accessory Apartment By-Law (May 21, 2013) shall be 40,000 s.f.

Where accessory apartments are permitted in existing detached accessory structures, any exterior modifications to the accessory structure shall be consistent with the appearance and purpose for which the structure was originally built. If an accessory apartment is incorporated into a new accessory structure, the new structure shall be compatible in style with the principal dwelling on the same lot.

The proposed building scale shall be consistent with the single-family residential character of the lot and of the surrounding neighborhood.

The abutting properties shall be protected from the proposed use on the site by provision of adequate buffers or screening against light, sight, and sound.

(6)

Deviations from Conditions and Requirements:

The ZBA, as Special Permit Granting Authority, may allow minor dimensional variations (up to 5%) from the minimum requirements for lot size and/or maximum requirements for gross interior square feet for an accessory apartment, provided that in the Board's opinion the allowance of such variation is not contrary to the public interest and is consistent with the intent and purpose of this By-Law.

In order to encourage the development of housing units for disabled and handicapped individuals and persons with limited mobility, the ZBA as Special Permit Granting Authority may allow reasonable deviation from the stated conditions and requirements where necessary to install features that facilitate access and mobility for disabled persons, provided that the allowance of such deviation is not contrary to the public interest and is consistent with the intent and purpose of this By-Law.

(7)

Submission Requirements: An application for an accessory apartment, whether attached or detached, shall include, at a minimum:

A site plan, drawn to scale, showing boundaries and area of the lot, location(s) of all structures, setbacks, location and capacity of the approved septic system, including reserve area, well, driveway and parking spaces;

Building floor plans and elevations, drawn to scale, showing the proposed interior and exterior changes to the primary dwelling or accessory structure to demonstrate that the accessory apartment will not significantly alter the appearance of the primary dwelling or accessory structure.

Drawings showing door locking configuration and fire protection and fire separation details.

(8)

Occupancy Requirements:

Approval for an accessory dwelling unit requires that the owner of record must occupy one of the dwelling units as his or her primary residence.

Prior to issuance of a Building Permit, the owner shall send a notarized letter to the Building Commissioner stating that the owner will occupy one of the dwelling units on the premises as the owner's primary residence, except for bona fide temporary absences of six months or less.

The Building Permit, and Special Permit where applicable, shall be recorded by the owner in the Southern Essex District Registry of Deeds or Land Court, as appropriate, in the chain of title to the property, with documentation of the recording provided to the Building Commissioner, prior to the occupancy of the accessory dwelling unit.

When a lot with a structure which has received a permit for an accessory dwelling unit is sold, the new owner, if he or she wishes to continue to exercise the Permit, must, within sixty (60) days of the sale, submit a notarized letter to the Building Commissioner stating that he or she will occupy one of the dwelling units on the premises as his or her primary residence, except for bona fide temporary absences of six months or less.

Failure to follow the above requirements shall result in no Occupancy Certificate being issued or the revocation of the previously issued Occupancy Certificate.

Small Wind Energy Systems.

[Added 5-26-2009 ATM, Art. 31]

Purpose: To provide for the construction and use of small wind energy systems (SWES) as an alternative energy source to reduce or eliminate the on-site consumption of utility-supplied electricity.

Applicability: This section applies to small wind energy systems no greater than 60 kilowatts of rated nameplate capacity constructed as accessory use to the primary use of a property and intended to utilize energy from the wind to provide power to the primary use or a use accessory thereto.

Permitted Use: SWES shall be permitted for the applications stated above, provided that they meet the following requirements:

Freestanding SWES Height: 120 feet maximum.

Rooftop SWES Height: 120 feet maximum, including the height of the structure to which it is attached.

Setback: Each wind energy system and its associated equipment shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, to ensure public safety and to protect the interests of neighboring property owners, a wind turbine shall not be erected nearer to any property line than a distance equal to the height of the wind turbine plus an additional ten feet.

Noise: SWES shall conform to the provisions of the Department of Environmental Protection's Division of Air Quality Noise Regulations (310 CMR 7.10) A source of sound will be considered to be in violation of the Department's noise regulation if the source:

01)

Increases the broadband sound level by more than 10 dB(A) above ambient, or

02)

Produces a "pure tone" condition – when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.

These criteria are measured both at the property line and at the nearest off site inhabited residence. Ambient is defined as the background A-weighted sound level that is exceeded 90% of the time.

Land Clearing, Soil Erosion and Habitat Impacts: Clearing of natural vegetation shall be limited to that which is necessary for the construction, operation and maintenance of the Wind Energy Conversion System and is otherwise prescribed by applicable laws, regulations, and By-Laws.

(f)

Color and Finish: SWES shall remain painted or finished in the non-reflective, solid, neutral color that was originally applied by the manufacturer.

(g)

Lighting and Signage:

01)

Wind turbines shall be lighted only to the extent required by the Federal Aviation Authority (FAA). Lighting of other parts of the Wind Energy Conversion System, such as appurtenant structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties.

02)

Signs shall be limited to the manufacturer's "nameplate" and signage needed to identify the property, owner and warn of any danger. Otherwise, all signs shall comply with the requirements of the Town of Newbury's Sign Regulations, § 97-8.

(h)

Shadowing and Flicker: Small Wind Energy Systems shall be sited in a manner that minimizes shadowing or flicker impacts on abutting properties.

(i)

Tower and Foundation Design: The design of the tower and any supporting foundations shall be certified by a Professional Structural Engineer registered in the Commonwealth of Massachusetts to be in conformance with the Massachusetts State Building Code (780 CMR).

(j)

Compliance with FAA Regulations: SWES shall comply with all applicable FAA regulations, including any necessary approvals for installations close to airports.

(k)

Unauthorized Access: SWES and appurtenant structures shall be designed and constructed to prevent unauthorized access to entry and/or climbing.

(l)

Maintenance: The property owner shall maintain the SWES in good condition. Maintenance shall include, but is not limited to, painting, structural repairs, and integrity of security measures.

(m)

Abandonment or Decommissioning: Any above ground components of a SWES which has reached the end of its useful life or has been abandoned or is being decommissioned shall be removed and the site on which it is located shall be returned to the same state it was prior to installation of the SWES.

A SWES shall be considered to be abandoned when it fails to operate for one year. Upon a Notice of Abandonment issued by the Building Inspector, the SWES owner will have 30 days to provide sufficient evidence that the system has not been abandoned. If sufficient evidence is not provided, the Town of Newbury shall have the authority to enter the owner's property and remove the system at the owner's expense.

(n)

Secondary Uses: No part of any SWES shall be used for any purpose than the one for which it was designed, e.g. advertising, cellular antennas, etc.

(o)

Compliance with Laws, By-Laws, and Regulations: The construction and operation of all such proposed SWES shall be consistent with all applicable local, state and federal requirements, including but not limited to all applicable safety, construction, environmental, electrical, communications and aviation requirements.

Permit Requirements: A building permit shall be required for the installation of a SWES. The building permit application shall be accompanied by deliverables including the following.

A plot plan showing:

01)

Property lines and physical dimensions of the subject property within two times the total height from the tower location;

02)

Location, dimensions, and types of existing major structures on the property within two times the total height from the tower location;

03)

Location of the proposed wind system tower, foundations, guy anchors and associated equipment;

04)

The right-of-way of any public road that is contiguous with the property;

05)

Any overhead utility lines.

Wind system specifications, including manufacturer and model, rotor diameter, tower height, tower type (freestanding or guyed).

Tower foundation blueprints or drawings signed by a Professional Structural Engineer licensed to practice in the Commonwealth of Massachusetts.

The site plan review procedures set forth in § 97-9.A.(3), (4), (5), and (8) are incorporated herein as part of the application process for the approval of a building permit for the installation of a proposed SWES.

Permit Expiration: A permit issued pursuant to this By-Law shall expire if:

The SWES is not installed and functioning within 36 months from the date the permit is issued, or

The SWES is abandoned.

Temporary Trailers, Mobile Homes, and Existing Dwellings to be Demolished.

[Added 5-25-2010 ATM, Art. 16; amended 4-23-2019 ATM, Art. 24]

Purpose and Intent: It is the intent of this article to provide for the temporary use and occupancy of trailers, mobile homes, and existing dwellings to be demolished within the Town of Newbury, subject to the limitations below.

Allowed Use: A trailer, mobile home or existing dwelling that is to be demolished may be used on any lot as provided below:

The owner or occupier of a residence which has been destroyed by fire or natural disaster may place a mobile home on the site of such residence and may, by right, reside in such mobile home for a period not to exceed the shorter of eighteen (18) months or the life of the active building permit, not to exceed 15 calendar days after the issuance of an occupancy permit, while the residence is being rebuilt. Any such mobile home shall be subject to all required local and state permits and approvals.

The tenant of a commercial place of business which has been destroyed by fire or natural disaster may place a trailer on the site of such place of business and may, by right, occupy such trailer for a period not to exceed the shorter of eighteen (18) months or the life of an active building permit, not to exceed 15 calendar days after the issuance of an occupancy permit, while the business premises are being rebuilt. Any such trailer shall be subject to all required local and state permits and approvals.

A trailer or existing dwelling not otherwise being used as a residence may be used for a construction site office on a temporary basis, such trailer or existing dwelling to be removed upon completion of the construction project.

Removal of Trailer: Within five (5) business days of the removal of the trailer, notice in writing shall be given to the Building Department. The notice shall include the owner's name and address, the address the trailer was removed from (if different), and shall be signed and dated by the owner. The provisions of § 97-11.A.(1), Authority to enforce, shall apply for each day the trailer remains on site beyond 15 calendar days after issuance of a certificate of occupancy.

An existing dwelling not otherwise being used as a residence may be used as a construction site office on a temporary basis provided that:

The contractor furnish the Building Commissioner with a notarized letter stating that the existing dwelling’s occupancy is to be terminated upon receipt of the certificate of occupancy for the new dwelling;

The existing dwelling is removed within 30 calendar days after the issuance of the certificate of occupancy for the new dwelling.

Removal of Existing Dwelling: Within five (5) business days of the removal of the existing dwelling, notice in writing shall be given to the Building Department, in the form described in § 97-10.F.(3) above. The provisions of § 97-11.A.(1), Authority to enforce, shall apply for each day the dwelling remains on site beyond thirty (30) calendar days after issuance of a certificate of occupancy for the new dwelling.

Fences.

[Added 5-25-2010 ATM, Art. 17]

A building permit shall be obtained for all fences over six (6) feet in height and for installation of any fence greater than four (4) feet in height and less than 50% open which extends beyond the required front yard setback or the existing principal building, whichever is closer to the street.

All fences that require a permit shall be accompanied by a plot plan showing the location of the proposed fencing.

Fences may be installed up to but not on the property line.

Fences shall be installed with the finished or "good" side facing the adjoining property.