2008-04-26 Zoning By Laws

NOTICE:  This is not the official version of the Town of Cummington Zoning By-Laws.  While reasonable efforts have been made to assure the accuracy of the data provided, do not rely on this information without first checking an official edition of the By Laws.

 

TOWN OF CUMMINGTON

ZONING BY-LAWS

Index

SECTION 1.     Purpose:

SECTION 2.     Establishment of Districts

A.  Districts

B.  Boundaries

SECTION 3.     Non-conforming land Uses and Structures

A.  Exemptions

B.  Applications

C.  Pre-existing

D.  Amendments

E.  Abandonment

SECTION 4.     District and Use Regulations

A.  Purpose and Intent of Districts

B.  Use Regulation Schedule

C.  Dimensional Regulation Schedule

D.  Driveway Regulations

E.  Off Street Parking and Loading

SECTION 5.     ADMINISTRATION

A.  Enforcement

B.  Board of Appeals

C.  Special Permits

D.  Variances

E.  Penalties

SECTION 6.     Validity

SECTION 7      Reference

SECTION 8.     Personal Wireless Service Facilities and Repeaters

A.  Purposes

B.  Consistency with Federal Law:

C.  Definitions:

D.  Scope

E.  Requirement of Special Permit

F.  Application Requirements

G.  General Requirements of Issuance of F/TSP (s):

H.  General Requirements for Repeater Special Permits:

I.   Evaluation by Independent Consultants

J.   Approval Criteria:

K.  Monitoring and Evaluation of Compliance:

L.  Removal Requirements:

M. Performance Guarantees:

N.  Fees and Insurance:

O.  Permit Expiration and Renewal:

P.  Severability Clause:

Q.  Moratorium:

SECTION 9.     SIGN BY-LAW

A.  Purpose

B.  Applicability

C.  Definitions

D.  Sign Area

E.  General Regulations

F.  General Standards

G.  Placement Standards/Sign Height

H.  Illumination Standards

I.   Additional Standards for Specific Types of Signs

J.   Enforcement


TOWN OF CUMMINGTON

ZONING BY-LAWS

AS APPROVED

BY THE ATTORNEY GENERAL

February 1994

 

SECTION 1.     Purpose.

To promote the general welfare of the Town of Cummington, to protect the health and safety of its inhabitants, to encourage the most appropriate use of land within the Town, to retain our natural resources, to maintain the agricultural and rural character of the Town, to reduce the hazard from fire by regulating the location and use of buildings and the open spaces around them and to protect, conserve and increase the value of property, the Town of Cummington, under the authority of the Zoning Act, does hereby enact this By-Law.  All such regulations and restrictions contained in these Zoning By-Laws shall be uniform for each class or kind of buildings, structures or land, and for each class or kind of use, throughout the district.

SECTION 2.     Establishment of Districts.

A.     Districts.

For purposes of this Zoning By-Law, the Town of Cummington is divided into the following districts:

·        Rural-Residential            RR

·        Village                           V

·        Flood Plain                    FP

B.    Boundaries.

The boundaries of these districts are defined and bounded as shown on the map entitled "Zoning Map, Cummington, Massachusetts," approved by the Attorney General, August 9, 1972, which is hereby made a part of this By-Law.

SECTION 3.     Non-Conforming Land Uses and Structures.

A.     Exemptions.

This Zoning By-Law or any amendments thereto shall not apply to:

1.   Structures or uses lawfully in existence or lawfully begun.

2.   A Building or Special Permit issued before the first publication of notice of the public hearing on this By-Law or any amendments thereto.

3.   Alteration, reconstruction, extension or structural change to a non-conforming structure lawfully in existence or lawfully begun, if the non-conforming nature of the structure is not increased.

B.    Applications.

This Zoning By-Law or any amendments thereto shall apply to:

1.   Any change or substantial extension of a use lawfully in existence or lawfully begun.

2.   A Building or Special Permit issued after the first publication of public hearing on this By-Law or any amendments thereto.

3.   Reconstruction, extension or structural change of any structure lawfully in existence or lawfully begun.

4.   Alteration of a structure begun after the first publication of notice on this By-Law or any amendments thereto when such alteration will provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.

C.    Pre-Existing.

Pre-existing non-conforming structures or uses may be extended, altered or changed, provided, the Board of Appeals makes a finding that such extension, alteration or change shall not be substantially more detrimental than the existing non-conforming use.

D.    Amendments.

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

E.     Abandonment.

Abandonment shall be defined as the cessation of a non-conforming use as indicated by the visible or otherwise apparent intention of an owner to discontinue a non-conforming use of a structure or lot; or, the removal of the characteristic equipment or furnishing used in the performance of the non-conforming use, without its replacement within six (6) months by similar equipment or furnishings; or, the cessation by its replacement with a conforming use or structure.

SECTION 4.     District and Use Regulations.

A.     Purpose and Intent of Districts.

The purpose of these regulations, in all districts, is to preserve the rural character of the Town of Cummington and to protect the town's natural resources especially the prime water supplies.

1.   RURAL-RESIDENTIAL DISTRICT (RR).

a.  Purpose.

1)     To discourage scatteration of development beyond the fringes of developing village centers and thereby to reduce the need for uneconomical extension of roads, utilities and other community facilities and services.

2)     To channel development into areas where public utilities and community facilities and services may be provided efficiently.

3)     To discourage development in areas whose soil and slope characteristics are generally less suitable for development than in other districts.

b.  Intent.

It is the intent of this Zoning By-Law that residential, agricultural and small business uses shall be permitted in the Rural-Residential District, and that such other uses which may have an adverse impact on the character of the Rural-Residential District may be permitted by Special Permit as provided in B. Use Regulation Schedule.

c.   Special Conditions for Granting of a Special Permit.

A Special Permit may be granted in the Rural-Residential District if the Special Permit granting authority finds that the following conditions are met:

1)     That the use will not be detrimental to the public good.

2)     That the use will be in character with the existing uses in the Rural-Residential District.

3)     That the use will not create undue traffic which might be detrimental to the public.

4)     That the use will not be dangerous or harmful to the general public due to undue noise, odor, vibration, dust, smoke, water pollution, or for any other similar reasons.

5)     That the use will be sufficiently landscaped and situated to buffer it from existing uses and from all roads.  See Dimensional Regulation Schedule re: setbacks for noisy, dangerous, or other-wise disturbing uses.

6)     That the use can be adequately serviced by water, sewer and other necessary utilities and efficiently provided with public services.

2.   VILLAGE DISTRICTS (V).

a.  Purpose.

To provide centralized and compact centers for certain clean use business establishments which will serve residential uses in a compatible manner.

b.  Intent.

It is the intent of this Zoning By-Law that certain light retail, service establishments be permitted in the Village Districts and that inoffensive business, or other similar retail service or office uses may be permitted by Special Permit as provided.

c.   Special Conditions for Grant of a Special Permit.

A Special Permit may be granted in the Village Districts if the Special Permit granting authority finds that the following conditions are met:

1)     That the use will not be detrimental to the public good or to the character of the Town of Cummington.

2)     That the use will not be offensive or dangerous or be so expansive that it will consume large areas of land.

3)     That sufficient parking will be provided to serve such use.

4)     That the use will not create unnecessary congestion on major streets.

5)     That the use will not be dangerous or harmful to the general public due to undue noise, odor, vibration, dust, smoke, water pollution or for any other similar reason.

6)     That the use can be adequately serviced by water, sewer and other necessary utilities.

3.   FLOODPLAIN AND WESTFIELD RIVER PROTECTION DISTRICT (FP).

a.  Purpose.

1)     Protect the public safety and property from flooding hazards.

2)     Preserve the natural flood control and flood storage characteristics of the floodplain.

3)     Promote the preservation of agricultural lands along the Westfield River.

4)     Prevent any alterations to the natural flow of the river.

5)     Protect fisheries and wildlife habitat within and along the river.

6)     Control erosion and siltation.

7)     Enhance and preserve existing scenic or environmentally sensitive areas along the shoreline.

8)     Conserve shore cover and encourage well-designed developments.

9)     Prevent water pollution caused by erosion, sedimentation, nutrient or pesticide run-off, and poorly sited waste disposal facilities.

10)   Preserve and maintain the groundwater table and water recharge areas within the floodplain.

b.  District Delineation.

1)     The Floodplain District is herein established as an overlay district and includes as special flood hazards areas designated as Zones A, A1-30 on the Cummington Flood Insurance Rate Maps (FIRM), dated February 22, 1989 (Panels 250159 0001-0010), on file with the Town Clerk and hereby made a part of this ordinance.

2)     The Westfield River Protection District is herein established as an overlay district.  The area subject to the By-Law shall be the entire length of the East Branch of the Westfield River within the Town of Cummington.  The Westfield River Protection District shall encompass those floodplain areas designated as Zone A or Zones A 1-30 on the Town of Cummington Flood Insurance Rate Maps (FIRM) for the Westfield River, East Branch.  Where the floodplain has not been delineated on the FIRM maps or where the delineation is less than 100 feet from the river bank (as defined by M.G.L. Chapter 131, Section 40), the Westfield River Protection District shall be defined as that area within 100 feet, measured horizontally, of the river bank.  For the purposes of this By-Law, the riverbank shall be defined as the river's seasonal high water mark.

3)     The boundaries of the Floodplain and Westfield River protection Districts shall be determined by scaling distances on the Flood Insurance Rate Map.  When interpretation is needed as to the exact location of the boundaries of a District, the Building Inspector shall make the necessary interpretation.

c.   Use Regulations.

All development, including structural and non-structural activities, whether permitted as a right or by Special Permit must be in compliance with the Mass. Wetlands protection Act, Chapter 131, Section 40 of the M.G.L. and with the requirements of the Massachusetts State Building Code 780 CMR 744.0 pertaining to construction in the floodplain and with the State Environmental Code, Title V.

1)     Permitted Uses.

The following uses of low flood-damage potential and causing no obstruction to flood flows shall be permitted in the Floodplain and Westfield River Protection Districts provided they do not require structures, fill or storage of materials or equipment:

a)     Agricultural uses such as farming, grazing and horticulture.

b)     Forestry uses.

c)     Outdoor recreational uses, including fishing, boating, play areas and foot, bicycle, or horse paths.

d)     Conservation of water, plants, and wildlife.

e)     Wildlife management areas.

f)      Buildings lawfully existing prior to the adoption of these provisions.

2)     Uses by Special Permit in the Floodplain and Westfield River protection Districts.

a)     No structure or building in the Floodplain and Westfield River Protection Districts shall be erected, constructed, substantially improved, reconstructed or otherwise created or moved; no earth or other materials dumped, filled, excavated, or transferred, unless a Special Permit is granted by the Zoning Board of Appeals.

b)     The following uses may be allowed by Special Permit from the Zoning Board of Appeals in accordance with the Special Permit regulations in Section 5-C of this By-Law, and additional restrictions and criteria contained herein:

(1)    Single-family residences, not including mobile homes.

(2)    Residential accessory uses including garages, driveways, private roads, utility rights-of-way, and on-site wastewater disposal systems.

3)     Special Permit Requirements in the Floodplain District.

The following Special Permit requirements apply in the Floodplain District.

a)     With Zone A 1-30, where base flood elevation is not provided on the FIRM, the applicant shall obtain any existing base flood elevation data.  These data will be reviewed by the Building Inspector for their reasonable utilization toward meeting the elevation or flood proofing requirements as appropriate, of the State Building Code.

b)     No encroachments (including fill, new construction, substantial improvements to existing structures, or other development) shall be allowed unless it is demonstrated by the applicant that the proposed development,, as a result of compensating actions, will not result in any increase in flood levels during the occurrence of a 100-year flood in accordance with the Federal Emergency Management Agency's regulations for the National Flood Insurance Program.

c)     The proposed use shall comply in all respects to the provisions of the underlying District in which the land is located.

d)     The Board may specify such additional requirements and conditions as it finds necessary to protect the health, safety and welfare of the public and the occupants of the proposed use.

e)     Within 10 days of the receipt of the application, the Board shall transmit one copy of the development plan to the Conservation Commission, Board of Health, Building Inspector, and the Planning Board.  Final action shall not be taken until reports have been received from the above boards or until 35 days have elapsed.

4)     Special Permit Requirements in the Westfield River Protection District.

The following Special Permit requirements apply in the Westfield River Protection District, in addition to those requirements specified in Sections 3-c (3):

a)     A buffer strip extending at least one hundred (100) feet in depth, to be measured landward from each bank of the Westfield River shall be required for all lots within the River Protection District.  If any lot, existing at the time of adoption of this By-Law, does not contain sufficient depth, measured land-ward from the river bank, to provide a one hundred foot buffer strip, the buffer strip maybe reduced to 50% of the available lot depth, measured landward from the river bank.

(1)    The buffer strip shall include trees and shall be kept in a natural or scenic condition.

(2)    Neither buildings nor structures shall be erected, enlarged, altered or moved within the buffer strip.

(3)    On-site wastewater disposal systems shall not be located within the buffer strip and shall be located as far from the Westfield River as is feasible.

5)     Special Permit Criteria.

In addition to the provisions of Section 5-C, the Zoning Board of Appeals may issue a Special Permit if it finds the proposed use is compliant with the following provisions:

a)     In the Floodplain District, proposed uses must:

(1)    Not create increased flood hazards which are detrimental to the public health, safety, and welfare.

(2)    Comply in all respects to the provisions of the underlying District or Districts within which the land is located.

(3)    Comply with all applicable state and federal laws, including the Massachusetts Building Code and the Massachusetts Wetlands Protection Act (M.G.L. Ch. 131, Sec. 40).

b)     In the Westfield River Protection District proposed uses must also:

(1)    Be situated in a portion of the site which will most likely conserve shore land vegetation and the integrity of the buffer strip.

(2)    Be integrated into the existing landscape through features such as vegetative buffers and through retention of the natural shorelines.

(3)    Not result in erosion or sedimentation.

(4)    Not result in water pollution.

6)     Restricted Uses within the Westfield River .Protection District.

a)     No altering, dumping filling or removal of riverine materials or dredging is permitted.  Maintenance of the river, including stabilization or repair of eroded riverbanks or removal of flood debris, may be done under requirements M.G.L. Chapter 131, Section 40, and any other laws, By-Laws, and regulations.  Riverbank repairs shall be undertaken utilizing only natural materials (i.e. rock) and not with man-made materials (i.e. tires).

b)     All forest cutting over 25,000 board feet at one time shall require the filing of a Forest Cutting plan in accordance with the Mass. Forest Cutting practices Act (M.G.L. Chapter 132, sections 40-46).  In addition, no commercial cutting of forest or vegetation shall occur within 50 feet of the river bank.  In the area between 50 feet and 100 feet from the river bank, no more than 50% of existing forest shall be cut.

c)     No impoundments, dams or other water obstructions may be located within the district.

d)     No private wastewater treatment facilities, including residential package treatment plants, shall discharge directly to the East Branch of the Westfield River.

e)     All other uses not specifically permitted or allowed by site plan approval within the overlay zone are prohibited.

f)      All utilities shall meet the following standards:

(1)    All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

(2)    New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from the system into flood waters.

(3)    On-site waste disposal systems shall be located to avoid impairment or contamination from them during the flooding and shall be located no less than 150 feet from the normal high water mark.

7)     Prohibited Uses.

a)     No residential, commercial or industrial structure shall be constructed within the floodway, as designated on the Cummington Flood Insurance Rate Maps (FIRM).

8)     Non-Conforming Uses.

a)     Any lawful use, building, structures, premises, land or parts thereof existing at the effective date of this By-Law or amendments thereof and not in conformance with the provisions of this By-Law shall be considered to be a non-conforming use.

b)     Any existing use or structure may continue and may be maintained, repaired and improved, but in no event made larger.

c)     Any non-conforming structure which is destroyed may be rebuilt on the same location but no larger than its overall original square footage.

4.   Water Supply Protection District.

a.  Purpose of District.

To promote the health, safety and welfare of the community by protecting and preserving the surface and groundwater resources of the Town and the region from any use of land or buildings which may reduce the quality of its water resources.

b.  Definitions.

1)     Animal Feed Lot: - A relatively small, confined land area for fattening cattle or holding temporarily for shipment.

2)     Aquifer - Geologic formation composed of rock or sand and gravel that contains significant amounts of potentially recoverable potable waters.

3)     Groundwater - All water found beneath the surface of the ground.

4)     Hazardous Waste - A waste which is hazardous to human health or the environment. Hazardous wastes have been designed by the U.S. Environmental Protection Agency under 40 CFR 250 and the Regulations of the Massachusetts Hazardous Waste Management Act M.G.L., Chapter 21C.

5)     Impervious Surfaces - Materials or structures on or above the ground that do not allow precipitation to infiltrate the underlying soil.

6)     Primary Aquifer Recharge Area - Areas which are underlain by surficial geologic deposits including glaciofluvial or lacustrine stratified drift deposits or alluvium or swamp deposits, and in which the prevailing direction of groundwater flow is toward the area of influence of public water supply wells.

7)     Secondary Aquifer Recharge Area - Areas which are underlain by surficial geologic deposits including till or bedrock in which the prevailing direction of surface water flow is toward public water supply wells or potential sites for such wells.

8)     Trucking Terminal - Business which services or repairs commercial trucks which are not owned by the business.

9)     Watershed - Lands lying adjacent to water courses and surface water bodies which create the catchment or drainage areas of such water courses and bodies.

c.   Scope of Authority.

The Water Supply Protection District is an overlay district and shall be superimposed on the other districts established by this By-Law.  All regulations of the Town of Cummington Zoning By-Law applicable to such underlying districts shall remain in effect, except that where the Water Supply Protection District imposes additional regulations, such regulations shall prevail.

d.  District Delineation.

1)     The Water Supply Protection District is herein established to include all lands within the Town of Cummington lying within the primary recharge areas of groundwater aquifers which now or may in the future provide public water supply. The map entitled "Water Supply Protection District” Town of Cummington, on file with the Town Clerk, delineates the boundaries of the district.

2)     Where the bounds delineated are in doubt or in dispute, the burden of proof shall be upon the owner(s) of the land in question to show where they should properly be located.  At the request of the owner(s) the Town may engage a professional hydrogeologist to determine more accurately the location and extent of an aquifer or primary recharge area and may charge the owner(s) for the costs of the investigation.

e.  Prohibited Uses.

1)     Business and industrial uses, not agricultural, which manufacture, use, process, store, or dispose of hazardous materials or wastes as a principal activity, including but not limited to metal plating, chemical manufacturing, wood preserving, furniture stripping, dry cleaning, foundries, petroleum refining, photographic processing, leather tanning, electrical circuit manufacturing, degreasing operations, plastics processing, fuel oil sales, and auto body repair, or which involve on-site disposal of industrial process waste waters.

2)     Trucking terminals, motor vehicle gasoline sales, and automotive service and repair shops.

3)     Solid waste landfills, dumps, auto recycling, junk and salvage yards, with the exception of the disposal of brush or stumps.

4)     Underground storage and/or transmission of petroleum products excluding liquefied petroleum gas.

5)     Outdoor storage of salt, de-icing materials, pesticides or herbicides.

6)     Dumping or disposal on the ground, in water bodies, or in residential septic systems of any toxic chemical, including but not limited to septic system cleaners which contain toxic chemicals such as methylene chloride and 1-1-1 trichlorethane, or other household hazardous wastes.

f.   Restricted Uses.

1)     Excavation for removal of earth, sand, gravel and other soils shall not extend closer than ten (10) feet above the annual high groundwater table.  A monitoring well shall be installed by the property owner to verify groundwater elevations.  This section shall not apply to excavations incidental to permitted uses, including but not limited to providing for the installation or maintenance of structural foundations, freshwater ponds, utility conduits or on-site sewage disposal.  This section shall apply to all commercial earth removal operations, including expansions of existing operations.

a)     Access road(s) to extractive operation sites shall include a gate or other secure mechanism to restrict public access to the site.

b)     As soon as possible after the earth removal is completed, the land shall be restored and stabilized with topsoil and plantings of trees and natural vegetation.  All fine materials, such as clays and silts, removed as part of the earth removal operation and leftover as by-products, shall be disposed of off-site to prevent damage to aquifer recharge characteristics.

2)     The use of sodium chloride for ice control shall be minimized, consistent with the public highway safety requirements.

3)     Salt storage areas shall be covered and be located on a paved surface, with berms to prevent run-off from leaving the site.

4)     Fertilizers, pesticides, herbicides, lawn care chemicals or other similar materials shall be used with manufacturer's label instructions and all other necessary precautions to minimize adverse impacts on surface and groundwater.

5)     Above-ground storage tanks for oil, gasoline or other petroleum products shall be placed in a building in a concrete basement or other indoor location, on a diked, impermeable surface sufficient to contain the volume of the tank to prevent spills or leaks from reaching groundwater.

6)     To the extent feasible, all new permanent manure pits and new animal feed lots shall be designed to restrict infiltration, run-off or other movement of animal wastes or manure to the aquifer or surface water.

g.  Area Regulations.

1)     Within the primary aquifer recharge area the minimum allowable lot size shall be 40,000 square feet in areas not served by municipal sewerage systems.

h.   Drainage.

1)     For commercial, industrial and residential uses, all run-offs from impervious surfaces shall be recharged on the site by being diverted towards areas covered with vegetation for surface infiltration to the extent possible.  Dry wells shall be used only where other methods are unfeasible, and shall be preceded by oil, grease and sediment traps to facilitate removal of contamination.  All recharge areas shall be permanently maintained in full working order by owner.

i.    Uses allowed by Special Permit.

The following uses may be allowed by Special Permit obtained from the Zoning Board of Appeals:

1)     Uses allowed by Special Permit.

a)     Commercial and industrial uses which are allowed in the underlying district and which are not otherwise prohibited by this By-Law, including but not limited to: manufacturing or processing of food products, storage and distribution of lumber and building materials, warehousing, public utilities, manufacture or processing of stone, concrete or clay products, millworking, hotel or motel, retail store, office, bank, restaurant or tavern, theatre, hall or club, personal service store, public schools, and churches.

b)     Any enlargement, intensification or alteration of an existing commercial or industrial use.

c)     The rendering impervious of more than 20% of any single residential lot.

2)     Requirements for Special Permit in the Water Supply Protection District.

The applicant shall file six (6) copies of a Site plan prepared by a qualified professional with the Zoning Board of Appeals.  The site plan shall at a minimum include the following information where pertinent:

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

b)     Those businesses using or storing such hazardous materials shall file a hazardous materials management plan with the Zoning Board of Appeals and Board of Health which shall include:

(1)    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 clean-up procedures.

(2)    Provisions for indoor secured storage of hazardous materials and wastes with impervious floor surfaces.

(3)    Evidence of compliance with the Regulations of the Massachusetts Hazardous Waste Management Act 310, CMR 30, including obtaining an EPA identification number from the Mass. Department of Environmental Protection.

(4)    Drainage recharge features and provisions to prevent loss of recharge.

(5)    Provisions to control soil erosion and sedimentation, soil compaction, and to prevent seepage from sewer pipes.

3)     Additional procedures for Special Permit in the Water Supply Protection District.

a)     The Zoning Board of Appeals shall follow all Special Permit procedures in Section 5-C and specified in M.G.L. Chapter 40A.

b)     In addition to the findings in Section 5-C, the Zoning Board of Appeals may grant the required Special Permit only upon finding that the proposed use meets the following standards:

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

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

c)     The Zoning Board of Appeals 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 Section 5-C.

j.    Non-Conforming Use.

Non-conforming uses which were lawfully existing, begun or in receipt of a building or Special Permit prior to the first publication of notice of public hearing for this By-Law may be continued.  Such non-conforming uses may be extended or altered, as specified in M.G.L. Ch. 40A, Sec. 6, provided that there is a finding by the Zoning Board of Appeals that such change does not increase the danger of surface or groundwater pollution from such use.

B.    Use Regulation Schedule.

1.   No building or structure shall be erected or used and no land shall be used except as set forth in the Use Regulation Schedule or as otherwise exempted by statute.

2.   All new buildings, structures or uses of land shall comply with the state sanitary code for year round use.

3.   Unregistered Motor Vehicles.

a.  The keeping of more than one unregistered motor vehicle, assembled or unassembled, except by a person licensed under M.G.L., Chapter 140, Sec. 59, on any premises shall not be permitted, unless said motor vehicles are stored within an enclosed building or are exempted under sections 2 or 4.  Violators of this By-Law are subject to the penalties and fines as set by the Selectboard.

b.  A Special Permit to keep more than one unregistered motor vehicle on any premises not within an enclosed building, after a duly called public hearing to which all abutters to the premises have received notice, may be granted by the Board of Selectmen, if it finds that such keeping:  (1) is in harmony with the general purpose and intent of this By-Law;  (2) will not adversely affect the neighborhood;  and (3) will not be a nuisance.

c.   All such Special Permits granted shall limit the number of unregistered motor vehicles to be kept on the premises by the permit holder, shall not run with the land, and may be, subject to a time limitation.

d.  This By-Law shall not apply to motor vehicles in operating condition, which are used for farming purposes, seasonal recreation, by contractors or for property maintenance.

4.   Symbols employed in the Use Regulation Schedule shall mean the following:

Y                A permitted use.

N                An excluded or prohibited use.

SPA            A use permitted by Special Permit from the Board of Appeals, when acting as the Special Permit granting authority.

SPS            A use permitted by Special Permit from the Board of Selectmen, when acting as the Special Permit granting authority.

 

Activity or Use

 

District

 

 

RR

V

FP

A. AGRICULTURAL, INCLUDING RELATED STRUCTURES.

 

 

 

(1)    Agriculture including farms, raising livestock, woodlots & growing crops.

Y

Y

Y

(2)    Floriculture.

Y

Y

Y

(3)    Horticulture.

Y

Y

Y

(4)    Roadside Stand.

Y

SPA

N

(5)    Greenhouse.

Y

SPA

N

B. BUSINESS.

 

 

 

(1)    Auto, boat, or farm equipment sales, rental, service.

SPA

SPA

N

(2)    Bank, financial institutions.

SPA

SPA

N

(3)    Business or professional offices.

SPA

SPA

N

(4)    Funeral Home.

SPA

SPA

N

(5)    Restaurants, eating establishments.

SPA

SPA

N

(6)    Retail sales or services.

SPA

SPA

N

(7)    Wholesale without storage.

SPA

SPA

N

(8)    Home occupations that employ no more than three (3) persons from the outside of, or in addition to, the resident family members.

Y

Y

N

(9)    Motels or Hotels.

SPA

SPA

N

(10)  Other business uses which meet the intent and purpose of this By-Law.

SPA

SPA

N

(11)  The manufacture, storage or dumping of toxic, or hazardous waste materials.

N

N

N

(12)  Gravel bank, Quarry, etc.

SPA

SPA

SPA

C. INSTITUTIONAL.

 

 

 

(1)    Educational uses exempted by M.G.L Ch.40A,
Sec. 3.

Y

Y

Y

(2)    Municipal uses.

Y

Y

SPA

(3)    Religious uses exempted by M.G.L.Ch. 40A,
Sec. 3.

Y

Y

Y

(4)    Nursing Home, hospital or similar use.

SPA

SPA

N

(5)    Private profit-making school.

SPA

SPA

N

D. RECREATION/OPEN SPACE.

 

 

 

(1)    Cemetery.

SPA

SPA

N

(2)    Recreational facility such as golf course, ski area, camping area, riding stable, etc.

SPA

SPA

SPA

(3)    Conservation.

Y

Y

Y

E. RESIDENTIAL.

 

 

 

(1)    Single family.

Y

Y

SPA

(2)    Two family.

Y

Y

SPA

(3)    Mobile home permitted on a six (6) month basis.

SPS

SPS

SPS

(4)    Conversion of single family to two family.

SPA

SPA

SPA

F. MISCELLANEOUS.

 

 

 

(1)    Accessory buildings to home occupations.

SPA

SPA

SPA

(2)    (a)    Accumulation of old metals, machinery, or     other items used for legitimate purposes.

Y

Y

Y

        (b)    Accumulation of those items which may be    hazardous, injurious or obnoxious to the         neighborhood.

N

N

N

(3)    Harboring junk or old metal for sale.

SPS

SPS

N

(4)    Uses accessory to scientific research, development or related production.

SPA

SPA

SPA

(5)    Temporary mobile home on the site of a residence which has been destroyed by fire or other natural holocaust.  Such mobile home shall not be permitted beyond twelve months while residence is being rebuilt.  Any such mobile home shall be subject to the provisions of the state sanitary code.

Y

Y

Y

(6)    Accessory structures to residential buildings.

SPA

SPA

SPA

(7)    Buildings accessory to residences.

Y

Y

Y

 

C.    Dimensional Regulation Schedule.

In all districts, Rural-Residential, Flood Plain and Village, road frontage shall be defined as the continuous distance, in a straight line, between the side lot lines where they intersect with the side line of the maintained public way.  At no point between the front line of the lot and 100' back from the front line, shall the lot width be less than the required frontage.  Frontage must have both rights of access and potential safe, year-round practical vehicular access unimpeded by wetlands, topography, or other natural barriers between the public way and a potential building site.  The intent of these regulations is to disallow unusually shaped lots for the sole purpose of conforming to the dimensional requirements of this By-Law.

1.   In the Rural-Residential District, the following Dimensional Regulations shall apply to all uses, including educational and religious uses exempted by M.G.L. Chapter 40A,
Section 3.

AREA:  Two (2) acres – 87,120 square feet.

                     PUBLIC ROAD FRONTAGE:  Two hundred (200) feet.

                     SET BACKS:  Twenty-five (25) feet from all property lines, front, side and rear.

2.   In the Village Districts, which are defined on the attached maps previously referred to, the following Dimensional Regulations shall apply to all uses, including educational and religious uses exempted by M.G.L. Chapter 40A, Section 3.

                     AREA:  One-half (1/2) acre - 21,780 square feet.

                     PUBLIC ROAD FRONTAGE:  One hundred and fifty (150) feet.

                     SET BACKS:  Twenty-five (25) feet from all property lines, front, side and rear.

3.   In the Flood Plain District, which is shown on the attached map, the following Dimensional Regulations shall apply to all uses, including educational and religious uses exempted by M.G.L. Chapter 40A. Section 3.  Flood Plain lots adjacent to the Rural-Residential Districts must have the following dimensions:

                     AREA:  Two (2) acres - 87,120 square feet.

                     PUBLIC ROAD FRONTAGE:  Two Hundred (200) feet.

                     SET BACKS:  Twenty-five (25) feet from all property lines, front, side and rear.

                Flood Plain lots adjacent to the Village Districts must have the following dimensions:

                     AREA:  One half (1/2) acre - 21,780.

                     PUBLIC ROAD FRONTAGE:  One Hundred and Fifty (150) feet.

                     SET BACKS:  Twenty-five (25) feet from all property lines, front, side and rear.

4.   In addition to the above dimensional regulations, any use which is held to be harmful to the general public or to abutters or their interests due to undue noise, odor, vibration, dust, smoke, water pollution, or for any other similar reason, may be required to conform to the following additional dimensional requirement:

                     SET BACKS:  Five hundred (500) feet from all property lines front, side and rear.

5.   A building or structure may be constructed within three hundred (300) feet or less of the closest bank of any stream, river or brook or flowing water, ONLY if the applicant for such building permit submits a registered sanitarian’s proposal for a workable disposal system that will not leach into those waters.

D.    Driveway Regulations.

All driveways serving a lot with frontage on a public way shall be constructed to conform with the following conditions so as to insure safe access for all vehicles, including, but not limited to, emergency, fire and police vehicles.

1.   A plan of the proposed driveway along with a fee, payable to the Town of Cummington, of $25.00 shall be submitted to the Highway Superintendent.

2.   Plans for a new or existing driveway must conform to the following regulations and be approved by the Highway Superintendent before a building permit is issued.

3.   Access for a lot shall be via its frontage on a public way.

4.   No driveway shall be located within ten feet of any side or rear lot line.

5.   The grade of each driveway where it intersects with the edge of the road shall not exceed 8% for a distance of 20 feet from the sideline of the public way.

6.   The angle between the center line of the driveway and the street center line shall not be less than 60 degrees.

7.   The driveway shall not interfere with any existing drainage ditches or allow water to flow on to the existing roadway.

8.   An occupancy permit shall not be issued unless the driveway has been constructed to the approved plans, and inspected by the Highway Superintendent.

9.   Driveways for non-occupied lots shall be inspected by the Highway Superintendent before usage is approved.

E.     Off-Street Parking and Loading.

The intent of these regulations is to provide adequate off-street parking to avoid motor vehicles from unnecessary parking on the street.

1.   Off-street parking.

a.  After the effective date of this By-Law, off-street parking spaces shall be provided for every new structure, the enlargement of an existing structure, the development of a new land use or any change in existing land use, in accordance with the table of Off-Street Parking Regulations and other requirements contained herein, within three hundred feet of the principal structure or use of the premises.

b.  An area of two hundred square feet of appropriate dimensions for the parking of an automobile, exclusive of drives or aisles, shall be considered as one off-street parking space.

c.   All outdoor parking areas shall be treated with a surface binder, gravel, crushed stone or as otherwise specified herein or required under a Special Permit.

d.  No required off-street parking area shall be located in the required front yard or within ten feet of a side lot line within the Village District.

e.  No new off-street parking area shall be permitted within 10 feet of the side lot lines.

2.   Table of Off-Street Parking Regulations.

Use

Minimum Number of Off-Street Parking Spaces

A.    Dwelling, one family.

Two spaces.

B.    Dwelling, two family.

Four spaces.

*C.  Multi-family.

Two spaces for each dwelling unit.

*D.  Hotel, Motel, Inn, Tourist or Boarding House.

One space for each sleeping room.


*E.   Business, Public Buildings, other.

Adequate number of spaces in the judgment of the Board Of Appeals to accommodate customers, patrons and Employees for the maximum use of the proposed facility.

*      Parking spaces for C, D and E must provide accessibility for any given motor vehicle without requiring the movement of any other motor vehicles.

 

3.   Other.

a.  Frequent parking of vehicles on a public or private street or way adjacent to the premises shall be considered evidence of inadequacy of the off-street parking space provided.

b.  The minimum number of required off-street parking spaces as set forth in Table of
Off-Street Parking Regulations herein may be reduced by Special Permit from the Board of Appeals upon determination that special circumstances render a lesser provision adequate for all parking spaces.

c.   Adequate off-street loading facilities and space must be provided to service all needs created by new construction whether through new structures or additions to existing ones, or by change of use of existing structures.  Facilities shall be so sized and arranged so that no vehicle need back onto or off of a public way, or be parked on a public way while loading, unloading or waiting to do so.

SECTION 5.     ADMINISTRATION.

A.     Enforcement.

The Building Inspector shall be responsible for enforcing this Zoning By-Law and shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of this By-Law or any amendments thereto; and no permit or license shall be granted for a new use of a building, structure or land if such use would be in violation of this By-Law or any amendment thereto.

B.    Board of Appeals.

The Board of Appeals shall consist of five (5) members and two (2) associate members to be appointed by the Selectmen as provided in M.G.L. Chapter 40A.  Members shall act on all matters within its jurisdiction under this By-Law in a manner prescribed in M.G.L. Chapter 40A.

C.    Special Permits.

1.   A Special Permit shall only be issued following a public hearing held within sixty-five (65) days after the filing of an application with the Special Permit granting authority, a copy of such application shall also be given to the Town Clerk forthwith by the applicant.

2.   Certain classes of Special Permits shall be issued by the Board of Appeals when acting as the Special Permit Granting Authority (SPGA), other classes of Special Permits shall be issued by the Planning Board when acting as the SPGA, and other classes of Special Permits shall be issued by the Board of Selectmen when acting as the SPGA as specified in the Use Regulation Schedule, Section 4B of this Zoning By-Law or elsewhere in this Zoning By-Law.

3.   A Special Permit shall only be issued if the Special Permit granting authority finds that such use meets the following conditions:

a.  That the use is in harmony with the general purpose and intent of this Zoning By-Law.

b.  That the use meets the use and dimensional requirements as specified in Section 4 of this Zoning By-Law.

c.   The Special Permit granting authority may also impose conditions, safeguards and limitations on time and use.

4.   Uses, which are accessory to scientific research, scientific development or related production activities permitted as a matter of right, whether or not such accessory uses are on the same parcel as the activities permitted as a matter of right, may be permitted upon the issuance of a Special Permit provided the Special Permit granting authority makes a finding that the proposed accessory use does not substantially derogate from the public good.

5.   Special Permit applications shall be submitted to and reviewed by the Planning Board, Conservation Commission, Board of Health, Board of Appeals and Board of Selectmen. Any such board or agency to whom applications are referred for review shall make such recommendations as they deem appropriate and shall send copies thereof to the Special Permit granting authority and the applicant.  Failure of any such board or agency to make recommendations within thirty-five (35) days of receipt by such board or agency of the application shall be deemed lack of opposition thereto.

6.   Any Special Permit issued under this section shall lapse within one (1) year after its issuance if a substantial use thereof has not commenced sooner except for good cause, or in the case of construction, if construction thereof has not commenced sooner except for good cause.  The time required to pursue or await determination of a judicial appeal pursuant to Chapter 40A of the General Laws, if any, shall be included within the one (1) year time limit.

1.  The Town of Cummington shall not issue permits for the sighting or construction of personal wireless service facilities for a period of six (6) months from the effective date of this By-Law amendment, June 16th, 2000 until December 16th, 2000.  This moratorium has been placed in effect for the period of six (6) months to allow for the examination of impacts and affects of personal wireless service facilities in the Town of Cummington.

D.    Variances.

1.   The permit granting authority shall have the power after public hearing to grant upon petition or appeal with respect to particular land or structures, a dimensional or use variance from the terms of this Zoning By-Law.

2.   A variance may only be issued pursuant to the required findings and other procedures as specified in Chapter 40A, Section 10 of the General Laws.

E.     Penalties.

Whoever violates after ten (10) days written notice any of the provisions of these By-Laws whereby any act or thing is enjoined or prohibited, shall, unless other provisions are expressly made, forfeit and pay a fine not exceeding the maximum permissible by law for each offense, and each continuing day of such violation may be considered a separate offense.


 

SECTION 6.     Validity.

In the event that any section or provision of this By-Law should be decided by the courts or by the Attorney General to be unconstitutional or invalid, such decisions shall not affect the validity of the By-Law as a whole of any part thereof other than the part so decided as being unconstitutional or invalid.

SECTION 7.     Reference.

* For matters not covered by this Zoning By-Law reference is made to M.G.L. Chapter 40A, 808 (Zoning Act) and 41(Subdivision).

SECTION 8.     Personal Wireless Service Facilities and Repeaters.

8.1      Purposes.

The purposes of the Town of Cummington Personal Wireless Service Facilities, Towers and Repeaters By-Law are to:

8.1.1      Preserve the character and appearance of the Town while simultaneously allowing Adequate Personal Wireless Services to be developed.

8.1.2      Protect the scenic, historical, environmental, and natural or man-made resources of the community.

8.1.3      Provide standards and requirements for regulation, placement, constructing, monitoring, design, modification, and removal of Personal Wireless Service Facilities and Repeaters.

8.1.4      Provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify Personal Wireless Service Facilities and Repeaters.

8.1.5      Preserve property values, locate Towers so as to minimize negative impacts on general safety, welfare and quality of life in the community, such as, but not limited to, visual blight, attractive nuisance, noise and falling objects.

8.1.6      Require owners of Personal Wireless Service Facilities, Towers and Repeaters to configure them so as to minimize and mitigate the adverse visual impact of the Facilities, Towers and Repeaters, including clustering, co-locating, and camouflaging where appropriate.

8.2      Consistency with Federal Law.

These regulations are intended to be consistent with the Telecommunications Act of 1996 in that  a) They do not prohibit or have the effect of prohibiting the provision of Personal Wireless Services.  b) They are not intended to be used to unreasonably discriminate among providers of functionally equivalent services.  c) They do not regulate Personal Wireless Services on the basis of the environmental effects of radio frequency emissions to the extent that the regulated Services and Facilities comply with the FCC’s regulations concerning such emissions.

8.3      Definitions.

ACT- The Telecommunications Act of 1996.

ADEQUATE COVERAGE- Coverage is considered to be “adequate” within the Coverage Area when the predicted or measured median field strength of the transmitted signal is greater than -95 dbm.  It is acceptable for there to be holes within the area of Adequate Coverage where the signal is less the -95 dbm, as long as the signal regains it strength to greater than -95 dbm further away from the Base Station.  For the limited purpose of determining whether the use of a Repeater is necessary or desirable, there shall be deemed not to be Adequate Coverage within said holes.  The outer boundary of the area of Adequate Coverage, however, is that location past which the signal does not regain strength of greater than -95 dbm.

ADEQUATE CAPACITY- Capacity is considered to be “adequate” if the Grade of Service is p.05 or better for a worst-case day in a preceding month.  Based on the Erlang B Tables, prior to the date of Application, or as measured using direct traffic measurement of the Personal Wireless Service Facility in question for existing Facilities requesting Major Modification, and where the call blocking is due to frequency contention at the antenna(s).

ANTENNA- A device which is attached to a Tower, or other structure for transmitting and receiving electromagnetic waves.

BASE STATION- The primary sending and receiving site in a wireless telecommunications network.

CHANNEL- The segment of the radiation spectrum from an Antenna, which carries one signal. An Antenna may radiate on many Channels simultaneously.

COMMUNICATION EQUIPMENT SHELTER- A structure located at a Base Station designed principally to enclose equipment used in connection with Personal Wireless Service transmissions.

COVERAGE AREA- An area extending radially from the base station a distance equal to 75% of the maximum distance that the signal will maintain a strength of -95 dbm.

Dbm- Unit of measure of the power level of an electromagnetic signal expressed in decibels referenced by 1 milliwatt.

EMF- Electromagnetic Frequency Radiation.

FACILITY SITE- A property, or any part thereof, which is owned or leased by one or more Personal Wireless Service Providers and upon which one or more Personal Wireless Service Facilities and required landscaping are located.

FACILITY/TOWER SPECIAL PERMIT (F/TSP)– The Special Permit required to be obtained in order to install any Tower or Personal Wireless Service Facility or for any Major Modification of an existing Facility.

FCC- Federal Communications Commission.  The federal agency responsible for regulating telecommunications in the United States.

FCC 96-326- A Report and Order which sets new national standards for emission of Radio-Frequency emissions from FCC-regulated transmitters.  This Report and Order is now contained with title 47 Regulations, Section 1 & 1.1307.

GRADE OF SERVICE- A measure of the percentage of calls, which are able to connect to the Base Station, during the busiest hour of the day.  Grade of Service is expressed as a number, such as p. 05 - which means that 95% of callers will connect on their first try.  A lower number (p. 04) indicates a better Grade of Service.

MAJOR MODIFICATION OF AN EXISTING FACILITY- Any change, or proposed change in power input or output, number of Antennas, change in Antenna type or model, repositioning of Antenna(s), change in number of Channels per Antenna above the maximum number approved under an existing Special Permit.  Also any increase, or proposed increase in dimensions of an existing and permitted Tower or other structure designed to support Personal Wireless Service transmission, receiving and/or relaying antennas and/or equipment.

MAJOR MODIFICATION OF AN EXISITNG REPEATER- Any removal of or change in location of any Repeater (s) from the Repeater Site(s) for which a Repeater Special Permit has been received.

MONITORING- The measurement, by the use of instruments in the field, of the radiation from a Site as a whole, or from individual Personal Wireless Service Facilities, Towers, Antennas or Repeaters.

MONITORING PROTOCOL- The testing protocol, initially the Cobbs Protocol, which is to be used to monitor the emissions from existing and new Personal Wireless Service Facilities and Repeaters upon adoption of this Article.  The Special Permit Granting Authority (SPGA) may, as the technology changes, require, by written regulation, the use of other testing protocols.  A copy of the Monitoring Protocol shall be on file with the Town Clerk.

MONOPOLE- A single self-supporting vertical pole with below grade foundations.

PERSONAL WIRELESS SERVICES- Commercial Mobile Services, unlicensed wireless services, and common carrier wireless exchange access services.  These services include cellular services, personal communications services (PCS), Specialized Mobile Radio Services, and Paging Services.

PERSONAL WIRELESS SERVICE FACILITY- All equipment (excluding any Repeaters) with which a Personal Wireless Service Provider broadcasts and receives the radio-frequency waves which carry their services and all locations of said equipment or any part thereof.  This Facility may be sited on one or more Towers or structure(s) owned and permitted by another owner or entity.

PERSONAL WIRELESS SERVICES PROVIDER- An entity, licensed by the FCC to provide Personal Wireless Services to individuals or institutions.

RADIATION PROPAGATION STUDIES OR RADIAL PLOTS- Computer-generated estimates of the radiation emanating from Antennas or Repeaters sited on a specific Tower or structure.  The height above mean sea level, power input and output, frequency output, type of antenna, antenna gain, topography of the site and its surroundings are all taken into account to create these simulations.

REPEATER- A small receiver/relay transmitter of not more than 20 watts output designed to provide service to areas which are not able to receive Adequate Coverage directly from a Base Station.

REPEATER SITE- The location within the Town of Cummington leased by one or more Personal Wireless Service Providers and upon which one or more Repeater(s) and required camouflage or screening is located.

REPEATER SPECIAL PERMIT (RSP)- The Special Permit required to be obtained in order to install any Repeater, or for Major Modification Of An Existing Repeater within the Town of Cummington.

SPECIAL PERMIT GRANTING AUTHORITY (SPGA)- The Planning Board shall be the SPGA for this use; the SPGA may be supplemented by members of the Zoning Board of Appeals.

TELEPORT- A multi-user commercial facility utilizing satellite dishes of greater than 2.0 meters in diameter designed to uplink to communications satellites for transmission of data.

TOWER- A monopole, lattice, or other structure that is designed to support Personal Wireless Service transmission, receiving and/or relaying antennas and/or equipment.

8.4      Scope.

8.4.1      This Article specifically exempts the following wireless telecommunications facilities: police, fire, ambulance and other emergency dispatch: citizen band radio.  Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the FCC, are exempt, provided that (1) the tower is not used for any commercial purpose, and (2) the tower shall be removed upon loss or termination of said FCC license.  No Personal Wireless Service Facility or Repeater shall be considered exempt from this Article for any reason, whether or not said Facility or Repeater is proposed to share a Tower or other structure with such exempt uses.

8.4.2      There shall be no Teleport(s) or microwave reflector dish Antenna (s) within the Town of Cummington.

8.4.3      Communication relay structures, TV broadcast systems, radio broadcast systems and other similar systems are not permitted under this telecommunications tower By-Law.

8.5      Requirement of Special Permit.

8.5.1      No Personal Wireless Service Facility, Tower or Repeater shall be erected, constructed, or installed or undergo Major Modification without first obtaining a Special Permit from the SPGA in accordance with the requirements set forth herein. One or both of two kinds of Special Permits are required.  a) A Facility/Tower Special Permit (hereforth F/TSP) for new Facility/Tower construction (or Major Modification Of An Existing Facility);  b) A Repeater Special Permit (hereforth RSP) for Repeater(s) to be mounted on an existing, or newly permitted Tower or structure (or Major Modification Of An Existing Repeater).

8.5.2      All applications to construct a tower must provide space on top of the tower for fire, police and any and all emergency services to install communication equipment at fair market value.  Additionally, space shall be provided within the base station for a shelter for communications equipment suitable to such services, at fair market value. Access to the station shall be provided to fire, police and emergency services to maintain their equipment through the use of a “key safe” installed at the primary point of entry into the Base Station.

8.6      Application Requirements.

8.6.1      For Personal Wireless Service Facilities or Towers an F/TSP is required.  Applicant must submit all information required in §8.6.2.  For all Repeaters proposed for installation, a RSP is required.  A RSP may be applied for by an Applicant who is currently applying for a F/TSP under this Article, or by an Applicant who has previously received a F/TSP under this Article, or by an entity that is providing Personal Wireless Services to the Town of Cummington from a base station outside the Town. Applicant must submit all information required in §8.6.3.  If Applicant is applying for both Permits, they shall be submitted and examined concurrently.

8.6.2      Application Requirements for Facilities or Towers.

8.6.2.1     General - The application shall include the following information:

8.6.2.1.1     The exact legal name, address or principal place of business and phone number of the Applicant. If any Applicant is not a natural person, it shall also give the state under which it was created or organized.

8.6.2.1.2     The name, title, addresses and phone numbers of the person to whom correspondence or communications in regard to the application are to be sent. Notice orders and other papers may be served upon the person so named, and such service shall be deemed to be service upon the Applicant.

8.6.2.1.3     Name, address, phone number and written consent to apply for this permit. From the owner of the property that the proposed Personal Wireless Service Facility and/or Tower shall be located, or the owner(s) of the Tower or structure on which the proposed Personal Wireless Service Facility shall be located.

8.6.2.2     Engineering Requirements - Reports prepared by one or more professional engineers, licensed to practice in the State of Massachusetts that shall include the following:

8.6.2.2.1     Copies of all submittals and showings pertaining to: FCC Licensing Environmental Impact Statements; Federal Aviation Administration Notice of Construction or Alteration; Aeronautical Studies; and, all data, assumptions and calculations relating to service coverage and power levels regardless of whether categorical exemption from Routine Environmental Evaluation under the FCC rules is claimed.

8.6.2.2.2     Copies of all information submitted in compliance with requirements of Massachusetts Department of Public Health, 105 CMR 122 fixed facilities that generate electromagnetic fields in the frequency range of 300 kHz to 100 gHz and microwave ovens.  Or any revisions thereof as the Department of Public Health may, by written notice, create.

8.6.2.3     Adequate Coverage - Adequate Capacity and Justification of Need for F/TSP.

8.6.2.3.1     Applicant shall provide written documentation of any Facility Site(s) in Cummington, and any sites in abutting towns located within five miles of any boundary of the Town of Cummington, in which it has a legal or equitable interest, whether by ownership, leasehold or otherwise.  For each such Facility Site, it shall demonstrate with written documentation that this Facility Site is not already providing, or does not have the potential by adjusting the Site, to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington.  The documentation shall include, for each Facility Site listed:

8.6.2.3.1.1     The exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds), ground elevation above mean sea level at the Tower location, height of Tower or structure, and height of proposed antennas on tower or structure.

8.6.2.3.1.2     Type, manufacturer and model number of antennas, and antenna gain.

8.6.2.3.1.3     Output frequency number of channels, power input, and maximum Power output per channel.

8.6.2.3.1.4     Potential adjustments to these existing Facility Sites, including changes in Antenna type, orientation, gain; height or power output shall be specified.

8.6.2.3.1.5     Radial Plots from each of these Facility Sites, as they exist, and with adjustments as above, shall be provided as part of the Application.

8.6.2.3.2     Applicant shall demonstrate with written documentation that they have examined all existing Facility Sites located in Cummington and in any sites in abutting towns located within five miles of any boundary of the Town of Cummington in which an Applicant has no legal or equitable interest.  Whether by ownership, leasehold, or otherwise to determine whether those existing Facility sites can be used to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington.  The documentation shall include, for each existing Facility Site examined:

8.6.2.3.2.1     The exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds), ground elevation above mean sea level at the Tower location, height of Tower or structure, and height of proposed antennas on tower or structure.

8.6.2.3.2.2     Type, manufacturer and model number of antennas, and antenna gain.

8.6.2.3.2.3     Output frequency, number of channels, power input and maximum power output per channel.  Radial Plots from each of these existing Facility Sites, configured as documented above, shall be provided as part of the Application.

8.6.2.3.3     Application shall demonstrate with written documentation that the fee, costs, or contractual provisions required by the owner(s) in order to share an existing wireless communication structure or to adapt an existing structure for use are unreasonable.  Unreasonable cost would be equal to twice the cost of building a new structure.

8.6.2.3.4     Applicant shall demonstrate with written documentation that it has analyzed the feasibility of Repeaters in conjunction with all existing Facility Sites listed in compliance with § 8.6.2.3.1 and §8.6.2.3.2 (above) to provide Adequate Coverage and/or Adequate Capacity to the Town of Cummington.  Radial Plots of all Repeaters considered for use in conjunction with these Facility Sites shall be provided as part of the Application.

8.6.2.3.5     Applicant shall provide documentation from the FAA that the proposed facility is exempt from applicable regulations administered by the FAA.

8.6.2.4     The following engineering plans, prepared, stamped and signed by a Professional Engineer licensed to practice in Massachusetts.  (Note: survey plans shall also be stamped and signed by a Professional Land Surveyor registered in Massachusetts.)  Plans shall be on 24”x 36” sheets, on as many sheets as necessary, and at scales that are no smaller (i.e. no less precise) than listed below and in §8.6.2.4.1.  Each plan sheet shall have a title block indicating a project title, sheet title, sheet numbers, date, revision dates, scale(s) and original seal and signature of the P.E. and other professionals who prepared the plan.

8.6.2.4.1     Proposed Site Plans:  Proposed Facility Site layout, grading and utilities at a scale no smaller than 1”=40’ (1:480 or metric equivalent 1:500) showing the entire vicinity within a 400’ radius of the Tower site with topography drawn with a maximum of 2’(0.6 meter) contour interval, and including:

8.6.2.4.1.1     Proposed Tower location and appurtenances, if any, and any accessory building (Communication Equipment Shelter or other), indicate property boundaries and setback distances to the base(s) of the Tower and to the nearest corners of each of the appurtenant structures to those boundaries, and dimensions of all proposed improvements.  The site plan shall include the location of all abutting properties within 300’ of the tower property and names of current owners of each.

8.6.2.4.1.2     Limits of areas where vegetation is to be cleared or altered and justification for any such clearing or alteration.

8.6.2.4.1.3     Plans for proposed access driveway or roadway and parking area at the Facility Site.  Including grading, drainage and traveled width.  Include a cross section of the access drive indicating the width, depth of gravel, and paving or surface materials.

8.6.2.4.2     Proposed Tower and Appurtenances.

8.6.2.4.2.1     Plans, elevations, sections and details at appropriate scales but no smaller than 1”=10’.

8.6.2.4.2.2     Two cross sections through proposed Tower drawn at right angles to each other, and showing the ground profile to at least 100 feet beyond the limit of clearing.  Indicate proposed spot elevations at the base of the proposed Tower. Indicate the proposed height of tower above average grade at Tower Base.  Indicate the maximum allowable structural height of the Tower after addition of any modular sections. Show all proposed antennas, including their location on the Tower.

8.6.2.4.2.3     Details of typical Tower foundation, including cross-sections and details.  Show all ground attachments, specifications for anchor bolts and other anchoring hardware.

8.6.2.4.2.4     Detail proposed exterior finish and camouflage of the tower.

8.6.2.4.2.5     Indicate height of the Tower relative to the tops of surrounding trees as they currently exist.

8.6.2.4.3     Proposed Communications Equipment Shelter.

8.6.2.4.3.1     Floor Plans, elevations and cross sections at a scale of no smaller than ¼“=1’ (1:48) of any proposed appurtenant structure.

8.6.2.4.3.2     Representative elevation views, indicating the roof, facades, doors and other exterior appearances and materials.

8.6.2.4.4     Proposed Equipment Plan.

8.6.2.4.4.1     Plans, elevations, sections and details at appropriate scales but no smaller than 1”=10’.

8.6.2.4.4.2     Numbers of Antennas and Repeaters (if any), as well as the exact locations of all Repeaters (if any) located on a map as well as by Degrees, minutes and seconds of Latitude and Longitude.

8.6.2.4.4.3     Mounting locations on Tower or structure, including height above ground.

8.6.2.4.4.4     Antenna type(s), manufacturer(s) model number(s).

8.6.2.4.4.5     For each Antenna, the Antenna gain and Antenna radiation pattern.

8.6.2.4.4.6     Number of channels per Antenna, projected and maximum.

8.6.2.4.4.7     Power input to Antenna(s).

8.6.2.4.4.8     Power output, in normal use and at maximum output for each Antenna and all Antennas as an aggregate.

8.6.2.4.4.9     Output frequency of the Transmitter(s).

8.6.2.5     Details of proposed method of financial surety as required in §8.13.

8.6.2.6     A written, irrevocable commitment valid for the duration of the existence of the Tower, to rent or lease Available Space for co-location on the Tower at fair market prices and terms, without discrimination to other Personal Wireless Service Providers.

8.6.2.7     Within thirty days after filing an application for any new tower, or extension in height thereto, the applicant shall arrange to fly a balloon at the proposed site, at the maximum height of the proposed installation, on a weekend day.  The balloon shall be of size and color that can be seen from every direction for a distance of one mile.  Applicant shall be responsible for posting the date and location of the balloon(s) as a legal advertisement at least 14 days, but not more than 21 days before the flights in at least two different issues of a newspaper with a general circulation in the Town of Cummington.

8.6.2.8     Written documentation from a provider of landlines indicating adequate landline capacity for the proposed installation.

8.6.3      Application Requirements for R.S.P.

The use of Repeaters to assure adequate Coverage or to fill holes within areas of otherwise adequate coverage, while minimizing the number of required Towers is permitted and encouraged.  An Applicant who has received and is in compliance with a current F/TSP under this Article, or an entity which is providing Personal Wireless Services to the Town of Cummington from a base station outside the Town, may apply for a RSP.  Applicants for RSP shall provide the following information:

8.6.3.1     Exact location (in Longitude and Latitude, to degrees, minutes, seconds) as well as by street address or Pole number (if applicable).

8.6.3.2     Ground elevation.

8.6.3.3     Type, manufacturer and model number of proposed Repeater.

8.6.3.4     Height of proposed Repeater above ground.

8.6.3.5     Proposed output frequency.

8.6.3.6     Proposed number of channels.

8.6.3.7     Proposed power input.

8.6.3.8     Proposed maximum power output per channel.

8.6.3.9     Radial plots from any proposed Repeater(s), configured as documented above, shall be provided as part of the Application.

8.6.3.10    Photo or drawing of proposed Repeater.

8.6.3.11    Name, address, phone number, and written consent to apply for this permit, of the owner of the property on which the proposed Repeater shall be located, and of the owner(s) of the Tower or structure on which the proposed Repeater shall be located.

8.6.3.12    Proposed Repeater Site layout, grading and utilities at a scale no smaller than 1”=40’ (1:480 or metric equivalent 1:500)showing the entire vicinity within 300’ radius of the Repeater site with topography drawn with a minimum of 2’ (0.6 meter) contour interval.

8.6.3.13    Proposed Repeater location and appurtenances, if any, and any accessory building (Communication Equipment Shelter or other).  The site plan shall include the location of all abutting properties within 300’ of the tower property and names of current owners of each.

8.6.3.14    Limits of areas where vegetation is to be cleared or altered, and justification for any such clearing or alteration.

8.6.3.15    Plans of any proposed access driveway or roadway and parking area at the Repeater site.  Include grading, drainage and traveled width.  Include a cross section of the access drive indicating the width, depth of gravel, and paving or surface materials.

8.6.3.16    Written documentation from a provider of landlines indicating adequate landline capacity for the proposed installation.

8.7      General Requirements For Issuance of F/TSP (s).

8.7.1      Provision of Service - No new facility or tower shall be permitted unless the SPGA finds that Applicant cannot provide Adequate Coverage and Adequate Capacity from existing Facility Sites, either controlled by Applicant or on which Applicant could reasonably co-locate.  A Special Permit shall not be granted for a Tower to be built on speculation.  If Applicant is not, itself, simultaneously installing a Personal Wireless Service Facility on the Tower, it shall provide a copy of its existing lease/contract with a Personal Wireless Service Provider.  Said Provider shall provide all necessary data to comply with the terms of this Article, as part of Applicant’s application for a F/TSP, or the Special Permit shall not be granted.  If primary coverage (greater than 50%) from proposed Wireless Service facility were outside Cummington, then the permit may be denied.  Repeaters shall be required in areas deemed not to have Adequate Coverage within the Coverage Area.

8.7.2      Environmental Conditions.

8.7.2.1     In general, Towers and Personal Wireless Service Facilities shall be located so as to provide adequate coverage and Adequate Capacity with the least number of Towers and Antennas, which is technically and economically feasible.

8.7.2.2     In furtherance of the above, the following locations are ranked in order of preference:

8.7.2.2.a     The use of Repeaters to provide Adequate Coverage without requiring new Tower(s).

8.7.2.2.b     Shared use of existing Personal Wireless Service Facilities.

8.7.2.2.c     The use of land distant from higher-density residential properties, where visual impact is minimized.

8.7.2.2.d     The use of municipal lands complying with other requirements of this Article, where visual impact can be minimized and mitigated.

8.7.2.3     Those towers that are necessary shall minimize, to the extent feasible, adverse visual impacts on the environment.  The SPGA may impose reasonable conditions to ensure this result, including but not limited to, requiring the use of camouflage, painting, lighting standards and screening, or the mimicking of a tree or other appropriate object.  Towers shall be sited off ridgelines, and where their visual impact is least detrimental to highly rated scenic areas.  (See, for example, Massachusetts Landscape Inventory, M.G.L. Ch. 131, Sec 39A, conducted by Massachusetts Dept of Environmental Management, 1982).

8.7.2.4     A vegetated buffer strip of undisturbed trees of at least 200’ in depth (or less if determined by the SPGA to be sufficient), shall be retained as close to the Tower as possible, but in all cases there shall be no clearing at a distance in excess of 25 feet square from the base of the Tower except where the access drive is located.  The access drive shall be winding and well landscaped.  The base of the Facility shall not be visible form any public roadway.  If a Tower is proposed for an area without mature forest growth, it shall be camouflaged as determined by the SPGA.  This may include the requirement to plant a sufficient number of mature trees to adequately screen the base of the Tower and equipment shelters.

8.7.2.5     No Tower or Personal Wireless Service Facility with the exception of Repeaters shall be located within any of the following prohibited areas:

8.7.2.5.1     Massachusetts-or-federally regulated wetland.

8.7.2.5.2     Massachusetts Certified Vernal Pool.

8.7.2.5.3     The habitat of any State listed Rare or Endangered Wildlife or Rare Plant Species.

8.7.2.5.4     Within 100 feet horizontally from any Massachusetts regulated wetland.

8.7.2.5.5     Within 200 feet horizontally of the Outer Riparian Zone of any river or perennial stream, as defined in the Wetlands Protection Act and Regulations.

8.7.2.5.6     Within 500 feet horizontally from any Historic District or property listed or eligible to be listed on the state or federal Register of Historic Places, or site determined by the Massachusetts Historical Commission to be eligible for such listing.

8.7.2.5.7     Where the Facility would be visible from a Historic Site.

8.7.2.6     In addition to the above, Towers and Personal Wireless Service Facilities shall be located so as to minimize the following potential impacts:

8.7.2.6.1     Diminution of residential property values:  Siting shall be in areas of as low population density as possible.

8.7.2.6.2     Unsafe structural conditions and attractive nuisance.

8.7.2.6.3     Excessive electromagnetic radiation:  In case the Tower or Personal Wireless Service Facility is found in excess of the FCC guidelines.

8.7.3      Physical Plant.

8.7.3.1     Fencing.  The area around the Tower and Communication Equipment Shelter(s) shall be completely fenced for security within an area no greater than 25 feet square from the base of the Tower, and to a height of six feet, and gated.  Use of razor wire is not permitted.  Fencing shall be compatible with the scenic character of the Town and of abutting properties, and shall be approved by the SPGA.

8.7.3.2     Signs.  There shall be no signs except the following:  A sign no greater than two (2) square feet indicating the name of the Personal Wireless Service Facility’s owner(s) and a 24 hour emergency telephone number shall be posted adjacent to the entry gate.  In addition, “No Trespassing”, or other warning signs, may be posted on the fence.  All signs are subject to approval by the SPGA.

8.7.3.3     Communication Equipment Shelters and Accessory Buildings shall be designed to be architecturally similar and compatible with each other and with residential buildings on Main Street in Cummington, and shall be no more than 12 feet high.  The buildings shall be used only for the housing of equipment related to this particular site.  Whenever possible, the buildings shall be joined or clustered so as to appear as one building.

8.7.3.4     The minimum distance from the base of the wireless communication structure to any property line or road right-of-way shall be at least 1.5 times the height of the structure plus any attached wireless communication devices, to ensure an adequate fall zone.

8.7.3.5     New Towers shall not exceed the minimum height necessary as determined by the SPGA to provide Adequate Coverage from the Personal Wireless Service Facility(ies) proposed for use on the Tower, and shall in no event exceed 190 feet, or any lesser height, which according to FAA regulations would require placement of warning lights for aircraft.

8.7.3.6     Towers shall be located at least one and one half times their maximum structural height from any structure, excluding equipment shelter(s).

8.7.3.7     To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground.  At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of Personal Wireless Service Providers likely to utilize the site to provide services to the Town of Cummington and surrounding areas.

8.7.3.8     Unless required by the Federal Aviation Administration, no night lighting of Towers, or the Personal Wireless Service Facility, is permitted, except for manually operated emergency lights for use only when operating personnel are on site.

8.7.3.9     No Tower or Personal Wireless Service Facility that would be classified as a hazard to air navigation, as defined by the Federal Aviation regulations (Title 14 CFR) is permitted.

8.7.3.10    Tower(s) must be of a type, which will maximize potential sharing. Applicant must demonstrate the future utility of such structure for expansion of service to Applicant and to other future Applicants.

8.7.3.11    Commercial advertising shall not be allowed on any Antenna, Tower, or Accessory Building or Communication Equipment Shelter.

8.7.3.12    All towers shall be self-supporting.  There shall be no guide wires.

8.7.3.13    All Network interconnections shall be via landline.  Applicant shall demonstrate availability of adequate landline capacity as part of their application.

8.8      General Requirements for Repeater Special Permits.

8.8.1      No Repeater shall be located closer than 50 feet to an existing Dwelling Unit or less than 25 feet above ground.

8.8.2      The SPGA may require the use of screening, painting, or camouflage to reduce the visual impacts of Repeaters.

8.8.3      Repeaters shall be located so as to have the least impact on the views of the residents of the Town of Cummington.

8.9      Evaluation by Independent Consultants.

8.9.1      Upon submission of an application for any Special Permit under this Article, the Applicant shall pay a review fee determined by the SPGA, and submit an affidavit stating that the Applicant will pay all costs incurred in excess of this review fee.  The fee plus additional costs shall consist of all reasonable costs to be incurred by the SPGA for the employment of independent consultants.  The SPGA shall select the Independent Consultant(s) to assist in the review of the Application.  These Consultants shall each be qualified professionals with a record of service to municipalities in one of the following fields, as appropriate:  1) telecommunications engineering,  2) structural engineering,  3) monitoring of electromagnetic fields, and  4) other relevant fields of experience as determined by the SPGA.

8.9.2      Upon submission of a complete Application for any Special Permit(s) under this Article, the SPGA shall provide its Independent Consultant(s) with the full Application(s) for their analysis and review.

8.9.3      Applicants for any Special Permit(s) under this Article shall grant permission for the Town’s Independent Consultant(s) to conduct any necessary site visit(s), or obtain permission from the owner(s) of the proposed site(s) for any site visit(s).

8.10    Approval Criteria.

8.10.1    In acting on any Special Permit Application, the SPGA shall proceed in accordance with the procedures and time lines established for Special Permits in State law, this By-Law, and other applicable law.

8.10.2    In addition to the findings required by the Zoning By-Law for Special Permits generally, the SPGA shall make the following findings before granting the Special Permit:

8.10.2.1    Applicant is not already providing Adequate Coverage and/or Adequate Capacity within the Coverage Area.

8.10.2.2    An applicant already providing service in the Town of Cummington must be in full compliance with the terms of their existing F/TPS(s) or RSP(s) §8.10.2.3.

8.10.2.3    Applicant has agreed to rent or lease Available Space on the Tower, under the terms of a fair market lease, without discrimination to other Personal Wireless Service Providers.

8.10.2.4    Applicant is not able to use Existing Tower/Facility Sites in or around the Town of Cummington, either with or without the use of Repeaters, to provide adequate coverage and/or Adequate Capacity within the Coverage Area.

8.10.2.5    Proposed Personal Wireless Service Facility/Tower or Repeater will not be likely to have an undue adverse impact on historic resources, scenic views, residential property values, natural or man made resources.

8.10.2.6    Applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the towers and Facilities.

8.10.2.7    Emergency access to the site via the planned drive or roadway is adequate; the SPGA shall request and consider input from the Chiefs (or the designees) of Fire, Police and other Emergency services regarding this issue.

8.10.2.8    The proposal shall comply with FCC 96-326 and any and all other applicable FCC regulations, regarding emissions of electromagnetic radiation and that the required Monitoring program is in place and shall be paid for by the Applicant.

8.10.2.9    The General Requirements (Sections 8.7 and/or 8.8) have been met.

8.10.3    Any decision by the SPGA to deny an Application for a Special Permit under this Article shall be in conformance with Sec. 332 [47U.S.C.332] (7)(B)(ii)(iii) of the Act.  In that it shall be in writing and supported by substantial evidence contained in a written record.

8.11    Monitoring and Evaluation of Compliance.

8.11.1    Initial Monitoring.  It shall be a condition of any Special Permit granted under this By-Law that, in order to determine the Tower and Facility’s or Repeater’s radio frequency emissions and their compliance with FCC regulations, the Applicant shall, after the granting of a Special Permit and within 30 days of the date that Applicant’s Personal Wireless Service Facility (ies) or Repeater(s) begin(s) transmission, pay for an Independent Consultant, hired by the Town, to Monitor the levels of EMF radiation, around the proposed Facility and/or Repeater site(s).  The Independent Consultant shall use the Monitoring Protocol.  A report of the Monitoring result shall be prepared by the Independent Consultant and submitted to the Planning Board, Board of Selectmen, the Board of Health, the Zoning Board of Appeals, and the Town Clerk.

8.11.2    Ongoing Monitoring.  It shall be a condition of any Special Permit granted under this By-Law that in order to determine ongoing compliance with FCC regulation, after transmission begins, the owner(s) of any Personal Wireless Service Facility(s) or Repeater(s) located on any Facility or Repeater site shall pay for an Independent Consultant hired by the Town to conduct annual testing and monitoring of EMF radiation emitted from said Site, and to report results of said monitoring, as follows:

8.11.2.1    There shall be annual Monitoring of emissions by the Independent Consultant using actual field measurement of radiation utilizing the Monitoring Protocol.  This Monitoring shall measure levels of EMF radiations from the Facility Site’s primary Antennas as well as from Repeater Site(s) (if any).  A report of the Monitoring results shall be prepared by the Independent Consultant and submitted to the Planning Board, the Board of Selectmen, the Board of Health, the Zoning Board of Appeals, and the Town Clerk.

8.11.2.2    Any Major Modification of Existing Facility, or the activation of any additional permitted channels, or the reactivation of any facility, which has been idle for six months, shall be cause for new Initial Monitoring in accordance with §8.11.1.

8.11.2.3    Excessive Emissions.  Should the Monitoring of a Facility or Repeater Site reveal that the Site exceeds the FCC 96-326 standard, or any other applicable FCC standard, then the owner(s) of all Facilities utilizing that Site shall be so notified.  The owner(s) shall submit to the SPGA, Board of Selectmen, Board of Health and the Town Clerk a plan for the reduction of emissions to a level that complies with the FCC 96-326 standard and any and all other applicable FCC regulations within 10 business days of notification of non-compliance.  That plan shall reduce emissions to the applicable FCC standard within 15 days of initial notification of non-compliance.  Failure to accomplish this reduction of emission within 15 business days of initial notification on non-compliance shall be a violation of the Special Permit and subject to penalties and fines.  Such fines shall be payable by the owner(s) of the Personal Wireless Service Facilities with Antennas on the Facility Site, until compliance is achieved.

8.11.2.4    Structural Inspection.  It shall be a condition of the Special Permit that Tower owner(s) shall pay for an Independent Consultant (a licensed professional structural engineer), hired by the Town, to conduct inspections of the Tower’s structural integrity and safety.  Towers shall be inspected every five years.  The Independent Consultant shall prepare a report of the inspection results and submit it to the Board of Selectmen, the Planning Board, the Board of Health, the Building Inspector and the Town Clerk.  Any Major Modification of Existing Facility that includes changes to Tower dimensions or antenna numbers or type shall require new structural inspection.

8.11.2.5    Unsafe Structure.  Should the inspection of any tower reveal any structural defect(s), which, in the opinion of the Independent Consultant render(s) that Tower unsafe, the following actions must be taken.  Within 10 business days of notification of unsafe structure, the owner(s) of the Tower shall submit a plan to remediate the structural defect(s).  This plan shall be initiated within 10 days of the submission of the remediation plan, and completed as soon as reasonably possible.  Failure to accomplish this remediation of Structural defect(s) within 10 business days of initial notification shall be a violation of the Special Permit and subject to penalties and fines as a zoning violation.  Such fines shall be payable by the owner(s) of the Tower, until compliance is achieved.

8.12    Removal Requirements.

Any personal Wireless Service Facility or Repeater that ceases to operate for a period of one year shall be removed.  Cease to operate is defined as not performing the normal functions associated with the Personal Wireless Facility or Repeater and its equipment on a continuous and ongoing basis for a period on one year.  At the time of removal, the Facility or Repeater Site shall be remedied such that all Personal Wireless Service Facility or Repeater improvements, which have ceased to operate, are removed.  If all Facilities on a Tower have ceased to operate, the Tower shall also be removed, and the Facility or Repeater Site, including any access road(s), which lead to that Facility or Repeater Site from the main access road, shall be revegetated.  Existing trees shall only be removed with the written permission of the SPGA, and only if the SPGA determines such removal of trees to be necessary to complete the required removal of Personal Wireless Service Facility(s) or Repeater(s).  Police, Fire, and Emergency Services are specifically exempted from the above requirements.

8.13    Performance Guarantees.

8.13.1    Applicant shall, as a condition of the Special Permit:

8.13.1.1    Post a term insurance bond in a reasonable amount determined and approved by the SPGA.  This bond shall be in force to cover the costs of the remediation of any damage to the landscape that occurs during the clearing of the Site.  Also to cover the cost of removal of the Tower or Facility or Repeater from the Site, and remediation of the landscape, should the Facility or Repeater cease to operate.

8.13.1.2    Post a maintenance bond for the access road(s) site(s) and Tower(s) in amounts approved by the SPGA.

8.14    Fees and Insurance.

8.14.1    Towers, Personal Wireless Service Facilities and Repeaters shall be insured by the owner(s) against damage to persons or property.  The owner(s) shall provide a Certificate of Insurance to the SPGA and the Selectmen’s Office on an annual basis. For Towers, Facilities and Repeaters located on property owned by the Town of Cummington and the Town of Cummington shall be an additional named insured.

8.14.2    A schedule of fees for Personal Wireless Service Facility, Tower or Repeater permitting and renewal, any Monitoring of emissions and inspection of structures, and any other fees shall be established by the SPGA pursuant to M.G.L. c40A. §9.  This schedule may be amended from time to time.

8.15    Permit Expiration and Renewal.

8.15.1    Any Special Permit granted under this section shall lapse if the Applicant fails to begin construction on the Facility or Tower or Repeater within an eighteen-month period of said grant.

8.15.2    All Special Permits granted under this section shall be granted for five years. The SPGA shall upon application filed prior to the expiration of any five-year period renew said Special Permit for an additional five-year period.  If the SPGA determines that the Tower and/or Facility and /or Repeater so permitted shall have been and shall remain in compliance with all terms and conditions of this By-Law, and of any conditions placed upon the original Special Permit at the time of granting.

8.16    Severability Clause.

The invalidity of any section or provision of this By-Law shall not invalidate any other section or provision hereof.

8.17    Moratorium.

Upon the effective date of this By-Law the moratorium imposed on the acceptance and processing of applications for land use permits for personal wireless services facilities established by Cummington Zoning By-Law 5.D.1 is repealed, provided however, that if this By-Law or any portion of this By-Law is held to be void for any reason, the moratorium established in Cummington Zoning By-law 5.D.1 shall be reinstated for a period of six months to allow the Town of Cummington to formulate and pass new provisions.

SECTION 9.     SIGN BY-LAW.

9.1      Purpose.

9.1.a      The purpose of the sign regulations set forth in this By-Law shall be the following:

9.1.a.1     To promote local businesses’ ability to advertise.

9.1.a.2     To encourage signs which, by their location and design, are harmonious with the buildings and sites which they occupy, and which eliminate excessive and confusing sign display.

9.1.a.3     To protect public and private investments in buildings and open spaces.

9.1.a.4.    To eliminate potential hazards to motorists and pedestrians and promote public safety.

9.2      Applicability.

9.2.a      The provisions of this By-Law shall apply to the construction, alteration, location and maintenance of all signs located out-of-doors, including those signs affixed to any part of the building.

9.3      Definitions.

9.3.a      Sign:  Any permanent or temporary structure, banner or other device used as an advertisement, announcement, or direction, or which is designed to attract the eye by any means, including any supporting structure or bracing.

9.3.b      Sign, Accessory:  Any sign that advertises, or identifies the occupant of the premises on which the sign is erected or maintained, the businesses transacted thereon, or the products or services available thereon, or which advertise the premises itself or any part thereof for sale or rent.

9.3.c      Sign, Awning:  A sign painted on or attached to the cover of a movable metallic frame, of the hinged, roll, or folding type of awning.

9.3.d      Sign, Free-Standing: A self-supporting sign not attached to any building, wall, or fence, but in a fixed location.  This does not include portable or trailer type signs.

9.3.e      Sign, Movable:  A sign capable of being readily moved or relocated, including portable signs mounted on a chassis and wheels, or supported by legs.

9.3.f      Sign, Multiple Listings:  a group of signs clustered together in a single structure or compositional unit.

9.3.g      Sign, Non-Accessory/Billboard:  Any sign which advertises or identifies any business product or service which is not located on the same premises on which the sign is erected or maintained, or which advertises the sale or rent of different premises.

9.3.h      Sign, Projecting:  A sign which is affixed to a building, tree, or other structure and which extends more than six (6) inches beyond the surface to which it is affixed.

9.3.i       Sign, Roof:  A sign which is located above the lowest point of the eaves or the top of the parapet wall of any building, or which is painted on or fastened to a roof.

9.3.j       Sign, Temporary:  Any sign, including its support structure, intended to be maintained for a continuous period of not more than thirty (30) days in any calendar year.

9.3.k      Sign, Wall:  Any sign which is painted on, incorporated into, or affixed parallel to the wall of a building, and which extends not more than six (6) inches from the surface of that building.

9.4      Sign Area.

9.4.a      The area of a sign shall be considered to include all lettering, wording, and accompanying designs and symbols, together with the background on which they are displayed, any frame around the sign and any “cutouts” or extensions, but shall not include any supporting structure or bracing.

9.4.b      The area of a sign consisting of individual letters or symbols attached to or painted on a building, wall or window, shall be considered to be that of the smallest quadrangle, a triangle or circle that encompasses all of the letters and symbols.

9.4.c      The area of a sign consisting of a three-dimensional object shall be considered to be the area of the largest vertical cross-section of that object.

9.4.d      In computing the area of signs, one side of back-to-back signs shall be included.

9.5      General Regulations.

9.5.a      Permitted Signs.

9.5.a.1     Only signs which are accessory to uses permitted by right or by Special Permit in the Town of Cummington Zoning By-Laws are permitted, provided such signs conform to the provisions of this section.

9.5.b      Prohibited Signs.

9.5.b.1     Billboards, except temporary signs as defined in 9.3.j that otherwise conform to these By-Laws, are not permitted.

9.5.b.2     Flashing signs and signs containing reflective elements which sparkle in the sunlight, are not permitted.  Fairs and Carnivals are exempted.

9.5.b.3     Any sign advertising or identifying a business or organization, which is either defunct or no longer located on the premises is not permitted.

9.5.b.4     In no case shall any sign exceed 48 square feet.

9.6      General Standards.

9.6.a      Any exterior sign or advertising device erected or maintained must conform to the following restrictions in all districts:

9.6.a.1     Any traffic, informational or directional sign owned and installed by a governmental agency shall be permitted.

9.6.a.2     Limitations as to the number of signs permitted do not apply to traffic or directional signs which are necessary for the safety and direction of persons, whether in a vehicle or on foot.

9.6.a.3     No private sign shall be placed permanently on public property.

9.6.a.4     Signs necessary to warn of a hazard or to post land shall be permitted as required to accomplish these purposes.

9.6.a.5     Sign Construction (permanent):  Sign materials should be durable and safe.

9.7      Placement Standards/Sign Height.

9.7.a      Free-standing or movable signs cannot extend more than ten (10) feet above the highest surrounding ground level.  The Zoning Board of Appeals may allow, by Special Permit, a sign height greater than ten (10) feet in circumstances where the physical characteristics of the lot prevent adequate setback from public ways and/or a lower sign would create a potential traffic safety hazard.

9.7.b      No sign, together with any supporting framework, shall extend to a height above the maximum building height allowed in the district.

9.7.c      Signs shall be placed at least fifteen (15) feet from any lot line and shall be placed, if possible, a minimum of fifteen (15) feet from any public way, and placed so as not to obstruct the view of traffic.

9.8      Illumination Standards.

9.8.a      No sign shall incorporate, flashing or blinking lights, or be designed to attract attention by repeated motion.

9.8.b      No signs shall be illuminated between the hours of 11 p.m. and 6 a.m. unless the premise on which it is located is open for business.

9.8.c      The light source shall, to the extent possible, confine illumination to the sign area only.

9.9      Additional Standards for Specific Types of Signs.

9.9.a      Awning Signs.

9.9.a.1     Awning signs must be painted on or attached flat against the surface of the awning, but not extend beyond the physical limits of the awning.

9.9.b      Construction Signs.

9.9.b.1     One (1) unlighted, temporary sign of an architect, engineer, or contractor erected during the period such person is performing work on the premises on which such sign is erected, shall be permitted, provided: it shall not exceed sixteen (16) square feet in surface area; and, it shall be set back at least ten (10) feet from the street lot line.

9.9.c      For Sale, Rent, or Lease Signs.

9.9.c.1      Any temporary sign advertising property for sale or lease shall be permitted provided:

9.9.c.1.i      Only one unlighted sign shall be erected on the property for sale or lease, it shall not exceed sixteen (16) square feet, and it shall be set back at least (ten) 10 feet from the street lot line.

9.9.c.1.ii      Such signs shall advertise only the property on which the sign is located, except for temporary signs giving directions to “open houses”.

9.9.c.1.iii     All signs must be removed by the owner or agent within fifteen (15) days of rent, sale, or lease.

9.9.d      Moveable Signs.

9.9.d.1     Moveable signs, other than temporary signs, should not be over six (6) feet in total height and shall only be allowed by Special Permit issued by the Zoning Board of Appeals.

9.9.e      Multiple Signs.

9.9.e.1     A multiple sign may be used to advertise several occupants of the same building or building complex or development, provided that there is some unifying theme as to the size or shape of the individual signs that comprise the multiple sign unit, but each advertiser would not be restricted as to graphics.

9.9.f      Commercial Event Signs.

9.9.f.1      Temporary signs relating to an event of a commercial nature that is expected to be completed within a reasonably short or definite period may be erected provided such signs are erected no sooner than fourteen (14) days before the event and removed not later than seven (7) days after the event.

9.10    Enforcement.

9.10.a    The Zoning Enforcement Officer is authorized to order the repair or removal of any sign and supporting structure, which is erected or maintained contrary to this By-Law.

9.10.b    Maintenance and Removal.

9.10.b.1    Every sign shall be maintained in good structural condition at all times.  All signs shall be kept neatly painted, including all metal parts and supports thereof that are not galvanized or of rust resistant material.

9.10.c    Abandoned Signs.

9.10.c.1    Except as otherwise provided in the By-Law, any sign that is located on property which becomes vacant and is unoccupied for a period for six (6) months or more, or any sign which pertains to a time, event or purpose which no longer applies, shall be deemed to have been abandoned.  Permanent signs applicable to a business temporarily suspended because of a change of ownership or management of such business shall not be deemed abandoned, unless the property remains vacant for period of six (6) months or more.  An abandoned sign is prohibited and must be removed by the owner of the property.

9.10.d    Non-Conforming Signs.

9.10.d.1    Continuance:  A non-conforming sign lawfully existing at the time of adoption or subsequent amendment of this By-Law may continue even though such sign does not conform to the provisions of this By-Law, except for signs blocking drivers’ view of the road.  These must be removed immediately.  No sign shall be allowed to remain in a dangerous or defective condition.

9.10.d.2    Replacement:  Any sign replacing a non-conforming sign shall conform to the provisions of this Section, and the non-conforming sign shall no longer by displayed.

9.10.d.3    The Zoning Board of Appeals shall have the discretion to allow the erection of non-conforming signs.  Permits for non-conforming signs may be granted on a case-by-case basis after review by the Zoning Board of Appeals.

SECTION 10.   FLEXIBLE RESIDENTIAL OPEN SPACE DEVELOPMENT.

1.1      Applicability.

Flexible Residential Open Space Development in accordance with this By-Law shall be allowed By-Right in the Rural Residential and Village zoning district, except not in the Floodplain Overlay District.  Flexible Residential Open Space Development shall mean a residential development in which single-family residences are clustered together, adjacent to permanently preserved open space.  Flexible Residential Open Space Development shall be encouraged within the town, and shall be the preferred method of subdivision development wherever the following purposes would be served.

1.2      Purposes.

The purposes of Flexible Residential Open Space Development are:

1.2.1      To allow for greater flexibility and creativity in the design of residential subdivisions, provided that the overall density of the development is no greater than what is normally allowed in the district.

1.2.2      To encourage the permanent preservation of open space, agricultural lands, forestlands and other natural resources and encourage a less sprawling form of development that consumes less open land.

1.2.3      To maintain the traditional New England rural character and land use pattern in which small villages contrast with open space and farmlands.

1.2.4      To facilitate the construction of streets, utilities and public services in a more economical and efficient manner.

1.2.5      To ensure that residential developments respect the natural features of the land including wetlands, watercourses, forests, prime agricultural land, steep slopes, plants, wildlife, historic sites, scenic views, and rural character.

1.2.6      To encourage development out of view from the road, and promote alternatives to strip residential development lining roadsides in the town.

1.2.7      To provide wildlife corridors connecting open spaces, needed by wildlife to ensure their survival.

1.3      Definitions.

Common Area:  Any land area, other than Open Space, set aside for common ownership as a result of an FROSD, including areas Common Facilities.

Common Facilities:  Built facilities, which are commonly owned by the property owners within an FROSD.  Common Facilities may be proposed but are not required.  They may include but not be limited to:  streets, rights of way, common buildings, wells, water and waste treatment systems, and recreation facilities.

Flexible Residential Open Space Development (FROSD):  A form of residential development where the density of the dwelling units is no greater than would be permitted in the district where the FROSD is located, but where the lot size and other dimensional standards may be reduced in exchange for the preservation of permanently protected open space, recreational land, forests, or other farmland.

Homeowner’s Association:  A private organization (corporation, association, or other legal entity) established by the developer to manage, maintain, support, and finance the common facilities and common area of an FROSD, and to enforce certain covenants and restrictions.

Open Space:  Undeveloped land set aside for common ownership as a result of an FROSD, with conservation easements and other deeded restrictions to ensure that the land will remain permanently open and undeveloped.  A condition of FROSD approval is that open space may not be further subdivided.

Prime Agricultural Soils:  Agricultural land with soils designated as prime or of statewide significance by the U.S. Natural Resources Soil Service soil surveys.

Site Analysis Map:  A map, which identifies, locates, and describes noteworthy features to be designed around through sensitive subdivision layouts, such as vegetation, wetlands, steep slopes, farmland soils, historic or cultural features, threatened or endangered species, unusual geological formations, and scenic views or view sheds.

Title V Regulations:  310 CMR 15.000.

Voluntary Sketch Plan:  A simple and inexpensive drawing prepared by a professional landscape architect, architect, planner, site designer or engineer, which illustrates conceptual layouts of house lots, streets, conservation areas, and other improvements.

Wetlands:  Areas characterized by vegetation described in M.G.L., Chapter 131, Section 40.

Yield Plan:  A conceptual plan showing how the parcel could be subdivided in a conventional manner.  Determination of the possible number of conventional lots shall be determined by Title V regulations, 310 CMR 15.000.

1.4      Applicability.

1.4.1      Optional FROSD Submission:  In any residential subdivision consisting of ten (10) contiguous acres or more in single or consolidated ownership, an applicant may apply for an FROSD under this Article.  The minimum acreage may be waived by the Planning Board in instances where an applicant demonstrates that the criteria in Section 10.2 are met.

1.5      Application Requirements.

1.5.1      Existing Resources Site Analysis Map:  For all FROSD submissions, a map with the following features shall be submitted/presented to the Planning Board at a regularly scheduled meeting for the purpose of assessing the impact or implications of the development and shall be used in the preparation of a voluntary sketch plan or preliminary design plan.

1.5.1.1     Boundaries of wetlands defined by Massachusetts Wetlands Law CMR-140 and certified by a licensed wetlands professional engineer.

1.5.1.2     Location and limits of soils types, particularly Prime Agricultural Soils, consistent with the soils classification maps prepared by the US Department of Agriculture Soil Classification Service.

1.5.1.3     Areas where the depth of natural soil to bedrock is two (2) feet or less.

1.5.1.4     The extent of any Interim Wellhead Protection Areas and Recharge Areas.

1.5.1.5     Topographic contours at intervals of ten (10) feet or less.

1.5.1.6     Delineation of slopes of twenty-five percent (25%) or greater.

1.5.1.7     The location of cultural and historic features including, but not limited to, stonewalls on the boundary of the site and archaeological and historic sites and structures.  On sites of more than twenty (20) acres, interior stonewalls shall be shown.

1.5.1.8     Scenic view sheds defined on page 36 of the 2001 Cummington Open Space and Recreation Plan and as identified by on-site observations from public roads and vantage points.

1.5.1.9     Unique or special wildlife habitats as defined by Massachusetts BioMap Project developed by the Massachusetts Natural Heritage & Endangered Species Program.

1.5.1.10    Unique or special vegetative communities as defined by the 2001 Cummington Open Space and Recreation Plan.

1.5.2      Voluntary Sketch Plan.

1.5.2.1     For all FROSD submissions, a sketch plan may be submitted.  The intent of this provision is to assure the community that the applicant has considered site features when developing a subdivision plan.  A voluntary sketch plan is optional but highly encouraged as an important, valuable, and highly recommended step that will speed the review process and may result in lower costs for the project.

1.5.2.2     Sketch plan submission is strongly recommended by the municipality as a way of helping applicants and officials develop a better understanding of the property and to help establish an overall design approach that respects the community’s special or noteworthy features while providing for the density of lots permitted under the zoning ordinance.

1.5.2.3     A Sketch Plan may be submitted by the applicant as a diagrammatic basis for informal discussion with the Planning Board regarding the design of a proposed subdivision.  The diagrammatic Sketch Plan may be prepared as a simple overlay sheet placed on top of the Existing Resources/Site Analysis Map.

1.5.2.4     The Planning Board shall review the Sketch Plan in accordance with the criteria set forth in Section 1.5.3(2).  Approval of the Sketch Plan by the Planning Board may allow the applicant to waive Preliminary Development Plan submission requirements, if the applicant meets all of the review criteria standards set forth in Section 1.5.3(2).

1.5.2.5     To provide a full understanding of the site’s potential and to facilitate the most effective exchange with the Planning Board, the Sketch Plan should contain the following information:

1.5.2.5.a     Name and Address of legal owner, and/or the applicant.

1.5.2.5.b     Name and Address of the professional engineer, surveyor, planner, architect, landscape architect, or site designer responsible for preparing the plan.

1.5.2.5.c     Graphic scale not greater than 1 inch = 200 feet, and north arrow.

1.5.2.5.d     Approximate tract boundaries.

1.5.2.5.e     Location map.

1.5.2.5.f      Zoning District.

1.5.2.5.g     Streets on and adjacent to the tract (both existing and proposed)

1.5.2.5.h     100-year floodplain limits and location of wetlands.

1.5.2.5.i      Topographic, physical, and cultural features, including fields, pastures, meadows, wooded areas, significant vegetation, steep slopes, stone walls.

1.5.2.5.j      Proposed general street and lot layout.

1.5.3      Preliminary Development Plan Submission.

1.5.3.1     For all FROSD submissions, a Preliminary Development Plan shall be submitted in conformances with the Town of Cummington Subdivision Control Laws.  Applicants shall submit a conventional subdivision design and an alternative Flexible Residential Open Space Development design to the Planning Board for review prior to development of a Definitive Plan.  Approval of the Preliminary Plan by the Planning Board will be based on the review criteria standards set forth in Section 10.5.3(2).

1.5.3.2     Review Criteria Standards:  The Planning Board shall review the Preliminary Development Plan in accordance with the criteria contained in this By-Law and with other applicable ordinances of the Town of Cummington.  The Review shall informally advise the applicant to t he extent to which the proposed subdivision or land development conforms to the relevant standards of this By-Law and may suggest possible plan modifications that would increase its degree of conformance.  The Review shall include, but is not limited to:

1.5.3.2.a     The location of all areas proposed for land disturbance (streets, foundations, yards, septic disposal systems, storm water management areas, etc.) with respect to notable features of natural or culturally significance as identified on the applicants Existing Resources/Site Analysis Map.

1.5.3.2.b     The potential for street connections with existing streets, other proposed streets, or potential developments of adjoining parcels.

1.5.3.2.c     The location of proposed access points along existing road networks.

1.5.3.2.d     The proposed building density and areas of impervious surface.

1.5.3.2.e     The compatibility of the proposal with respect to the objectives and policy recommendations of the Open Space and Recreation Plan and Community Development Plan.

1.5.3.2.f      Consistency with the Town of Cummington’s Zoning By-Laws.

1.5.4      Definitive Development Plan Submission:  For all FROSD submissions, a final Definitive Development Plan shall be submitted in conformance with this section and the Town of Cummington Subdivision Regulations as applicable.  Such Plans shall adequately address standards delineated in this By-Law.  In addition, the Definitive Development Plan shall address issues that have been previously discussed in the Existing Resources/Site Analysis Map.

1.6      Subdivision Approval Procedures.

1.6.1      Application for Open space development projects shall follow all procedures specified in the Town of Cummington Subdivision Regulations.

1.6.2      The Planning Board shall submit copies of the preliminary and final subdivision plans to the Board of Health, Conservation Commission, Highway Department, Chief of Police, Fire Chief, Historical Commission who shall review the application and submit their recommendations and comments to the Planning Board concerning:

1.6.2.1     The completeness and adequacy of the data and methodology used by the applicant to determine the impacts of the proposed development.

1.6.2.2     The effects of the projected impacts of the proposed development.

1.6.2.3     Recommended conditions or remedial measures to accommodate or mitigate the expected impacts of the proposed development.

Failure of Boards, listed in Section 1.6.2 to make recommendations within 30 days of the referral of the application shall be deemed to be lack of opposition.

1.7      Dimensional Standards.

1.7.1      Allowed Density.

1.7.1.1     The maximum number of dwelling units for an FROSD subdivisions shall be determined by use of a yield plan, which is a conceptual plan showing how the parcel could be subdivided in a conventional manner.  Determination of the possible number of conventional lots shall be determined by Title V regulations. 310 CMR 15.000.  For purposes of determining the number of FROSD dwelling units, each conceptual conventional lot must meet the requirements of a buildable lot for a single family dwelling unit as defined in the zoning district in which the FROSD is located and meet all other applicable requirements of the Zoning By-Law and Subdivision Regulations.  The Planning Board shall applicable requirements of the Zoning By-Law and Subdivision Regulations.  The Planning Board shall adopt regulations that provide for the generation of a yield plan in accordance with this section.

1.7.1.2     There shall be no further subdivision of an approved FROSD.

1.7.2      Flexible Dimensional Controls.

1.7.2.1     Frontage.

1.7.2.1.a     The minimum frontage for a tract on which an FROSD is proposed shall be a contiguous one hundred (100) feet and provide safe access for a right-of-way of at least fifty (50) feet.

1.7.2.1.b     In the interest of flexibility and creative site designs, the Planning Board can waive minimum frontage requirements for individual lots on new subdivision streets within a FROSD.

1.7.2.1.c     For each lot developed along a public street existing at the time of the application, the minimum frontage, minimum lot size and all other dimensional controls shall be those which are required in the underlying zoning district in which the FROSD is located.

1.7.2.2     Lot Size.  The minimum lot size for lots within a FROSD shall be 30,000 square feet.

1.7.2.3     Setbacks.  There shall be a minimum setback of twenty-five (25) feet along all property boundaries of the tract for all structures, including accessory structures, parking areas, driveways and internal streets.  Entrance streets connecting the FROSD to the external street system may cross the setback area.

1.7.2.4     Landscaped Buffers.

1.7.2.4.a     Landscaped buffer no less than fifty (50) feet deep shall be provided where appropriate to screen the development from public streets and adjacent properties.  Entrance streets connecting the FROSD to the external street system may cross the buffer area.  The natural vegetation shall be retained whenever possible.  If the natural vegetation is not sufficient to serve as an effective visual screen, landscaping may be required to provide such a screen, subject to the approval of the planning board.  Landscaping may include berms and / or decorative fencing of an appropriate height, and shall be installed under the conditions set forth in the Cummington Subdivision Regulations.

1.7.2.4.b     This buffer area shall be part of the common area, and shall be subject to the same restrictions that apply to that area.

1.7.2.4.c     Frontage lands on streets existing at the time of application shall be preserved as buffers to the maximum extent possible in addition to all required setbacks.

1.8      Utility Requirements.

1.8.1      On-site Sewage Disposal.  The following standards shall apply to developments requiring on-site sewage disposal:

1.8.1.1     The applicant shall submit a septic system design prepared by a certified engineer and approved by the Board of Health and a plan illustrating the location of water supply wells with the application.

1.8.1.2     All Flexible Residential Open Space Developments must meet the minimum state Environmental Code (Title V) requirements for minimum setbacks between private water supply wells and septic tanks or soil absorption systems (310 CMR 15.211).

1.8.1.3     All Flexible Residential Open Space Developments must meet the minimum state Environmental Code (Title V) requirements for nitrogen loading limitations (310 CMR 15.214-15.217).  For FROSD with individual lot sizes less than 40,000 square feet, applicants must meet the following standards:

1.8.1.3.a     Applicants must designate, on a plan, specific areas of common open space as “nitrogen credit land”.

(40,000 square feet x (times) number of lots) – (minus) (total square feet in proposed Open Space lots) = (equals) square feet of required nitrogen credit land in common open space.

1.8.1.3.b     Nitrogen credit land must meet DEP qualifications contained in “Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading (310 CMR 15.216) including, but not limited to, the following qualifications:

1.8.1.3.b.i      Must be restricted to prohibit man-made sources of nitrogen, including sewage discharge, nitrogen-based fertilizer or raising and grazing of livestock;

1.8.1.3.b.ii     Must be restricted to prohibit artificially rendered imperviousness (i.e. paved streets, paved parking lots, buildings, structures, etc).

1.8.1.3.b.iii     Not within a Velocity Zone or Regulatory Floodway identified by FEMA.

1.8.1.3.b.iv     Not under surface water.

1.8.1.3.b.v     Not already being used as nitrogen credit land.

1.8.1.3.c     All designated nitrogen credit land must be permanently restricted from further development under a “Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land”.

1.8.1.4     After approval of the Flexible Residential Open Space Final Subdivision Plan, applicant must apply to the Board of Health and the Mass. Department of Environmental Protection (DEP) for aggregate determination of nitrogen lading under 310 CMR 15.216.

1.8.1.5     It is required that septic tanks be installed on individually owned lots.  Nitrogen Credit Land must be at least 100 feet from all private wells.

1.8.2      Water Supply.

In order to meet state Title V requirements for separation distances between drinking water wells and septic systems, private drinking water supply wells may be located in the common open space for a Flexible Residential Open Space Development, provided that the provisions of Section 10.11 for a homeowners’ association are met.

1.9      Fire Suppression

1.9.1      Fire Suppression Cisterns.

The developer may be required to install a fire cistern(s) for fire suppression with the FROSD.  The Fire Chief shall determine the appropriate size and location of the fire cistern(s).

1.9.2      Residential Sprinkler Systems.

The developer may be required to be install fire sprinkler systems for all residential units with the FROSD.

1.9.3      Final Determination.

The final determination of whether a proposed FROSD shall utilized fire suppression cisterns or residential sprinkler system shall be determined by the Fire Chief.

1.10    Common Open Space.

1.10.1    Common Open Space Requirements.

1.10.1.1   A minimum of 50% of the total development parcel must be permanently protected as common open space.  At least 70% of the common open space shall be retained in contiguous areas, unless approved by the Planning Board.

1.10.1.2   Watercourses, lakes, ponds, wetlands and steep slopes over 25% may not be included in common open space calculations.

1.10.1.3   All common areas, and common facilities shall be reasonably accessible to all residents of the development.

1.10.2 Land Protection Methods for Common Open Space.

1.10.2.1   All land not developed to buildings, lots, roads and other development shall be permanently protected as common open space for recreation, preservation, and forestry or agricultural uses which preserve the land in its natural condition.

1.10.2.2   Further subdivision of common open land or its use other than recreation, preservation, forest or agriculture, except for easements for underground utilities or drinking water supply wells, shall be prohibited.

1.11    Additional Requirements.

1.11.1 Trails:  Where there is an existing local or regional trail network on land adjacent to a proposed FROSD, the developer of the FROSD is encouraged to connect to the existing trail network with trail corridors through the site, and grant the general public access to these trails in perpetuity.

1.11.2 Open Space:  Where there is an existing network of open space or large tracts of unfragmented open space on land adjacent to a proposed FROSD, the developer of the FROSD is encouraged to connect to the existing open space where feasible with the required open space set-aside, and grant the general public access to this open space in perpetuity.

1.11.3 View Shed and Viewpoints:  The developer is encouraged to protect in perpetuity view sheds and associated viewpoints, which are lands or corridors of land that contribute to the visual landscape of the Town, including items such as open fields containing stonewalls.  View sheds and viewpoints include, but are not limited to, those identified in the most current version of the Cummington Community Development Plan.

1.11.4 Historic Features:  The developer is encouraged to protect historically significant buildings and landscapes, identified as such in the Community Development Plan, that include buildings and associated uses that are maintained and visually separated from the developed portion of the FROSD.  Structures or landscapes not identified as such through the Community Development Plan may be determined by sufficient evidence presented to the Planning Board during review of the development.  Such evidence may include comment from the Cummington Historical Commission, listing or eligibility for listing on the National Register of Historic Landmarks, or other qualified statements of historic value.

1.12    Affordable Housing.

1.12.1 Definitions.

Affordable Housing Unit:  A dwelling unit that is affordable to and occupied by a low or moderate income household and meets the requirements of the Local Initiative Program or other requirements for inclusion on the Chapter 40B Subsidized Housing Inventory.

Affordable Housing Restriction:  A covenant agreement, deed restriction, or other legal instrument, acceptable in form and substance to the Town of Cummington, that effectively restricts occupancy of an affordable housing unit to a qualified purchaser or qualified renter, and which provides for administration, monitoring and enforcement of the restriction during the term of affordability.  An affordable housing restriction shall run with the land in perpetuity or for the maximum period of time allowed by law, so as to be binding on and enforceable against any person claiming an interest in the property.  An affordable housing restriction shall be enforceable under the provisions of M.G.L. c.184, Section 32, and be approved by the Department of Housing and Community Development.

Local Initiative Program:  A program administered by the Massachusetts Department of Housing and Community Development (DHCD) pursuant to 760 CMR 45.00 to develop and implement local housing initiatives that produce low-and moderate-income housing.

Low-or Moderate Income Household:  A household with income at or below 80% of area median income, adjusted for household size, for the metropolitan or non-metropolitan area that includes the Town of Cummington as determined annually by the United States Department of Housing and Urban Development (HUD).

Maximum Affordable Purchase Price or Rent:  A selling price or monthly rent, exclusive of utilities, that meets the maximum purchase price or rent guidelines of the Local Initiative Program or other programs qualifying dwelling units for inclusion on the Subsidized Housing Inventory.

Qualified Purchaser:  A low or moderate income household that purchases and occupies an affordable housing unit as its principal residence.

Qualified Renter:  A low or moderate income household that rents and occupies an affordable housing unit as its principal residence.

Subsidized Housing Inventory:  The Department of Housing and Community Development Chapter 40B Subsidized Housing Inventory as provided in 760 CMR 31.04.

1.12.2    Number of Units to be Provided:  All developments of 10 units or more which are subject to this By-Law shall be required to set aside a minimum of twenty percent (20%) of the total number of dwelling units provided as affordable housing.  In determining the allowed number of lots, fractions over may be increased to the nearest whole unit, and fractions under may be decreased to the nearest whole unit.

1.12.3    The affordable units to be provided shall be equivalent in size, quality, and characteristics to the other units in the development.  The units shall not be grouped together; they shall be distributed among all units.

1.12.4 Preservation of Affordability; Restrictions on Resale.

1.12.4.1   An affordable housing unit created in accordance with this By-Law shall be subject to an affordable housing restriction or regulatory agreement that contains limitations on use, resale and rents.  The affordable housing restriction or regulatory agreement shall meet the requirements of the Town and the Local Initiative Program or other programs qualifying dwelling units for inclusion on the Subsidized Housing Inventory, and shall be in force for the maximum period allowed by law.

1.12.4.2   The affordable housing restriction or regulatory agreement shall be enforceable under the provisions of M.G.L. c.184.

1.12.4.3   The Planning Board shall require that the applicant comply with the mandatory provision of affordable housing units and accompanying restrictions on affordability, including the execution of the affordable housing restriction or regulatory agreement.

1.12.5 All documents necessary to ensure compliance with this By-Law shall be subject to the review and approval of the Planning Board and review as to form by Town Counsel.  Such documents shall be executed and recorded prior to and as a condition of the issuance of any Certificate of Occupancy unless later recording is permitted by the Planning Board for good reason.

1.13    Homeowners’ Association.

1.13.1 In the event that ownership of the land will remain with the homeowners in the Flexible Open Space Residential Development, homeowners’ association shall be established, requiring membership of each lot owner in the Open Space development.

1.13.2 The association shall be responsible for the permanent maintenance of all common lands, common open space, recreational and thoroughfare facilities (not including drinking water wells), except where such responsibility is assumed by another owner of the common land (land trust or conservation organization).  If any drinking water well is located on common open space, the homeowner(s) shall own the well and be responsible for any maintenance or related costs associated with their well.

1.13.3 A homeowners’ association agreement or covenant will guarantee continuing maintenance of such common areas and facilities, and assessing each lot a share of maintenance expenses shall be submitted with the final subdivision application.  Where no homeowners’ association is proposed, an alternative plan shall be submitted with the final subdivision application.

1.13.4 Such agreement shall be subject to the review and approval of Town Counsel and the Planning Board, and shall be recorded in the Hampshire County Registry of Deeds.  Such agreements or covenants shall provide that in the event that the association fails to maintain the common open land in reasonable order and condition in accordance with the agreement, the town may, after notice to the association and public hearing, enter upon such land and maintain it in order to preserve taxable values of the properties within the development and to prevent the common land from becoming a public nuisance.  The covenants shall also provide that the cost of such maintenance by the town shall be assessed equally against each of the properties within the development.

1.14    Conflict with Other Laws.

In the event of a conflict between this By-Law and any such laws and regulations, the provisions of this By-Law shall control, provided that they are consistent with state and federal law.

1.15    Severability.

If any portion of this By-Law is declared to be invalid, the remainder shall continue to be in full force and effect.